Justice Edmond Cowan yesterday overruled a motion by Defence Counsel J.B.Jenkins -Johnston that sittings of the Tribunal will be null and void as it had not commenced sittings on 29th June, 2010 and ended on 10th August as stated in Gazette Notice 174 published on 17th June 2010.
J.B.Jenkins-Johnston is representing Justice Desmond Edwards who is facing the Tribunal for alleged insubordination to the Chief Justice Haja Hawa Umu Jalloh.
Counsel in support referred to the cases of Fornah & 14 others Vs. the State 1974-1982 ISLB Reports 48 at page 79 and Macauley Vs Attorney General (2) 1968-69 ALR (sl) 365,367 & 368.
Counsel also referred to the Oxford Dictionary where the words “Mandate” is defined as (1) order from superior & (2) command given with Authority. Mandatory also means conveying a command. Counsel therefore said the only person to vary the command is the person who gave the command i.e. Dr. Ernest Bai Koroma President.
Mr.Kobba Counsel for the State in his response said “Shall” can be used as permissive depending on the circumstances of the case. He also said certain things should have been done before commencement of the proceedings and since there was going to be a cut off date of six weeks, counsel advised themselves to put everything in order before starting. Counsel made two distinctions viz: the meaning of “shall” under statutory conditions and the meaning thereof outside statutory conditions.
He also submitted that it was a general rule of Statutory Interpretation that the word “Shall”, shall have a mandatory intent unless otherwise a contrary intention appears.
‘Shall’, used in Statutory Provisions or Acts connotes mandatory intent. The use of the phrase “Shall commence” in Exhibit A (The Gazette) does not connote mandatory intent. The use of the phrase “Shall commence” does not connote a mandatory intent because this is not a statute and therefore one cannot apply the Rules of Statutory Interpretation.
Justice Cowan also stated in his Ruling that it is the failure of the Tribunal to commence sittings on the prescribed date and to present its report within the stated time frame that is the cause of the Motion.
The Commissioners of the Tribunal were appointed on the 17th of June, 2010 the same date as the publication of the Gazette.
This was followed by the swearing in of the Commissioners of the Tribunal on the 5th July, 2010 i.e. eighteen days after the Publication of the Gazette and seven days after the commencement date viz 29th June 2010.
The Justice Edwards Tribunal was adjourned to 2nd February 2011 while that of Justices Alan Halloway and Alusine Sesay was put on hold for February 14th,2011.
By Abibatu Kamara
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