Lawyers for the Anti Corruption Commission currently prosecuting the matter of The State versus Afsatu Kabba, have yesterday May 20th 2010, told Presiding Judge Hon. Justice Samuel Ademusu that they were "in a state of confusion" over an issue concerning Defence Lawyers for Haja Afsatu Kabba.
Lawyers Mantsebo and Reginald Fynn representing the State through a fiat of the ACC Commissioner laid down three points in a preliminary objection taken to counter a motion that was to have been moved by Lawyer Yada Williams with regards setting aside an order for State Witnesses to become protected witnesses whose identities should remain a secret hidden from the general public. One of the points by the ACC Prosecutors was that the Anti Corruption Commission Lawyers were confused with respect to the Accused’s Lawyers who currently number a grand total of nine on record as announcing their representation namely Blyden Jenkins-Johnston Esq., Sulaiman Tejan-Jalloh Esq., Foday M. Dabor Esq., Yada H. Williams Esq., Elvis Kargbo Esq., Melron Nicol-Wilson Esq., Leon Jenkins-Johnston Esq., Osman Jalloh Esq. & Cassandra Labor Esq.
Proceeding to lay down his legal arguments, firstly, Mantsebo for the ACC stated that the Accused’s application was not properly in front of the courts as the ACC opined that there was no legal foundation for such an application. He said it was an ex-parte application to which the other side was not a party and so "there is no basis to see how the applicant has the necessary locus standi to question the use of discretion by the court in an ex-parte application like this".
Secondly, the ACC claims that even if the applicant had locus standi, only a court of Higher Jurisdiction could set aside a High Court Order as even though it was done in Chambers, Section 132(5) of the Sierra Leone Constitution gave any Judge sitting in Chambers to grant an ex-parte application, the same powers and jurisdiction as if he had been in Open Court so only the Appeals Court could set aside ex-parte orders of a High Court Judge seated in Chambers.
Finally, the Anti Corruption Commission expressed its "state of confusion" over the issue of the Accused’s solicitors by Mantsebo telling the Judge: "We are in a state of confusion as to whether the solicitors on record are the ones who brought in this application". He said Messrs Tejan-Jalloh and Dabor were expected to be the ones to file the application since they were the ones receiving communication from the ACC in this matter but that however, another set of lawyers from another Law Firm had filed the papers.
In response to the first issue, Lawyer Yada Williams insisted that according to Order 38 of the High Court Rules, there are procedures for making ex-parte applications which procedures were not followed at the time the ACC had made an ex-parte application for the witnesses to be protected thus making the Order to be a nullity. Yada Williams said: "no one is questioning the discretion of the Court in an ex-parte application but an ex-parte application does not give a Judge carte-blanche to do what he wants but according to Section 132(5) of the National Constitution, it should be done in accordance with the Rules of Court which in this case are the 2007 Rules of Court which call for such application to be made by Summons and not for a lawyer to just walk into a Judge’s Chambers and make an application viva voce".
"It would appear that my Learned Friend’s interpretation of the phrase ‘ex-parte’ is:- you just walk in and start talking but even the ethics of our profession does not provide for a lawyer to just walk into a Judge’s Chambers and start talking. Where is the Summons in this case?" Lawyer Yada Williams boomed his question over the Court microphone.
On the second issue of whether the High Court could set aside its own order without going on appeal, Lawyer Yada Williams quoted a 1943 precedence of Craig v Kanssen which he told the Court he learnt of whilst in Year One of Law School during which precedent, Lord Greene M.R. set aside an order purportedly made under the Rules of the Court after examining the distinction between orders that are nullities and those which are irregularities. Lord Greene had stated: "These cases to me establish that a person who is affected by an order which can properly be described as a nullity is entitled ex debito justitiae to have it set aside. So far as procedure is concerned, it seems to me that the court in its inherent jurisdiction can set aside its own order and it is not necessary to appeal it."
On the third issue of the "state of confusion" of the Anti Corruption Commission’s prosecutors, Lawyer Yada Williams sought to patiently teach the ACC lawyers the distinction between civil and criminal procedures with the latter (criminal cases) being satisfied with a Lawyer announcing his representation in Open Court to be an immediate locus standi given to him to make applications on behalf of the Accused whilst the former (civil) needed the filing of papers officially for recognition of such locus standi.
"This is not a civil proceeding. There is no provision in the Criminal Procedure Act or any enactment for Counsel to file documents to formally enter in appearance in criminal proceedings. Announcing your representation in Open Court gives you immediate locus standi," Lawyer Yada Williams stated.
At the end of a marathon bout of legal sparring between the Defence Counsels and the ACC’s Prosecutors, the Learned Honourable Justice Samuel Ademusu, in his wisdom, adjourned the matter for him to make a ruling on the ACC’s Preliminary Objection at mid-day today May 21st 2010. Earlier, the esteemed Learned Judge had warned against persons commenting in the media on the evidence in the case. He warned that he would not hesitate to initiate contempt proceedings against anyone who published an article bordering on contempt.