S v Amadu Makah Jalloh (MISC APP 13 of 2020) [2021] SLSC 35 (16 June 2021)

— Mise App No 13/2020 IN THE SUPREME COURT OF SIERRA LEONE IN THE MATTER OF AN APPLICATION BY WAY OF JUDICIAL REVIEW TO. PROHIBIT THE HIGH COURT PRESIDED OVER BY THE HON MR JUSTICE M M SESAY, JA SITTING ITS CRIMINAL JURISDICTION FROM PROCEEDING WITH THE MATTER TITLED: THE STATE v AMADU MAKAH JALLOH, AND TO QUASH ANY DECISION JUDGMENT OR ORDER EMANATING FROM THE SAID PROCEEDINGS AND IN THE MATTER OF SECTIONS 125 AND 23 OF THE CONSTITUTION OF STERRA LEONE, 1991 - ACT NO 6 OF 1991 AND IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW MADE PURSUANT TO RULE 98 OF THE SUPREME COURT RULES, 1982 - STATUTOTRY INSTRUMENT No. 1 OF 1982 AND ORDER 52 RULES 1 - 8 OF THE HIGH COURT RULES, 2007 BETWEEN: AMADU MAKAH JALLOH - ACCUSED/APPLICANT AND THE ATTORNEY-GENERAL & MINISTER OF JUSTICE - RESPONDENT

Coram

THE HONOURABLE MR JUSTICE N C BROWNE-MARKE JUSTICE OF THE SUPREME COURT THE HONOURABLE MR JUSTICE M F DEEN-TARAWALLY JUSTICE OF THE SUPREME COURT THE HONOURABLE MR JUSTICE A S SESAY JUSTICE OF THE SUPREME COURT

A HONOURABLE MR JUSTICE SENGU M KOROMA "// JUSTICE OF THE SUPREME COURT / THE HONOURABLE MS JUSTICE MM SAMBA JUSTICE OF THE SUPREME COURT COUNSEL: MP FOFANAH ESQ & H KAMARA ESQ for the Accused/ Applicant OSMAN KANU ESQ, Principal State Counsel, A J M BOCKARIE ESQ State Counsel & J A K SESAY, ESQ, State Counsel for the State/Respondent JUDGMENT DELIVERED THIS 16" DAY OF JUNE, 2021 BROWNE-MARKE, JSC

Introduction

1 The Accused/Applicant has applied to this Court for a Judicial Review of the decision taken by MONFRED SESAY, JA to continue to hear and to proceed with the criminal matter pending before him titled: THE STATE v AMADU MAKAH JALLOH. In that criminal matter, the ‘Accused/Applicant (hereafter, the Applicant) is facing a 15 Count Indictment, alleging the commission of various offences: three Counts of Conspiracy to Defraud: 4 Counts of Obtaining Money by False Pretences contrary to section 32(1) of the Larceny Act, 1916; 1 Count of Cheating the Public Revenue: 10 Counts of Money-Laundering contrary to section | 15(1)(c) of the Anti-Money Laundering and Combating of Financing of Terrorism Act, 2012. The trial is in progress before the Learned Trial Judge, but for the reasons advanced in the Application, the Accused wants this Court to stay those proceedings. | SUPERVISORY JURISDICTION OF THE SUPREME COURT

2. The Supreme Court has supervisory jurisdiction over all other Courts and tribunals in our jurisdiction. It is a jurisdiction conferred by section 125 of the Constitution of Sierra Leone, 1991. It reads: "The Supreme Court ‘shall have supervisory jurisdiction over all other Courts in Sierra Leone, and over any adjudicating authority: and in exercise of its supervisory Juriedietion, shall hava powar to agua auch directions, erdare or write including writs of habeas corpus, orders of certiorari, mandamus and prohibition as it may consider appropriate for the purpose of enforcing or securing the enforcement of its supervisory powers.”

3. Part XV of the Supreme Court Rules, 1982 - S.I. No. 1 of 1982, provides y for the manner in which this jurisdiction could be exercised in a Particular manner: i.e. when there is a complaint that a judgment has been reserved for three months or more by a subordinate Court. But this piece of subordinate legislation is evidently limited in its scope, and cannot be applied to the circumstances of this case. Therefore, the Rules Committee made provision for the general exercise of the Court's Supervisory jurisdiction in Rule 98: “Where no provision is expressly made in these Rules relating to the Original and the Supervisory Jurisdiction of the Supreme Court, the practice and procedure for the time being of the High Court shall apply mutantis mutandis.” This Rule permits this Court to utilise the Rules applicable in the High Court, to applications invoking this Court's supervisory powers over the High Court. The applicability of the High Court Rules in these circumstances, has been affirmed in cases which have come to this Court before now, cases which have been cited by Counsel for the Applicant. The relevant Order is Order 52 High Court Rules, 2007 - HR, 2007, ORDER 52 HIGH COURT RULES, 2007

4. Where an applicant seeks an order of Prohibition, he should come by way of an application for Judicial Review. Reliefs can be claimed in the alternative. The application should be made within three months of the occurrence of the event giving grounds for making the application. The pplication should be made by way of Originating Notice of Motion. The ‘Motion should be supported by an affidavit which shall include, inter alia, the relief or remedy sought, and the grounds on which he seeks such remedy or relief, Where the application pertains to the conduct of a Judge, the motion should be served on that judge. Within 7 days of filing the application, the applicant should file a statement of his case, setting out fully his arguments and relevant enactments or decided cases he wishes the court to consider. Within 7 days of the service on him of a statement of case, the respondent is likewise obliged to file and serve his statement of case containing the same matters as that of the applicant's, ‘The Applicant in the matter herein complied with these Rules.

5. On the hearing of the application for judicial review the Court may grant ‘any of the three prerogative reliefs: Prohibition, Certiorari, or, Mandamus - Rule 7, What I do not believe this Court can do, is to grant bail in an on-going trial in which the Learned Trial Judge has refused bail,

even though the order for prohibition may be denied the applicant. To do that would constitute undue interference in the way in which a judge / conducts a criminal trial, and would adversely affect the conduct of such trials in general. This Court is also mindful that there are no interlocutory

appeals in criminal matters. Any application which would tend towards

Achieving that object, ought to be rejected. Section 79 of the Criminal

Procedure Act, 1965 provides, in a limited manner, a remedy if one trial

‘Tudge has refused bail. Limited in the sense that in a criminal trial, the

Proceedings cannot be severed, The preferment of an indictment, vests a

criminal court with jurisdiction to try an accused person, The granting or

"refusal of bail during the course of the trial is not a separate issue, nor is

it a separate triable issue. It is part and parcel of the same trial, It

follows therefore that another Judge sitting in the High Court will not

have jurisdiction to grant bail, where the trial Judge has refused to do

50. The High Court is one and indivisible, At the same time, the provisions

in the Bail regulations, 2018 are binding on all Courts, and Judges must

ensure due compliance with them,

6. On the other hand, if the Order for Prohibition is granted, it would be quite proper to consider, if necessary in all the circumstances of the case, the issue of bail. But the most likely outcome in the majority of cases would be that the trial would be brought to an end.

FACTS OF THE CASE

7. I shall now turn to the facts supporting the Application herein, These appear on the face of the motion paper, the affidavit in support thereof, and in the statement accompanying the notice of motion. The Applicant contends that the proceedings pending before MONFRED SESAY, JA

sitting as a High Court Judge, do not conform with, and do infringe the Provisions of section 136(1) CPA, 1965 in that the Applicant is facing trial on the same facts and charges before AI SESAY, JA in another Court room. In other words, the Applicant has been put in ‘double jeopardy: Additionally, it is contended that no separate preliminary proceedings were taken before the trial commenced before MONFRED SESAY, JA

As such, MONFRED SESAY, JA has no Jurisdiction to conduct a trial of ‘the Applicant. The third contention is that it is wrong for MONFRED

SESAY, JA to hava continuously refused te grant tha Applicant bail, whilst, AI SESAY, JA has granted him bail in the matter which is before him. In the premises, the Applicant seeks on order quashing any judgment

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