Counsel for Defendant: 

Anthony Y Brewa

Counsel for Plaintiff: 

Gibril K Tholley

                                                                                                                   IN THE HIGH COURT OF SIERRA LEONE

(General Civil Jurisdiction)

IN THE MATTER OF THE PUBLIC ELECTIONS ACT 2012

AND

IN THE MATTER OF A PETITION FOR THE CANCELLATION OF THE RESULTS OF THE BYE ELECTION FOR WARD 34 IN CONSISTUENCY 12 KENEMA DISTRICT IN THE EASTERN PROVINCE OF SIERRA LEONE

MOHAMED TURAY                                                     -                       PETITIONER

AND

VICTOR VANDI                                                                        -                       1ST RESPONDENT

THE NATIONAL ELECTORAL COMMISSION                -                       2ND RESPONDENT

THE POLITICAL PARTIES REGISTRATION

AND REGULATORY COMMISSION                  -                       3RD RESPONDENT

 

PRESIDING;

THE HON. MR. JUSTICE REGINALD SYDNEY FYNN JA

Counsel;

Gibril K Tholley Esq for the Petitioner

Anthony Y Brewah Esq (with him M. Mewa) of Brewah & Co for the 1st Respondent

 

RULING delivered on 10th February 2016

 

FYNN JA

 

1. By a Petition dated 4th December 2015 filed in the High Court Registry in Freetown the petitioner has come to challenge the results of the bye election conducted by the 2nd Respondent on 14th November 2015 in Ward 34 Constituency 12 in the Kenema District in the Eastern Province of the Republic of Sierra Leone. 

 

1. Before the petition could be heard the 1st respondent filed an undated motion in which he indicated that he intends to take a preliminary objection to the petition being heard. That motion being riddled with several formal flaws least amongst which was the absence of a date, was struck off on Friday 29th January 2016 as being in violation of Or8(4)(1) of the High Court Rules of 2007. The matter was adjourned to 3rd February 2016 on which date a fresh motion dated 3rd February 2016 together with supporting affidavit and exhibits raising the said preliminary objection was moved by M. Mewa Esq. of counsel for the 1st Respondent.

 

1. The thrust of the preliminary objection is that the petition has been filed in the wrong venue and that therefore this court lacks the necessary jurisdiction to hear it. Counsel for the 1st Respondent submitted that R 5(2) and R5 (6) of the Elections Petitions Rules 2007 applies to the present petition. R5(2) provides:

(2) The presentation of a petition shall be by filing it-

(a) in the case of a petition relating to an election

 held in the Western Area at the Registry in Freetown;

 

(b) in the case of a petition relating to an election

held in the Northern, Southern and Eastern

Provinces at the District Registry in Makeni,

Bo and Kenema respectively

1. As this petition relates to an election conducted in Kenema in the Eastern Province, the 1st respondent contends that it ought properly to have been filed at the District Registry in Kenema and not at the Registry in Freetown as has been done. This he submits robs this court of the jurisdiction to hear the petition.

 

1. Counsel for the 1st respondent submitted further that the said Election Petition Rules 2007 become applicable to the present election by virtue of the saving provisions of the Public Election Act 2012. By these provisions S.168 (2)

 “any rules, regulations, orders, notices, prescriptions and other instruments or

  directives issued under the repealed Acts and in existence immediately

   before the commencement of this Act, shall continue in operation

   until their expiration or until their express repeal or revocation or cancellation.”

 

Counsel argued that the Election Petition Rules 2007 being such rules issued under the repealed Electoral Laws Act 2002 and which were in existence before the passing of the Public Elections Act 2012 have thereby been saved and now become applicable to the present petition.

 

1. In his reply counsel for the petitioner argued that the first respondent mis-construes the saving provisions of the Public Elections Act. He (counsel for the Petitioner) submitted that S. 162 of the Public Election Act clearly envisages that Rules relating to “that act” (Counsel emphasized the phrase “that act” meaning the Public Elections Act) will be passed at a future time by the Rules of Court Committee.

 

1. The Petitioner’s counsel argued further that to interpret S.168(2) of the Public Elections Act 2012 so as to make the Petition Rules of 2007 applicable to elections held under the said Public Elections Act will be to create a conflict between sections 162 and 168 of the said Act. He submitted that the Petition Rules cannot apply to elections held under the Public Elections Act of 2007.

 

1. I do not agree with counsel for the Petitioner that the saving sections of the Public Elections Act 2012 do not apply to the Petition Rules of 2007. I hold that the Petition Rules of 2007 are wholly saved by S. 168 of the Public Elections Act 2012 and will very well apply to elections held under “that act”. I must however add that these rules do not necessarily apply to all elections.

 

1. The Petition Rules 2007 are not of general application. I hold this opinion because the rules themselves say so in the very opening rule. Regrettably neither counsel advanced any submissions on the effect of Rule 1 of The Election Petition Rules which provides:

1. These rules shall have effect in relation to all proceedings

brought in the High Court to hear and determine whether:

1. Any person has been validly elected as a member of Parliament and
2. The seat of a Member of Parliament has become vacant

 

1. It seems to me that the ambit of the Petition Rules 2007 is clearly defined and for these to apply to the present petition, the petition must be “in relation to” one or both of the above questions. These rules only “have effect in relation to proceedings” brought to determine questions touching the validity of election of Members of Parliament and vacancy of seats in Parliament. The present petition is about the ward seat in a local council.

 

1.  I have found no rule or practice that will allow stretching the ambit of these rules to encompass bye-elections for local government offices. Nor have I found any provision which will allow me to use the Election Petition Rules of 2007 mutatis mutandi to other elections even though this may appear desirable and even logical.
2. In these circumstances where clearly there are no special rules governing the petitions relating to Ward /Local Council Elections the general High Court Rules of 2007 will apply.  I am strengthened in this opinion by the fact that several election petitions relating to elections conducted in the provinces have been filed at the Registry in Freetown and have been heard here in Freetown, amongst these I will mention:
   1. Sahr Mohamed Sam Nyandemoquee v. The National Electoral Commission & Samuel K Brima (2010)
   2. Mohamed Bai Sama Kamara v Mohamed Bai Maru Kamara (2010)
   3. PC Mohamed Kailondo Banya v Ngobeh

 

1. I am further reinforced in my opinion by S.105 of the Public Elections Act 2012 by which section parliament makes applicable to Local Council elections several conditions and rules governing the election of Members of Parliament.

 

105.     “Sections 60 to 97 shall with the necessary modifications apply to local council elections “

I hold the view that if parliament had intended to have The Election Petition Rules 2007 apply to election petitions other than those relating to members of parliament it would have done so by employing a similar provision as that found in S. 105.

 

1. Counsel’s objection that the present petition infringes R. 5 of The Election Petition Rules 2007 cannot be sustained as R.1 of those same rules without any ambiguity limits the application of the rules as already stated.

 

I therefore over-rule the Preliminary objection and I make no order as to costs.

 

 

 

………………………………………………………. The Hon. Mr. Justice Reginald Sydney Fynn JA