Court name
Court of Appeal
Case number
CIVIL CASE 3 of 1970

Regina v Manyei (CIVIL CASE 3 of 1970) [1970] SLCA 3 (23 April 1970);

Law report citations
1970-1971 ALR SL 58
Media neutral citation
[1970] SLCA 3
Case summary:

Constitutional Law-fundamental rights-protection of law-fair trial -Attorney-General’s power to apply for trial by judge alone not to be exercised lightly.

Coram
Dove Edwin, JA
Marcus-Jonas, J

REGINA v. MANYEI alias KULOYORKOR, BAWOI, and
SHERIFF alias SEIFA

Court of Appeal (Dove-Edwin, Ag. P., Marcus-Jones and Tambiah, JJ. A.): April 23rd, 1970 (Information No. 3 of 1970)

  1. Constitutional Law—fundamental rights—protection of law—fair trial —Attorney-General’s power to apply for trial by judge alone not to be exercised lightly: The Attorney-General’s power under s.!44(2) of

    the Criminal Procedure Act, 1965 to apply to the Supreme Court for an order that an accused be tried by a judge alone or with assessors if he is of the opinion that it is in the general interest of justice should not be exercised lightly since an accused is normally entitled to trial by jury (page 61, lines 39-40; page 62, line 34—page 63, line 7).

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  1. Criminal Procedure—jury—right to trial by jury—application under Criminal Procedure Act, 1965 s.144(2) for trial by judge alone only by Attorney-General or proper delegatee—private lawyer with fiat to prosecute not proper delegate: The right of an accused person to be tried by a jury in cases other than those punishable by death can

only be taken away by the Supreme Court under s. 144(2) of the                                                                                                                                   JQ

Criminal Procedure Act, 1965 on the application of the Attorney- General or those to whom he can properly delegate his powers, and no private lawyer is competent to make an application under the section even though he may have the Attorney-General’s fiat to prosecute the case (page 61, lines 36-39; page 62, lines 3-6).

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  1. Criminal Procedure—jury—right to trial by jury—Attorney-Generals power to apply for trial by judge alone not to be exercised lightly: See [1] above.
  2. Criminal Procedure—trial of charges—trial by judge alone—applica­tion under Criminal Procedure Act, 1965 s.144(2) only by Attorney- General or proper delegatee—private lawyer with fiat to prosecute 20 not proper delegatee: See [2] above.
  3. Criminal Procedure—trial of charges—trial by judge alone—Attorney- General’s power to apply for trial by judge alone not to be exercised lightly: See [1] above.

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An application by way of case stated was macle from the Supreme Court (Forster, J.) for a ruling as to whether a private lawyer who had the Attorney-General’s fiat to conduct a private prosecution was competent to make an application for trial by judge alone under s.144(2) of the Criminal Procedure Act, 1965.                                                                                                             30

Counsel for a complainant who had been the victim of larceny and common assault applied to the Attorney-General for his fiat permitting him to conduct a private prosecution. Counsel was a member of the bar but not a law officer. A letter granting permission was sent from the Attorney-General’s office, and acting 35 on this letter counsel undertook the prosecution. He applied, under s.144(2) of the Criminal Procedure Act, 1965, to the Supreme Court for an order that there should be a trial by judge alone rather than trial by jury which would have been the normal procedure. No objection was taken at the time of the application, and the trial went 40 on by judge alone. Counsel for the defence then raised the objection

that the trial so far was a nullity in that only a law officer, namely the Attorney-General or a person to whom he could delegate his powers, could make an application under s. 144(2). The trial judge stated a case for the Court of Appeal to obtain a ruling on this point.

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Legislation construed:

Constitution of Sierra Leone, 1961 (P.N. No. 78 of 1961), s.19(1) :

The relevant terms of this section are set out at page 62, lines 35-37. Criminal Procedure Act, 1965 (No. 32 of 1965), s.2:

The relevant terms of this section are set out at page 61, lines 11-13. s.144(2): The relevant terms of this section are set out at page 61, lines 24-32.

Buck for the Crown;

Johnson for the respondent.

DOVE-EDWIN, Ag. P., delivering judgment for himself and MARCUS-JONES, J.A.:

On October 28th, 1969 three accused persons, namely (1) Momoh Manyei alias Kuloyorkor, (2) Momoh Bawoi and (3) Momoh Sheriff alias Seifa, were charged on an indictment with the following offences: (a) larceny contrary to s.2 of the Larceny Act, 1916; and (b) common assault.

The accused were represented by Mr. T.S. Johnson and with him was Mr. L.E.K. Daramy. Mr. N.A.P. Buck appeared for the prosecution. Mr. Buck is a member of the bar and is not connected with the Law Office, but was able to appear for the prosecution because he applied to the Attorney-General for his fiat to enable him to prosecute at the trial. The Acting Solicitor-General for the Acting Attorney-General sent him this letter:

“Regina v. Sheriff Ndoko and two others, Momoh Kloyowoh, Momoh Binoh.

Sir,

Reference your letter dated May 12th, 1969 in connection with the above, permission is hereby granted to you to conduct the prosecution on behalf of the complainant herein on the understanding that no fees would be payable to you from public funds.

Yours faithfully,

R. Awoonor-Renner

Acting Solicitor-General for Acting Attorney-General.”

 

Acting on this letter Mr. Buck, at the trial before Forster, J., applied under s.144(2) of the Criminal Procedure Act, 1965 for trial by judge alone. Normally the trial would have been by a judge and jury. No objection was taken at the time of Mr. Buck’s application and the trial went on by judge alone. The prosecution case was closed 5 when Counsel for the accused appeared and gave good reasons, accepted by the judge, for his absence. He raised the objection that the trial so far was a nullity and submitted that only a law officer could make the application under s.144(2) of the Criminal Procedure

Act and that Mr. Buck was no such officer. Law officer is defined in 10 s.2 of the Criminal Procedure Act as—“the Attorney-General, the Solicitor-General, the First Parliamentary Counsel and every other Crown Counsel or Parliamentary Counsel.”

On the objection taken by counsel, Mr. T.S. Johnson, the learned trial judge decided to state a case for the opinion of this court. 15 The question asked is as follows:

“Assuming a private lawyer has the fiat of the Attorney-General to conduct a private prosecution of a criminal case in the Supreme Court, is such a private lawyer thereby competent to make an application under s. 144(2) of the Criminal Procedure 20 Act, 1965?”

Section 144(2) of the Criminal Procedure Act reads:

“Notwithstanding anything contained in section 143, in any case where a person is charged at any sessions of the Supreme

Court with a criminal offence not punishable by death the 25 Attorney-General, if he is of the opinion that the general interest of justice would be served thereby, may make an application to the Court for an order, which shall be made as of course, that any such person or persons shall be tried by the Court with the aid of assessors, or by a Judge alone, instead of by a Judge 30 and jury.”

In the first place the letter which counsel submits as the Attorney- General’s fiat cannot in my view be considered an authority to act for the Attorney-General under s.144(2) or any other section.

Section 144(2) deals with the Attorney-General and those to 35 whom he can delegate his powers or who can properly act on his behalf. Only those persons could apply under s. 144(2) of the Criminal Procedure Act. The section, which takes away the right of an accused person to be tried by a jury, must not be lightly used.

It is true that s.l43(b)(ii) of the Criminal Procedure Act gives the 40

 

in a ease where a person could be tried by a judge and jury provided that the offence is not punishable with the capital sentence.

The right of the accused to be tried by his peers can only be taken away if the Attorney-General forms an opinion that in the interest of justice the trial should be before a judge sitting alone or 5 with his assessors and an application should be made for such a mode of trial.

In this case the Attorney-General has made no application to change the mode of trial. The private counsel, who was only authorised to prosecute in this case, has no authority to make the 10 application under s. 144(2) of the Criminal Procedure Act. Therefore the answer to the question posed is in the negative.

Order accordingly.