Legal Brinksmanship Misjudged The Judges.

By Titus Boye-Thopmson (Communications Consultant)…

The opening salvo in the matter before the Supreme Court in Freetown on Thursday 9th April 2005 brought by the erstwhile Vice President (elect) of the Republic of Sierra Leone was adjourned sine die, a legal term which means that the Judges to whom the matter was brought have no wish to make a pronouncement on the matter, until such time as it would be prudent to do so. A case adjourned sine die effectively kills the action brought to bear on it because such an adjournment would be subject only to the considerations of the judges as to whether the case should be heard in substance at a future date or whether not. This action was not only fraught with many vagaries of legal jurisprudence but its instigation presented an opportunity for legal voyeurism and a multitude of scenario building designed to altercate the potential legal framework that would guide the Judges who are also faced with the more substantive matter in relation to the constitutionality of President Ernest Bai Koroma’s action to relieve the Vice Preside of his office and to subsequently appoint Mr. Victor Bockarie Foh to act in the position of Vice President of the Republic of Sierra Leone. Many legal minds hoped vainly for a wink or nod from the Judges as to where they were intending to proceed with the main case but alas, they were disappointed. The judges were invariably misjudged by those who felt that they would be disdained upon to make a pronouncement one way or another. They effectively gave a “no comment” answer to the action brought

There are very good reasons why the Supreme Court had to impose a gagging order on the substantive case, unleashing a blanket ban and embargo on all reporting or speculation of the matter outside of the strict guidelines of court reporting in such circumstances. One such reason is that with a gullible public, unfettered reporting and commentaries on such a case would lead the public erroneously without legal knowledge of the case that is brought and heard by the judges, rush to conclusions that may be wholly wrong, misleading or totally without legal merit.

Lawyers choose their words carefully and would be able to tell you as many times why any legal action can succeed as well as by the same token, why the same matter can fail. Cases in court are heard by those who have the training and experience to hear them, They are to be allowed to come to judgment without undue intrusion into their thoughts nor under undue pressure. The decision therefore to impose a ban on reporting or otherwise speculation is well in place. What is different here is the manner in which the Plaintiffs have decided to handle the case, which is merely a matter of strategy and in some way, one of substantive application of legal tactics.

The issue of an interlocutory injunction has always been a tetchy one in legal hearings and is one which is fraught with skepticism on the side of Judges to grant. Especially when such relief being sought is calculated to mirror the celebrated case of American Cyanamid (No.1) vs Ethicon Limited, 1975 UKHL, heard at the House of Lords in the UK in 1975 which this case duly invoked. The case of American Cyanamid wields a basic legal principle on a suppression of harm that would occur to the plaintiff if the eventual action brought before the court is found in his favor. In very simple terms and by way of example, a Judge would be asked to separate the parties to a marriage pending a determination on the eligibility of the couple in question to marry just so that by the time of the judgment, the woman is not made pregnant acting as she would in her mind believe to be the lawful wife and therefore entitled to sex with the purported husband. However, in another case popularly known as Monsanto (Rex v MAAF, ex parte MONSANTO Plc, 12th October 1988) restricted the scope for which applications based on American Cyanamid can be allowed to proceed. Monsanto requires that any matter to be heard by interlocutory injunction must prove that the plaintiff has an arguable case before it can proceed, but the Court must not try the issues raised in the main case. It is evident therefore that to have made a ruling either way would inevitably enter into the realm reserved for the substantive matter, without the Judges considering all the circumstances and taking evidence in chief to decide on points of law. This would have been prejudicial to either or both parties because any decision would send false signals as to the eventual outcome of the substantive matters before the very same Supreme Court. In the event, the learned judges decided to opt for a stay on both sides who are now bound to await the outcome of the substantive matter in so far as no indication as to the gravity of outcome is necessary as a component in securing justice for either party. The Monsanto principle looks at the balance of probabilities and the existence of an arguable case while American Cyanamid imposes a burden on a public authority to maintain that its action would not cause irreparable damage to the public good and or it is not inconsistent with the good administration of public law.

On a matter of strategy, it could be considered puerile to have opted for an interlocutory injunction on the basis of American Cyanamid where the basic principle requires such a heavy burden of relief and damages to be evenly balanced. Furthermore, the decision in Monsanto restricted the impact of American Cyanamid in a matter where the public good is balanced by an action or absence of action in so far as there would not be any irreparable harm done if the situation requires a reversal of policy or decision after judgment in the main matter is granted.

What these arguments mean, and again in simple terms is that the Judges have made a decision after due consideration of the matter brought before them and they took the option not to comment on the merits or otherwise of the matter of an interlocutory Injunction brought by the Plaintiffs. Had they done otherwise, that would have been where the Judges would have had to invoke the American Cyanamid principle, but on the other hand, and equally so, the judges did not consider it necessary to explore the weight of public harm versus private benefit that would accrue if they had been minded to make an indication of where they were being led in law to determine. In the effect, they also disregarded the principles embedded in Monsanto to consider the balance of probabilities on any action imposed by an interlocutory injunction, and in that manner, came to the right decision to adjourn the matter indefinitely.

All in all, this was a fair outcome, a reasoned and balanced Judgment and a justification of the trust reposed on these fine men, to determine the future of the legal landscape and to concentrate on determining a judgment on the substantive matter that will be ingrained into the legal landscape of this country for years to come. They have shown that they are seasoned professionals and by this judgment have begun to claim their place in the annals of legal history, alongside some of the best legal luminaries that this country has produced over the years.