CIV. APP.NO. 13/2000

IN THE COURT OF APPEAL FOR SIERRA LEONE

BETWEEN:

ALL PEOPLES CONGRESS ABDUL F. SERRY-KAMAL

VICTOR B. FOH DR. JENGO STEVENS EDWARD M. TURAY                                    - APPELLANTS

AND

THE SPEAKER OF PARLIAMENT

THE AD HOC COMMITTEE OF PARLIAMENT ON ABSENTEEISM

BY HON. JOHN GAIVA LABOR-ACTING CHAIRMAN THE

CLERK OF PARLIAMENT

THE NATIONAL ELECTORAL COMMISSION                                                                  - RESPODENTS

CORAM:--

HON. MR. JUSTICE M.E.T. THOMPSON                           -- .J A.

 HON. MR. JUSTICE A.N.B. STRONGE                              -- J.A

 HON. JUSTICE PATRICIA MACAULAY                           -- J.A.

. A.F. Serry-Kamal, Esq.,                                             for Appellants,

The Attorney-General and Minister of Justice                for Respondents.

JUDGMENT DELIVERED THIS 10™ DAY OF JANUARY 2002 A.N. BANKOLE STRONGE, J.A.

MY LORDS,

I have had the privilege of reading the Judgment of my Lord, the presiding Judge. The Hon Mr. Justice M.E.T. Thompson. I concur in his analysis and conclusions of the issue involved in this appeal and I wish to add my own humble views which I consider to be merely supplementary to what he said. I shall content myself with indicating some of the considerations which have induced me to concur in the Judgment of my learned friend

The questions raised by this Appeal are of great importance since they concern the Constitution of the State to wit, the Constitution of Sierra Leone, 1991. Act No. 6 of 1991 They also concern the standing orders of the Sierra Leone Parliament. To a large extent the issues raised in the arguments before this court turn on an analysis of the relevant sections of the two documents earlier mentioned.

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This Appeal arose from a decision of the High Court dated the 14th August, 2000, on a Judge's summons brought by the applicants therein, now Appellants, against the Respondents.

By that Judge's Summons,.The Applicants, now Appellants, sought the following orders of the High Court:--

1. Leave to apply for an order of certiorari to quash the order of the Speaker of Parliament based on, and, of the report of the Ad Hoc Parliamentary Committee on absenteeism by Honourable John Gaiva Labor, Acting Chairman.

2. An order staying the aforesaid order based on, and, of the report of the Ad Hoc Committee on absenteeism pending the hearing and determination of this application.

3.  That the Chief Electoral Commissioner be ordered not to send any list or lists of new members of Parliament until this matter is disposed of.

4. That the Clerk of Parliament be ordered to make available to the Applicants the record of proceedings of Parliament for Tuesday, 11th July, 2000, the Order of the Speaker expelling 7 (seven) members of Parliament and the Order paper for that day.

The Application was supported by several Affidavits. There is the Affidavit in support of the Judge's summons sworn to by Abdul Franklyn Serry-Kamal, Esq.. on the 26th July. 2000. There are also the Affidavits of Victor Bockarie Foh, Jengo Stevens and S.A.T. Koroma. All three sworn on the 26th July, 2000. There is also the Affidavits of Momoh Samura sworn on the 31st day of July, 2000 and the supplemental Affidavit of' Abdul Franklyn Serry-Kamal sworn on the 7th day of August, 2000. Accompanying the Application is the statutory statement pursuant to rules of the High Court 1960 as amended and dated the 26th day of July, 2000. To the Affidavit of Abdul Franklyn Serry Kamal. sworn on the 26th of July, 2000 are attached three (3) Exhibits, to Wit:~

Exhibit "A", a copy of the Sierra Leone Gazette (Extra Ordinary Vol. CXXV1I No. 13) fur Wednesday, 21st February, 1996 showing the final list of candidates put up by each of the political parties. In that list the Deponent Abdul F. Serry Kamal is fifth in order in list for the All People's Congress. Exhibit B. A copy of the report of the Parliamentary Committee on absenteeism signed by Hon. John Gaiva Labor as Acting Chairman. In that report the said committee was composed of fourteen (14) members with Hon. John Gaiva Labor of the Sierra Leone People's Party (S.L.P.P.) acting Chairman; Exhibit "C", copy of a letter written by the Deponent, A.F. Serry-Kamal, addressed to the Clerk. Parliament of Sierra Leone Tower Hill, Freetown, and dated the 18th July, 2000. In this Exhibit, Exhibit "C". The Clerk of Parliament was requested to furnish Mr. A.F. Serry Kamal with a certified true copy of the record of proceedings and the order paper for the 11th July, 2000.

To the Affidavit of Victor Bockarie Foh are attached ten (10), Exhibits to wit. Exhibit "A" a copy of the Sierra Leone Gazette Vol. CXXVII, No. 13 for Wednesday, 21st February. 1996,

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showing the final list of candidates put up by each of the political parties. In that list the Deponent, Victor Bockarie Foh is second in order.

Exhibit "B", a copy of the report of the Parliamentary Committee on absenteeism signed by Hon. John Gaiva Labor as acting Chairman. In that report the said Committee was composed as stated earlier. Exhibit "C" a copy of the order paper of the Siena Leone Parliament for Thursday 11th November, 1999. That Exhibit Exhibit "C" mentions, inter alia, A private member's motion proposed by Hon. John Gaiva Labor with seconder Hon. William A. Jusu. The motion reads:-

"BE" IT RESOLVED":

"That pursuant to Section 1 © of Section 77 of the Constitution of Sierra Leone. (Act No. 6 of 1991) and in tandem with standing order 77 of the Standing Orders of the Sierra Leone Parliament this Honourable House approve the formation of a committee to investigate and report on the persistent absenteeism from plenary parliamentary sittings within the second and the current Third Sessions of the First Parliament of the Second Republic of Sierra Leone". Exhibit "D", a copy of a petition by the deponent, Victor Bockarie Foh, to the Honourable Speaker of Parliament, the Honourable Deputy Speaker of Parliament, the Committee on absenteeism - All members and the Honourable members of Parliament. In that petition the petitioner, Hon. Victor Bockarie Foh attempts to explain and excuse his absence from plenary sittings of Parliament. Exhibit "E" is a copy of the report of the Parliamentary Committee on absenteeism referred to earlier. Exhibit "F" is a copy of a letter written by the Deponent, Victor Bockarie Foh, addressed to the Hon. Speaker of Parliament dated 12th October, 19099. By that letter the Deponent requests that he be allowed to resume his Parliamentary duties.

Exhibit G1 is identical with exhibit "F". Exhibit G2 is a memorandum from the Solicitor-General to the Secretary to the President, dated 10th September, 1999. By that letter the Solicitor-General advises, inter alia, that all those granted free and absolute pardon (those convicted) for activities or crimes connected with the AFRC/RUF Junta have no conditions attached to their release and can resume duty. Exhibit "H" is a letter from the deponent Victor Bockarie Foh, addressed to the Honourable Speaker of Parliament, dated 27th February, 2000, requesting that he be paid all arrears of salaries during the period of his incarceration as he did not lose his seat in Parliament. Exhibit "J" is a copy of notice of Appeal by the deponent, Victor Bockarie Foh, to the Registrar of the Court of Appeal for Sierra Leone regarding his conviction and sentence by the High Court. Exhibit "K" is a copy of the Standing Orders of the Sierra Leone Parliament. There are no exhibits attached to the Affidavit of Jengo Stevens.

To the Affidavit of S.A.T. Koroma are attached three exhibits to wit, exhibit "A" which is a copy of a petition on behalf of the All People Congress (A.P.C.) by the deponent to the Hon. Speaker of Parliament on the Declaration of the seats of its members of Parliament vacant and dated 13th July, 2000; Exhibit B1, copies of two letters dated 20th December, 1999, and 10th December, 1999 respectively, to the Speaker of Parliament reporting on the medical condition of Hon. Edward Turay. Exhibit "C" is a copy of an undated letter written by the deponent to the Chief Electoral Commissioner, National Elections Commission. In that letter, Alhaji S.A.T. Koroma urged the Chief Electoral Commissioner not to lake any "Decision for replacement of members of Parliament...." from the list of the All Peoples Congress (APC) without reference to that party. The final Affidavit is that sworn to by

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Abdul Franklyn Serry-Kamal on the 7th August, 1999. In that Affidavit the deponent confirms that Victor B. Foh was a member of parliament.

The following facts are established from the Affidavit evidence referred to above:

1. That all four (4) of the Applicants, namely, Abdul F. Serry KamaL victor B. Foh. Dr. Jengo Stevens and Edward Turay, were at the material time members of the Sierra Leone Parliament, representing the All Peoples Congress (A.P.C).

2. That an "Ad Hoc" Committee of Parliament was appointed to investigate and report on the persistent absenteeism of MP's during parliamentary sittings of the Second and Third Session of the First Parliament of the Second Republic of Sierra Leone. The following were members of the Commiltee:-

1. Hon. John Gaiva Labor             S.L.P.P. Acting Chairman

2. Hon. Victor L. Thomas             SLPP              Member

3. Hon. E.O.K. Tholley                SLPP

4. Hon. William Jusu                   SLPP

5. Hon. Dr. Raymond Kamara U.N.P.P.

6. Hon. A.T. Sembu Forna            UNPP

7. Hon. Dr. Chernor Jalloh           UNPP

8.  Hon. Ibrahim N'Jai                  P.D.P.

9. Hon. U.S.A. Kargbo                 PDP

10.  Hon. Alimamy Lahai                P.C.

11. Hon. Abu Kongoba                  PC

12. Hon. A.F. Serry Kamal             A.P.C.

13. Hon. Catherine L. Kamara        N.U.P.

14. Hon. A.O.D. George                N.U.P.

3.  The said Ad Hoc Committee in pursuance of its mandate purported to exercise its duties by virtue of section 77 (1) (e) of the Constitution of Sierra Leone (Act No. o of 1991) which reads:-

7 (1) A member of Parliament shall vacate his seal in Parliament

(e) If he is absent from sittings of Parliament for .such period and in such

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circumstances as may be prescribed in the rules of procedure of Parliament;And: Section 77 (1) and (2) (a) of the Standing Orders of the Sierra Leone Parliament section 77 (1) reads:-

(1) Any member who for good cause is prevented from attending a sitting of Parliament shall acquaint the Speaker in writing as early as possible of his inability to attend and the cause thereof.

(2) (a) Any member who, without good cause during any session, is absent from the sitting of parliament on a number of days amounting to an aggregate period of thirty days shall vacate his seat.

The Ad Hoc Committee of Parliament also purported to perform its mandate by virtue of Section 94 (1) and (2) of the Constitution of Sierra Leone (Act No.6 of 1991). Section 94 (l)and(2)read:-

94(1) Subject to the provisions of this Constitution, Parliament may regulate its own procedure, and in particular make, amend and revoke standing orders for the orderly conduct of its own proceedings.

(2) Notwithstanding anything to the contrary in this Constitution or in any other law contained, no decision, order or direction of Parliament or any of its committees or the Speaker, relating to the rules of procedure of Parliament, or to the application Or interpretation of such rules, or any act done or purporting to have been done by parliament or by the Speaker under any rules of procedure shall be inquired into by any court.

4. The said Ad Hoc Committee unanimously resolved, "as far as the terms of the investigation and the provisions of the Constitution and the Standing Orders of Parliament are concerned, that the following members shall vacate their seats in Parliament with immediate effect and that the Speaker of Parliament, pursuant to S.O. 77(d) shall declare their seats vacant in a plenary sitting of the House, Section 77(d)reads:

"If the Committee referred to in sub-paragraph © reports that the member has been absent for the period specified in sub-paragraph (a) without good cause, the Speaker shall declare his seal vacant".

5.   The members whose seats where the subject matter of the Ad Hoc Committee's investigation and report were as follows:-

1.  Hon. Dr. John Karefa Smart                  -     U.N.P.P.

2.  Hon. A.F. Serry- Kamal                        -     A.P.C.

3. Hon. Victor B.Foh                                 -    A.P.C.

4.  Hon. Dr. Augustine Stevens                  -     D.C.P.

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5.  Hon. Dr. Jengo Stevens                        - A.P.C.

6.  Hon. Edward Turay                              - A.P.C.

7.  Hon. Abdulai Bundu Kamara                - U.N.P.P.

6. The Hon. A.F. Serry- Kamal was one of the members of Parliament to be investigated and was appointed a member of the Ad Hoc Committee when not nominated by his party, the All People's Congress. (A.P.C). In the statutory statement pursuant to the rules of the High Court 1960 as amended, the relief sought by the Applicants is:-

"That the applicants desire leave to apply for an order of certiorari to remove into this Honourable Court for the purpose of being quashed the decision of the Speaker of Parliament and the report of the Parliamentary Committee on absenteeism by Hon. .John Gaiva Labor, M.P., Acting Chairman. "

GROUNDS ON WHICH THE RELIEF IS SOUGHT:-

1. That the Parliamentary. Committee on absenteeism by the Honourable John Gaiva Labour, M.P., Acting Chairman was not properly constituted contrary to Standing Order 77 2©.

2. The aforesaid Committee acted in breach of the principles of natural justice thus depriving the applicant of a fair hearing.

3. That the decision to expel the Applicants from Parliament was not properly passed as a motion of Parliament contrary to Standing Order 76 (1-5).

4. That the committee had no power to investigate the matter of absenteeism alleged to have occured in the Session of Parliament that Session having expired.

5. The Committee acted in excess of jurisdiction.

6. The decision to expel the Honourable members was in breach of the Lome Peace Agreement (Rectification) Act No. 3 of 1999.

The above contain the matters which were before the High Court and upon which that Conn made a Ruling on the 14th day of August, 2000. The Applicants argued forcefully in accordance with the aforesaid Affidavits and the statutory statement already reproduced earlier in this Judgment. The learned Attorney-General and Minister of Justice opposed the application equally forcefully on the ground of lack of jurisdiction. The learned Attorney-General and Minister of Justice argued that by virtue of section 94(1) and 94(2) of the: constitution of Sierra Leone the High Court lacks jurisdiction to entertain the Application He also relied on the provisions of the standing orders of Parliament. The learned Attorney General and Minister of Justice appears to concede at page 196 of the records that "The Court has power under section 134 of Act No.6 of 1991 to grant the reliefs sought "But that by virtue of section 94(2) that power is ousted." He argued that the High Court was being.

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asked to do certain things which section 94(2) expressly forbids the Court to do. In the ruling which is complained of the learned trial Judge held:--

"The purport of this application is in essence requiring (his High Court to inquire into Parliaments' own internal proceeding though Mr. Serry-Kamal is of the view that section 94 (2) is of no moment to this Application, (he Application is refused"

In substance the learned trial judge concluded that the High Court lacked jurisdiction to entertain the application. Read Literally, section 94(2) of the constitution of Sierra Leone would deprive the Courts of this country including the superior courts of their powers of review exercisable by means of certiorari. But was the learned Trail Judge correct in his analysis and determination of the issues put before him.

Parliament could not have intended a tribunal or adjudicating authority of limited jurisdiction to be permitted to act outside the scope of its jurisdiction. If, as in this case, the Tribunal or adjudicating authority was improperly Constituted, thereby lacking authority. certiorari would issue.

See the case of

RE CHELTENHAM COMMISSIONERS

1841 - A.E.R. 1835 TO 1842 REPRINT AT P.301

In this case there was provision in the rating act excluding certiorari. It was held that a question in the cause having been decided by a Court which was improperly Constituted, the clause prohibiting certiorari did not operate and the decision of the Sessions would he quashed. The constitution of Sierra Leone gives the High Court supervisory Jurisdiction over all "inferior and traditional courts in Sierra Leone and any adjudicating authority, in all matters in which habeas corpus, and orders of certiorari, mandamus, and prohibition or an injunction is sought." Vide, Section 134 of the Constitution.

I must say at once and with emphasis that this judgment is not enquiring into:-

A decision, order or direction of Parliament or any of its committees or the Speaker, relating to the rules of procedure of Parliament, or to the application or interpretation of such rules, or any act done or purporting to have been done by Parliament or by the Speaker, under any rules of procedure (emphasis mine).

Nor should this judgment be understood to be doing so. A considered reading of section 94(2) of Act No. 6 of 1991 is that no Court shall inquire into:

(A) A decision, order or direction of Parliament relating to the rules of procedure of Parliament.

(B) A decision, order or direction of any of the Committees of Parliament relating to the rules of procedure of Parliament.

(C) A decision, order or direction of the Speaker relating to the rules of procedure of Parliament.

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(D)  The Application or interpretation of such Rules.

(E) Any act done by Parliament or by the Speaker under Any rules of procedure.

The over-riding consideration therefore is that Parliament, committees of Parliament, and the Speaker of Parliament must observe and act in accordance with the rules of procedure of Parliament. Where any of these bodies so act, no court shall inquire into their actions. Also the Application or Interpretation of such Rules cannot be inquired into by any court.

THE GROUNDS OF APPEAL ARE:

1. The learned Trial Judge misdirected himself in holding that the Sierra Leone Parliament is not an inferior court or tribunal to the High Court, therefore the High Court cannot supervise it.

2. PARTICULARS OF MISDIRECTION

1.  In my view since Parliament is not an inferior court or tribunal to. the High Court the High Court cannot supervise Parliament as it does the Magistrate's Court. Local Court, Administrative Bodies, Professional Bodies exercising judicial and quasi-judicial powers. Where leave is granted the usual practice is to apply for a rule nisi calling on the Respondents to show cause why the order should not

made absolute and the case is really fought on this issue. The penalty for disobedience is attachment for contempt. Can this be applicable to Mr. Speaker;' The Court does nothing in vain. The 1991 Constitution to obviate a constitutional crises between the High Court and Parliament made provision under section 94(2) which the learned Attorney-General based his objection on and submitted that the Court's jurisdiction is ousted.

2. The learned Trial Judge misdirected himself in holding that the purport of the applicant's application is requiring the High Court to inquire into Parliament's own internal proceedings.

PARTICULARS OF MISDIRECTION

"The purport of this application is in essence requiring this High Court to inquire into Parliament's own internal proceedings. Though Mr. Serry-Kamal is of the view that section 94(2) is of no moment..................This Application is refused.

3. The learned Trial Judge acted on wrong principles in arriving at his decision.

4. The decision is against the weight of the evidence.

4. RELIEF SOUGHT FROM THE COURT OF APPEAL

1. That the said order of the High Court be set aside.

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2.  Leave to apply for an order of certiorari to quash the order of the Speaker of Parliament based on, and of the report of the Ad Hoc Parliamentary commitiee on absenteeism by Honourable John Gaiva Labor, Acting Chairman.

3.   An order staying the aforesaid order based on and of the report of the Ad Hoc Committee on absenteeism pending the hearing and determination of this Application.

4.   That the Chief Electoral Commissioner be ordered not to send any list or lists of new members of Parliament until this matter is disposed of.

5.   That the Clerk of Parliament be ordered to make available to the Applicants the record of proceedings of Parliament for Tuesday. 11th July, 2000, the order of the Speaker expelling 7 (seven) members of Parliament and the order paper for that day.

To my mind the issues to be considered are the following:-

A. Has the High Court Jurisdiction to entertain and determine the matter that was put before it.

B. If the answer to (A) above is in the affirmative, what remedies can be granted by this Court.

As to the question of whether the High Court has jurisdiction to hear and determine the Application that was put before it, various statutory provisions have to be considered:-

Section 94(1) and (2) of the Constitution of Sierra Leone, (Act No. 6 of 1991) has as its marginal note, "Regulation of procedure in Parliament." For ease of reference I again reproduce section 94(2) of the said constitution:—

94(2):-- "Notwithstanding anything to the contrary in this constitution or in any other law contained, no decision, order or direction of Parliament or any of: its Committees or the Speaker, relating to the rules of procedure of Parliament, or to the application or interpretation of such rules or any act done or purporting to have been done by Parliament or by the Speaker under any rules of procedure, shall be inquired into by any court." As stated earlier, the various bodies and entities mentioned in section 94(2) are only protected from judicial inquiry when they act in accordance with the rules laid down by Parliament. There is no such protection from judicial inquiry or review where any one of the bodies or entities referred in the said section act outside of the rules laid down or in violation of such rules.

It is abundantly clear that the Ad Hoc Committee of Parliament which investigated and reported on the persistent absenteeism of MP's during the Parliamentary sittings of the Second and Third Sessions of the first Parliament of the second Republic of Sierra Leone was improperly Constituted. Section 77(2) © of the standing Orders of the Sierra Leone Parliament reads:—

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77(2):-- The Committee shall consist of the Speaker and such members as shall be nominated by each party on the basis of one representative for every fifteen or part thereof of its number in the house.

The evidence before this Court are the following uncontroverted facts:--

(A)  That Hon. John Gaiva Labor of the S.L.P.P. acted as Chairman of the Committee. That Hon. Gentleman was not the Speaker nor the Deputy Speaker. The evidence before this court also is that the Speaker was not a member of the Committee and did not take in its deliberations contrary to Section 77 2(c) of the standing orders of Parliament.

(B) That the All Peoples Congress (A.P.C) was not consulted to nominate a representative to the committee as is required by Section 77 (2) (c) of the standing Orders of Parliament.

What then is the effect of the non-compliance by the Ad Hoc Committee with the Rules laid down by Parliament. It is my considered opinion that the irregularity in the Constitution of the Ad Hoc Committee goes to jurisdiction. See the case of:R. V. Cole, EX.P. SUMA 1964- 66 A.L.R. 484

In this case, an adjudicating authority, to wit, a Magistrate's Court lacked jurisdiction and its decision was quashed. "Where an adjudicating authority takes upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before issues are determined".

By so acting the Ad Hoc Committee cannot avail itself of the protection in section 04(2) of the Constitution of Sierra Leone (Act No. 6 of 1991). That Committee acted in violation of the rules of Parliament and all of its actions can be inquired into or reviewed by a Court of law. Section 134 of the Constitution of Sierra Leone 1991 (Act No. 6 of 1991) reads:--

Section 134:-- The High Court of Justice shall have supervisory jurisdiction over all inferior and traditional courts in Sierra Leone and any adjudicating authority, and in the exercise of its supervisory jurisdiction shall have power to issue such directions, writs and orders, including writs of Habeas Corpus, and orders of Certiorari, Mandamus and Prohibition as it may consider appropriate for the purpose of enforcing or securing the enforcement of its supervisory powers.

To adjudicate means, to decide on, settle, determine, pronounce on, or give a ruling on. An adjudicating authority means therefore, a body exercising power to decide on, settle, determine, pronounce on or give a ruling on a particular sphere or activity. The Ad Hoc Committee of Parliament that purported to exercise it's duties by virtue of sections 77 and 94(1) of the Constitution of Sierra Leone (Act No. 6 of 1991)

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as contained in its report referred to earlier is subject to the supervisory jurisdiction of the High Court.

Under the general powers of the Court of Appeal for Sierra Leone as contained in Rule 31 of the Court of Appeal Rules, 1985, Public Notice No.29 of 1985, this Court may rehear the whole case or deal with it as this court may direct.

In the premises I will allow the Appeal and make the following orders:—

1. That the order of the High Court dated the 14th day of August, 2000 be set aside.

2. That the Clerk of Parliament is hereby ordered to furnish the Appellants / Applicants with the under-mentioned documents (within three (3) days herein.

(a) The record of proceedings of Parliament for Tuesday, 11th July, 2000.

(b) The order of the speaker expelling seven (7) Members of Parliament.

(c)  The order paper for Tuesday, 11th July, 2000.

3. That the Appellants / Applicants, are hereby granted leave to apply for an order of Certiorari to quash the order of the speaker of Parliament based on, and of the report of the Ad Hoc Parliamentary Committee on absenteeism chaired by the Honourable John Gaiva Labor as Acting Chairman.

4. That the Chief Electoral Commissioner is hereby ordered not to send any list or lists of" new Members of Parliament until the final determination of this matter. There shall be no order as to costs.

Hon Mr Justice A.N. Bankole Stronge Justice of Appeal.

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