Misc App 43/10           2010     N No. 3

IN THE HIGH COURT OF SIERRA LEONE (PETITION)

BETWEEN'.

SAHR MOHAMED SAM NYANDEMOQUEE - PETITIONER AND

THE NATIONAL ELECTORAL COMMISSION - 1ST RESPONDENT

SAMUEL K BRIMA                               - 2nd RESPONDENT

AIAH BINDI FENFA GONGOU                - 3rd RESPONDENT

A B LANSANA ESQ for the Petitioner

N D TEJAN-COLE ESQ for the 3 1 Respondent

1st A 2nd Respondents did not appear, and were unrepresented

JUDGMENT DELIVERED ON MONDAY THE 19™ DAY OF JULY .2010.

1.  By Petition dated 4th February,2010 the Petitioner Petitioned this Court that the Paramount Chieftaincy Election held and conducted on 27th January,2010 in the Gbane Chiefdom, Kono District, be declared null and void on the ground that the second round of the electron, i.e. the run-off was contested by three candidates instead of by two only; further, that the 3rd Respondent, the winner of the run-off, be restrained from being sworn in as Paramount Chief of the Gbane Chiefdom, and from performing the duties of Paramount Chief; and that fresh elections be conducted in the said Chiefdom. The Petitioner claims that it was improper for three candidates to contest the second ballot, as they were still in the elimination stage which he, the Petitioner had crossed by polling the highest number of votes cast in the first round. Petitioner protested at this decision of the 1st and 2nd Respondents, but his protest went unheeded. He is therefore aggrieved by this decision which resulted in his losing the election. He attributes his failure to the improper conduct of the election.

2.  In his Particulars of Improper conduct, the Petitioner avers that the 1st and 2nd Respondents failed to correctly apply Section 15 of the Chieftaincy Act,2009. He argues that both 1st and 2nd Respondents failed to adhere to the provisions of Section 15(2) of the Act which stipulates that an elimination process shall be undertaken with a view to "leaving the two candidates with the highest number of votes to contest a second ballot." He argues further, that given the fact that the 1st and 2nd Respondents had three contestants going into the second round, it transpired that the votes of the two losers exceeded the votes of the winner, which said scenario is contrary to the democratic principles envisaged by Section 15 of the Chieftaincy Act,2009. The conduct of the election was therefore improper and undemocratic,

3.  On 15 February,2010 N D Tejan-Cole esq Entered Appearance for and on behalf of the 3rd Respondent, and on the same day, gave notice of the same to Mr Lansana. On 4th March,2010, the 3rd Respondent filed an Answer to the Petition. In it, he averred that he was a candidate in the Paramount Chieftaincy election for &bane Chiefdom; that at the first ballot, the Petitioner polled 178 votes; whilst himself and the other contestant, Kokotowa Nyandemoquee, tied at 152 votes each. The total number of votes cast was 482. Petitoner was only able to garner 37% of those votes, well below the 557o threshold required by the Chieftaincy Act,2009. A run-off was therefore declared. Because of the tie in the second position, all three of them went into the run-off in which, he the 3rd Respondent, polled 230 votes, Petitioner polled 215 votes, and Kokotowa Nyandemoquee polled 142 votes respectively, The total number of votes cast had swelled to 587, an addition of 105 votes. Thus, it transpires that whilst in the first round Petitioner led the other two candidates by 26 votes, in the second round, he was only able to add just •J7 votes to his tally; whilst 3rd Respondent, added 78 votes to his tally. The overall loser was Kokotowa Nyandemoquee who, in the second round, lost 10 votes, polling just 142 votes.

4 I have emphasised the respective tally of votes for each candidate as the issue of fairness of the outcome of the second ballot has been stressed by Petitioner in his Petition, and by his Counsel during the course of argument in Court. Counsel's argument is that the total number of votes cast for both the Petitioner and Kokotowa Nyandemoquee in the second ballot, exceeds the total votes cast for 3rd Respondent by 127 votes The two of them together polled 357 votes, whilst 3rd Respondent only polled 230 votes; that gives a difference of 127 votes, a ratio of approximately, 61%/39%. That may be so; but Counsel has conveniently forgotten that in the first round, the two losing candidates together polled 304 votes as against his 178. The difference there was 126 and Petitioner's percentage of the total votes cast then was 37%. With the increase in the number of votes cast in the second ballot, the 3rd Respondent has actually secured a higher percentage of the votes cast than the Petitioner did in the first round: i.e. 39% as against 37%. With the addition of 78 votes to his tally, it is clear that the electorate did not view the Petitioner's popularity as being more substantial than that of the 3rd Respondent.

5.  The 3rd Respondent averred further in his Answer that, he was declared the winner of the election as he had obtained a simple majority in the second rourtd, which was what was required by, and in Law.

6.  When the Petition came up for hearing before me on 3 April,2010 I decided that, in view of the Answer filed by the Respondent to the Petition, it could be disposed of in accordance with the provisions of Order 17 Rule 1(1) of the High Court Rules,2007.1 there and then invited Counsel on both sides to formulate the Question of Law which each believed arose in the Cause. The questions formulated by Mr Lansana were: (1) Whether a candidate in a Paramount Chieftaincy election can be declared duly elected when he obtains less than 55% of the votes cast.

(2) whether in the second ballot, more than two candidates shall be allowed to contest. Mr Tejan-Cole's questions were: (1) whether two candidates who tie in the first round should be allowed to proceed to the 2nd ballot. (2) If the answer to the above is in the negative, then whether that is consistent with democratic principles as stated in paragraph 8(c) of the Particulars of the Petition. Consequent upon the formulation of these questions by both Counsel, I conflated Mr Lansana’s two questions into one, and adopted the two formulated by Mr Tejan-Cole as the questions in issue in this Cause. Both Counsel opted to address the Court orally, and proceeded to do so.

7.  In his arguments, Mr Lansana contended that the Chieftaincy Act does not permit more than two candidates to go into the second round of voting. By doing so, the 1st end 2nd Respondents had defeated the intent and spirit of the whole of Section 15 of the Act, Once the Petitioner had polled 178 votes in the 1st round, he had crossed the threshold, and ought not to have gone through a 2nd ballot with the other two candidates.

What should have happened was That there should have been an elimination contest in which the candidates who tied would contest against the candidate in the fourth position. The winner would then proceed to the run-off with the Petitioner. I have noted, and have dealt with above, his arguments about the democratic credentials and merit of the decision taken by 1st and 2nd Respondents, to allow three candidates to proceed to the 2nd ballot. In conclusion, he reiterated the Petitioner's prayer that the election be declared null and void, and that fresh elections be held.

8.  In his Answer Mr Tejan-Cole argued that by introducing an ad hoc mechanism, i.e. a bye election between the candidates who tied in the first round, before the run-off, Petitioner's Counsel had misconceived the position. That proposition could not be supported by any kind of construction of Section 15 of the Act. That Section should be read as a whole. The candidate who polls the highest number of votes in the first round does not have any special rights over the others. Parliament must have contemplated situations where there were more than two candidates in the 2nd round. The candidate or candidates with the least number of votes are eliminated. Where there is a tie, the two persons who tie should be treated as one. Section 38(b) of the Interpretation Act,1971 provides that the singular includes the plural Therefore" twd‘ referred to in Section 15 becomes one. He argued further, that unless there is express provision as to how a tie in the first round is to be resolved, no ad hoc arrangement or practice as that suggested by Petitioner's Counsel can be adopted. He referred the Court to English provisions where such an arrangement is specifically provided for. Because of the conclusion I have reached, I have not thought it necessary to dwell on these authorities,

He said that he does not think there is a gap in Section 15. Mr Tejan-Cole submitted also that strictly speaking, the Petition was not properly before me, as it had not been sealed as required by the provisions of Order 9 Rule 2(2) of the High Court Rules,2007. He cited the Supreme Court Decision in AIAH MOMOH v NYANDEMOH as authority for the proposition that an Originating Summons which was not sealed, had not been issued. He argued that notwithstanding his arguments on the merits, the Petition should be dismissed for this reason as this Court was deprived of jurisdiction to proceed in the absence of a seal on the Petition.

9,  At this stage, and before Mr Lansana began his reply, I offered the Court file to him, as recorded on page 7 of my minutes, for him to inspect the same to find out whether there was a sealed original or copy of the Petition in it. Mr Lansana agreed that there was no sealed copy in my file. He argued further that in view of the provisions of Order 2 Rule 1(1) and Rule 2(1), Mr Tejan-Cole was late in taking the point, as he had taken a fresh step by filing an Answer. As such, the Court was not deprived of jurisdiction to hear the Petition He asked the Court to ignore the irregularity and not to nullify the proceedings. On the substantive argument, he said that Section 15 did not provide authority for the procedure employed by 1st and 2nd Respondents. Proceedings which fell outside the ambit of Section 15 were irregular. Lastly, he argued that Section 38(b) of the Interpretation Act,1971 was not applicable in this case. Arguments ended at this stage and Judgment was reserved.

10.      The first point I have been called upon to decide, s whether the failure of the Petitioner to seal the Petition as required by Order 9 Rule 2(2} of the High Court Rules,2007 renders the Petition null and void, Clearly, there has been a breach of that Rule Mr Lansana seeks to rely on Order 2 Rule 1(1) and Rule 2(1) of those Rules. But I think the true position is whether I can, independently of any Application made to me by the 3rd Respondent by Motion or Summons, set aside the Petition for Non­Compliance with Order 9 Rule 2(2) notwithstanding the filing of an Answer by the 3rd Respondent. I believe I can, as the objection raised goes to the jurisdiction of this Court to hear the Petitioner. This is not an issue of whether Petitioner came by the right originating process or not. If that were the case, the Petitioner could legitimately rely on, or seek succour in the provisions of Order 2 Rule 1(3). But that is not the issue here. A Petition cannot be issued if it has not been sealed. Further, it has not been indorsed at the top of the first page or on any part of the first page to show that it has been issued out of the Master's Off ice. As I said in UNION TRUST BANK LIMITED v ESTATE OF FODAY SAYENU SESAY where the originating process was an Originating Notice of Motion, *Notwithstanding all that I have said above about the issues calling for decision\, there is a more fundamental problem with this Application. It is an Originating Notice of Motion, and its issue and its use are governed by the provisions of Order 8 Rule 4(4) of the HCR.20Q7. Interestingly; one of the headings employed by the Applicant, is indeed Order 8, as appears above. But neither Counsel adverted his attention to the import and effect of the appropriate Rule. This Rule provides that "Every Originating Motion shall be issued out of the Master's Office...,and shall be sealed by the Master.....and upon being sealed shall then be deemed to be issued. ” The Motion in this case was signed by Yada Williams <& Associates. Thus, it was not issued out of the Master's Office. It is not Sealed. The formality necessary for me to act on it, to wit the Master's Seal is absent. It cannot therefore stand. Regrettably and sadly, I have no alternative but to dismiss it with Costs to the Respondents, the same to be taxed if not agreed. "These same considerations, with the greatest respect to Mr Lanasana, apply in these proceedings, notwithstanding the filing of an Answer by the 3rd Respondent, as they go to the jurisdiction of this Court to hear and determine the Petition. My view, and my experience teaches me, that though Petitions are signed by the Petitioner, just as Writs of Summonses are signed by the Plaintiff-in-person or by Plaintiffs Solicitor and Counsel, Petitions should also always be signed by the Master and Registrar at the top right-hand corner of the first page of the Petition, or elsewhere on its face. The signature of the Master and Registrar at the back of the Petition herein, is that which is usually appended in Petitions to the Notice to the Respondent as to how Appearance should be entered. It is not that which shows that the Petition has been issued out of the Master's Off ice. In writs of summonses, the Master's signature appears once: on the f irst page underneath the headings, and above the instructions as to how to enter appearance. In Petitions it appears once on the first page, and again on the last page.

But as I did in the above-cited case also, and in the event that I may be wrong in coming to the conclusion I have reached on the regularity of the Petition, I propose to examine the merits of the arguments canvassed by the parties herein. Section 15 of the Chieftaincy Act,2009 provides as follows: "15(1) In any paramount chieftaincy election, a candidate shall be declared duly elected if he obtains 55% or more of the votes cast; (2) Where there are several candidates in a paramount chieftaincy election and none of them obtains 55% of the votes cast in the first ballot, the candidate or candidates with the feast votes will be eliminated, leaving two candidates with the highest votes to contest a second ballot, in which the candidate who obtains a simple majority shall be declared duly elected. (3) Where there are only two candidates in a paramount chieftaincy election>, the candidate who polls the simple majority of votes shall be declared duty elected, and in the event of a tie, a second ballot shall be conducted and the candidate who obtains a simple majority shall be declared duty elected*. Sub-section (4) is not relevant for our purposes.

12.     Clearly, the Section provides for a run-off where there are several candidates, and none of them obtain 55% of the votes cast in the first ballot; if there are only two candidates, a simple majority suffices unless there is a tie between them, when another ballot will be conducted, in which the winner only needs a simple majority. Where there are several candidates, sub-section (2) contemplates that the run-off will be between the persons who came first and second in the first ballot i.e. the two persons with the highest number of votes cast. A tie is an unusual occurrence. Probably, what the Petitioner should have asked for at the time would have been a recount to confirm that there was indeed a tie, and not just a slip in the counting But the fact that a tie is unusual, does not necessarily mean that when it occurs, the Court should not apply common-sense principles to the interpretation of the relevant legislation. I can readily see that Mr Lansana seeks comfort in the wording of subsection (3) which deals with what should happen when there are only two candidates, and there is a tie between them. But in my respectful view, that particular provision does not authorise, nor can it be said to suggest, that there should not just be two, but three elections, when there is a tie between candidates coming second in the first round of voting. Accepting Mr Lansana's argument on this point, will obviously result in the holding of three elections, and I cannot find myself acceding to that interpretation of the plain words of Section 15(2).

13.     Section 15(2) is couched in the same terms as Section 42(2)(f) of the Constitution of Sierra Leone,1991 which provision deals with the election of a President. I am sure the draughtsmen of that piece of Legislation, of which I am aware Mr Tejan-Cole was one, did not have in contemplation three, instead of two elections notwithstanding the use of the phrase

".. the two candidates with the highest number or numbers of votes....* Section 15(2) certainly does not contemplate, as canvassed by Mr Lansana, a situation where there will be, what I might term, for want of a more appropriate description, a mini run-off between the two parties who tie, before having the run-off proper. There is only provision for two elections. Where there are several candidates, if no candidate wins 55% of the votes cast in the first ballot, then there will be a second election which will be won by a simple majority. There is no mid-way stage; just as much as there is no provision for depriving one of the candidates who

tied, of his right to go into the second contest. If one of those who tied, decided to stand down, the situation would easily resolve itself. But in the absence of such magnanimity and generosity by one of two second placed candidates, the candidates who came first and second in the first ballot ought, and must go into the second ballot, unless prohibited from doing so by statute. There is no such prohibition in Section 15. And as I have explained above, the outcome was not as unfair and undemocratic as the Petitioner contended. If anything, the second ballot showed that the 3rd Respondent was more popular than the Petitioner: 3rd Respondent gained 78 votes with the increase in the number of those voting.

14.     The Petition dated 4th February,2010 is therefore DISMISSED with Costs to the 3rd Respondent only, as the other two Respondents have not appeared, nor taken part in these proceedings. Such Costs shall be Taxed, if not agreed.