Sierra Leone Association of Journalists v Attorney-General & Anor (SC 1 of 2020) [2009] SLSC 4 (11 November 2009)

IN THE SUPREME COURT OF SIERRA LEONE

S.C.1/20_QJ1

, ' BETWEEN: THE SIERRA LEONE ASSOCIATION OF JOURNALISTS AND THE ATTORNEY-GENERAL AND MINISTER OF JUSTICE

THE MINISTER OF INFORMATION BROADCASTING AND COMMUNICATIONS

Coram

HON. MS. JUSTICE U.H. TEJAN-JALLOH HON. MRS. JUSTICES. BASII-TAQI HON. MRS. JUSTICE V.A.D. WRIGHT HON. MR. JUSTICE M.E.T. THOMPSON HON. MR. JUSTICE G. SEMEGA-JANNEII

PLAINTIFF

1 ST DEFENDANT

2 D DEFENDANT

CHIEF JUSTICE J.S.C. J.S.C J.S.C. J.S.C.

VADA WILLIAMS ESQ. AND OSMAN JALLOH ESQ. FOR THE PLAINTIFF

L.M. FARMAH ESQ., AND OSMAN KANU FOR THE DEFENDANTS JUDGMENT DE:...:VERED THE 101 11 DAY OF NOVEMBER, 2009.

TEJAN-JALLOII, C.J. The Sierra Leone Association of Journalists a Company Limited by Guarantee under the Companies Act, Chapter 249 of the laws Sierra Leone (as amended) by way of an originating notice of motion dated the · 25th day of February, 2008 moved this Court for the under-mentioned reliefs on the 3rd day of February 2009 against the Attorney-General and Minister of Justice and the Minister of Information and Broadcasting and C ommunication Th ere reliefs c1re sought pursuant to sections 25 and 171 (15) of the Constitution of Sierra ,, Leone 1991 Act No.6 of 1991 (hercinafter referred to ,is ("the Constitution”] namely,

A. The interpretation of Sections 25 of the Constitution Viz-a-Viz sections 27, 27, 32-37 of the Public Order Act 1965, Act No.46 of 1965 for the· determination of the following questions.

(i) Whether the provisions of sections 26, 27, 32-36 of the Public Order Act criminalizing free speech con travenes the right of freedom of expression guaranteed under the entrenched provisions of section 25(1) of the Constitution?

(ii) Whether the provisions of sections 26, 27, 32- 31, of the Public Order Act can be demonstrably justifiable in the light of Sierra Leone's obligations under the Universal Declaration of Human Rights, the International Convention on Civil and Political Rights and the African Charter on Human and People's Right?

(iii) If the answer of (i) and (ii) above are in the affirmative whether the provisions of sections 26, 27, 32 -36 of the Public Order Act does not fall out of the restriction provision of sections 25 (2) of the Constitution

B. A declaration that sections 26, 27, 32-36 of the Public Order Act criminalizing free speech are unconstitutional and therefore null and void

by virtue of section 171 (15) of the Constitution in so far as they violate provisions of section 25(1) of the Constitution.

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C. A declaration that the restriction provision to the right of freedom of expression under section 25(2) of the Constitution does not save the .. provisions of sections 26, 27, 32-36 of the Public Order Act in so far as the said provisions cannot be demonstrably justifiable in a democratic society.

D. Any further and other relief that the Honourable Court may deem fit and just

2. The Originating notice of motion is supported by the affidavit of Richard Olu Gordon, Philip Neville and Julius Spencer all sworn to on the 25th day of February 2008. Taking them serially, first Ric hard Olu Gordon, who deposed that he is a member of the S ierra Leone Association of Journalists and media practitioner for over twenty years and Editor-in-Chief of Peep Magazine for the past seven years.

He asserted that on the 11th Februc1ry 2005 he was summoned to the Criminal Investigations Department on the instructions or the Attorney-General and Minister of Justice in connection with an article captioned "KABBA SAYS OKERE STAYS" that had appeared in his satirical news paper Peep Magazine questioning why Marine Minister Ibrahim Okere Adams had not been sacked after he was indicted by the Anti-Corruption Commission.

He alleged that prior to the article two other Ministers were promptly dismissed after being indicted by the Anti-Corruption Commission, but that Okere Adams is regarded as President Kabba's "most reliable Northern ally". That he was detained at the Criminal Investigation Department for three days and charged

with seditious libel, but was released on the 14th February 2005 without being arraigned before any Court and that he did not receive any c ompensation. Th at he can no longer publish contentious articles without first ha ving to decide whether he was to go to prison or not and that the state of affairs w,1s neither reasonable nor necessary in a democratic society. Finally, the existence of criminal or seditious libel offences allow for the government authorities to arrest and detain journalists at their will, disregarding fundamental human rights.

3. Second, Philip Neville, inter alia, deposed tha t he is a member of Sierra Leone Associc1tion of journalists and also a media Practitioner. On the 25th February, 2008 when he swore his c1ffidavit he was President of th e Association. He has been a Media Practitioner for over 20 yec1rs and Editor-in-Chief of the Standard Times Newspaper.

That during the reign of the National Ruling Council he was arrested and summarily detained. It the Pademba Road Prisons on three occasions for supposedly breaching sections 27-36 of the Public Order Act 1965, that on the 24th February 1991, he published an article captioned "Joe Demby's mercenaries stabbed to kill Mr. Jonah" concerning a plot to assassinate the President of Sierra Leone, Alhaji Ahmed Tejan Kabba and the then Minister of Finance Dr. Jonah, by foreign mercenaries. He was told that his arrest was for a breach of the Criminal Libel provisions of the Public order Act 1965 but on the 8th March, 1999 he was released without a charge under any of the offence proscribed under sections 26- 36 of the Public Order Act, that on the 29th June, 2007 he was again arrested after publication captioned "Bomshell Gaddaffi Exposes Government" in the Standard Times Newspaper concerning gifts from the Government and the people of Libya to the Government and People of Sierra Leone.

_j fie was remanded in custody for two days and charged to Court on the 4th July 2007 and was granted bail in the sum of two hundred million Leones in addition to three sureties in like sum.

He opined that the amount was the toughest bail condition tha t w as ever set for a criminal libel offence and that the incidents had a chilling effect on him and that he can no longer publish contentious articles without h aving to decide whether he was ready to go to prison or not.

That he has been persecuted by successive Governments merely as a result of disseminating, in his capacity as a Journalist, reliable information that came to him and he was of the view that Sierra Leoneans have the right t o be informed about sensitive mc1ttcrs he reports on.

Finally, that he believed that the state of affairs is neither reasonable nor necessary in a democratic society.

4. The next deponent in support of the originating notice of motion i s Dr. Julius Spencer, who is also a Media Practitioner and a member of the Sierra Leone Association of Journalists. He deposed, inter alia, that he has been a media Practitioner for over 20 years and Managing Director of the Premier Media Consultancy Limited and Proprietor of the Premier Newspaper. He averred that on the 13th October, 1993 he was editor of "New Breed" Newspaper, which published an editorial based on an article found in Swedish n ewspaper "Expression" captioned "Redeemer or Villain". Th at the article focused [in the sale of diamonds and misappropriation of some of the proceeds by the then Government of Sierra Leone, he was charged to Court with seditious libel on a ten count indictment and was found guilty and fined two thousand United States Dollars. His appeal to the Court of Appeal of Sierra Leone is still pending and because of the conviction he is blemished with a criminal record and he is warry of being in active media practice, as it had a negative impact on his family.

He is oi the opinion that the state of affairs is neither reasonable nor necessary in a democratic society.

5. Before I comment on the merits or demerits of the plaintiffs’ case, it is pertinent to state that the fundamental right of freedom of expression is not an innovation in the Constitution. It was so provided in section 21 in chapter 111 of the 1961 Constitution under Protection of Fundamental Human Rights and Freedom of Individuals: sec Public Notice No.78 of 1961. In the 1978 constitution of Sierra Leone - Act No.12 of 197B it was provided as section 15 in chapter 11 under the rubric Protection of Fundamental Rights and Freedom of the individual. In those two constitutions application for constitutional rights to redress for the fundamental rights of freedom of expression was to the High Court and only permitted if it was a direct or intentional hindrance to the said Freedom. And the proviso to sections 24(2) of 1961 and 1B(2) of the 1978 Constitutions respectively empowered the High Court to refuse such application if it was satisfied that adequate means of redress for the contravention are or have been available. Now section 25 of the Constitution of 1991 empowers only the Supreme Court to hear an application for contravention of Freedom of expression and the proviso to section 28(2) enables the Court to refuse the exercise, if it is satisfied that adequate means of redress are or have been available.

It must be emphasised that freedom of expression is a n entrenched provision and is subject to respect for the rights of freedom of others and for the public good and this must always be borne in mind.

6. Counsel has come to this Court by an Originating Notice of Motion and thus invoking the original jurisdiction of the Court. The relevant regulation is to be found in Part XVI of the Supreme Court !?11/es (1982) published as Constitutional Instrument No.1 of 19B2. It behoves him to satisfy the Court of the Provisions of Rule 89 and

90. In this regard I must mention Craies on Statute Law 5th p. 249 where the following statement appears.

"As a general rule, Statute which enable persons to take legal proceedings under cert ain specified circums tances must be a ccurately obeyed notwithstanding the f act th at their provisions may be expressed in mere affirmative language ........ this rule may also be expressed thus - that when o Statute confers juris diction upon a tribunal of limited authority and statutory origin, the conditions and qualifications annexed to the grant must be strictly complied with".

Rule 89 inter alia, stipulates that the motion must he supported by affidavit setting forth as concisely as possible the nature of the reliefs sought by the plaintiffs. Messrs Phillip Neville, Olu Gordon and Dr. Spencer h ave individually sworn to affidavits in support of the motion and only Mr. Phillip Neville in para graph 19 of his affid avit deposed to the reliefs of the plaintiffs. The other two deponents are silent on this aspect. I find that the reliefs set out by Mr. Phillip Neville are the same as those on the face of the notice of motion. It is pertinent to mention at this stage that these deponents have not claimed or attempted to claim that they are or any of them is plaintiff. The irresistible conclusion is that Sierra Leone Association of journalists Limited are the plaintiffs. The stark fact is that the Plaintiffs are the Association a nd have not complaine d of actual or threatened act against itself.

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7. Rule 90 of the Supreme Court Rules empowers a plaintiff to file his c ase with or after the filing of the originating notice of motion. The solicitor for the plaintiff in this case has filed such a statement with the motion. Sub-Rule 2 of Rule 90, inter alia, requires of the plaintiff to set forth the facts a nd particu lars of his ca se, documentary or otherwise, verified by an affidavit, upon which he seeks to rely. A Mr. Ibrahim Karim Sei, who deposes in his affi davit that he is the S ecretary- General and also media Practitioner of the Sierra Leone Association of Journalists verified the statement. It is a 55 page document and exhibited and marked “H”. Attached to the said affidavit of Mr. Sei are also exhibits “I”, “J”, “K” and “L” inclusive, which are business licences and certificates of renewal of licences of the company issued by the Registrar of Compan ies. I have searched amongst the documents, the annotations of Mr. Sci in his affidavit, that is to s ay section A -E referred to in paragraph 3 and section 2 in paragraph 4 and I am unable to find any.

8. The reliefs sought by the plaintiffs include an interpretation and two declarations of the Constitution. Even a cursory examination will indicate that these reliefs are provided for in the basic document, to wit, the Co11stitutio11. They are sections 124(1) and 127(1) respectively.

"Section 121(1) reads "the Supreme Court shall have original jurisdiction to the exclusion of all other Courts in all matters – relating to the enforcement or interpretation of any provision of this Constitution".

Section 127(1) reads -

"A person who alleges thot on enactment or anything contained in or done under the authority of that or any other enactment is inconsistent with/or is in contravention of a provision of this Constitution, may at any time bring an action in the Supreme Court".

I observe that nowhere in the fa ce or heading of the O riginating Notice of Motion is stated or reference is made to sections 121(1) and 127(1) of the Constitution. It is settled practice in our jurisdiction and several other jurisdictions that when proceedings are commenced by origina ting notice of motion it must be intituled in the matter of the Act(s), Rule(s) and Constitutional provisions under or pursuant to which application is to be made. Surely, one would have expected the present originating notice of motion to be intituled in the matter of the appropriate sections of the Constitution. This w as not done in this case no amendment was sought or obtained by counsel for the plaintiff's. In my view it 1s a serious omission.

9. 130th sections 2S and 127(1) of the Constitution refer to the word “person” and it will be useful at this stage to decide whether the plaintiffs in this case can be described as such bearing in mind that it is a company limited by guarantee.

The answer is to be found under the definition section of the interpretation Act 1971- Act No.8 of 1971, which states that "a person" -

"Includes any Company or Association of Persons or body of persons corporate or unincorporated as well as an individual".

It therefore follows that the plaintiffs f all under the definition of person in sections 25(1) one/ 127(1) of the Constitution I find from the memorandum and Article of Association that the last word in the name of the co mpany has the word "Limited". This is a mandatory requirement of a company limited by guarantee.

but it is observed that the originating notice of motion and several supporting documents in this case omitted the word "Limited".

However, I take cognizance of the fact that our Courts have held that such an omission is not fatal and proceedings without it ought not to be set aside if a reasonable person reviewing and looking at the document(s) on the whole would come to the conclusion that the doc uments refer to the plaintiff. A case in point is that of Mobil Oil Sie rra Leone Limited v. Texaco AE Ltd. 1964-1966 ALR SL

133. I hold th,1t in the present case there is ample evidence for me to apply this principle of Law and I so do.

10. This is not the end of the matter. Prima facie, every action by a company must lie be brought in the name of the company to remedy a wrong done to it for the Court has no Jurisdiction to interfere with the internal management of a company, which is acting within its powers and will not, therefore, allow a minority to complain of a matter which can be ratified by the company in general meetings. But where the matter complained of cannot be ratified because the person against whom relief is sought controls the company the shareholders complaining are permitted to bring an action in their names on behalf of all the shareholders other than the majority. This is the rule in Foss v. Harbottle (1843)

2. Ha

461. On the other hand in the case of Mozley v. Alston (1847) 1 Ph 790 two members of an unincorporated railway company filed a bill in their individual character, against the corporation and twelve other members who were alleged to have usurped the office of directors and to be exercising the functions thereof, as a majority of the governing body injuriously to the Company’s interest and praying that the twelve might be restricted from acting as directors, and be ordered to deliver the company's common seal, property and books to six other persons who were alleged to be the only duly constituted directors. Lord

Cottenham, Lord Chancellor allowed a demurer to the bill. The injury a lleged was . not to the plaintiffs personally but to the company.