Jurisdiction: Sierra Leone (common law jurisdiction)
Court: High Court of Sierra Leone, Holden at Freetown, Land and Property Division
Presiding Judge: The Honourable Mr Justice Fisher J
Hearing Date: 22 May 2025
Date of Ruling (as endorsed on the ruling): 27 May 2025
Case Number: CC 395/15
Neutral Citation Number: CC.395/15 K69 (Land and Property Division)
Legal Area(s): Evidence (documentary evidence), civil procedure (trial practice), statutory interpretation
Tags: deceased witness statement; admissibility; CAP 26 section 3(3); interested person; proceedings pending or anticipated; Order 30 rule 1(9); objection to tendering; death certificate

Style of Cause

Between: Lansana Kainchallay & 64 Ors … Plaintiffs
And:

1. Sierra Rutile Ltd … 1st Defendant

2. African Lion Agriculture Ltd … 2nd Defendant

Legal Representatives (as recorded)

• For the Plaintiffs: Mr C. F. Margai

• For the Defendants: Mr Berthan Macaulay Jnr

• For the 2nd Defendant: Ms J. Wellington

Catchwords (Headnote Summary)

Evidence, documentary statements, deceased maker, admissibility in civil proceedings, Evidence (Documentary) Act CAP 26 section 3(1) and proviso, exclusion for interested person where proceedings pending or anticipated, CAP 26 section 3(3), witness statements, High Court Rules 2007 Order 30 rule 1(9), specific versus general provisions, statutory interpretation (literal rule, purposive rule), objection to tendering additional witness statement, death certificate.

Procedural Posture

This ruling arose in the course of an ongoing civil trial. During the plaintiffs’ case, an objection was taken to the tendering of a witness statement connected to the proposed tendering of the death certificate of a deceased Paramount Chief. The court was required to determine whether the statement was admissible and, in particular, how Order 30 of the High Court Rules 2007 interacts with the Evidence (Documentary) Act CAP 26 regarding statements of deceased persons.

Background Facts (material to the ruling)

1. In pending proceedings before Fisher J, plaintiffs’ counsel led a witness, Thomas Sabbah, who testified that he had made an additional witness statement relating to the tendering of a death certificate for Hon Paramount Chief Madam Hawa Kpanabum (deceased).

2. When counsel sought to tender the statement, defence counsel objected.

3. The court’s task was narrow but important: whether the statement could be admitted, and if so, whether it was barred by CAP 26 section 3(3).

Issue(s) for Determination

1. Whether Order 30 rule 1(9) of the High Court Rules 2007 governs the tendering of statements of deceased persons in civil proceedings.

2. Whether section 3 of the Evidence (Documentary) Act CAP 26 permits the statement to be admitted, given the maker is deceased.

3. Whether the statement is excluded by CAP 26 section 3(3), namely that it was made by a person interested at a time when proceedings were pending or anticipated, involving a dispute of fact which the statement might tend to establish.

Arguments of the Parties

Defendants (objection by Mr Berthan Macaulay Jnr)

• The tender offended Order 30 rule 1(9) of the High Court Rules 2007 and CAP 26 section 3(3).

• Order 30 rule 1(9)(a) contemplates a witness statement becoming evidence where the witness is called and the court directs the statement to stand as evidence in chief. Where the maker cannot be called, the procedure cannot be satisfied.

• CAP 26 is a statute of general application on documentary statements, while Order 30 specifically governs witness statements, so Order 30 should prevail (relying on principles in Bennion and local authority).

• Even if CAP 26 applies, the statement was caught by section 3(3) because the statement was made when proceedings were pending or contemplated.

Plaintiffs (response by Mr C. F. Margai)

• Order 30 addresses living witnesses who can be called, indicated by the words “where the party serving the statement does call such a witness at the trial”. It does not address deceased makers.

• CAP 26 contains specific mechanisms admitting documentary statements and includes exceptions where the maker is deceased.

• The defendants’ authorities were said to be unhelpful, and the objection should be overruled.

The Legal Provisions Considered

High Court Rules 2007

• Order 30 rule 1(9)(a) and (b) (witness statements standing as evidence in chief where the witness is called; and restrictions on adducing evidence beyond the served statement).

Evidence (Documentary) Act (CAP 26, Laws of Sierra Leone, 1960)

• Section 3(1) (conditions for admitting documentary statements where direct oral evidence would be admissible).

• Proviso to section 3(1)(ii) (the maker need not be called if dead, unfit, out of jurisdiction, or cannot be found).

• Section 3(2) (court discretion to admit statements to avoid undue delay or expense in stated circumstances).

• Section 3(3) (exclusion for statements by interested persons when proceedings were pending or anticipated involving a dispute of fact).

Decision / Judgment

The objection was sustained. The statement sought to be tendered was held inadmissible, and the trial was directed to continue on a later listed date. Costs were ordered to be in the cause.

Court’s Reasoning (Analysis)

1. Statutory interpretation approach

The judge treated the matter as turning on statutory construction and adopted a principally literal approach where the language was plain, while recognising orthodox purposive tools where appropriate.

2. Whether Order 30 applies to statements of deceased persons

The court accepted that Order 30 rule 1(9), on its true and literal construction, regulates the situation where a witness statement is served and the maker is called at trial. It contains no express treatment of statements of deceased makers.

Accordingly, Order 30 is not a statute of specific application to deceased witness statements. It is specific to trial management of witness statements where the witness is available to testify.

3. CAP 26 is the specific regime for deceased makers

The court held that CAP 26 is the specific legal framework addressing documentary statements where the maker is deceased, because section 3(1) expressly provides that the requirement to call the maker “need not be satisfied” where the maker is dead.

Therefore, for deceased makers, CAP 26 prevails over Order 30.

4. The decisive point, exclusion under section 3(3)

Having held CAP 26 governs admissibility, the judge then determined whether the statement was barred by section 3(3).

• The court adopted the guidance from Jarman v Lambert and Cooke Contractors Ltd (interpreting materially identical provisions under the Evidence Act 1938) on what it means for proceedings to be “anticipated”.

• The court found that in the present case the statement (dated 31 May 2017) was made after the writ of summons had already been issued (7 December 2015), so proceedings were not merely anticipated, they were pending.

• The deceased Paramount Chief was treated as a person interested in the dispute, given her position as Paramount Chief of the Chiefdom where the events occurred and where defendants operated and plaintiffs resided as subjects.

On that basis, the exclusion in section 3(3) applied, and the statement was inadmissible.

Key Quotations (short extracts)

• On plain language: “If the words of the statute are so plain and unambiguous… the words themselves… best declare the intention of the law giver.”

• On “anticipated”: “Anticipation is a state of mind whereby someone considers that something is likely to happen.”

• On section 3(3) outcome: the statement was “made whilst proceedings were pending and consequently the exclusion… applies.”

Ratio Decidendi

1. Statements of deceased makers are governed, for admissibility purposes, by section 3 of the Evidence (Documentary) Act CAP 26, not by Order 30 rule 1(9) of the High Court Rules 2007, because Order 30 is directed to witness statements where the maker is called at trial and does not specifically address deceased makers.

2. A documentary statement is inadmissible under CAP 26 section 3(3) where it was made by a person interested at a time when proceedings were pending or anticipated involving a dispute of fact which the statement might tend to establish.

3. Where proceedings have already been commenced, a statement made thereafter will ordinarily be treated as made while proceedings are pending, thereby engaging section 3(3) if the maker is also “interested”.

Obiter Dictum

• The ruling endorses the orthodox interpretive principle that general provisions may yield to provisions tailored to a particular situation, but applied the principle in reverse to the defendants’ submission: for deceased makers, CAP 26 is the tailored provision.

Final Orders

1. The defendants’ objection was sustained.

2. The statement sought to be tendered was held inadmissible.

3. Costs in the cause.

4. The matter was listed for continuation of trial on a later date (as endorsed in the ruling).

Commentary / Practice Note

Practical effect

The ruling draws a sharp distinction between:

• Order 30: case management and use of witness statements at trial where the witness is called; and

• CAP 26: admissibility of documentary statements, including statements of deceased persons.

Risk under CAP 26 section 3(3)

Even where the maker is deceased and calling the maker is dispensed with, section 3(3) can exclude the statement if:

• the maker is “interested”, and

• the statement was made when proceedings were pending or anticipated, and

• the statement tends to establish a disputed fact.

This is particularly important in long running disputes. Practitioners seeking to rely on statements of deceased community leaders or officeholders should consider whether the statement was made after proceedings commenced, and whether the maker’s office or relationship renders them “interested”.

Cases and Statutes or Other Laws Referred To in the Ruling

A. Sierra Leone Statutes and Rules

1. High Court Rules 2007: Order 30 rule 1(9)(a) and (b).

2. Evidence (Documentary) Act (CAP 26, Laws of Sierra Leone, 1960): section 3(1), proviso to section 3(1)(ii), section 3(2), section 3(3), and references to sections 3(4) and 3(5) in submissions.

B. Sierra Leone Case Law

1. Kamara v Coker (ALR SL 1957).

2. PC Dr Alpha Madseray Sheriff II v Attorney General and Minister of Justice (SC No 3/2011).

3. Chanrai and Co v Palmer (1970–71 ALR SL 391).

4. Sierra Leone Association of Journalists v Attorney General and Ors (SC.1/20).

C. UK and Other Common Law Authorities

1. Secretary of State for the Home Department v Nasseri (2009) 1 All ER 116.

2. Sussex Peerage Case (1844) 11 Cl & F 85.

3. Jarman v Lambert and Cooke Contractors Ltd (1951) CA 255.

4. Evidence Act 1938 (England and Wales), section 1(1) and section 1(3) [discussed as materially identical].

D. Other Secondary Sources and Materials

1. Bennion on Statutory Interpretation (5th edition), including the principle on general versus specific provisions (page 1164, and related passages referenced).

2. Reference in submissions to Flomien v NCM (as cited by counsel) in support of construction of earlier evidence legislation.

Tags and Categories

Categories: Evidence; Civil Procedure; Trial Practice
Tags: deceased witness statement; documentary evidence; CAP 26 section 3(3); interested person; proceedings pending; admissibility objection; Order 30.