PC. Dr. Alpha Madseray Sheriff Ii v Attorney-General & Ministry of Justice & 2 Others (SC 3 of 2011) [2012] SLSC 4 (30 July 2012)

3 2 SC NO. 3/2011 IN THE SUPREME COURT OF SIERRA LEONE BETWEEN: P C. DR. ALPHA MADSERAY SHERIFF H - PLAINTIFF AND 1. ATTORNEY-GENERAL A MINISTER OF JUSTICE - 2. MINISTER OF LOCAL GOVERNMENT - 3. NATIONAL ELECTORAL COMMISSION- 1st DEFENDANT 2nd DEFENDANT 3ro DEFENDANT CORAM: HON. JUSTICE U.H. TEJAN-JALLOH C.J. HON. JUSTICE S. BASH-TAQUI JSC HON. JUSTICE P.O. HAMILTON JSC HON. JUSTICE V.A.D. WRIGHT JSC HON. JUSTICE M.E.T. THOMPSON JSC DR. BUBUAKIE JABBIE ESQ. FOR THE PLAINTIFF L.M. FARMAH ESQ. & O. KANU ESQ. FOR THE DEFENDANTS RULING DELIVERED ON JULY, 2012 ' 3 V U.H. TEJAN-JALLOH CHIEF JUSTICE The Plaintiff herein by an Originating Notice of Motion has invoked the original jurisdiction of the Supreme Court to interpret the Constitution pertaining to certain provision in the Originating Notice of Motion and grant the declarations thereof pursuant to S ection 127 o f the Constitution. BRIEF BACKGROUND TO THE ORIGINATING NOTICE OF MOTION ~ On the 12lh August, 2006 the Plaintiff Dr. Alpha Madeseray Sheriff was elected as Paramount Chief of Biriwa Chiefdom Bombali District. Consequent upon h»; election and his installation as Paramount Chief tribal and factional dispute erupted in the Chiefdom, culminating in his suspension as Paramount Chief and the appointment of an Administrative Investigation by the Provincial Secretary North into his conduct and performance as Chief. Following the report of the administrative investigation; His Excellency the President appointed a Commission of Inquiry under the Chairmanship of Mr. Justice Fofanah High Court Judge under Government N o tice No.166 dated 19th May, 2009. Pursuant to S ection 25(1) o f Cap 60; Laws o f S ie rra Leone. With the following terms of references: "To determ ine w hether h is conduct has been o f a kin d subversive o f the in te re s t o f good government". Pursuant to the submission of the Commission Report to the President, the Plaintiff was removed as Paramount Chief of Biriwa Chiefdom. At this stage, let me observe that on the 15th June, 2011 this Court refused the Plaintiff interlocutory application to the Orders of Mandamus and injunction pending the determination of the Motion. This simply means, therefore, that if this Court declines or refuses the declarations prayed for it will adopt the decision in the interlocutory application in this Ruling and will order accordingly. 2 3 £ ORIGINAL JURISDICTION AND DECLARATION As I sard e a rlie r, this action is brought under the original jurisdiction of the Supreme Court and the relevant provision herein in S ection 124 o f the Constitution. S ection 124(1) states'* "The Supreme C ourt s h a ii save as otherw ise provided in S ection 122 o f th is C onstitution have o rig in al ju ris d ic tio n to the exclusion o f a ll o th e r Courts: (a)In a ll m atters re la tin g to the enforcem ent o r in te rp reta tio n o f any provision o f th is Constitution; (b) W here any question a rise s w hether an enactm ent was made in excess o f the pow er co n fe rre d upon o r any o th e r a u th o rity o r person by law o r under the C on stitu tion " From the above, it merely seems to me that it is the Supreme Court which has the jurisdiction to entertain such matter in 124(a) 6 (b). Sec. 127 (1) states: “A person who alleges th a t an enactm ent o r anything is o r done under the au th o rity o f th a t o r any o th e r enactm ent is inconsistent w ith o r s in contravention o f a provision o f th is C onstitution may a t any tim e bring an action in the Supreme C ourt fo r a declaration It appears to me, that the above provisions are relevant to this action, as they are the provisions under which the Plaintiff can invoke the original jurisdiction and as well as enforce the C onstitution by declaring S ection 2 5 (1) o f Cap 60 o f the Laws o f S ie rra Leone inconsistent with S ection 72 (4) o f the C onstitution. Indeed S ection 171(15) is the grandnorm and the Supreme Law of the land and any 3 3 b provision found inconsistent with it “shall to the extent of that inconsistency be null and void." INTERPRETATION OF SECTION 25(11 OF CAP 60 OF TH E CONSTITUTION SECTION 72(4) OF THE C O N S T IT U T IO N. SECTION 19 OF CHIEFTAINCY ACT 2009. In addressing the Interpretation of the above provisions, I shall confine myself to the two rules of interpretation namely the literal and the purposive rules. The literal rule of interpretation is to suggest the application of the basic and simple method of interpretation of a statute thereby giving legal e ffic a c y to the statute. _ 5ee Tindele C .J. in the Sussex Prarage Case (1844) 11 CL & F 85. had this to say-u I f the words of a statute are so plain and unambiguous then no more is necessary than to expound them n the sense. The words in themselves in such a case best declare the intention of the law giver". The Court usually takes a positive approach to the intention of the law giver. L o rd Simmons in M a jo r and S t. M eltons R u ra l D is tric t Council 1952 A .C .1 8 9 P. 191 said: "We sit here to fin d the intention of Parliament and of Ministers and carry it and we do this better by fillin g the gaps and making sense than opening it to destructive analysis. “Coming home, the literal rule of interpretation was adopted by Livesey Luke C .J . (deceased) in Chanrat and Co. vs Palm er 1970 - 71 A LR (S L) 391 a t 4 0 4 " when he said: 4 / 3 ? "In my judgm ent i f the words used in a sta tu te are Plain and unambiguous the co u rt is bound to construe them in th e ir ordinary sense having re g a rd to the context." However, if the words in d statute are in themselves misleading then the purposive rule wjll apply to examine the context, the subject matter, the purposes, scope and the background of the legislation, see Pepper v H o rt 1993 1 A LL ER. 42. I hasten to add that in some cases there is not much difference between the literal and purposive approach to interpretation. In this case, it is clear to me that the provisions of the statute and constitution which call for interpretation are clear, plain and unambiguous. I shall apply the literal approach n considering the declaration prayed for by the Plaintiff in this O riginating N o tice o f M otion. THE MAIN ISSUE / Dr. Jabbie submitted that the S ection 2 5 (1) o f the Provinces A c t Cap 60 o f the Laws o f S ie rra Leone is inconsistent with S ection 72 (4) o f the C onstitution 1991 A c t No. 6 1991 and Sec. 19 o f the C h ieftain cy A c t 2009. Sec. 2 5 (1) states', "The Governor in Council may upon the re c e ip t o f a re p o rt from the P ro v in cia l Commissioner th a t the conduct o f any c h ie f has been o f a kin d subversive o f the in te re s t o f good governm ent appoint a Commissioner to inquire into the m atter and may aiso in h is d iscre tio n appoint one o r more assessors to such Commissioner and every such Commissioner s h a ll have the same pow ers as a Commissioner appointed under the Commission o f In q u iry ordinance o r any ordinance su b stitu te d." 5 It is obvious to me that S ection 25(1) specifically refers to the appointment of the Commissioner and its powers. It seems to me, that these powers under S ection 25(1) are identical with the powers pursuant to Commission of Inquiry Ordinance as, amended by Section 148 o f the Constitution. S ection 72(4) state s: “A Param ount C h ie f may be rem oved from o ffic e by the P resid en t fo r any g ro ss m isconduct in -th e perform ance o f the function o f h is o ffic e i f a fte r a p u b lic enquiry conducted under the chairm anship o f a Judge o f the H igh C ourt o r Ju s tic e o f Appeal o r Ju s tic e o f the Supreme Court, the Commission o f In q u iry makes an adverse fin d in g against the Paramount C h ie f and the Presiden t is o f the opinion th a t it is in the p u b lic in te re st th a t the Param ount C h ie f should be removed." As I can see, the above provision is silent on the appointment of a Judge or Justice as Chairman of the Commission and it is in contrast with S ection 2 5 (1) which clearly makes provision for the appointment i f a Commissioner. S ection 72(4) in the main makes provision for the removal after “an adverse finding aga!nst a Paramount Chief'1 . I f I understand Dr. Jabbfe's submission clearly, a submission which was vigorously canvassed by him, is that S ection 72(4) of the Constitution has by implication repealed S ection 25(1) o f Cap. 60 o f the Laws o f S ie rra Leone and secondly S ection 19 o f the C h iefta in cy A c t 2009 expressly repealed S ection 25(1) o f Cap.60 o f the Laws o f S ie rra Leone. 6 In dealing with this submission, I shall first go on to deal with the doctrine of the interpretation of statute generally, as far as it is germane and relevant to the submission. I shall start by referring to Maxwell on Interpretation o f statute, twelfth edition page 191 on implied repeal. It states:- "A la te r sta tu te may re p e a l an e a rlie r one e ith e r expressly o r by im plication s n o t favoured by the courts. F o r as much....... th e re fo re e a rlie r and la te r sta tu te can reasonably be construed in such a way th a t both can be given e ffe c t to, th is m ust be done. I f as w ith a ll modern sta tu te the la te r a c t contain a lis t o f e a rlie r enactm ent w hich it expressly repeals an omission from a p a rticu la r sta tu te from the fis t w ifi be a strong indication o f an intention n o t to rep eal the s ta tu te" ' /. A _ This principle is also recorded in Craies on statute 7th edition page 366, It states: "That where two sta tu te o r a cts in question are inconsistent the la tte r w ill be re a d as having im pliedly re p e a l the e a rlie r act, unless they are p la in ly repugnant to each o th e r e ffe c t cannot be given to both o f them a t the same time. In o th er w ords when re a d and in te rp re te d together they cannot produce the same intention and re s u lt A lso a sp e cia l a c t cannot be repealed by a gen eral a c t." The proposition of law on implied repeal was laid down as far back as the 19th century in the case of Westharm Church Warden v. Fourth City o f Montreal Building Society 1892 which was quoted with approval in the Supreme Court case of AH Peoples Congress v. Nasmus d O th e rs B .C . 4/96 unreported: "is the later act so 'nconsistent with or 3 ^ 7 repugnant to the provisions of the earlier act that the two cannot stand together?" In the P riv y C ouncil case o f Canada Southern Railw ay Company v. In te rn a tio n a l B ridge Co. 1883 A . C. 723. The P riv y Council stated thus:- "W here two a cts o f a leg islatu re are to be re a d together the co u rt m ust construe every p a rt o f each o f them as i f it has been contained in one a c t unless th ere is some m anifest discrepancy making it necessary to h o ld th a t the h te r a c t has to some e x te n t m o d ified som ething found in the e a rlie r a c t" In my judgment, however, before coming to the conclus jn that the “later act to some extent modifies something found in the earlier act" * the court must be satisfied that the two acts cannot be read together. Further, the court usually leans against mplied repeal. After a careful analysis of passages in Maxwell and Craies and the authorities, I dare say I am influenced by this principle as I consider it relevant to the issue at hand, and I shall adopt it and apply it to this ruling. Coming now to the issue of S ection 25(1) o f Cap. 60 being inconsistent w ith S ection 72(4) o f the Constitution. On perusal of S ection 72(4) it is obvious that this S ection o f the C onstitution is silent on the appointment and does not make provision for the appointment of Chairman/Commissioner of the Enquiry into the 8 U c\ conduct of the Plaintiff. To give effect to such an appointment Parliament has not enacted the law envisaged by S ection 72(5) o f the C o n stitu tio n a l the time of the appointment of Chairman/Commissioner. In this case the President has to look elsewhere and in this regard S ection 25(1) o f Cap 60 came into play and had to be read together with S ection 72(4) o f the C onstitution to fill the gap and to lend and accord credence to the appointment of the Chairman/Commissioner of the Enquiry. / Dr, Jabbie further submitted that S ection 25(1) o f Cap 60 is inconsistent with S ection 147 o f the C onstitution dealing with the appointment of Chairman of Commission, S ection 1 4 7 should have been invoked to give effect to S ection 72(4) o f the Constitution. With respect I profoundly disagree. S ection 147 is a general provision deolin.g with the appointment of Chairmen for Commissions of Enquiry generally, whereas S ection 25(1) o f Cap 60 and S ection 72(4) o f the C onstitution combined deal specif icaily with the appointment and other matters pertaining to Chieftaincy. It is trite that general acts or provision does not impliedly, repeal a special Act or Provision. See C raies on In te rp re ta tio n o f S tatu te Supra Page 366. And the case of K utnar vs. P h ilip s 1891 2QBD 26 7 which was quoted with approval in Aberdeen Suborban Tramways Company vs Aberdeen Cooperation 1927 SC683. The converse is however true that a statute enacted on a subject containing general terms and c . later statute is enacted on the same subject with restriction and condition on the general term, the later special statute is deemed to have impliedly repeal the former or general statute. Again see C raies on the In te rp re ta tio n o f S ta tu te Supra 3 7 3 .1 dare say this is not the case here. 9 As regards express repealed S ection 2 5 o f Cap 60 by S ection 32 o f the C h ieftain cy A c t 2009. My short answer is that the Commissioner pursuant to S ection 25(1) o f Cap 60 was appointed on the 19th of May, 2009, whereas the C h iefta in cy A c t came into operation on the 101 1 September, 2009 some four months after the appointment of the Commissioner. And so the S ection 19 o f the C h ie fta in cy A c t dealing with the appointment is of no moment here. It seems to me, therefore, that the framers of the Constitution must have anticipated lacunae in the C onstitution generafly and in their wisdom enacted a transitional provision as part of the new C onstitution i.e. the 1991 Constitution which included the existing law in Section 170 of the C onstitution i.e. laws and orders which were in existence before the promulgation of the 1991 Constitution. The existing law in S ection 176 o f the C onstitution is d efin e as follow s: "A c t ru le regulations under o f such instrum ent made in pursuance o r continuing in operation under the e x istin g C onstitution and having e ffe c t as p a rt o f the laws o f S ie rra Leone o r any p a rt th e re o f im m ediately b e fo re the commencement o f th is C onstitution o r any A c t o f Parliam ent o f the U n ited Kingdom o r H e r M a je sty in Council......" I note from the definition the Laws and Orders referred to are not only limited to S ie rra Leone but include acts and orders of the United Kingdom. S ection 177(1&2) o f the C onstitution went on to state how and when the existing law will operate. S ection 177(1) states'. "The e x istin g law s h a ll not w ithstanding the repeal o f the C onstitution o f S ie rra Leone 1978 have e ffe c t a fte r the entry into fo rc e o f th is C onstitution as i f they had been made pursuance o f th is C onstitution and s h a ll be re a d and construed • ' . 1 • 1 0 w ith such m odifications and adaptations q u a lifica tio n s and exceptions as may be necessary to bring them in conform ity in th is C onstitution £{3 S ection 177(2) states: "W here any m atter fa il to be p re scrib e d o r otherw ise provided fo r under th is C onstitution o r by o th e r a u th o rity o r person is p re scrib e d o r p ro vid ed fo r o r under an e x istin g law (including any amendment to any such law made under th is S ection) o r is otherw ise p re scrib e d o r provided fo r im m ediately b e fo re the commencement o f th is C onstitution by o r under the existin g C onstitution the p re scrip tio n o r provision s h a ll as from the commencement o f th is C onstitution have e ffe c t w ith such m odification, adaptation, q u a lifica tio n and exception as may be necessary to bring i f in to conform ity w ith th is C onstitution by Parliam ent o r by as the case may be req u ire by the a u th o rity o r person In my view, the existing law through the transitional provision act as an auxiliary provision which gives fillip to the C onstitution when there are issues which called fo r the interpretation and implementation of the C onstitution and in this respect the existing law fills the gap and closes any vacuum which exist in the C onstitution - as no Constitution is perfect. In my judgment, therefore,S ection 2 5 o f Cap 6 0 has not been repealed either expressly or by implication by the C onstitution or by S ection 32 o f the C h iefta in cy Act, 2009. I hold therefore, that S ection 25(1) is not void for inconsistency. Indeed within the context of the existing law S ection 2 5 (1 ) was suitably applied to the appointment of the Chairman of the Commission. S ection 19of the Chieftaincy Act can only li r t+Uf repeal it after it had come in to operation which was well after the appointment of the Chairman of the Commission. In conclusion, tak*ng all the circumstances of this matter in to consideration, I feel bound to hold that there has net been any infraction or violation to warrant the interpretation with a view of vitiating the commission's report and the events thereafter leading to the removal of the Plaintiff as Paramount Chief of Biriwa Chiefdom. In the result this Court cannot grant the declarations prayed for. The Originating Notice of Motion is dismissed. C.J 1 AGREE: HON. JUSTICE S. BASH-TAQ1 J.S.C AON. JUSTICE P.O. HAMILTON J»S.Ci HON. JUSTICE V.A.D. WftlQHT J jS.C< HON. JUSTICE M.E.T THOMPSON JtS>C REF: CJ/HJ 1 2