S v Irene Young And Others (SC CR APP 1 of 1976) [1977] SLSC 5 (15 March 1977)

. a S.C. ER. APP, NO. 1/76 IN THE SUPREME COURT OF SIERRA LEONE

Coram

The Honourable Mr. Justice C.0.€,Cole - Chief Justice The Honourable Mr, Justice £. Livesey Luke Justice of the upreme Court The Honourable Mr. Justice C.

4. Harding - Justice of the Supreme Court 7 The Honourable Mr. Justice 0.8.R. Tejon - Justice of the Supreme Court. 4 The Honourable Mr. Justice K.£.0, During = Justice of Appeal. THE STATE - APPELLANT ' vs. 5 ‘ IRENE YOUNG

Joseph Koroma

SAMUEL FOWLER - RESPONDENT ".S.Turay, Esq., Solicitor Generel with him Bankcle Thompson, Senior State Counsel and Mr, Koroma, State Counsel for the State. ‘D.H. Smythe Eaq., 9.C. with him Mrs, H. Ahmed for the ‘st Respondent. ; N.O. Tejan-Cole, Esq., for the 2nd Respondent. No Appearance by or on behalf of the 3rd Respondent.

AULING delivered on Tuesday, ASR. day of march, 1977. LIVESEY LUKE 3,5.¢. By Notice of Motion dated 3rd fugust, 1976 the Attorney-General on behalf of the State applied to the Court Court of Appeal for leave to eppeel te this Court against tha judgment of the Court of Appeal delivered on #th July, 1976 ecquitting and discharging the above-mentioned ist Respondent on certain counts of falsification of nccounts and of Larceny and the above-mentioned 2nd and 3rd Respondents on certain counts of Larceny. By Order dated the z0th day of August, 1976, the Court of Appeal granted leave to tho r ; State to appeal to this Court end ordered that the Notice : of Appeal be Filed within one month from the date thereof. i when the Appeal came up for hearing befure this Court, 7 Mr. J.H.Smythe Q.C, Learned Counsel for the 1st Respondent | raised a Preliminary object (Notice of which he had previously i filed and served) to the hearing of the appeal by this Court : on the following ground: j "That the Appeal is not properly before the Court as : the appellant has not obtained final leave to appeal." H Mes Smythe based his Preliminary objection on Rule 66 of H the Sierra Leone Court of Appeal Rules, 1973 (Wo. 20 of 1973) { which is in the following terms: | "Leave to appeal to the Suyreme Courts in pursuance i shall in the first instance be granted by the Court i only upon condition of the appellant, within 2 period f to be fixed by the Court but not exceeding three months } from the hearing of the application for leave to apnea? i providing good and sufficient security, to the sotterection of the Court, in » sua not exceeding one thousand Leones ? f /for the due . t i t r

for the duc prosecution of the appoal and the poyment of { allsuch costs os may become payable to the respundent in i the event of th: appellent not obtaining an order granting i hie fine) leave to npicol or of the appeal being dismisced { for non=prosecution, on of tha Supreme Court ordering thn } case may be." ' Before processing further, I think that it is necessary to t emphasise that this rule relates to cases where an appellant applies to the Court of Appeal for eave to eppral. It dons : not affect cases where the appellant appeals to the Syprene - ! Court as of right or where he applics to the Surome Court for ; special leave to appeal. Olfferent provisions (other than 7 ; Rule 66) apply to the tuo latter cases. 7 t Learned Counsel for the 1st Respondent suomilted with much force thet undor Rule 66 an appellant must First obtein from the Court of Appesi conditionel leave to apeeal thet i was mandatory for the Court of Appeal to impose condition for the appellant to give good and sufficient sccurity (a) for the due prosecution of the appeal and (b) for the ‘ , payment of costs, and that after complying with the conditions : fixed by the Court of Rppeal, the appellant should apply te the Court of Appeal and obtain therefrom final leeve to sppeal Learned Counsel submitted that if the Court of Nppeal failed to fix the requistts conditions of appeal, or if the appellant failed to comply with the conditions fixed or sf he did not teke any of the steps laid down, thé Supreme Court could not properly entertain the appeal. Mir. N.O. Tejan-Cole, Learned | Counsel for the Rezpondent argued in support. Qn 9 Literal reading of the Rule, Learned Counsele submission is sound. I agree that in the normal case the Court , ; of Appoal must fix the conditions of appeal in accordance with Jwith the provisions

the provisions of the rule and the appellant must compli with these conditions and then apply to the Court of Appeal y for final leave to appeal. i But the important question for determination is a whether Rule 66 applies to the instant appewl. In order to ansuer this question it ie nacessery to examine the con- Ee ditions laid down in Rule 66. fis stated carlier the rule lays doun tuo condition: : which the Court of Kppeal must fix in granting conditional leave to appeal i.e. providing good end sufficient security 3 : | (4) for the due prosecution of the appeal and (ii) for tho . ! payment of costs. 3 i With regard to the first condition, it is relevant to : { refer to Section 65 of the Constitution of Sierra Leone, 1971 i which provides as follows: ” | "65

(1) There shall be @ Solicitor-Generel uhose of fic i shall be @ public office and he shell have power in eny case H (2) to institute and undertake eréminal { proceedings against any person before 3 any court in respect of any offcence i ageinet tho lau of Sserre Leones : i (bv) to teke over and continue any such i criminal proceedings that may heve t been instituted by any other person ~ if or authority; and i (c) to discontinue et any stage before Judgment is delivered such criminal procendings instituted or undertaken : by himself or any other person or a authority. ® Ee : /The Solieitor-General

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(2) The Solicitor-General shall in all matters including his povers -under this Constitution or any other law be subject to the general or special direction of the Attorney-General.

(3) The powers conferred upon the Attorney-General by thie section shall be vested in him to the exclusion of any other person or authority: Provided that, where any other person or authority hae instituted criminal proceedings, nothing in this section shell prevent the withdravel of those proceedings by or at the instance of thot person or authority at any stage before the person against whom the proceedings have been instituted has been charged before the Court. if

(4) In the exercise of the powers conferred upon him by . this section the Attorney-General shall be subject to the - direction or control of any other person or authoritys

(5) For the purposes of this section, any appeal from any determination in any criminal proceedings before any court, or any case stated or question of law reserved for tho purposes of any such proceedings, to any other court shall be deemed to be pert of those proceedings! mn ! By virtue of thig Section of the Constitution, the Attorney-General, (or the Solicitor-General as the cose may be) has the power to prosecute all criminal matters in Sierra : Leone, This power extends to Criminal Appeals (Sco S.65(S) of | the Constitutica, 1971). In my opinion thet sub-section (5.65(5) { empowers the Kttorney-General (or the Solicitor-General as the i case may be) to prosecute sli criminal appeals in Sierra Leone. i the case may be)by $.65 of the Constitution, the Courts cannat . i criminal proceeding, be it a Summary trial in the Magistrates 7 i Court, 9 triel in the High Court or an appeal in any of the

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‘i f Appellate Courts. In my opinion, the reason for this i that it would be in vain for the Courts to require the Attorney-General to give secutiry to exerciso a powor | unoch he already has, and which is conferred upon him by H lau, in this case the basic lew of theState. | The law does nothing in vain. A reference to the provision : relating to committak proceedings in the Magistrates Court t should illustrate this point. Section 123 of the Criminal Procedure Act, 1965 (No.32 of 1965) provides inter alia:~ "125, The Court upon committing an accused person for triel may bind by recognisance with or without a securety or sureties, o - 7 it may deem requisdte, the prosecutor and 2 every witness to appear at the triel to prosecute or to prosecute and give evidence or to give evidence : as the case may be". It should be noted thet the "Prosecutor" mentioned in the Section does not include the Attorney-General or the ’ Solicitor-General (See S.2 of the Criminal Procedure Act, 1965). Thus whereas the Magistrates Court ‘may require @ "Prosecutor" or a uitness to enter into recognisance to prosecute, the : Magistrates Court has no pover te impose such @ requirement 1 on the Attorney-General or the Solicitor-General : } In my judgment therefore the condition relating to giving security for the due prosecution of an appeal is not i applicable in criminal proceedings where the Attorney-General | represents the State end therefore the Court of Appeal cannot f properly impose such a condition upon the Attorney-General, i 66 i.e. Security for the payment of costs. In my opindon the : Smportant question is: can the Court of Appeal compel th : Attorney-General to give security for the payment of costs in

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