S v Brima Daboh (MISC APP 1 of 1979) [1979] SLSC 2 (27 February 1979)

. s DDE _surRee courr oF sienna 12018 CORAM: = F The Honourable Ag. Chicf Justice B. Livesey Iuke - Presiding The Honourable Mr. Justice CsA. Handing ~ Justice of the Suprene Cte The Honourable Mrs. A.V. Awunor-Renner - Justice of the Suprene Ct. ¥ SUP. OP. MISC. APP. 1/79 Ly THE STATE - APPLICANT { Vo. a BRIMA DABOH - RESPONDENT . | RULING EH Jivesey Luke Ag. C.J.-This is) an application by the Director E of Public Prosecutions on behalf of the State for extension of time within which to appeal to the Supreme Court against tho 4 decision of the Court of Appeal given on 19th December, 1978, ; Pursuant to Order 76 of the Supreme Court Rules, 1976, ‘the applicant has sent to the Registrar of the Supreme Court the following forms:- ee (a) Notice of Application for Extension of Tine ] within which to appeal, in the fom sot out : in Form 2 of the Second Schedule to the Suprene Court Rules, 1976, and | (>) a duly filled Rotice of Criminal Appeal, in | 4 the form set out in Form I of the Second | “ q Ys we .

: a" q : ia 4 . i ~ Sue = i (d) final decisions in any civil or q criminal proceedings on questions as to . the interpretation of the Constitution; and 5 Fe me Sie a ek se lt i 3

(2) Subject to the provisions of e the Constitution and this Act an appeal j 4 shall lie from decisions of the Court of 4 Appeal to Her Magesty in Council (fiow the + . Supreme Court/ with leave of the Court q of Appeal in the following cases - dq (a) decisions in any civil or criminal . a Proceedings where in the opinion of the E Court of Appeal the question involved in 7 a the appeal is one that by reason of the 4 general or public importance or otherwise, a ought to be submitted to Her Majesty in 4 Council ASmnow the Supreme Court7." q When the Application for leave came before the 4 Court of Appeal for hearing, that Court indicated that 7 At'wished to be addressed on the interpretation of the 4 words "general and public importance." So quite clearly P the Court of Appeal was adverting its mind to Section Hl 70(2)(a) of the Courts Act, 1965. It turned out that the Court of Appeal was never addressed as requested, : because on 8th February, 1979 the Court of Appeal q granted the Director of Public Prosecutions leave to A withdraw his application for leave to appeal. In the : meantime, on 7th February, 1979,

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; u 50 uy - 4 a is the Director of Public Prosecutions had sent to the 4 Registrar of the Supreme Court Notice of Application 7, for extension of time within which to appeal to the i Supreme Court. That is the application now before us. a The main reason given by the Director of Public qt Prosecutions for the application is that when he filed : a the Motion for the leave of the Court of Appeal to a appeal to the Supreme Court he did not advert his mind ¥ to Section 103(1)(b) of the Constitution of Sierra Leone, a 1978. That sub-section provides as follows:- q q "103(1) An appeal shall lic from a judgment, : , decree or order of the Court of Appeal to . : the Supreme Court - 4 MOET ettione se tes eds o_ eile Si (>) as of right, in any criminal cause or 4 matter in respect of which an appeal has been s brought to the Court of Appeal from a a judgment, decree or order of the High Court q of Justice in the exercise of its original q Surisdiction. | q Mr. Tejan-Cole submitted that this sub-section confers 4 an automatic right of appeal in all criminal matters a brought to the Court of Appeal from a judgment decree or : order of the High Court in the exercise of its original 7 ; Jurisdiction. He submitted further that that sub-section 4 rendered the leave of Court of Appeal to appeal to the i Oar : i i

: St . =a ae Supreme Court unnecessary. He conceded in effect that his application to the Court of Appeal for leave to appeal was unnecessary and that he should } have appealed directly to the Supreme Court without applying for leave of any sort. 4 Mr, Metager conceded that the procedure laid d down in the Rules of the Supreme Court 1976 for applying for extension of time within which to appeal id from the Court of Appeal to the Supreme Court had been complied with and that Section 103(1)(b) of the 1978 q Constitution makes provision for an appeal to lie as : 3 of right from the Court of Appeal to the Supreme Court 4 q in criminal matters tried by the High Court in exercise . of its original jurisdiction. Learned Counsel however q submitted that the grounds stated for the application for extension of time did not constitute "substantial : grounds" to warrant the granting of the: application, : There is no doubt that Section 103(1)(b) of the Constitution of Sierra Leone, 1978 introduced farreaching and indeed vadical changes in the law relating ; to appeals from the Court of Appeal to the Supreme Court in criminal matters. Prior to the coming into operation e of the 1978 Constitution, on the 14th June 1978, there ‘was no right of appeal as of right from the Court of Appeal to the Supreme Court in criminal matters tried in the High Court in its original jurisdiction except where the decision complained of involved questions as to the interpretation of the Constitution (See Section 70(21) (a) | of the Courts Act 1965), The position was that in all | eriminal proceedings except those coming within the . fe oe

: k 52: : _ 2 mer He exception, an appeal lay from the Court of Appeal i to the Supreme Court with the leave of the Court a of Appeal (see Section 70(2) of the Courts Act, 4 1965) or with the Special leave of the Supreme a Court (see Section 73 of the Courts Act, 1965). a Without doubt, on the coming into operation of the ; 1978 Constitution, by virtue of Section 103(1)(b) | a thereof, there is an automatic right of appeal q from the Court of Appeal to the Supreme Court in all g criminal matters tried in the High Court in its a original jurisdiction and no leave of the Court of 7 Pa Appeal or Special leave of the Supreme Court is 7 i necessary in such matters. In all Criminal cases . | decided in the High Court in the exercise of its 4 original jurisdiction appeal lies as of right 4 irrespective of whether the case involves the i interpretation of the Constitution or whether any a question of general or public importance is involved. a q An appeal based solely on questions of fact is now a Permissible as of right. ay In our judgment the rule conferring jurisdiction q on this Court to grant extension of time within which q to appeal to the Supreme Court (Rule 73(2)) gives ‘ this Court unfettered discretion in deciding whether . or not to grant such an application. That discretion : 4 a must of course be exercised judicially. In our ’ qa opinion this Court must consider each aplication on q its merits, ad j Te Baas j

: a? : In exercising its discretion, tne Court must have regard to all the circumstances of the application, including for example the reason for the delay, the bona fides of the application, the pronptitude with q which the application was made after the expiration of 4 the time limited for appealing, The facts of the instant application reveal that the respondent was tried and convicted in the High Court for Murder. In our view, having regard 4 to the provisions of the Second Schedule of the Courts Act, 1965 there could be no doubt that that was a matter tried by the High Court in its original juris- ; diction, In the circumstances the State should have : 4 appealed directly to the Supreme Court as of right i and should not have applied to the Court of Appeal q for leave to appeal to the Supreme Court, We are q satisfied that the application to the Court of Appeal for leave to appeal to the Supreme Court was as a q result of inadvertence on the part of the Director of 4 Public Prosecutions. 4 It 4s alsa relevant to state that the application for ; leave made to the Court of Appeal was filed within the time Limited by the Supreme Court Rules, 1976. : We are also satisfied that immediately the Director : of Public Prosecutions realized that the leave of the i Court of Appeal was not necessary, he promptly withdrew a the application for leave and made this instant q application, : p B/ on aioe

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