EXPARTE MUCTARU OLA TAJU-DEEN v THE COMMISSIONER of the Anti-Corruption Commission and Others (MISC .APP. 6/2000)  SLSC 8 (18 January 2001);
MISC .APP. 6/2000
IN THE SUPREME COURT OF SIERRA LEONE
IN THE MATTER OF THE CONSTITUTION OP SIERRA LEONE 1991 ACT NO. 6 1991
In the matter of an application under Section 125 of the Constitution of Sierra Leone Act No.6 of 1991 and under the common Law for leave to apply for an Order of Certiorari and for directions and consequential Orders and in the matter of the English Supreme Court Rules
In the matter of The Anti-Corruption Act 2000
AND IN THE MATTER
EXPARTE MUCTARU OLA TAJU-DEEN - Respondent
13C Fornima Village,Goderich
THE COMMISSIONER of the
Anti-Corruption Commission - 1st Applicant
8 Wesley Street
THE ANI-CORRUPTTION COMMISSION - 2nd Applicant
8 Wesley Street
THE STATE ,represented by THE LEARNED
ATTORNEY-GENERAL AND MINISTER OP JUSTICE - 3rd Applicant
3rd floor Guma Building
Hon.Mr.Justice D.E.F. Luke - CJ
Hon.Mr.Justice A.B.Timbo - JSC
Hon.Mrs.Justice V.A.D.Wrigit - JSC
Hon.Mr.Justice H.M.Joko-Smart - JSC
Hon.Mr.Justice S.C.E.Warne - JSC
S.E. Berevia Esq., Attorney-General with him B. Kebtie Esq., D.P.P. and M.M.Seisay Esq., Senior State Counsel for the Applicants
C.Doe-Smith Esq., with him T.M. Terry Esq., for the Respondent.
RULING DELIVERED ON THE 18TH DAY OF JANUARY 2001 WARNS, JSC
On the 19th day of December, 2000, this Court, on a Certiorari
Proceedings, made the following findings per the Learned Chief Justice. "Multiple arguments were advanced in support of the application. Suffice it to say that having heard the arguments of Mr.Terrence Terry, Counsel for the Applicant and having given due consideration thereto and to the papers filed herein,(emphasis mine) I am satisfied that the Applicant has a locus standi and has established a prima facie arguable case for an Order of Certiorari to issue."
The Learned Chief Justice then granted leave for the Order of Certiorari to issue. Joko Smart, Warne JJSC concurred. The application was made ex parte. .The court on that date made the following orders:
(1) That the Respondents be served the relevant papers within four days of this order.
(2) That the application for the Order of Certiorari be heard on the 2nd January 2001.
After complying with this order by the Applicant, The Respondents through their solicitor filed a Notice of Motion on the 20th December, 2000 for an Order discharging the Order Nisi made by this Court on the 19th December,2000.
FACTS A High Court Judge, Mr.Justice M.O. Taju Deen is being prosecuted in the High Court on a twelve count charge of corruption. During the course of the trial, Mr. Terry, Counsel for the accused Judge filed a Notice of Motion ex parte in the Supreme Court for four orders:- namely: inter alia "(1) An Order granting leave to the Applicant herein Muctaru Ola Taju-Deen for an order of Certiorari to issue both under the common Law and section 125 of the 1991 Constitution of Sierra Leone to bring up to the Supreme Court for the purpose of its being quashed the purported Report and/or the purported undated extracts of the alleged findings of the Anti-Corruption Commission signed by the Commissioner of the Anti-Corruption Commission that evidence exists of alleged non existing offences against the plaintiff herein under a Non-existing Act to wit the purported Anti—Corruption Commission Act 2000 upon grounds of failure to observe one of the fundamental principles of natural Justice committal of error of Law on the face of the Records and several other errors of law want of Jurisdiction and/or excess of jurisdiction as set forth in the
copy statement herewith exhibited to the affidavit in support of this Application" The three other Orders are noted.
The affidavit in support of the Notice of Motion contains twenty-three paragraphs. The affidavit is very detailed and, inter alia,paragraphs 18,20,21 are rather significant and I spell them out here:
"19 That I am informed and advised by my Solicitor and Counsel Terence Michael Terry and I verily believe that in the light of the comments made by the Trial Judge Hon.Mrs.Justice Patricia Macaulay to the Applicant herein before the latter gave his Judgment in the case Between The State Vs. Harry Will, Bockari Kakay and Lamin Feika that the said Mrs .Justice Patricia Macaulay ought properly to recluse herself from the said trial if only to avoid the appearance of bias in the above criminal proceedings pending in High Court No.1 Siaka Stevens Street Freetown in respect of which I am facing a 12 count Indictment.
"20 That I am informed and advised by my Solicitor and Counsel Terence Michael Terry and I verily believe that in the light of the foregoing matters deposed to by me, there has been a clear abuse of process by the 1st,2nd and 3rd Respondents herein leading up to the present prosecution against me - the applicant herein and the accused person facing the pending 12 count Indictment before the High Court Freetown in the case between the State V. The Hon.Mr. Justice M.O.Taju Deen.
"21 That I now seek leave to apply for certiorari to issue to bring up to the Supreme Court for the purpose of its being quashed the purported Report and/or the purported undated Extracts of the alleged findings of the Anti Corruption Commission signed by the Commissioner of the Anti Corruption Commission upon the several grounds contained in the statement herein exhibited as exhibit "M0TD12" aforesaid in this my affidavit".
Suffice it to say, that the order Nisi of 19th December, 2000 was made on the basis of the papers before the court. The Applicants in the matter herein have moved the court to discharge the Order Nisi in view of Non-disclosure of Material Facts in the affidavit of Muctaru Ola Taju Been filed on the 2nd December 2000.
NOTICE OF MOTION TO DISCHARGE ORDER NISI
On the 20th December, 2000, The Learned Attorney General, MR.S.E.Berewa applied for an Order to discharge the Order Nisi obtained on 19th December 2000 in the matter herein. The grounds for the application are the following:-
(1) That in making the application ex parte resulting in the granting of the said order by this Honourable Court the respondent herein failed to make full and frank disclosure of material facts/or did not fulfil the requirements of observing the utmost good faith in the making of the said ex parte application in that:
(a) He failed to disclose to this Honourable Court the fact that he had earlier made identical application to the High Court against the same parties add that application was dismissed by the said High Court.
(b) in the said application the High Court had determined the issue as to whether an order for certiorari 'will lie against the Anti-Corruption Commission.
(11) That the Applicants proper caurse after his earlier application referred to in (i) above had been dismissed by the High Court was in law, not to file an identical application in this Honourable Court but to appeal against the Order of the High Court dismissing the said earlier application.
(111) That the Respondent is precluded by the doctrine of estoppel per rem judicatam from making an application the subject matter of the application herein".
2. Such further or other orders as this Honourable Court may deem fit to make." The application is supported by the affidavit of one Lahai Momoh Farmah sworn to on the 20th December, 2000. The said affidavit contains fifteen paragraphs. Paragraphs 2 to 13 are very revealing: They are:
"2. That on the 26th day of August (during vacation) the Respondent made an application by way of Judge's Summons to the High Court for the following Order, among others -
"(2) An Order granting Certiorari to the Applicant herein Muctaru Ola Taju-Deen under its supervisory powers as
provided for by Section 134 of the 1991 Constitution of Sierra Leone to bring up to the vacation Judge in Chambers and/or to the High Court for the purpose of it's being quashed the purported Report and/or the purported undated Extracts of the alleged Findings of the Anti-Corruption Commission signed by the Commissioner of the Anti—Corruption Commission that evidence exists of alleged offences against the Applicant herein under a non-existing Act to wit the purported Anti-Corruption Commission Act 2000 upon grounds of failure to observe one of the fundamental principles of natural Justice, Committal of serious error on the face of the records and several other serious errors of law,want of jurisdiction and/or excess of jurisdiction,as set forth and contained in the copy statement filed herewith and attached to this Judges Summons and also exhibited to the affidavit in support of this application".
A true copy of the said Judge's Summons is now produced, shown to me and narked Exhibit "A".
3. That the said application was supported by an affidavit sworn to on the 26th day of August 2000 by the Respondent herein and filed in the said application. A true copy of the said affidavit (without the exhibits) is now produced shown to me and marked Exhibit B.
4.That on the 20th day of September, 2000 the Respondent sworn to and filed a supplemental or additional affidavit in support of the said application. A true copy of the said supplemental or additional affidavit (without the exhibits) is now produced, shown to me and marked Exhibit "C".
5. That the reliefs sought in the said Exhibit A (Judge's Summons) were contained in the Statement pursuant to the English Supreme Court Rules filed by the Respondent in the said application on the 26th day of August, 2000. A true copy of the said Statement is now produced shown to me marked Exhibit "D".
6. That on the 16th day of October, 2000 the High Court made an Order dismissing the application contained in the said Exhibit A (Judge's Summons). A true copy of the said Order is now produced shown to me and marked Exhibit "E".
7. That on the 2nd day of December, 2000 the Respondant applied to this Honourable Court by NOTICE OF MOTION ( ex parte) intituled as in the present application for the following Order, among others: "(1) An Order granting leave to the Applicant herein Muctaru Ola Taju-Deen for an Order of Certiorari to issue both under the Common Law and Section 125 of the 1991 Constitution of Sierra Leone to bring up to the Supreme Court for the purpose of its being quashed the purported Report and/or the purported undated Extracts of the alleged Findings of the Anti-Corruption Commission signed by the Commissioner of the Anti-Corruption Commission that evidence exists of alleged non existing offences against the Plaintiff herein under a Non-Existing Act to wit the Purported Anti-Corruption Commission Act 2000 upon grounds of failure to observe one of the fundamental principles of natural Justice,Commital of Errors of law on the Face of the Records and several other Errors of Law, want of Jurisdiction and/OR excess of jurisdiction as set forth and contained in the Copy Statement herewith exhibited to the affidavit in Support of this Application."
A true copy of the said Notice of MOTION (ex parte) is now produced shown to me and marked Exhibit "F".
8. That the said Notice of Motion (ex parte) was supported by an affidavit sworn to by the Respondent on the 2nd day of December, 2000 and filed in the said application. A true copy of the said affidavit (without exhibits) is now produced shown to me and marked Exhibit "0".
9. That the reliefs sought by the Respondent in the said Exhibit "F" (Notice of Motion ex parte) are contained in the Statement pursuant to the English Rules of the Supreme Court in Annual Practice 1960 edition filed in the said ex parte application dated the 2nd day of December, 2000. A true copy of the said statement is now produced shown to me and marked Exhibit "H".
10. That nowhere in the said Exhibit "F" ( the said Notice of Motion ex parte) or the said Exhibit G (affidavit in support of the ex parte Notice of Motion) or the said Exhibit "H"
(the said Statement) or in any other document filed in the said Notice of Motion ex parte did the Respondent. (a) disclose that he had earlier made an application to the High Court as shorn by Exhibit "A" hereof and as in paragraph 2 herein for the identical application that is contained in Exhibit F hereof and as in paragraph 7 herein made to this Honourable Court, or any other application similar to the application made in the said exhibit "F".
(b ) inform this Honourable Court of the fact that the said application contained in Exhibit A hereof and in paragraph : herein had earlier been dismissed by the High Court as shown by Exhibit E hereof, a fact which the Respondent was required to notify this Honourable Court of in the making of the said ex parte application (Exhibit F.)
11. That the Order made on an ex parte application by this Honourable Court on the day 1 19th December, 2000 granting leave to the Respondent to apply for an Order of Certiorari and any consequental orders made thereon should be discharged for the Respondent's failure to make a full and frank disclosure and/or to observe the utmost good faith and candour in making the said ex parte application to this Honourable Court. The said Order is now produced shown to me and marked Exhibit "J".
12. That the application as contained in the said exhibit "A" relating to the issue as to whether an Order of Certiorari shall lie against the Anti-Corruption Commission (which is the same issue this Honourable Court is now being asked to decide) has as between the same parties herein been decided already by the High Court. The said decision of the High Court as contained in Exhibit "E" hereof.
13. That the Applicants will rely on the doctrine of estoppel per rem i judicatam as an alternative basis for discharging the order contained in the said Exhibit "J".
SUBMISSIONS OF ATTORNEY GENERAL
The Learned Attorney-General then made several attractive and :
powerful submissions in support of the motion: (1) That it is necessary and indeed imperative that when an ex parte application is made to the court the utmost good faith must "be observed, and where the evidence in support contains material misstatement of facts the order will be discharged. He then cited the cases of the Hagan (1908 - 1909) A.E.R.Rep.21 at 28 per Kennedy L.J. and the Andrea (1984) 1 A.E.R.426 at 1135. He also referred to Order 39 Rule 3 which he submitted is identical with Order 52 Rule 3 of the English Rules.
The Attorney General submitted that where the requirement for full and frank disclosure of material facts and the observance of the utmost good faith have not been complied with by the party making the exparte application, the perso affected by the order is entitled to have the ex parte order set aside. The Learned Attorney General contended that,in the ex parte order nisi obtained on 19 December, 2000, then was a material and relevant fact which the applicant ought to have brought to knowledge of the court in order that the court was fully informed of the true situation. That is to say, that an application of a similar nature had been made in the High Court, after detailed arguments by both parties and. the High Court acting within its jurisdiction had dismissed it for specific reasons.
The Attorney General further contended that the order of the High Court was appealable under section 53 of the Courts Act No.31 of 1965.
He further submitted that the High Court has supervisory jurisdiction over inferior courts by virtue of Section 134 of Act No.6 of 1991 - The Constitution of Sierra Leone as those which the Supreme Court has under section 125 of the said Act No.6. The Learned Attorney General submitted that by virtue of these provisions in the said section 134 and section 125 hereof, the Respondent is estopped from reapplying in this court for the same reliefs because of the decision of the High Court.
UPPLEMENTAL AFFIDAVIT IN SUPPORT
At the hearing, the Attorney General sought leave to file a supplemental Affidavit in support of the notice of motion. There being no objection by Counsel for Respondent, leave was accordingly granted for the supplemental affidavit to be used in the matter herein. This affidavit was sworn to by tone Lahai Momoh Fannah on the 30th December, 2000. In the supplemental affidavit the record of proceedings, before the High Court is exhibited as exhibit 'K' and the Ruling of the High Court is exhibited as Exhibit "L". The supplemental affidavit contains facts which were not disclosed to the court when the order Nisi was made on 19th December 2000. The two exhibits "K" and "L" speak volume of matters with which the court was not seised when it made the order Nisi on 19th December, 2000.
DOCTRINE OF ESTOPPEL
Under this doctrine the Learned Attorney General submitted that in view of the decision of the High Court, the Respondent is estopped from pursuing the same issue between the same parties in this court. He argued that estoppel applies to a decision or determination of a cause of action or issue which has been fully argued. It applies to individual issues, he added, and referred to the case of Foli & Others 7. Agya-Atta & Others (Consolidated) (1976) 1 G.L.R.194.
SUBMISSIONS BY COUNSEL FOR RESPONDENT
Mr. Terry made several submissions in response to those made by the Learned Attorney-General. He has submitted that it is not open to this court to revisit its exparte ruling when once a prima facie case has been established. He vigorously contended that the issues of full and frank disclosure ought to be made at the inter partets stage where it can then be queried.
Counsel submitted further that Certiorari proceedings are designed to show a clear excess of jurisdiction or an error of law. It does not give rise to issue estoppel, and identical issues can be examined in other proceedings, he argued.
Counsel argued that if estoppel does not arise in
certiorari proceedings, full and frank disclosure becomes a non-issue. Counsel made several attrative and forceful submissions, which, in my views, are in elaboration of those specifically mentioned above. Counsel emphasised that what the applicant ought to do at the ex parte stage is to establish a prima facie case and that he has locus standi. (emphasis mine) Mr. Terry-has relied on several authorities more particularly does he rely on the Foli and others case (Supra) which he submitted helps his case rather than that of the applicant.
Counsel finally submitted that it is the duty of Courts to aim at substantial justice between parties and not to let it be turned aside by technicality. The Court is indebted to Mr.Terry that he has made available to us his submissions in printed form. 1 have noted them and considered them fully.
REPLY BY THE ATTORNEY-GENERAL
The Learned Attorney General has submitted that Counsel for the Respondent misconceived the application. He argued that the court has no power to remit to the High Court the whole or any part of the orders prayed for in the Judge's Summons. This is not an appeal, he added. The Learned Attorney General replied to the submissions of Counsel and concluded that substantial justice will be done more if the court leaans towards the absent party in an ex parte application.
Counsel on both sides have been forthright, comprehensive and substabtial in their arguments. I am grateful for the assistance they have given to the court in this, the first challenge of an Order Nisi of this Court.
OPINION OF THE COURT
I shall now proceed to give my opinion on the issues by both counsel.
In my considered view the whole matter revolves around two main points.
(1) Was there a full and frank disclosure of material facts before the court when it made the order Nisi on 19th December 2000?
(2) Does the doctrine of estoppel lie in certiorari
I will answer these questions shortly. On what was the order Nisi on the 19th December 2000, obtained. It was an the basis of the papers before the court. These were the Notice of Motion and the supporting affidavit dated 2nd December 2000. There is no paragraph in the affidavit which deposed that there had been an application before Masally J. in the High Court touching and concerning Certiorari Proceedings - These proceedings took place over the period of the 5th, 6th, 7th, 8th, 11th, 12th, and 28th September and 16th October 2000. The non-disclosure of these proceedings before this court, is in my opinion of grave concern. This court would not determine the merits of those proceedings but it would have been considerable assistance to this court had it been seised of them. Would the court have made the Order Nisi, if those proceedings had been made known to it? It may or may not have made the Order Nisi. To make the Order Nisi or not is entirely at the discretion of the court. The law is clear on the point that there ought to be a full and frank disclosure of all material facts when an ex parte application is made for an order of certiorari to issue. Indeed, I venture to go further that this must be so in all ex parte applications. In my opinion, the reason for this is clear, because it is a qualification of the "audi alteren partem " rule. In certiorari proceedings, where an ex parte application is made, if there is a failure to make full and frank disclosure of material facts to the court the Order Nisi should be discharged. Tide R. V. Barnes and others ex parte Lord Vernon L.J. March 1910 - August 1910 at 860. In this case the Court invoked the provisions of Rule 29 of the Crown Office Rules 1906. It provides the following:
"No writ of Certiorari shall be granted, issued or allowed to reverse convictions or orders of justices from which an appeal lies to the sessions before the matter be determined on appeal or the time for appealing has expired."
The case of Barnes is one where the applicant had
been convicted for that he on the 7th September 1909, at the Hamlet of Kingsmoor, in the County of Cumberland did wilfully drive a Motor Car upon the public highway in a manner dangerous to the public having regard to all the circumstances of the case, including the amount of which actually was at the time or which might reasonably be expected to be on such highway, contrary to the form of the Statute".
The defendant having been convicted on the 6th November 1909, appealed to quarter sessions, and on the 1st December, 1909 when the appeal was pending the above rule was moved and obtained, but it appeared that the fact that the defendant had appealed to quarter-sessions when the rule was obtained was not mentioned in court. In the Judgment of the Court, Lord Alverstone CJ. said "There is clearly no ground for this rule. I regret that when this rule was moved the fact that the defendant had appealed to quarter sessions was not mentioned to the court, because on all applications for certiorari or mandamus the court ought to be told the exact position of the matter" The CJ. added, "The rule must therefore be discharged". Bray J. in the same case had this to Bay, "I agree that both on the (Technical grounds (emphasis mine) and on the merits the rules would be discharged. It is the duty of a party moving a rule to disclose everything material to the court. If there were no other reason for discharging the rule, this rule ought to be discharged on the ground that the court was not informed when the rule was moved that an appeal to quarter sessions had been lodged."
Even though the Crown Office Rules do not apply here the ratio decidendi in the above is very illuminating and I will adopt it in the instant case.
I will also refer to the case of "The Andria" (1984) 1 ALL E.R.1126. Robert Goff L.J. had this to say which concerned the arrest of a ship based on an affidavit filed by the plaintiff which failed to disclose that there was arbitration proceedings being actively pursued:-
"Not only has he failed to disclose material facts to the Court on an exparte application, but he has actively pursued proceedings in court at the same time as actively pursuing arbitration proceedings which is, unless the plaintiff is
seeking an appropriate evidence, security in the action on the principle in "The Renak", Vexatious.
In the case of R V. Kensington Income Fax Commissioner ex Parte Princess de Polignao (1917) 1 K.B. 486 it is held that:
"It is axiomatic that in an ex parte proceedings there should be full and frank disclosure of facts known to the applicant and failure to make such disclosure may result in the discharge of an order made on the ex parte application even though the facts were such that with full disclosure an order would have been justified."
THE MAXIM UBERRIMA F . DES
In spite of the fact that in an ex parte application there should be full and frank disclosure of material facts to the court there must be the utmost good faith in the presentation of the case before the Court vide the Republic of Peru Drey (1886) 56 L.T. 802. It was held that:
"Where an ex parte application is made to the court the person making it must observe uberima fides otherwise he is likely to have the order discharged at the instance of the person against whom it has been obtained."
It was also held that: "Where an ex Parte order had been under rule 4 of Order XL for service of the Writ of Summons in an action upon the defendants who were resident out of the jurisdiction, but the affidavit upon which the order was obtained contained misstatement of fact which had the effect of showing that the plaintiffs had prima facie an overwhelmingly good cause of action} the court held that rule 4 of Order XL must be strictly enforced and that therefore the Order for service out of the jurisdiction must be discharged."
In my view, non disclosure of material facts can amount to a mis statement of facts. In the Dreyfus Case Supra, the Judge Kay J. observed inter alia, "That the full judgment of Bacon V.C. was not deposed in the affidavit in a subsequent action before the Vice Chancellor for leave to serve the writ out of the jurisdiction. Kay, J in his judgment had this to say: "The affidavit, as it stands is a direct misrepresentation of the effect of the judgment of the Vice Chancellor, So far the case is quite plain. I have always maintained and I think it most important to maintain most strictly, the rule that, in ex parte application to this court, the utmost good faith must be observed. It is therefore an important misstatement, speaking for myself, I have never hesitated, and never shall hesitate, until the rule is altered, to discharge the order at once, so as to impress upon all persons who are suitors in this court the importance of dealing in good faith with the court when ex parte applications are made."
In my view, the learned judge has expressed in unequivocal terms what has always been my guiding principle in dispensing justice during my tenure over thirty five years in the inferior and superior courts,in which I sat. I entirely agree with the judge and adopt the rationale in its entirety. The rule which the judge referred to is rule 4 of the Court 1883 Order XL. These rules have been altered over the years but the rationale remains the same.
I hasten to add that, it is not for counsel on either side to score points in a court of la w. Justice must be dispensed impartially, and this can only, hopefully be achieved if persons appearing in our courts make full and frank disclosure of all material facts with the utmost good faith.
The rule applicable in this jurisdiction vis-a-vis unberman fides is Order 59 Rule 3 of the English Supreme Court, Rules-vide rule 98 of the Rules of this Court,Public Notice No.1 of 1982. In this Ruling I have referred to three paragraphs 19, 20 and 21 of the affidavit of Jhictaru Ola Taju Deen sworn to on the 2nd December, 2000. I opine, these may have led the court to decide on 19 December, 2000 that the
applicant therein had a prima facie case for an Order of Certiorari to issue• What motivated the applicant not to disclose that certiorari proceedings had taken place before the High Court, I will not speculate on the answer. Be that as it may, I will adopt the words of Robert Goff LT. in The Andria case Supra.
"Though we do not for one moment suggest any bad faith on the part of the deponent, the fact is that the affidavit sworn to lead to the warrant of arrest, failed to disclose facts which were material to the issue of the warrant, and as a result of the nondisclosure, the warrant was issued and thereafter the ship was arrested, it follows in our judgment that the invocation by the appellants of the court jurisdiction to arrest the ship amounted in the circumstances of the case to an abuse of process of the court and that the clubs letter of undertaking must be discharged."
Let me recapitulate — The applicant for leave must show uberman on fides and if leave is obtained on false statement or a suppression of material facts in the affidavit, the court may refuse the order on this ground alone. If the order has been obtained it ought to be discharged. The fact that certiorari proceedings had taken place in the High Court in August through October 2000 and was not stated in the affidavit of Muctaru Ola Taju Been is a clear suppression of material facts. As a result of such suppression the order nisi of this court obtained on 19th December 2000 is accordingly discharged.
DOCTRINE OF ESTOPPEL
The Learned Attorney General submitted that if an issue is determined then an estoppel can lie to bring the same point and the same parties. He argued that where the court arrived at a decision that it had no jurisdiction and in the process decided an issue in controversy, estoppel is actuated by that decision. Mr. Terry, for the respondent contended that certiorari proceedings are designed only to expose a clear excess or error of law and does not give rise to an issue estoppel.
In Joists Dictionary of English Law, it is stated that issue estoppel has no place in English Law. If a person had been acquitted at a trial the prosecution may adduce part of the evidence given at that trial in subsequent perjury proceedings vide D.P.P. V. Humphrey (1976) 2 W.L.R. 857 overruling R. V. Hogan (1974) QB 398.
In Hines V. Bickbeck College No.2 (1991) 4 ALL E.R. it was stated that there should not be multiplicity or duplication. In the case of Poll and others the court held that:
"If the dismissal necessarily involved the determination of any particular issue or question of fact or law, then the dismissal would be an adjudication on that question or issue, if otherwise, the dismissal would decide nothing, except that the party had been refused the relief which he sought."
The rule is framed widely enough to cover not only matters which axe actually dealt with in the previous judgment but these as well which ought to have been brought up then which were not. In R. V. Secretary of State for the Environment ex parte Hackney London Borough Council and another, "It was stated that it was doubtful whether the doctrine of issue estoppel could be relied on in an application for judicial review. On the question of whether estoppel applies to certiorari proceedings the answer in my opinion in the affirmative but I do not think it is germaine to the instant case.
These cases are instructive, but the instant matter is not an appeal from the decision of the High Court nor is it a reference under Section 124 of the Constitution of Sierra Leone, 1991. Suffice it to say, that the provisions of Section 125 and Section 134 of the said Constitution, are clear and distinct.
Section 125 provides that:
"he Supreme Court shall have supervisory jurisdiction over all other Courts in Sierra Leone and over any adjudicating authority} and in exercise of its supervisory jurisdiction shall have power to issue such directions, orders or writs including writs of habeas corpus, order of certiorari, manda mus and prohibition as it may consider
appropriate for the purpose of enforcing or securing the enforcement of its supervisory powers"
Section 134 provides that:
"The High Court of Justice shall' have supervisory jurisdiction over all inferior and traditional courts in Sierra Leone and any adjudicating authority, and in the exercise of its supervisory jurisdiction shall have power to issue such directions, writs and orders, including writs of habeas corpus, and orders of certiorari, mandamus and prohibition as it may consider appropriate for the purpose of enforcing or securing the enforcement of its supervisory powers."
Having spelt out the provisions of Section 125 and 134, it would be inappropriate to give a considered fuling in the instant case.
In view of what I have said above I will discharge the Order nisi pronounced by this court on 19th. December, 2000 and grant the order as prayed. I shall make no order on grounds (ii) and (iii) of the Notice of Motion.
D.E.F.Luke.C.J. A.B. Timbo JSC. V.A.D.Wright JSC. H.M. Joko Smart JSC.