BY ALFRED KAMANDA ESQ. & ALPHA UMARU BAH
The principal inferior court of judicature of Sierra Leone is the Magistrates’ Court. In accordance with the Courts Act, No 31 of 1965, Sierra Leone is constituted into Judicial Districts, and Section 4 of the Act states that there shall be constituted Magistrates’ Courts in and for every judicial district.
Magistrates’ Courts have limited jurisdiction. Subject to their limitations, Section 8 of the Courts Act, 1965 provides that Magistrates’ Courts shall have the jurisdiction to do all lawful acts necessary to enquire into and dispose of or to hear and determine all civil and criminal matters arising within the district, area or place for which they are established, or transferred to it by the High Court. Such jurisdiction is to be exercised by the Magistrate duly appointed to such courts. That in accordance with section 7(1) of the Courts Act of 1965, the Magistrate Court shall in addition to any civil jurisdiction which may be conferred upon Magistrates’ Courts by any other enactment every such Court shall have jurisdiction to hear and determine any cause or matter other than an action founded upon libel, slander, false imprisonment, malicious prosecution, seduction or breach of promise of marriage which may be lawfully brought before it and where in the claim, debt, duty or matter in dispute does not exceed Le 600 in value, whether on balance of account or otherwise. This section was however in 2006 amended to extend the financial jurisdiction of the Magistrate Court in civil proceedings from Le600 to Le 5,000,000 by the Court (Amendment) Act of 2006.
This same law is to be amended by a Bill entitled “The Courts (Amendment) Act, 2021 which is being an Act to amend the Courts Act, 1965 to increase the jurisdiction of the Magistrate Courts in Civil matters and to provide for other related matters.
It is vital knowledge, knowing that the Judiciary of Sierra Leone is a creation of the 1991 Constitution of Sierra Leone. Section 120(1) of the 1991 Constitution of Sierra Leone states that the judicial power of Sierra Leone shall be vested in the judiciary. The judiciary of Sierra Leone is headed by the Chief Justice and comprises Courts like the Supreme Court, the Court of Appeal and the High Court. These constitute the Superior Court of Judicature. The inferior courts comprise the Magistrates’ courts and the Local courts. Fortunately the Magistrates Courts exist in each district which brings justice to the doorsteps of the people, unlike the superior Courts. Local courts administer customary law in provincial communities outside the Western Area.
In their research work entitled “Costly Justice: why communities in Sierra Leone turn to paralegals instead of Local Courts to resolve their justice problems”, Aisha Fofana Ibrahim, Felix Marco Conteh, Henry Mbawa, Sonkita Conteh and Yakama Manty Jones found out that an estimated 70% of Sierra Leoneans depend on Local Courts for the resolution of their justice problems such as child and spousal support, property, tenancy and land disputes. They highlighted the high cost of litigation as a primary barrier to justice. In our article, we have come to realize that the costs, the distance in terms of geographical location, accommodation issues, transportation and movement out of their own jurisdiction to another are major barriers limiting access to justice especially in the rural communities of Sierra Leone.
The beauty of this inferior Court called the Magistrate Court is that it is found in every part of the country making justice accessible to all and sundry especially people in hard-to-reach areas of the country. Lord Tom Bingham in his book entitled “The Rule of Law” mentions eight cardinal principles for the existence of the Rule of Law, and access to justice is one of those cardinal principles as espoused by him.
The Bill Entitled “The Courts (Amendment) Act, 2021 is a brilliant move and a laudable transformative move to ensure justice is brought to the doorsteps of the people. The said bill will solve many of the challenges in accessing justice in civil matters in the country. In accordance with the bill entitled “The Courts (Amendment) Act 2021”, Section 7 of the Courts Act 1965 “is amended, by the repeal and replacement of sub section 1 thereof by the following new sub sections”. The Amendment reads:
“In addition to any civil jurisdiction which may be conferred upon Magistrates Courts by any other enactment, every Magistrate Court shall have jurisdiction to hear and determine any cause or matter other than an action founded on libel, slander, false imprisonment, malicious prosecution, seduction or breach of promise of marriage, which may be lawfully brought before it and wherein the claim, debt, duty or matter in dispute does not exceed 50 million Leones in value whether on balance of amount or otherwise”
The expansion of the civil jurisdiction of the Magistrate Courts as provided for in this proposed amendment will help reduce the workload on the Judges of the High Court, make justice very much accessible to litigants in the various districts, reduce costs to a greater extent to name but a few of the challenges that this amendment will address. However, we are not oblivious of the facts that appeals will lie to the High Court from matters handled in the Magistrate Courts where litigants who are dissatisfied will as of right appeal to the High Court.
To emphasize the importance of justice being accessible as a cardinal principle of the Rule of Law, Associate Justice of the Supreme Court of the United States of America Lewis Powel stated that “Equal justice under law is not merely a caption on the façade of the Supreme Court building, it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists… it is fundamental that justice should be the same, in substance and availability, without regard to economic status”.
Of importance to lawyers is where does this Bill Entitled “The Courts (Amendment) Act 2021” leave the Summary Ejectment Ordinance CAP 49 of the Laws of Sierra Leone 1960 which is a specific legislation? This is ‘An Ordinance to establish a form of procedure for the Summary Ejectment of Tenants of Small Holdings neglecting or refusing to quit after the determination of their tenancies. Section 3 of “The Summary Ejectment (Amendment) Act 2006 amends section 3 of the Summary Ejectment Act by the substitution of the words “Five Million Leones” for the words “Two Hundred and Fifty Pounds”.
In Law, however, there are presumptions which help in the interpretation and appreciation of legal instruments. There is a doctrine of implied repeal and this doctrine is a legal concept in constitutional theory which states that where an Act conflicts with an earlier one, the later one takes precedence and the conflicting parts of the earlier Act become legally inoperable. This doctrine is expressed in the Latin phrase “leges posteriors priores contrarias abrogant”. However it was held in the American case of Penziner V West American Finance Company November 24th 1937 that the presumption is against repeals by implication, especially where the prior act has been generally understood and acted upon. To overcome the presumption the two acts must be irreconcilable, clearly repugnant and so inconsistent that the two cannot have concurrent operation. The Courts are bound, if possible, to maintain the integrity of both statutes if the two may stand together. Where a modification will suffice, a repeal will not be presumed. This therefore implies that implied repeal is a disfavored doctrine. That is to say if a court can reconcile the two statutes with any reasonable interpretation, that interpretation is preferred to one that treats the earlier statute as invalidated by a later one.
In addition, it is a well-established principle that Specific Statutory Provisions generally will be given effect over conflicting general provisions. It has been held in various cases such as Dobbins V Terrazzo Machine and Supply Company 479 S.W.2D 806,809 (1972), Woodroof V City of Nashville, 183 Tenn. 483, 192 S.W.2D 1013,1015 (1946) that “the Reason and Philosophy of the rule given effects to specific statutory provisions over general ones is that where the mind of the legislature has been turned to the details of a subject and they have acted upon it, a statute treating the subject in a general manner should not be construed as intended to affect the more particular provision”.
Given that the Summary Ejectment Cap 49 of the Laws of Sierra Leone 1960 deals specifically with summary ejectment proceedings in the Magistrate Court and whereas the Bill Entitled “The Courts (Amendment) Act 2021” concerns itself with general civil proceedings in the Magistrate Court and having regard to the foregoing two presumptions, it is our humble view that that the Summary Ejectment Ordinance CAP 49 should be amended in order to resonate with the generality of the expansion of the civil jurisdiction of the Magistrate Court.
Alfred Kamanda is a private legal practitioner attached to Brewah & Co Mahiteh Chambers and Alpha Umaru Bah is a final year law student
