The Owners of the Ship v Richab S.A & Anor (SC CIV APP 5 of 2000) [2005] SLSC 8 (1 June 2005)

INTHE SUPREME COURT OF SIERRA LEONE

Coram

— Hon Mr, Justice $.C.B Warne - Isc Hon. Mrs. Justice V.A.D.Wright - Isc Hon Mr. Justice ME.T. Thompson = JISC Hon. Mr. Justice A.N.B.Stronge - JA Bs . Hon Mrs, Justice U.H.Tejan-Jalloh - JA SC.CIV. APP 5/2000 ‘The Owners of the Ship “ M.V.Macsho Star” ~ Appellants And Richab S.A. & Anor ~ Respondents AJB Gooding Esq, for the Appellants NC.Browne-Marke Esq forthe Respondents whe F runs vouvensn rue |_vavormais WARNE JSC. Counsel for the Appellants is asking this Court to deliver a ruling on a at, is Court competent Preliminary objection, which was not made, before this Court. Is this Court compete 3 tution o' ‘0 deliver such a ruling? In answer to this question, I will refer to the Const 7 Sierra Leone Act. No 6 of1991. The Supreme Court is a creature of statute and its Constituti ell aware Composition and jurisdiction are spelt out by the suid Constitution, Ne _ 7 ial oust its decision, bin “at the Supreme Court is the most senior Court in the State and its de i nn ‘ther inferior Courts We certainly do not have to be reminded that it Late : 5 fant sections Cour in the Land. Be that as it may, 1 will consider some of the relevant s Supreme ¢ourt ‘heonsticution of Sierra Leone touching and concerning the Supreme € Composition Section 120 (1) provides: - The Chief Justice i rt and (©) Not ess than four other Justices of the Supreme Co

to) Such other Justives of the Superior Court of Judicature or of the Superior Courts in any State practiging a body of laws similar to Sierra Leone not being more in number of Justices of the Supreme Court sitting as such as he Chief Justice may for the determination of any particular case or matter by writing under his hand request to sit in the Supreme Court ifs til west is withdrawn ( emphasis min 9, The Supreme Court shall save as otherwise provided in paragraph (a) of Sub-section (6) of section 28 and section 126 of this Constitution be duly constituted for the dispatch of its business by not less than three Justices thereof” (emphasis mine) ‘These provisions are very clear and €quivocal. In my view who requests who sits in the Supreme Court at any time? It is the Chief Justice This Court has been requested to hear and determine the appeal SC. CIV. App 42000. Counsel for the Appellants urging the Supreme Court to give a ruling on 4 preliminary objection on certain groundsof appeal. This Court as composed, is not competent to give a ruling on a matter of which itis not seised coped 0 ae ry the preliminary objection argued before it? Practice Directions not withstanding Counsel has quoted several legal authorities but are they relevant to the present isse? [say no. With respect I am of the view that the whole exercise has been av academic excursion, ca Litigation must come to an end. The Respondents cannot be deprived jf the decision of the Court of Appeal in‘Uefinitely. I hasten to observe that this exercise in my opinion is an abuse of due process. This, the Supreme Court ought not to ‘encourage and'ill not encourage. | therefore order that the appeal proceed S.CE Warne onic

aie | cc. AP 6/2000 pETW EEN:

The Owners of the Ship

“MLV. MASHO STAR” AND RICHAB S.A. AND ANOR.

‘A.J. GOODING ESQ. AND BERTHAN MACAULEY ESQ. FOR THE PLAIN N.BROWNE-MARKE ESQ. FOR THE RESPONDENTS ied

HON. JUSTICE S.C.E. WARNE 3 S.C.

HON. MRS. JUSTICE V.A.D. WRIGHT —- IS.

HON. JUSTICE M.E. TOLLA-THOMPSON. - IS.

HON. JUSTICE U.M. TEJAN-JALLOH - A.

HON. JUSTICE A.N.B. STRONGE - JA.

On the 17" March 2005, A. J. Gooding Esq, stated that at the last hearing on the 2 February 2002 this case was adjourned for ruling pursuant to a preliminary objection dated 1" August 2002 after being argued by both sides.

N.B. Browne Marke Esq. said that he was before the court for the appeal to be argued towhich A. J. Gooding replied that this court is not properly constituted to proceed with the pending appeal since this preliminary objection was heard by a panel of five judges who adjourned the preliminary objection proceedings for a ruling, The original panel has been reduced by the retirement of two judges and a new panel of five judges including three judges of the original panel has been empanelled to proceed with the appeal. He submitted that even though one or two of the Judges no longer sit on the panel of the court that was dealing with a particular matter so long as the arguments have been completed the Supreme Court has jurisdiction to deliver the judgment or ruling. He further said that the consensus of the authorities is that in the Appell Court the diminution of the panel by death or otherwise ought not to prevent the delivering ©

udgmenv/ruling. rested a list of authorities including Hatlam 1930 47 TLR 207 Re Leslie 1883 23¢LD P.559 and the ruling dated 23° March 2005 in S C. CIV.APP.5/2000 In the matter of Precious Mineral Marketing (Sierra Leone Ltd.) and Minerals Marketing Company (S. L.) Ltd unreported to establish that a judgment/ruling can be given by three Judges even though a panel of five judges heard the arguments.

NB. Browne-Marke Esq. for the Defendants submitted that the panel of three emaining judges cannot deliver the ruling -

Counsel further referred the Court to secti vests 1991 Act NO.6 of 1991 and stated that alte} 122(2) and 126 of the costo referred to section 120 of the Constitution “ad es Should deliver the wit He ear from its own previous decision, nd stated that the Supreme out can dP . ind the question that is to be resolved i omy mind tl \ ved is whether the present panel i om sto proceed with the appeal with Panel is properly constituted to pl pp ithout the resolution of the preliminary objection proceeding om a 3 :

The preliminary objection dated 2" July 2000 was argued b Beppe emysg irgn tpo pret oar rag imerloetory mater which neds tobe resolved usa

The relevant sections of the Constitution that have been referred to durin;

4 " g the argument, these are sections 121(2), section 122(3) and 26(a) of the Constituti 7 wm 991 (Act NO of 1991). ) ‘onstitution of Sierra iis not uncommon for the machinery of Justice to experience break down by death resignation and removal. In the absence of specific provisions in the Rules of the Supreme Court to cater for such eventualities resort will have to be made to other sources to enable us to resolve the issue.

From the authorities cited the death or otherwise of one of the members of the pane! cught not to prevent the delivering of judgmend ruling, This is e enforced by section 20 of the Interpretation Act 1973, Lord Robert Megarry in a chapter under the rubric a snanimous Dissent”, in his book A second Miscellany-at-law exhaustively dealt with the ique of death, resignation, elevation and retirement of members of panel in Court

He said “The difficulty of ascertaining whether a written judgment represents the judge's final views will not normally apply where the judge has not died but merely resigned: and in one such case after the retirement of Hill. his eserved judgment Wes by consent, read by Lord Merrivale P. See Hallam vs. Hallam (1930) 47 TL. 207 and Re Leslie (1883) 23 Ch D 552 at page 559 where Pearson adopted as his own judgment of Fry.. who had became LJ.

In Volume 10 3° Ed Halsburys Laws of England paragraph 830 under the rubric death ofa judge 2 paragraphs reads — where one of the members of an appellate Court dies after the hearing but before judgment has been delivered, it would seem that a Judgment written by his deceased members before death may be adopted by one of the other members as his own, if itis to stand as part of the decision of the Court.

Thave consi i 1(2), 122(3) and 126 of the Constitution of Sierra Leone Act NO.6 OF sol, oh Se aad St ov Nbr 5/2000 in the matter of Precious Mineral Marketing Company (Sierra Leone) Lid and Precious Minerals aans Company (Siena Leone) Lad. umseported in which a panel of five Judaes Hoard the arguments ©

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