S v Ikubolaje Nicol (SC.MISC.APP. 01/2023) [2024] SLSC 1 (30 January 2024)

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SC.MISC.APP.01/2023 IN THE SUPREME COURT OF SIERRA LEONE INITS SUPERVISORY JURISDICTION IN THE MATTER OF A CASE STATED BY THE HON, JUSTICE ADRIAN FISHER. RIAN PURSUANT TO PART XVII, RULE 99 OF THE SUPREME COURT RULES, 1982 _C. LINSTRUMENTNO.10F 1982 BETWEEN: THE HON. JUSTICE ADRIAN FISHER = - APPLICANT JUSTICE OF THE HIGH COURT OF SIERRA LEONE LAW COURT BUILDING FREETOWN, SIERRA LEONE AND THE STATE - 18" RESPONDENT C/O LAW OFFICERS DEPARTMENT GUMA BUILDING FREETOWN, SIERRA LEONE . AND IKUBOLAJE NICOL - 2NDRESPONDENT C/O CORRECTIONAL CENTER PADEMBA ROAD, FREETOWN

Coram

HON. JUSTICE D. B. EDWARDS CJ. HON. JUSTICE V. M. SOLOMON usc HON. JUSTICE M. DEEN-TARAWALLY JSC HON. JUSTICE A. S. SESAY JSC HON. JUSTICE J. E. L. KING JA. Counsel: MR.

0. I. KANU DPP, A. J. M. BOCKARIE ESQ Page 1 of 27 yrs

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+ AND P. J. WILLIAMS for the State MR. R.S.V. WRIGHT ESQ. M, BAH ESQ. AND MS. PRISCILLA WRIGHT for the 2 Respondent HON. JUSTICE V. M. SOLOMON JSC. e I Jailua 024

Ruling

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Background

1. The brief facts of the matter herein are imperative in the deliberations of the present application herein. The accused herein referred to as the 24 Respondent stands charged with the offence of murder on the 18 day of April 2023. It is alleged that on the 15! October 2022 and other divers dates at Leicester Village Freetown he conspired with other persons? unknown to murder Sinnah Kai Kargbo. ‘The Magistrate's Court conducted a preliminary investigation into the matter and committed it to the High Court. The matter was subsequently assigned to the Hon. Mr. Justice Adrian Fisher J. ‘The 2%¢ Respondent herein was arraigned and he entered a plea of not guilty. Subsequently, the State herein referred to as the 1st Respondent filed and applied to the court that the 2n4 Respondent herein be tried by Judge alone instead of by a Judge and Jury, Pursuant to Section 144(2) of the Criminal Procedure Act 1965 (as amended) (hereinafter referred to as “CPA") and pursuant to the Abolition of the Death Penalty Act 2021 Act No. 6 of 2022 (hereinafter referred to as “ADPA").

2. Counsel for the 2»4 Respondent objected to this application on 2 (two) grounds to wit: that the application should be brought in by a notice of motion and that the offence alleged to have been committed includes murder, a fortiori, that it is mandatory that he be tried by a Judge and

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. Jury and not by Judge alone. Counsel for the 1st Respondent herein filed the motion paper and proceeded with its application.

3. Counsel for the 2" Respondent submitted inter alia that the charge of murder is one which ought to be tried by a Judge and Jury and not by Judge alone and that he has a constitutional right to that form of trial by virtue of Section 23(1) of the Constitution 1991 (hereinafter referred to as the “Constitution”). Counsel for the 1* Respondent submitted inter alia that the rights of the 24 Respondent toa fair trial will still be upheld even though he will be tried by Judge alone, and that since the passing of the ADPA in 2021 and the mandatory sentence for the offence is imprisonment of 30 years and not the death penalty, the 1% Respondent by hand of the Attorney General can file such an application as of right. The trial Judge, the Applicant herein delivered his ruling on the 19: June 2023 and posed several questions for consideration by this court which are the subject matter herein.

\UESTIONS FOR THE SUPREME COURT:

4. The Applicant herein posed the following questions in His ruling at paragraph 103 thereof to wit:

1. Whether the application by the Attorney General to have the Accused tried by judge alone as opposed by judge and jury is manifestly discriminatory, arbitrary, and departs from the established norm since the abolition of the death penalty and violates the right of the Accused to a fair hearing as constitutionally guaranteed by Section 23(1) of the Constitution? If the answer to the above is in the affirmative, what effect would that have on the Accused and/or the trial in the High Court?

2. Whether on a true and proper construction of Section 23(1) of the Constitution, the Accused could not be guaranteed of a fair hearing by virtue of the Attorney General's application to have the Accused being tried for murder without a jury, when such prerogative powers had never been used by the Attorney General

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Sw 5 a8 a matter of norm since the enactment of the Abolition of the Death Penalty Act 2021 and in the absence of any guidelines and/or regulation as to its use for the purpose of objectivity, thereby preventing the Accused from equal protection of the laws to have a fair trial? If the answer is in the affirmative, whether that renders a breach of Section 23(1) of the Constitution and the resultant effect on the Accused and/or trial at the High Court?

3. Whether, the pre-existing powers as contained in Section 144(2) of the Criminal procedure Act 1965 will now automatically apply to murder, treason or robbery with aggravation in the absence of any guidelines or principles, particularly as such a power is of a Subjective nature but ought to be exercised in an objective and consistent manner to ensure that the Accused’s constitutional Tight to a fair hearing under Section 23(1) of the Constitution is not arbitrarily violated? If the answer is in the negative, what is the effect of it on the trial of the Accused’s rights?

4. Whether the Attorney General in the exercise of his prosecutorial Powers under Section 64(3) of the Constitution will violate Section 23 (1) of the Constitution if, in the absence of any Parameters, definitions, guidelines to be applied to determine what constitutes the interest of justice can simply proceed suo moto and subjectively to apply those powers to the case of the Accused and any other future cases of murder, treason or robbery with aggravation? If the answer is in the affirmative, what will be the resultant effect on the trial of the Accused?

5S. Whether as a matter of public Policy, the exercise of powers of the Attorney General under Section 144(2) of the Criminal Procedure Act 1965 following the Abolition of the Death Penalty Act 2021, to prevent the Accused from being tried with a jury in a case of murder etc., infringes the constitutional right of every accused person charged with these offences to have a fair trial as guaranteed by Section 23(1) of the Constitution?

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