Justice Alan Halloway v Cowan & Ors (SC 4 of 2011) [2011] SLSC 9 (8 April 2011)

51 S.C. 4/2011 IN THE SUPREME COURT OF SIERRA LEONE IN TH E M ATTER OF THE CONSTITUTION OF SIERRA LEONE V A CTN O .6 OF 1991 SECTIONS 127fl-4); 1 2 4 :137I5A); 135(3-51: m i M u M M U AND (D: AND (2): 147(1-4): 14Sfl-3): 149(1-41 AND 146 AND IN TH E M ATTER OF THE OMBUDSMAN ACT NO.2 OF 1997. SECTIONS 4rA&B) AND 7-15 OF THE SAID ACT IN THE M ATTER OF THE SIERRA LEONE GAZETTE VOL. CXLI THURSDAY 17T 1 1 JUNE. 2010 N0.44 GOVERNMENT NOTICE N 0173 PAGES 840/1 AND IN THE M ATTER OF THE EXERCISE OF TH E POWERS CONFERRED * - ON THE PRESIDENT BY SECTION 137 OF THE CONSTITUTION OF SIERRA LEONE 1991 TACT NO.6 OF 19911 TO SET UP AND DID SET UP A TRIBUNAL CONSTITUTING OF:­ , - (1) JU STICE EDMOND E. COWAN - CHAIRMAN (2) W ARDSW ORTIIFILO JONES - MEMBER (3) ROLAND E. CAESAR - MEMBER (4) JO SEPH GOMOI-VANDI-KOBBA - M EM BER 1 • ■ ’ * . . ' ' ' * 2A. TO INQUIRE INTO THE QUESTION OF THE REMOVAL OF JUSTICE ALUS.INE.SES AY AND JUSTICE ALLANS. HALLO WAY, DOTH OF W HOM ARE JUDGES OF THE SUPERIOR COURT OF JUDICATURE AND TO REPORT TO THE PRESIDENT THE FACTS AD THE FINDINGS THEREOF. AND B. RECOMMENDATION TO THE PRESIDENT W HETHER JU STICE ALUSINE S E S \Y AND JUSTICE ALLAN B. HALLO WAY OUGHT TO REMOVED FROM OFFICE lo o 3. THE TRIBUNAL SHALL COMMENCE ITS PROCEEDINGS ON THE 29™ DAY OF JUNE, 2Q10 AND SH ALL STT IN FREETOW N OR SUCH OTHER PLACE IN SIERRA LEONE AS THE TRIBUNAL MAY DETERMINE 4. THE TRIBUNAL SHALL REGULATE THE PRO CEDI? RE FOR TH E PROCEEDINGS 5. THE TRIBUNAL SHALL SUBMIT ITS REPORT W ITHIN SIX WEEKS OF THE COMMENCEMENT OF THE PROCEEDINGS. MADE AT FREETOW N THE 10™ DAY OF JUNE, 2010 BETWEEN: . JUSTICE ALLAN B. HALLOWAY PLAINTIFF AND / 1. JUSTICE EDMOND E. COWAN 2. WORDSW ORTH FILO JONES 3. ROLAND E. CAESAR 4. JOSEPH GOM OIVANDI-KOBBA CHAIRMAN MEMBER MEMBER MEMBER DEFEND AP 5, ATTORNEY-GENERAL & M INISTER OF JUSTICE CORAM HON. MRS, JUSTICE S. BASII-TAQI HON MR. JUSTICE P.O. HAMILTON HON. MRS. JU STICE V.A.D. W RIGHT HON. MRS. JUSTICE M.E.T. THOMPSON HON. MRS. JUSTICE A SHOWERS I ' ' . • JSC JSC JSC JSC JA (pi / ' F.M. MAJRGAI ESQ., S.B. TEJAN-SIE ESQ. AND R.B. KOWA ESQ. FOR " HE PLAINT! JOSEPH G. KOBBA FOR DEFENDANTS RULING DELIVERED ON TH E DAY OF . ,2011. : • ' . ' * ■ . • < 110N MR. JU STICE P.O. HAMILTON JSC The Plaintiff it must > e noted commenced this action by way of an Originating Notice ofMotion 8 day of April, 2011 invoking the Originating Jurisdiction o f the Supreme Court foi interpretation of certain Sections of the Constitution o f Sierra Leone 1991 (Act No.6 o f 1991 , Declarations thereof pursuant to Sections 124(1) and 127(1-4) o f the said Constitution. In support of the Originating Notice o f Motion there is filed an affidavit of the Plaintiff herein S ’ to on the 8th day of April, 2011 pursuant to Rule 89 o f the Supreme Court Rules Constitut\ Instrument Nb.l o f 1982, end a statement of the Plaintiffs case together who an affidavit in verific; thereof The Defendants too filed their statement of case and an affidavit n verification thereof. For purposes of clarity I shall set out in ex tens o Sections 124(1) and Section 127(1) and (2) w gave this Court original jurisdiction in this regard: Section 124(1): “The Siq)reme Court shall save ar otherwise provided in Section 122 o f ■Constitution, have original jurisdiction to the exclusion o f all other Courts - (a) in all matters relating 'to the enforcement or interpretation o f any provision oj Constitution; and • (b) where any question arises whether an enactment was made in excess o f the po conferred upon Parliament or any other authority or person by law or under Constitution. Section 127(1): "A person who alleges that an enactment or anything contained in or done under authority o f that or any other enactment is inconsistent with, or is in contravention may at any t bring an action in the Supreme Court fo r a declaration to that effect” . Section 127(2): "The Supreme Court shall, fo r the purpose o f the declaration under Sub-Section , make such orders and give such directions as it may consider appropriate fo r giving effect to, enabling effect to be given to the declaration sq made” . It must be noted straight off that the Supreme Court has got original jurisdiction to make declaration the effect that any law found to be inconsistent with any provision of the Constitution renders, t offending provision ol that law null and void. I shall noW turn to consider the submissions in the Plaintiffs case and that of the Defendants case relation to the five (5) Reliefs/Declarations sought by the Plaintiff. 1, FIRST DECLARTION Counsel fo:. the Plaintiff in his statement of case submitted that the mem bers of the Tribunal are r qualified to sit as members since they are well above the compulsory retiring age of sixty-five (6 /ears as Section 135(3) o f the Constitution should be read together with 137 (2b) to give a purpose! meaning to the disqualification for appointment as a Judge of the Superior Court of Judicatu 'contemplated by Section 137 (5a) o f the said Constitution if there should be a proper appreciation its intendment. He further submitted that all three (3) members of the Tribunal have passed retiring a; as in Section 137(2)(b) o f the Constitution and neither has held office as a Justice of the Suprer Court: as is required by Section 127(5)(a). All three (3) Commissioners therefore have failed to me the requirement set out in Section 135(5)(a) o f the Constitution. Counsel for the Defendants in his statement of case submitted that although the three members of £ tribunal are above the age laid down in Section I37(2)(a) and (b) they continue to be entitled practice as Counsel in the Courts as there is no evidence that they have been removed from the roll Counsel or Legal Practitioners. He further submitted that they have not held office as Justice of tl Supreme Court which affect the first limb o f Section 137(5)(a) but they are persons qualified to ho office as Justice of the Supreme Court which is the second limb thus making them eligible f appointment as Justices of the Supreme Court, Section W (5 )(a ) o f the Constitution 1991 (Act No. 6 o f 1991) provides: i ■ • ' . b 3 “ I f the Judicial and Legal Service Commission represents to the President that the quesi removing a Judge o f the Superior Court o f Judicature, other than the Chief Justice Subsection (4) ought to be investigated then - i * • • (a) the President, acting in consultation with the Judicial and Legal Service Commission „ shall be p e rso n qualified to hold or have held office as a Justice o f the Supreme Com provides the answer. It provides: "A person shall not be qualified fo r appointment as. a Judge o f the Superior Cou Judicature, unless he is entitled to practice as Counsel in a Court having unlimited jurisdi Commission , and has been entitled as such Counsel in the case o f appointment to:- (c) the Supreme Court, fo r not less than twenty years; (d) the Court o f Appeal, fo r less than fifteen years; (e) the High Court o f Justice, fo r riot less than ten years ‘ for the purpose o f Subsection (3) ft person shall be regarded as entitled to practice Counsel i f he has been called, unrolled or otherwise admitted as such and has not subseque been disbarred or removedfrom the Roll o f Counsel or Legal Practitioner'” “ for purposes o f this section, a person shall not be entitled to practice in a Court by virtu his holding or acting in any office ” , appoint a tribunal which shall consist o f a Chairman and two other members, all of\ What is the qualification to hold office as a Justice of the Supreme Court? Section 135(3)(4) an in civil and criminal matters in Sierra Leone or any other country having a system oj analogous to that, o f Sierra Leone and approved by the Judicial and Legal Sei : In my humble opinion Section 135(3)(4) and (5) o f the Constitution makes it clear that there is a qualification laid down for. the appointment as a Judge to the various Courts i.e. Supreme L.ourt, Cc • of Appeal and High Court. There is no reference to age and age is not a qualification requiremen* / . a clear fact that all three members of the Tribunal have fulfilled the condition laid down in Si 135(4)(aj since they are above twenty (20) years call and are enrolled persons as Counsel or Practitioners and they remain so qualified until they are debarred or removed from the roll of Co or Legal PraciitJoners. Does age disqualify a person from holding office as a Judge of the Superior Court of Judicature? ' bold to answer this question in the negative and my reason is to be found in Section 136(2) and ( the Constitution but I shall here reproduce Subsection (4) which is of concern to this matter. • Section .136(4) provides: “ ‘where the office of a Justice of the Supreme Court or Court of Appe v ■ vacant or for any reason a Justice thereof is unable to perform the functions of his office or if the C Justice advises the President that the state of business in the Supreme Court or in the Court of Ap • as the case may be, so requires the President may, acting in accordance with the advice of the Jud . and Legal Service Commission, appoint a person who hss held office as or a person qualifiec appointment as a Judge of the Superior Court o f the Judicature to act as a Justice of the Supreme C or of the Court of Appeal, as the case may be, notwithstanding the fact that he has already aftaimi retirement ase prescribedbvSection 137” . (Emphasis mine). The phrase "notwithstanding the fact that he has already attained retiring age prescribed in Sec 137 5 is where age is stated in rela:ion tc appointment. In my humble opinion even though the retiring age prescribed by Section 137 is considered in Sec " 136(4) the appointment therein is premised on ‘;a person who has held office as or a person quali - 'for appointment as a judge of the Superior Court of Judicature to act as a Justice of the Suprt Court”. Therefore though retiring age became a part of it, appointment was based on nothing ' qualification and qualification depends on nothing but on Section 135(4), and that is that the per must be entitled to practice as Counsel if he has been called, enrolled or otherwise admitted as s and has not been debarred or removed from the roll of Counsel or Legal Practitioners. . | \ . ■ ' ■ ' ' . ■ : i . . ■ I therefore declare that the appointment of Hon. Justice Edmond K. Cowan, Wordsworth Filo _nd Roland E. Caesar as members of the Tribunal does not contravene Section 137(5)(a), < Constitution o f Sierra Leone 1991 (Act No. 6 o f 1991) and will therefore dismiss the said decla .sought by the Plaintiff. 2, SECOND DECLARATION Counsel for the Plaintiff submitted in his statement of case that the appointment of fou Commissioners as contained in Government Gazette No. 173 at Pages 1 Vol. CXL1 dated Thw 17th June, 2010 contravenes Section 137(5)(a) and therefore calls in aid Section 127(1) o , Constitution. Counsel for the defence in his statement of case submitted that merely appointing Joseph G c 'Vandy Kobba does not contravene Section 137(5)(a) since at the time of. appointment Joseph Gc Vandy Kobba vas not qualified under Section 137(5)(a) and 135(3)(a) although he was qualifie practice as Counsel and was lot debarred but he had not practice for twenty (20) years. Cou further submitted that the appointment was a legal nullity and the person so appointed did participate as a member of the Tribunal therefore it cannot be said that Section 137(5)(a) contravened In my humble opinion it s clear that since the commencement of the Tribunal only three not J commissioners have served with Joseph Gomoi Vandy Kobba not being in the Tribunal pa Therefore Section 135(5)(a) has not been contravened as such this declaration is hereby disinis since if Joseph Gomoi Vandy Kobba had participated as a member I would have held otherwise. • * ’ * ■ . t ' ' ' r ' • 3. THIRD DECLARATION Counsel submitted that the Chairman named in the Supreme Court Gazette Vo. CXL1 Thursday ; June, 2010 No.44 at Page 840/1 is not the same person as Justice E.K. Cowan presently Chairing Tribunal as contained in Exh. ABH2 relying on J.T. Chanrai & Co. (SL) Ltd. V . Palmer 1970-71 A Counsel for the defendants submitted that the Chairman named in the said Gazette is the same as called and identified as Justice Edmond K. Cowan as the “C” is a typographical error whic not derogate from the fact that Justice Cowan is the person intended to be so appointed. In my opinion the case of Chanria v. Palmer (1970-71) cited by learned Counsel for the Plair totally different from this present matter. I hold that whether it was Justice Edmond C. Cowan, J Edmond K. Cowan or Justice E.K. Cowan is of no moment as Justice Edmond K. Cowan is the f H.E. the President intended to appoint as Chairman and therefore Justice Edmond C. Cowan, J Edmond K. Cowan or Justice E.K. Cowan is one and the same person. I would therefore dismis declaration, 4. FOURTH DECLARATION Counsel for the Plaintiff has submitted that there exists a conflict of interest since the Chairman; Ombudsman must recluse himself as the Plaintiff herein if. aggrieved may exercise his righ petition to the office of the Ombudsman which office is headed by the Tribunal’s Chairman. In my humble opinion the Tribunal will be carrying out a “Judicial function” as contained in Se 137(5)(b) o f the Constitution. The removal of a Judge o f the Superior Court is contained in Se 137 7(a) and (b) viz to a Tribunal, then recommendation to the President and followed by a two-t (2/3) majority in Parliament through a Parliamentary Resolution, The Ombudsman Act, 1997 (Act No.2 o f 1997) sets out the functions of the Ombudsman and Set 1(1) provides- . “(a) To investigate any administrative act o f a prescribed authority in respect o f which — i complaint is made to him by any person who claims to have suffered injustice as a result oj administration in connection with such act or (ii) Information is received by him from any person or source otherwise than by compl concerning the matter referred to in subparagraph (1) and, (b) To take appropriate action to remedy, correct or reverse the act complained o f ti ' such means as are fair, proper and effective ”. The functions of the Ombudsman therefore is to investigate administrative complaii maladministration not Judicial complaints and this investigation concerns the removal of a Ju < T he Superior Court o f the Judicature. v ' Section 8(1) o f the Ombudsman Act, 1992 precludes the Ombudsman from investigating “any 1 pending before or already decided by a Court of competent jurisdiction. The Tribunal hereii Judicial Tribunal which is equivalent to a Court of Law. The entire exercise of the Tribunal can only be confirmed by Parliament through a two-thirds maj Can a i complaint lie from Parliament to the Ombudsman? Section 94(1) and (2) the Constitution an answer. ; . Section 94(1): “Subject to the provision of this Constitution Parliament may regulate its procedure, and in particular make amend and revoke Standing Orders for the orderly conduct of it proceedings”. ! Section 94(2): “Notwithstanding anything to the contrary' in this Constitution or in any other contained, no decision, order or discretion of Parliament or any of its Committee, or the Spei relating to the rules or procedure, of Parliament or to the application or interpretation of such ruie any other act done or purporting to have been or purporting to have been done by Parliament or b] Speaker under any rules o f procedure shall be inquired into by any Court”. In mv humble opinion if the Appellant is aggrieved he could not seek redress from the Ombuds who has no authority to enquire into a j udicial decision but rather from the Supreme Court. I therefore hold that the Chairman need not recluse himself from the Tribunal and would dismiss declaration. 5. FIFTH DECLARATION Counsel for the Plaintiff argued that Exh. ABH states the commencement and conclusion date c Tribunal as at 29*' June, 2010 to six weeks thereafter but did commence on the 10th January, 201 is still on going, He submitted that Section 170(7) o f the Constitution must be read with Section and 1(2) o f the Constitutional and Statutory Instruments Act 1991 (Act No. 6 o f 1991) and fo President to have legitimately invoke Section 137(5)(a) o f the Constitution strict compliance needed in following the mandatory provisions of Section 170(7) and Sections 1(1), 1(2) and 3(1) c Constitutional and Statutory Instrument Act 1991 (Act No.6 o f 1999). Therefore since no enlargej • of time has been Gazetted all what is being done now and in the future will be null and void. The defendants in their statement of case submitted that there is nothing in Section 137 oj JConstitution from which the President derives his power to set up the Tribunal does not empower to set a time limit within which the Tribunal must present its report. Section 137(5)(a) and (b) merely empowers the President to appoint a Tribunal in consultation ’ the Judicial and Legal Service Commission to enquire and report to the President and n recommendation for the removal of the Judge from office and to be approved by two thirds majorit Parliament There is nothing in this subsection that empowers the President to ^et a time for Tribunal to present its report. What then is the validity of the Gazette and the Government Notice contained in it? Section 17t provides: “ Any orders, rules or regulations made by any person or authority pursuant to a po conferred in that behalf by this Constitution or any other law — (a) shall be laid before Parliament; (b) shall be published in the Gazette on or before the day they are so laid before Parliament ' ■ (c) shall came into force at the expiration o f a period o f twenty-one days o f being so I unless Parliament, before the expiration o f the said period o f twenty-one days, annul < M such orders , rules or regulations by the votes o f not less than two-thirds o f the Membet Parliament '. It follows therefore that since the Gazette was not ldd before Parliament it has no legislative effec is the case with Constitutional Instrument or Statutory Instrument. What then is a Gazette? Interpretation Act 1971 (A d No.8 o f 1971) states - “Gazette means the gazette published by Government supplement thereto, Gazette Extra Ordinary so published and, in respect of publication before the 27tn o f April, 1961 ih e , Sierra Leone Royal Gazette ” , It is clear therefore that Government Notice No.174 ;s neither Legislative nor a Statute and it car. no sanction; therefore the contents in it are merely directory not mandatory It is my humble opinion that since the orders contained in Government Notice No.174 was mei directory and the Gazette of Thursday had no legislative effect, the failure to enlarge the time of Tribunal does not carrv any legal effects which will render .the result of the Tribunal null and vc This declaration is dismissed as it does not contravene Section 170(7) o f the Constitution o f Sie, Leone 1991 (Ac: No. 6 o f 1991). For all the foregoing reasons I shall dismiss this action and no order as to cost. ' . } ■ . REF: PQII/HJ