EXPARTE MUCTARU OLA TAJU-DEEN v THE COMMISSIONER of the Anti-Corruption Commission and Others (SC 5/2000)  SLSC 5 (03 April 2001);
IN THE SUPREME COURT OF SIERRA LEONE
In the matter of an application under section 124 of the Constitution of Sierra Leone 1991, Act No. 6 of 1991
In the matter of an application under section 125 of the Constitution of Sierra Leone, Act No.6 of 1991
In the matter of an application under section 127 of the Constitution of Sierra Leone, Act No. 6 of 1991
In the matter of an application under section 170(l)(a) to (e), 170 Sub-rule 2 & 4 and sections 18(1), 23 sub-rule 1 and 2 and 23(7) of the Constitution of Sierra Leone, Act No. 6 of 1991
In the matter of an application under The Anti-Corruption Act No.1 of 2000
MUCTARU OLA TAJU-DEEN - Plaintiff
THE COMMISSIONER of the Anti-Corruption Commission -1st Defendant
THE ANTI-CORRUPTION COMMISSION 2nd Defendant
THE LEARNED ATTORNEY-GENERAL
And MINISTER OF JUSTICE 3rd Defendant
Hon. Mr. Justice D.E.F.Luke CJ
Hon. Mr. Justice A.B.Timbo JSC
Hon. Mrs. Justice V.A.D. Wright JSC
Hon. Mr. Justice H.M.Joko Smart JSC
Hon. Mr. Justice S.C.E.Warne JSC
C. Doe- Smith Esq., & T.M.Terry, Esq., for the Plaintiff
S.E.Berewa Esq., Attorney-General & Minister of Justice
, B.S.Kebbie,Esq., DPP, L.M. Farmah, Esq., Senior State Counsel, And M. Sesay, State Counsel for the Defendants
Judgment dated 3rd day of April 2001
JOKO SMART: JSC: This Motion is the last in the trinal effort of the plaintiff before this Court to stay or put an end to his current trial in the High Court presided over by Mrs. Justice Patricia Macauley. Certiorari was eventually abandoned when we discharged an Order nisi previously granted him. Prohibition did not succeed either.
In addition to invoking the supervisory powers of this Court under section 125 of the 1991 Constitution , the plaintiff has now explored new ground with section 127 of the Constitution by seeking declarations with respect to certain issues connected with the Anti-Corruption Act 2000, Act No. 1 of 2000 and the Anti-Corruption Commission established pursuant to this Act. He is also asking us to use our powers under section 124 of the Constitution to say that section 120(9) of the Constitution applies to both civil actions and criminal prosecutions in respect of a judge.
In all, the plaintiff is seeking 11 declarations. By now, nothing turns on the particular facts, so I can be appropriately economical in my rehearsal of them. The first declaration is invoking our supervisory powers over the defendants herein. The second requires a ruling that the Report of the Commissioner of the Anti-Corruption Commission is invalid. The third contends that certain provisions of the Anti -Corruption Act are mandatory and that the defendants did not comply with them. The fourth argues that the Anti-Corruption Commission was not properly constituted at the time that the plaintiff was charged on an indictment based on a report of that Commission. The fifth maintains that the sections of the Anti-Corruption Act under which the plaintiff was charged are ultra vires sections 120(9) and 137(4) of the Constitution. Section 120(9) gives immunity to judges for actions and suits done in the performance of their duty while section 137(4) lays the procedure for the removal of a judge for misconduct. The sixth holds that Mrs. Patricia Macauley, the trial judge, ought to recluse herself on the ground of appearance of bias.The seventh complains of a defect in the preliminary proceedings before charges were laid against the plaintiff. This complaint is similar to that in the third declaration. The eighth is in the same vein as the second except that the plaintiff now stresses a breach of his fundamental human right to a fair hearing. The ninth essentially repeats the second with emphasis on the contravention of the audi alteram partem principle by the Commission. The tenth which is novel in the threefold proceedings hitherto instituted by the plaintiff contends that the order of the trial judge requiring the plaintiff's doctor to attend court and give evidence on the state of health of the plaintiff in support of a medical report which the doctor had issued on the plaintiff is in contravention of section 23(2) of the Constitution. The eleventh underscores the trial judge's lack of jurisdiction in conducting the trial of the plaintiff. Let me say that the effect of granting any of the declarations in the manner in which they are couched is to terminate the current trial of the plaintiff.
As was with Misc. App SC 1/2001. we invited written presentations from both sides and we limited oral arguments to the highlights of their respective cases.
For the purpose of the present ruling, I can put the declarations sought by the plaintiff into two separate compartments. First, the ones which can legitimately be considered in this application having regard to our two previous rulings in Misc. App. SC 6/2000 and Misc. App. SC 1/2001 together with the nature of the remedy now sought. These break new ground . Second, the ones which can be given short shrift having regard to the rulings which have already been given in respect of certiorari and prohibition..
I shall begin with the second set. These include all the declarations except nos. (e)and (j) i.e., 5 and 10. The plaintiff must have had this set in mind when he moved the Court under section 125 of the Constitution . Under this section, this Court has supervisory jurisdiction over all other courts and adjudicating authorities in Sierra Leone. In our
rulings on the certiofari and prohibition, the supporting evidence of which are the same as these now before the Court, it was held that the remedies sought could not be given for the reasons stated in those rulings. I do not intend to repeat them here. It is sufficient merely to draw attention to them. Ingeniously, the plaintiff has now come by way of declaratory judgment, which, in my view, cannot be given under section 125 of the Constitution as it is not a prerogative order and the reliefs sought do not involve inconsistency between a statutory provision and the Constitution.. Possibly, the plaintiff now relies on common law as section 127 is specific. I can here understand why he includes section 170 of the Constitution as the basis of bis application. The common law position in the circumstances is not as clear as the plaintiff would like this Court to believe. One view is that a declaratory judgment may lie where the prerogative orders fail. This was the opinion of Lord Goddard in Pyx Granite Co.v. Ministry of Housing [19591 3 All ER 1 at 5 where he said:" I know of no authority for saying that, if an order or decision can be attacked by certiorari, the court is debarred from granting a declaration in an appropriate case.". Speaking specifically of the High Court which also exercises supervisory powers over inferior tribunals, Upjohn LJ in Punton v.Ministry of Pensions  1 All ER 275 at 279 expressed a similar view when he said:"It appears that the High Court has jurisdiction to correct the decisions of inferior tribunals by declaration where it is alleged that the inferior tribunal has made some mistake of law". He then referred to the case of Barnard v. National Dock Labour Board  All ER 1113 where it was held that the subject is not confined necessarily to proceedings by way of certiorari., and he continued: " Where the alleged mistake of law is said to consist in some misconstruction by the tribunal of some statutory rule or order, it is a convenient, speedy and cheap procedure to raise the question and to ask for a declaration." But in the same case, at page 279. Diploek, LJ, concurring in the judgments of Lord Denning MR; and Upjohn LJ issued the following caveat. "I do not wish it to be thought that, without further careful examination, I necessarily assent to the proposition that a declaration lies as an alternative remedy wherever certiorari would lie. I think that it must depend, or may, at any rate, depend on the statutory terms in which jurisdiction is conferred on the inferior tribunal and on the statutory effect of its decision".
There is therefore no conclusive rule that a declaration may lie even if there is an alternative course to pursue. The inconclusiveness apart, the power to make a declaratory judgment at common law is discretionary; the discretion is to be exercised with care and caution, and judicially, with regard to all the circumstances of the case. (See Halsbury, Laws of England, 3 Edition, Volume 22 para 1611).The history of the circumstances leading to this application which is now familiar cannot be lost sight of. As I observed earlier, all the supporting evidence in the previous proceedings are identical with the ones in support of the present application; Massally J.'s ruling in the certiorari proceedings in . the High Court still hovers above the Plaintiff like the sword of Damocles. The dicta expressed in favour of a declaration in the English cases to which I have referred are concerned with decisions of adjudicating authorities which are inapposite to the present case as we have not yet decided that the Anti-Corruption Commission is an adjudicating authority. Before I leave this part of my ruling let me say that the reliefs sought do not involve the interpretation of the Constitution nor are they couched with precision even if a constitutional question can be gleaned from them to warrant coming to this Court under section 124 of the Constitution for an interpretation. In reaching this conclusion, I am guided by the judgment of this Court in Wellington Distilleries v. Electrodia P.
Clarkson (Consitutional Reference) unreported MiscApp. No. 4/81 delivered on 8 April 1982 wherein Tejan JSC opined that "it should be noted that not all Constitutional questions may necessarily involve or entail the interpretation of the Constitution. The question that should be referred to the Supreme Court must relate to the interpretation of any of the provisions of the Constitution". In the circumstances, this Court cannot give the declarations in the second set
I now come to declarations (e) and (j) which I consider to break new ground in this series of applications.. The plaintiff has come, I believe, under section 23 (1) & (2) and sections 127 and 137(4) of the Constitution to substantiate them. I regard the inclusion of section 170(l)(a) to (e) and section 170 (2) & (4) as significant which , in my view, invites the common law as applicable law although counsel for the Plaintiff persuaded us in his argument that we should disregard this law in our interpretation of section 120(9) of the Constitution.
In support of declaration (e) , the plaintiff bases his case on three premises. One is that section 7(1) and section 8(1) of the Anti-Corruption Act, No.1 of 2000 are repugnant to sections 120(9) and 137(4) of the Constitutioa The other is that a judge is immune from criminal prosecution under section 120(9) of the Constitutioa The third is that if a judge does not have immunity under section 120(9), the proper procedure is that under section 137(4) of the Constitution and not a trial in court.
What gives the plaintiff a locus standi before this Court in respect of a declaration that a statute is repugnant to the Constitution is section 127 of the Constitution which provides as follows:-
"127 (1) A person who alleges that an 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 for a declaration to that effect
(2) The Supreme Court shall, for the purpose of a declaration under subsection (1), make such orders and give such directions as it may consider appropriate for giving effect to, or enabling effect to be given to, the declaration so made.
(3) Any person to whom an order or direction is addressed under subsection (1) by the Supreme Court shall duly obey and carry out the terms of the order or direction.
(4) Failure to obey or to carry out the terms of an order or direction made or given under subsection (1) shall constitute a crime under this Constitution."
The first question that comes to mind is whether the Plaintiff can legitimately come directly to the Supreme Court for a declaration on the repugnancy question having regard to the history of the applications he has made to this Court. I apprehend that he can. The language of section 127 is clear and precise. It is the plaintiff's constitutional right to
apply to this Court for a declaration on repugnancy at any time and the fact that he has raised the issue only now does not prejudice that right The second question is whether this Court can give a ruling on the interpretation of section 120(9) again having regard to what has transpired before the Plaintiff came to this Court for a declaration As this question is merged in the first, I also hold that this Court can do so in the present action. As a starting point, it came to light in the application for prohibition that Macauley J in the High Court had given a ruling on the interpretation of section 120(9) of the Constitution and that there is an appeal pending in the Court of Appeal against that ruling. None of the parties herein has made a reference to that appeal nor have the defendants made it an issue in the present application. I hold that the outcome of that appeal is irrelevant to the question now posed before this Court. I think that it would be very mischievous to hold that when the Constitution compels a person to resort to the Supreme Court for a remedy, except there is a similar provision for resort to an inferior court, he can come first to the High Court or the Court of Appeal for a determination of the very matter relegated to the Supreme Court alone. This issue has not been canvassed by either side in this case but I consider it necessary to make a ruling on it in order to remove all doubt and to justify this Court in dealing with the declaration on repugnancy.
I turn now to the gist of the declaration and I begin by stating in full the expunged provisions of the Anti-Corruption Act and the relevant sections of the Constitution. Section 7(1) of the Anti-Corruption Act enacts that:
"A public officer is guilty of the offence of corrupt acquisition of wealth if it is found, after investigation by the Commission, that he is in control or in possession of any resources or property or in receipt of the benefit of any advantage which he may reasonably be suspected of having acquired or received corruptly or in circumstances which amount to an offence under this Act"
Section 8(1) provides that
"Any public officer who solicits or accepts any advantage as an inducement to or reward for or otherwise on account of his -
(a) performing or abstaining from performing or having performed or abstained from performing any act in his capacity as a public officer,
(b) expediting, delaying, hindering or preventing or having expedited, delayed, hindered or prevented, the performance of an act, whether by himself or by any other public officer in his capacity as a public officer, or
(c) assisting, favouring, hindering or delaying or having assisted, favoured, hindered or delayed, any person in the transaction of any business with a public body; is guilty of an offence." 5
Section 120(9) of the Constitution states that
"A Judge of the Superior Court of Judicature shall not be liable to any action or suit for any matter or thing done by him in the performance of his judicial functions."
Section 137(4) stipulates that
"Subject to the provisions of this section, a Judge of the Superior Court of Judicature may be removed from office only for inability to perform the functions of bis office, whether arising from infirmity of body or mind or for stated misconduct, and shall not be removed save in accordance with the provisions of this sectioa"
The remaining provisions of the section make judges removable from office by a two-thirds majority of Parliament after the stipulated procedure has been adopted In respect of this section, Counsel for the Plaintiff contends that even if a judge is accused of a criminal act in the performance of his judicial duty, he cannot be tried by a court but is liable to removal under this section.
At common law, the authorities seem to agree on one point, i.e. that judges enjoyimmunity in civil actions , as a matter of public policy, for acts performed in the course of their judicial functions. (See Lord Tenterden CJ in Garnert v. Ferrand (1827) 6 B & C 611 at 625,626, [1824-341 All ER Rep 244 at 246. : Lord Esher MR in Anderson v,Gorrie  1 OB 670.) As Lord Denning, MR articulates the point in Sirros v.Moore and Others  3 All ER 776 at 785 , " the reason underlying this immunity is to ensure that they may be free in thought and independent in judgment. Each should be protected from liability to damages when he is acting judicially. Each should be able to do bis work in complete independence and free from fear .He should not have to turn the pages of his books with trembling fingers, asking himself: 'If I do this, shall I be liable in damages?' So long as he does his work in the honest belief that it is within his jurisdiction, then he is not liable to an action. He may be mistaken in fact.
He may be ignorant in law. What he does may be outside his jurisdiction- in fact or in law- but so long that he honestly believes it to be within his jurisdiction, he should not be liable. He should not be plagued with allegations of malice or ill-will or bias or anything of the kind." But for acts coram non judice, the authorities also agree that the judge is not immune to civil liability. Buckley LJ correctly draws the line between acts coram judice and those coram non judice in the following passage in Sirros v. Moore at p.787: "In determining whether a judge is liable for some act which he purports to have done in his judicial capacity, the sole question may, I think, be said to be whether it was an act coram non judice. If he were not then performing a judicial function, the act was not coram judice and the judge has no protection. If he was purporting to perform a judicial function but the matter was such that he had not jurisdiction to adjudicate on it, again the act was non coram judice because he had no authority to act as a judge for that purpose, and again he is without protection. If ,however, he did the act in question in the purported performance of his judicial function and it was within his jurisdiction, then the act was
coram judice and the judge is protected." As can clearly be seen, the authorities draw a sharp line of distinction between a judicial act which is protected and a non judicial act which is not. There is therefore no absolute immunity even for civil liability.
On immunity to criminal liability, there is one authority which mentions corruption and which if the context is not carefully considered may carry the impression that a judge is not criminally liable for a crime.. It is the judgment of Crompton J in Fray v. Blackburn(1863) 3 B & S 576 at 578 which states that: "it is a principle of our law that no action will lie against a Judge of one of the superior Courts for a judicial act, though it be alleged to have been done maliciously and corruptly. The public are deeply interested in this rule, which, indeed, exists for their benefit, and was established in order to secure the independence of the Judges, and prevent their being harassed by vexatious actions." In this case the plaintiff who had obtained an interlocutory judgment against one defendant appeared before Blackburn, now the defendant, for the order nisi for costs to be made absolute. The judge refused to make the order absolute which was deliberate and contrary to law and he was sued by the plaintiff for all the costs which she had incurred It was not a criminal case .A straightforward comment on criminal liability came some 111 years later from Lord Denning MR in Siriros v. Moore (supra) at page782 after stating the immunity of the judge when he said: "Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal court."
A more recent pronouncement within the English common law, is that immunity inures against civil actions, at any rate, for negligence . In Arthur J.S.Hall & Co.(a firm) v.Simmons  3 All ER 673 , a case not directly concerned with judges but dealing specifically with the immunity of lawyers, the House of Lords, stressed that civil immunity is accorded judges and all those concerned with the administration of justice. Lord Hutton ,echowing the views of his predecessors said: "A judge is given immunity because the law considers that it is in the public interest that he should not be harassed by vexatious litigation, "(at page 732). With respect to criminal immunity in contradistinction with civil immunity, when a judge has erred, Lord Hobhouse expressed his views as follows: "A feature of the trial is that in the public interest all those directly taking part are given civil immunity for their participation. The relevant sanction is being prosecuted under the criminal law."(at page 739). Lord Hobhouse's opinion bears close affinity to that of Lord Denning in Sirros v. Moore (supra).
Having considered the common law position as it exists in England, I can now conveniently return to the crux of the declaration. The relevant words in section 120(9)for my consideration are "action" and "suit" and "in the performance of his judicial functions"I will begin with my statement in The State v.The Hon. Mr. Justice M.O.Taju- Deem ex parte Dr.Harry Will & Ors. Misc. App. 3/99, ruling on 9 November, 1999 to which the plaintiff has referred as one of the authorities in support of his application. In that ruling I said" If a judge is made a party to any action he is open to liability of any sort and that liability imports a duty resting on him for which he is answerable in law. I opine that if a judge is joined in any proceedings, he is exposed to all the incidents and consequencies of litigation. Thus he can be compelled to attend to answer allegations made against him and he can be amenable to the payment of costs." I later had cause to refer to this statement in the Foundation Day Lecture of the Sierra Leone Law School which I delivered on 23 February 2000, when I said: "In Sierra Leone
it is arguable that section 120(9) of the Constitution gives a blanket immunity to judges in respect of crimes. This is debatable but I do not think that Parliament would have, at any rate, condoned the commission of corrupt practices by judges and let them go free. The Anti-Corruption Act, 2000 now specifically includes judges and magistrates within the meaning of public officers who may be tried for corrupt practices". Little did I know then that some day I will be called upon to give a judicial ruling on the section.
Counsel for the plaintiff calls upon this Court to give a wide meaning to "suit" and "action" to include criminal as well as civil matters. He contends that the rights provided under this section are vested in that they are the same as those in the repealed 1978 Constitution and he exhorts this court not to take away these vested rights, relying on Akar v.Attornev-General, 1968-69 ALR S.L,274. I agree with his premise but not with his conclusion as the latter has no bearing on the meaning of the two words because no authorities have been cited to show the meanings that had been attributed to those words under the 1978 Constitution, which we should not depart from .In Akar'scase , an Act of Parliament sought to deprive Akar of his citizenship which had been conferred on him by the Constitution. It is not the same case here. Be that as it may, I agree with plaintiff's counsel that we must adopt a liberal and purposive approach in interpreting provisions of the Constitution. In particular, I derive inspiration from the dicta of Denning L. J in Seaford Court Estates Ltd. V. As her  2 All ER 155 at 164 where he said:
"A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written words so as to give 'force and life' to the intention of the legislature. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases."
With this statement of Denning L.J as my guiding principle, I will now tackle the meanings of "suit" and "action". Section 120(9) is not as clear as section 48 (4) of the Constitution which removes any doubt about the immunity of the President as it clearly states that he is immune from both civil and criminal proceedings while he holds or performs the functions of his office as President. For judges, we have to look to other sources for more guidance. Mr. Terry drew our attention to the Nigerian case of Egbev. Adefarasin and Another. We were not provided with a full report of that case but from the extract which he gave us, I observe that the Supreme Court of Nigeria was making a ruling on civil immunity of a judge and not on criminal immunity. The Court relied on English authorities some of which I have already mentioned in this ruling, in particular
the opinion of Buckley L J in Sirros v. Moore. Another case, The Merak. T.B. & S Batchelor & Co. Ltd (Owners of Cargo on the Merak) v. Owners of S.S. Merak.  1 All ER 230 upon which the plaintiff has relied is not helpful to his application as this case simply decided that for the purpose of the one year period of limitation in bringing actions under the Hague Rules, the term "action" includes arbitration.. Further, Mr. Terry refers to the meaning of "action" in Words and Phrases Legally Defined Volume 1 2 Edition as "including every judicial proceeding instituted in any Court, civil, criminal or ecclesiastical", but this definition is derived from a statute, i.e., The British Law Ascertainment Act 1859, section 5. However, Counsel did not draw our attention to one definition of an "action" in Words and Phrases Legally Defined where it is stated that "Action in its wider meaning includes both civil and criminal proceedings." But the same Book goes on to say that "action" "is, however, generally used in a more restricted and popular sense as denoting a civil action". The consensus of all the definitions cited in this Book is that an action means civil proceeding. Jowitt's Dictionary of English Law Volume 1 throws more light on the meaning of "action". It says that "in early times, actions were divided into criminal and civil...In modem times, however, 'action' always meant a civil action." In our High Court Rules "action" is defined as a civil proceeding commenced by writ, but does not include a criminal proceeding. The face of a writ of summons contains the phrase "action at the suit of There in no reference to suit or action in the Criminal Procedure Act .On the meaning of "suit" the plaintiff seeks comfort from section 64(3) of the Constitution which provides that all offences prosecuted in the name of the Republic of Sierra Leone shall be at the suit of the Attorney- General and Minster of Justice. The word "suit" in this context, in my opinion, simply means "instance" and does not refer to the nature of the proceeding. Counsel for the defendants cited most of the preceding authorities to canvass that "action or suit" does not include criminal proceedings.
It is now left for me to decide. I do not think that my task is to give the words "action" and "suit" meanings different from those that have been attributed to them from the beginning of legal history to the present times. Rather, my task is to ascertain these meanings and apply them within the context of our Constitution The use of the words "action" and "suit" at common law has historical antecedents dating as far back as the period before the Judicature Acts 1873-75. Originally, when the common law courts were different from the court of equity the word "action" was confined to refer to proceedings in a court of law, commencing with the writ. "Suit", on the other hand, referred to proceedings in chancery commencing with a petition and it included petitions for criminal wrongs... The term later became to mean any legal proceeding of a civil kind brought by one person against another. (See Coke on Littleton 291a.).With the merger of law and equity both terms are now being used interchangeably in civil litigation. The preferred term for a criminal litigation nowadays is a prosecution although ."action" is also commonly used I think that for the interpretation of a constitution a liberal and wide construction is to be preferred but at the same time for some provisions of the constitution, the demands of public policy cannot be completely abandoned.
Taking a cue from the several meanings of "action or suit"' which I have been able to come across in this ruling I hold that "action or suit" can refer to both civil proceedings and a prosecution for a crime. However, I find it inconceivable that by enacting section 120(9) of the Constitution, Parliament intended to exempt a judge from a crime committed by him when he is occupying the seat of justice and the crime has no bearing
on the case that he sits upon. A judge owes a special duty to the community to ensure that justice is done in a trial which he conducts. Immunity is afforded him in order to avoid harassment by disgruntled persons who have been tried by him and not for his personal benefit. It is in this context that I view section 120(9). The immunity does not entitle a judge to go on an escapade of his own. For such activity, it is my opinion that he will not be acting in the performance of his judicial functions. I will regard acts that are in the course of arriving at a verdict or judgment even if they are done maliciously or negligently to assist one party and not the other as being done in the performance of his judicial functions provided that he does not derive some financial or proprietary interest from them. But such acts will be few indeed if one can find them.. For example the commission of a criminal libel against any person in a judgment is an act in the performance of a judge's functions which I regard as not being actionable but a judge taking a bribe or any advantage for his own benefit so that he can pursue a line of action in a case on which he sits is something that I regard as being outside his judicial functions and not within his jurisdiction. If he engages in such activity, his personal interest is in conflict with his duty. Every democratic society frowns upon such a conduct in a person called upon to sit in judgment over others. Corruption is a pernicious, spreading evil in society which the legislature cannot condone in any body . In this connection, I refer to section 6 (5) of the Constitution which enacts that ."The State shall take all steps to eradicate all corrupt practices." I consider it the duty of the courts in interpreting a constitution like ours to consider its provisions as so inter-related as to give effect to the expressed intention of Parliament as gathered from the language used and the apparent policy of the enactment. It is in this light, and bearing in mind section 6(5) that I interpret section 120(9) ut res magis valeat quam pereat and exclude corruption from its ambit. On this score and uno flatu, I am in complete agreement with Lord Denning MR in Sirros v. Moore (supra)on the criminal liability of a judge for corruption.. I therefore hold that sections 7(1) and 8(1) of the Anti-Corruption Act dealing with corrupt practices are not inconsistent with section 120(9) of the Constitution.
The next question is whether a court is the proper forum for the trial of a judge who has committed a crime. Counsel for the Plaintiff says that the proper venue is Parliament under section 137(4) of the Constitution. This section speaks of removal for misconduct among other things. A crime, to my mind constitutes misconduct which may warrant the removal of a judge under this section but I do not think that removal is the only remedy. The fact that a judge may be removed from office because he has committed a crime does not absolves him from being prosecuted for that crime. If this were not the case the section would have said so in no uncertain terms. Apart from this, it is not every crime that a judge commits that is tantamount to misconduct warranting removal under this section. It will be preposterous, for example, to hold that this section can be invoked to remove a judge for a single serious traffic offence.
I now come to declaration (j) whereby the plaintiff contends that the refusal and/or reluctance of the trial judge to grant an adjournment based on Dr. Claudius Cole's medical report regarding the state of health of the Plaintiff in circumstances which led to the doctor being summoned to substantiate his report on the unfitness of the plaintiff to appear in court contravenes section 23(2) of the 1991 Constitution. It reads:
"Any court or other authority prescribed by law for the determination of the existence or extent of civil rights or obligations shall be independent and impartial; and where proceedings for such determination are instituted by or against any person or authority or the Government before such court or authority, the case shall be given fair hearing within a reasonable time."
Although counsel for the plaintiff did not specifically say so he seems to be basing his case on the doctor/patient privilege. I fail to see how such privilege can apply in this matter. The point at issue is not a doctor being compelled to reveal the state of health of his patient which may be a secret to both of them and which may attract privilege. The alleged state of health of the plaintiff was no longer a secret between him and his doctor when the latter issued the medical report. What was then in issue before the trial court was, in my view, the credibility of that report. The examination of witnesses on reports prepared by them is an essential element of our legal system for the ascertainment of veracity. This apart, I do not see how appropriately counsel's argument tallies with section 23(2)..I cannot find any impartiality on the part of the trial judge in ordering the appearance of the doctor.
My conclusion therefore is that the declarations be refused and I so order..