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Lanbuk on Sierra Leone Legal System: model answers

Essay and problem questions answered with IRAC: issue, rule, application, conclusion.

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Essay

The dual legal system

'The Sierra Leone legal system is a colonial creation.' Discuss with reference to its development from 1787 to the present.

issue

How far the present system is shaped by colonial history, and how far it has been reformed since independence.

rule

Protectorate Ordinance 1896; Local Courts Act 1963; Courts Act 1965, s.74; Constitution of Sierra Leone 1991, ss.120, 170; Local Courts Act 2011, ss.40 and 41.

application

The Colony received English law and English-style courts, while the 1896 Protectorate kept native courts applying customary law. That split survives in the general-law courts and the local courts. Section 74 of the Courts Act 1965 still receives English law in force on 1 January 1880. But independence brought real change: the 1971 Republic ended Privy Council appeals, the 1991 Constitution placed the Judiciary under Chapter VII and declared customary law part of the common law in s.170(2), and the Local Courts Act 2011 brought local courts under the Judiciary with appeals to the District Appeal Court and the Local Appeals Division of the High Court.

conclusion

The structure is colonial in origin, but its source of authority and much of its content are now national, under a Constitution that is the supreme law.

Essay

Sources of law under section 170

Critically examine the sources of law in Sierra Leone under section 170 of the 1991 Constitution.

issue

What counts as law in Sierra Leone and how the different sources relate to one another.

rule

Constitution 1991, s.170(1) to (3); Courts Act 1965, s.74; All People's Congress v NASMOS [1999] SLSC 11.

application

Section 170(1) lists the Constitution, Acts, statutory instruments, existing law and the common law. The Constitution is supreme, as NASMOS shows: a pre-1991 statute inconsistent with s.133(1) was void. Section 170(2) defines the common law to include equity and customary law, which gives customary law equal formal status but leaves it subject to statute and to the repugnancy test. Received English law under s.74 fills gaps but freezes English statutes at 1880 unless adopted.

conclusion

The sources form a clear hierarchy with the Constitution at the top, but reliance on old English statutes and unwritten custom makes the law hard to find.

Essay

Precedent in Sierra Leone

Explain how the doctrine of judicial precedent operates in Sierra Leone. Is it suitable given the state of law reporting?

issue

How the hierarchy of courts binds lower courts, and whether precedent can work well without reliable reports.

rule

Constitution 1991, ss.122(2) and 128(3); Young v Bristol Aeroplane [1944] KB 718; Practice Statement [1966] 1 WLR 1234; Miliangos [1976] AC 443.

application

Only the ratio binds. Under s.122(2) the Supreme Court normally follows itself but may depart, like the House of Lords under the 1966 Practice Statement used in Miliangos. Under s.128(3) the Court of Appeal is bound by itself, as in Young. Lower courts are bound by both. English decisions persuade. But years without official reports meant judges often could not find earlier Sierra Leone decisions, which weakened certainty. Free online publication of judgments has improved access.

conclusion

The doctrine is well defined in the Constitution, but its value depends on accessible reports, which online publication is now restoring.

Essay

Judicial independence

How does the 1991 Constitution secure the independence of the judiciary? Are the safeguards adequate?

issue

Which constitutional rules protect judges from outside pressure.

rule

Constitution 1991, ss.120(3), 135, 137, 140.

application

Section 120(3) makes the Judiciary subject only to the Constitution and the law. Appointments are made by the President on the advice of the Judicial and Legal Service Commission and with parliamentary approval (s.135), with long qualifying practice. Judges hold office during good behaviour and can be removed only for inability or misconduct after a tribunal and a two-thirds parliamentary vote (s.137). On the other hand the President appoints, and the Commission includes presidential appointees, which may allow executive influence.

conclusion

The formal safeguards are strong; their real strength depends on how appointment and removal powers are used in practice.

Problem

A Bill the President will not sign

Parliament passes a Bill. The President refuses to sign it and returns it after ten days with reasons. Parliament passes it again with 60 per cent of all Members. The Minister then makes regulations under it that go beyond the Act. Advise.

issue

Whether the Bill became law, and whether the regulations are valid.

rule

Constitution 1991, ss.105, 106, 124, 170.

application

Returning the Bill within fourteen days with reasons was proper. To override the refusal Parliament needed at least two-thirds of all Members; 60 per cent is not enough, so the Bill has not become law. Even if the Act were valid, regulations that exceed the powers in the parent Act are ultra vires. A question whether an enactment was made in excess of power goes to the Supreme Court under s.124, and Parliament may annul statutory instruments by a two-thirds vote under s.170.

conclusion

The Bill is not law. Any regulations would be invalid both for lack of a valid parent Act and for exceeding the power given.

Problem

An appeal from a local court

A local court decides a customary land dispute against Fatmata without letting her call her witnesses. On appeal a High Court Judge sits alone and dismisses her appeal. Advise.

issue

The correct appeal route, the composition of the appeal court and the breach of natural justice.

rule

Local Courts Act 2011, ss.40 and 41; Ridge v Baldwin [1964] AC 40; Constitution 1991, s.134.

application

Fatmata's appeal lies first to the District Appeal Court (s.40), a magistrate with two assessors. A further appeal goes to the Local Appeals Division of the High Court, which must consist of a judge with two assessors (s.41); a judge sitting alone is not properly constituted where customary law is in issue. Refusing to hear her witnesses breaches audi alteram partem, as in Ridge v Baldwin, and can be corrected on appeal or through the supervisory jurisdiction.

conclusion

She should appeal further or seek review; the High Court decision is open to challenge for wrong composition and the local court decision for breach of natural justice.

Problem

Starting a claim in the High Court

Musa wants to recover a debt from a company that is about to move its assets abroad. The debt fell due seven years ago. Advise him on procedure.

issue

How to begin the claim, how to protect the assets, and whether the claim is time-barred.

rule

High Court Rules 2007; American Cyanamid v Ethicon [1975] AC 396; Limitation Act 1961.

application

A disputed debt claim is begun by writ of summons and served on the company. If the company fails to defend, Musa can seek default judgment, or summary judgment if there is no real defence. To stop the assets leaving he could apply for an interlocutory injunction, showing a serious question to be tried and that the balance of convenience favours him. However, a simple contract debt is generally barred after six years, so unless time was extended, for example by a written acknowledgment or part payment, the claim is likely statute-barred.

conclusion

Procedure is available, but limitation is his main problem and must be checked first.

Essay

The place of customary law

'Customary law in Sierra Leone is equal in status to the common law but inferior in practice.' Discuss.

issue

The formal status of customary law and the limits placed on it.

rule

Constitution 1991, ss.27, 170(2) and (3); Registration of Customary Marriage and Divorce Act 2009; Child Rights Act 2007; Local Courts Act 2011.

application

Section 170(2) makes customary law part of the common law, and local courts apply it. But it yields to the Constitution and statute, it must pass the repugnancy test, and it must be proved where unsettled. Statutes such as the 2009 Act and the Child Rights Act 2007 have reformed customary marriage. The exceptions in s.27 keep some discriminatory customary rules outside the equality guarantee, which is criticised.

conclusion

The statement is largely true: customary law has formal equality but is subordinate to statute and the Constitution and is being reshaped by legislation.