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A High Court Ruling by Hon. Mr. Justice Samuel Ademusu, J.A.
By HON. JUSTICE SAMUEL ADEMUSU (J.A)
May 24, 2010, 13:44
The important points which lies at the heart of this ruling is whether the Notice of Motion filed and served by Yada Williams and Associates on behalf of the accused is properly before the court.
C.T. Mantsebo of Counsel for prosecution has strongly objected to the application being entertained on the grounds that it is not properly before this court and contending that no legal foundation either on common law or statute allows it. That the Order which they are seeking to set aside is the Order of Hon. Mr. Justice N.C. Browne-Marke, J.A. made in accordance with the provisions of Section 132 (5) of the Sierra Leone Constitution Act No. 6 of 1991.
His argument is that an Order made by the Judge in chambers is the same as the one made in the open court. He submitted that this application tantamounts to an appeal against the Order of Justice Browne-Marke and therefore it is a Court of higher jurisdiction that can entertain it and should not be heard.
Another issue raise by counsel is that the present applicant was not a party to those proceedings which was an ex parte and contended that there is no basis upon which the applicant can claim to have the locus to question the use of discretion by the court in an ex parte application.
Counsel drew the courtís attention to the confusion caused by Yada Williams and Associates bringing this application and gave reasons for coming to the conclusion.
In his response Y.H. Williams Esq. stated that this is not a civil proceeding and I say that there is no dispute about that.
The most serious issue he has raised is as to whether or not this Court has the right to set aside its own order. For this, he has relied on the case of Craig vs Kanssen (1943) K.B 256 C.A. In that case it was held that the failure to serve the summons upon which an Order was made was not a mere irregularity but a defect which made the order a nullity. Where an order is a nullity, the person affected by it is entitled to set it aside ex debito justitiae. Lord Greene M.R. delivering the judgment of the Court said at pages 262-263.
- "it is beyond question that failure to serve process where service of process is required goes to the root of our conceptions of the proper procedure in litigation. Apart from proper ex parte proceedings, the idea that an order can validly be made against a man who had no notification of any intention to apply for it, has never been adopted in this country. It cannot be maintained that an order which has been made in those circumstances is to be listed as a mere irregularity and not as something which is affected by a fundamental vice."
It can be seen clearly that this authority can be used and would be appropriate in a case where judgment is given per incuriam but an important point which came out is it does not cover ex parte proceedings. I think it is important to note that Section 83(1) of the Anti Corruption Act deals with ex parte order.
Mr. Yada Williams strenuously contended that the High Court Rules apply in an application of this nature. He placed great reliance on Order 38 Ė Rule (1) and Order 2 Rules 2(1) and (2) of the High Court Rules 2007. Without going into the details of the provisions in those Orders and Rules, I will simply say that I do not share the view expressed by Mr. Williams that the High Court Rules apply, stand or can be invoked in criminal proceedings. The Rules of Court Committee was only empowered to make rules regarding and for prescribing the procedure (including the method of pleading) and the practice to be followed in all civil cases or matters. For this view of mine is reinforced by Section 22 (1) of the Court Act No 31 of 1965. There is nowhere in the High Court Rules 2007 which refers to criminal proceedings. Section 25 of the same Act makes it abundantly clear that subject to the Criminal Procedure Act 1965 the present practice and procedure of the High Court shall continue to be in force but may be varied, added to, amended or revoked by rules made under Sections 22 and 23 of the Act. Over and above this, I will strongly rely on Section 3 of the Criminal Procedure Act 1965 (as amended) which provides that:
"Without prejudice to the provisions of any enactment, all criminal offences shall be enquired into, tried and otherwise dealt with according to the provisions of this Act."
See also Section 18(3)(a) of the Courts Act 1965 (as amended) which says:
"The jurisdiction conferred upon the High Court shall be exercised in respect of criminal matters in the manner provided by this Act and the Criminal Procedure Act of 1965.
I will also refer to Order XLVIII of the old High Court Rules of 1960. It reads:
"Subject to the provisions of this Order nothing in these rules save Order L1 and as expressly provided, shall affect the procedure or practice in any of the following causes or matters: (a) criminal procedures."
In my view the foregoing authorities should [not] leave any body in any doubt that the High Court Rules 2007 do not apply to criminal proceedings.
I would also wish to add that though Mr. Yada Williams is on record as one of the Counsels for the Defence in this matter but the Firm of Yada Williams and Associates are strangers in these proceedings and I so hold. For all the foregoing reasons, I uphold the objection raise by Mr. Mantsebo. I rule that the present application is not properly before this court. The result is that it is struck out.
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