Background :
In Sierra Leone, the common law forms part of our sources of law, as in accordance with section 170(1e & 2) of the 1991 Constitution of Act No. 6. The common law of Sierra Leone includes the rule of law generally known as the common law, the rules of law general known as the doctrines of equity and the rule of customary law including those determined by the Superior Court of Judicature as provided for in the aforementioned provisions.
Section 74 of the Court Act 1965 of Act No. 31 provides that the common law, the doctrines of equity, and the statutes of general application in force in England on the 1st day of January, 1880, shall be in force in Sierra Leone subject to the provisions of the 1991 Constitution of Act No.6.
The common-law method of trial is often described as ‘adversary or accusatorial system’ as distinct from the continental ‘inquisitorial’ method. The essence of the distinction is that, whereas in the inquisitorial system, the dominant role is played by the court, while in the adversary system, it is played by the parties or their legal representatives.
In the adversary system, as in Sierra Leone, the judge is supposed to remain a passive and mainly silent umpire, listening to the evidence produced by the two parties thereto. The parties decide what witnesses, and if both sides decide not to call a witness who has potentially relevant evidence, there is nothing the court will do about same.
In an adversary legal system, the burden of preparing the case and presenting it falls on the parties themselves or their lawyers, which means that a party without a lawyer is at a distinct disadvantage.
The function of the judge is to hear both sides and pass judgement and not to control the gathering of evidence or to dictate the issues nor to try to effect a settlement between the parties. By contrast, in the inquisitorial system, as in France, the judge calls the witnesses and examines them, while the parties or their lawyers play a supporting or subsidiary role.
Legal Issues :
There are several legal issues around this topic, but for the purpose of public policy consideration, I will proffer an opinion on the following issues:
- The role of a common law judge in an adversarial system.
- The legal effect of the involvement of a judge in the adversarial legal system.
- The mixed legal system or hybrid legal system and its application in Sierra Leone.
Documents :
In providing this opinion, I reviewed the following;
- The 1991 Constitution of Sierra Leone of Act No. 6.
- The 1965 Court Act of Sierra Leone of Act No. 31.
- The English Legal System, third edition by Penny Darbyshire (Nutshells).
- Smith and Bailey on the Modern English Legal System (Second Edition).
- Cases and Materials on the English Legal System – Michael Zander (Seventh Edition).
- Jones v National Coal Board [1957] 2 QB 55, CA.
- R v Perks [1973] Crim LR 388.
- Gunning [1980] Crim LR 592.
- R v Ptohopoulos [1968] Crim LR 52.
- R v Hamilton [1969] Crim LR 486.
Prof. Madhuku Lectures on the ‘Common Law Adversarial Legal System.
My Opinion :
In giving my opinion, I will analyse the current legal provisions and make an application to Sierra Legal System based on the common law and relevant statutory provisions as in the following:
The 1991 Constitution of Sierra Leone of Act No. 6 and the 1965 Court Act of Sierra Leone of Act No. 31:
In accordance with Section 170(1e & 2) of Act No. 6. of 1991 as aforementioned provides for the sources of laws in Sierra Leone, which includes but is not limited to the common law. Sierra Leone common law includes the general common law, the rules of law generally known as the doctrines of equity, and the rules of customary law, including those determined by the Superior Court of Judicature. Section 74 of the Court Act 1965 of Act No. 31. makes provisions for certain laws of England to apply in Sierra Leone which includes, the common law, the doctrines of equity, and the statutes of general application in force in England on the 1st day of January, 1880 shall be in force in Sierra Leone subject to the provisions of the constitution and any other enactment.
The English common law is one of the main sources of our laws in Sierra Leone, and it is mainly a case law precedent rotted in the legal doctrine of Stare Decisis. Generally, the common law system relies extensively and/or heavily on the adversarial legal system. In the adversarial system, the parties have the duty to prove their case. The judge will be watching the parties doing their case and later confirm whether the party has met the required burden and standard of proof.
The role of a common law judge in an adversarial system:
In the adversary system, the judge is supposed to remain a passive and mainly silent umpire, listening to the evidence produced by the two parties. The function of the judge is to hear both sides and pass judgment. It is not to control the gathering of evidence or to dictate the issues nor to try to effect a settlement between the parties.
The adversarial legal system rests on the premise that impartial judges guide proceedings, ensure fair play, and render decisions based on evidence and legal standards presented by opposing sides. In Sierra Leone, the judge’s role is not to advocate for a position but to supervise the process, interpret the law, and safeguard due process with all fairness.
In an adversarial system, truth is pursued through a contest rather than an inquiry by a single investigator. The judge serves as a neutral arbiter, balancing competing claims while applying statutes, rules of evidence, and constitutional protections. Key principles include neutrality of the judge, duty to enforce fair procedures by the judge, and the limits on judicial overreach. Judges must resist external pressures, including political or public opinion, to preserve a fair playing field for both sides.
During trial, a judge sets the framework for admissible evidence, governs witness examination, and ensures timely progression of the case. They issue rulings on motions, determine the admissibility of expert testimony, and manage courtroom logistics to keep proceedings orderly and efficient. The judge’s role is to limit prejudice, manage distractions, and ensure that both sides have a fair opportunity to present their case.
Judges also act as engine rooms for strict procedural control. They supervise jury selection, instruct juries on the applicable law, and monitor conduct to prevent corruption or coercion. When the trial involves criminal charges, the judge must uphold the defendant’s rights, including the presumption of innocence and the right to a fair trial, while also safeguarding the public interest in a just outcome.
Impartiality is the bedrock of trust in the judiciary. Judges must disclose potential conflicts and, if necessary, recuse themselves to avoid perception or reality of bias. They should approach each case with an open mind, avoid preconceptions, and base rulings solely on evidence and applicable law.
Due process requires that procedures be fair and predictable. Judges ensure notice to all parties, opportunities to be heard, and a meaningful chance to present defences. In criminal cases, this extends to the rights of the accused to confront witnesses, access counsel, and appeal decisions. In civil matters, due process supports equitable treatment and transparent decision-making processes.
Judicial decisions should be grounded in clear, logical reasoning.
Judges articulate the legal standard applied, explain how evidence supports or undermines specific conclusions, and reference controlling statutes and precedents.
Communication style matters. Judges foster respectful, orderly discourse, manage attorney conduct, and keep litigation focused on relevant issues. Clear, non-inflammatory rulings help counsel adjust strategies and prepare for appeals. Judges also give jury instructions that translate complex legal concepts into understandable guidance for verdicts.
Judges collaborate with court staff to supervise courtroom operations, manage calendars, and coordinate resources. In diverse cases involving science, technology, or specialized industries, judges may rely on expert witnesses or court-appointed specialists to aid understanding while remaining vigilant against bias or overreliance on technical testimony.
The legal effect of the unlawful involvement of a judge in the adversarial legal system:
Lord Denning MR, giving the judgment of the court in the case of Jones v National Coal Board [1957] 2 QB 55,CA ‘the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large. Lord Greene MR explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations, if the judge goes beyond this; the judge might be dropping the mantel of a judge and assumes the robe of an advocate.
Lord Chancellor Bacon spoke right when he said that: ‘patience and gravity of hearing is an essential part of justice and an overs-peaking judge in no well-tuned cymbal’. In Gunning [1980] Crim LR 592 , the conviction was quash where the judge asked 165 questions and the court said that a large number of interruptions put the court on notice of the possibility of a denial of justice but the critical issue was not the number but the quality of the interventions.
In R v Ptohopoulos [1978] Crim LR 52, the court said that ‘nor will the court interfere merely on the ground that the judge has been guilty of discourtesy to counsel to counsel, the court according to Lord Parker LCJ in the case of Hamilton [1969] said the court would overturn a conviction on account of excessive intervention by a judge. On a point of law, however, the adversary system works on the basis that the court is not supposed to go beyond the arguments presented by the parties.
Exceptions of the rules of the adversary system:
There are, however, some exceptions to the general rule that the court leaves it to the parties to make their case.
- Prosecution Disclosure: There are rules under the adversarial legal system that require the prosecution to reveal to the defence material that tends to undermine the prosecution case.
- Court may act of its own motion: there are considerable number of situations where the rules specifically permit the court to act ‘of its own motion’ as well as on the application by the parties. The court may order anyone who has improperly or unnecessarily been a party to cease to be a party or to order anyone who ought to have been a party to be joined, though no one can be made a plaintiff without his/her consent, the court may order any document in the proceeding to be amended for the purposes of determining the real question in controversy between the parties.
- Professional rules of conduct: another exception to the rule that it is for the parties to make their case in the rule of professional conduct which places limits on the extent to which a lawyer can knowingly lend himself to the deception or disrespected to the bench.
Note : Settlement and guilty pleas may avoid the adversary system.
The mixed legal system or hybrid legal system and its application in Sierra Leone:
Mixed legal systems present a fascinating intersection of diverse legal traditions, merging the principles of common law, civil law, and customary law within a single framework. This hybrid approach not only reflects a society’s unique historical circumstances but also shapes its contemporary legal landscape.
Mixed legal systems are defined as legal frameworks that incorporate elements from multiple legal traditions, typically blending aspects of common law, civil law, and customary law. This integration arises from historical interactions between various legal cultures.
Section 170 (1) of the 1991 constitution of Act No. 6 provides that the sources of law in Sierra Leone includes, the constitution, laws made by or under the authority of parliament, any orders, rules, regulations and other statutory instruments, the existing laws and the common law which includes rules of customary laws.
Conclusion :
Sierra Leone, in my opinion, purely operates under a mixed or hybrid legal system, which is a mixture of common law, statutory law, and customary law. In mixed legal systems, judges play a pivotal role in interpreting dual legal traditions, which include civil law, common law, and indigenous or customary laws.
Their primary responsibility is to navigate and reconcile these intertwined legal sources to deliver coherent rulings. Judges must understand and apply principles from both legal traditions, often balancing their sometimes contrasting doctrine and methodologies.
In doing so, they exercise a degree of judicial discretion, allowing flexibility in applying laws across different context.
adaptability is vital in ensuring justice, especially when legal provisions may conflict or require contextual interpretation within a mixed legal framework. In practice, judges navigate the duality by applying statutory laws while also considering judicial precedents were relevant.
Furthermore, judges in mixed legal systems must recognize the importance of social-cultural contexts that influence legal interpretation. Judges may resort to customary or indigenous laws, alongside formal statutes balancing modern legal standards with traditional practices.