NGOBEH v BANYA and Others (C.C. 546/03 ) [2009] SLHC 1 (13 January 2009);

C.C. 546/03 2003 N. NO. 10

IN THE HIGH COURT OF SIERRA LEONE

(CIVIL JURSDISCTON)

BETWEEN: -

LAMIN VONJO NGOBEH -PLAINTIFF

AND

P.C. MOHAMED KAILONDO BANYA - 1st DEFENDANT

NATIONAL ELECTORAL COMMISSION 2nd DEFENDANT

PROVICIAL SECRETARY, EASTERN

PROVINCE 3rd DEFENDANT

MINISTER OF LOCAL GOVERNMENT

AND COMMUNITY DEVELOPMENT 4th DEFENDANT

ATTORNEY-GENERAL & MINISTER

OF JUSTICE 5th DEFENDANT

C.F. Margai Esq. for the Plaintiff O. Kanu Esq., for the Defendants.

JUDGMENT

The Plaintiffs claim against the Defendants herein is for:

(1) A DECLARATION to the effect that the Paramount Chieftaincy election conducted on Friday, 17th January 2003 at Kailahun for the purpose of electing a Paramount Chief for Luawa Chiefdom, Kailahun District, Eastern Province, at which said election and in consequence whereof MR. MOHAMED KAILONDO BANYA was declared duly elected as Paramount Chief of Luawa Chiefdom aforesaid and subsequently recognized as such by Hi Excellency the President of the Republic of Sierra Leone, was however fatally irregular, defective and vitiated, and accordingly was and is invalid, null and void and of no lawful effect whatsoever for the aforesaid purpose or recognition.

(2) A DECLARATION to the effect that the recognition by His Excellency the President of the Republic of Sierra Leone of MR. MOHAMED KAILONDO BANYA as Paramount Chief of Luawa Chiefdom, which said recognition was accorded the said MR. MOHAMED KAILONDO BANYA at Kenema, Eastern Province, on Monday, 27lh January 2003 or thereabouts, on the basis of the Paramount Chieftaincy election conducted at Kailahun, Kailahun District on Friday, 17th January 2003 as aforesaid, was and is however invalid, null and void of no lawful effect whatsoever.

(3) AN ORDER that the aforesaid Paramount Chieftaincy election for the Luawa Chiefdom, conducted on Friday, 17th January 2003 at Kailahun for the purpose of electing a Paramount Chief for Luawa Chiefdom, Kailahun District, in the Eastern Province, is hereby cancelled and nullified by this Honourable Court.

(4) AN ORDER that the aforesaid recognition by His Excellency the President of the Republic of Sierra Leone of MR. MOHAMED KAILONDO BANYA as Paramount Chief of Luawa Chiefdom, Kailahun District, which said recognition was accorded the said MR. MOHAMED KAILONDO BANYA at Kenema, Eastern Province on Monday, 27lh January 2003 or thereabout as aforesaid, is hereby cancelled and nullified by this Honourable Court.

(5) A PERMANENT INJUNCTION restraining the 1st Defendant herein from holding himself out, or acting, serving or behaving in any such way whatsoever, or allowing himself to be so treated or regarded by any . person or authority whatsoever, in all cases whether directly or indirectly, as a Paramount Chief, or as the Paramount Chief of Luawa Chiefdom, Kailahun District, Eastern Province, and also from exercising or enjoying, or attempting or purporting to exercise or enjoy, any of the rights, duties, functions and privileges of any nature whatsoever, whether customary or otherwise, as are conferred upon, exercised or enjoyed by a Paramount Chief, or the Paramount Chief of Luawa Chiefdom, Kailahun District, Eastern Province, by virtue of the office of Paramount Chief, unless of course in consequence of :a subsequent valid such election.

(6) FURTHER OR OTHER ORDERS OR RELIEFS as this Honourable Court may deem fit, proper and just.

(7) Cost of this action.

In his particulars of claim the Plaintiff avers that he was a candidate at the Paramount Chieftaincy election conducted on 17th January 2003 at Kailahun for the purpose of electing the Paramount Chief for Luawa Chiefdom, Kailahun District in the Eastern Province of Sierra Leone. The 1st Defendant was also a candidate at the said election and he was declared duly elected as Paramount Chief of the Luawa Chiefdom and subsequently recognised as such chief by His Excellency the President.

The other Defendants were all Government Officials who were concerned at the material time with the conduct of the said elections.

The Plaintiff further avers that the Declaration of Rights was held on 27th November 2002 and at the said Declaration four persons were selected to be candidates for the said Paramount Chieftaincy elections. They were LAMIN GBONGAY NGOBEH, MOHAMED KAILONDO BANYA, MAADA FAHBUNDEH and the Plaintiff, LAMIN VONJO NGOBEH.

It was further pleaded that the said elections arose as a result of the death of the previous Paramount Chief and the Plaintiff referred to paragraph 17 of the code of Practice and Procedures for the election of Paramount Chiefs issued by the office of the President and which paragraph made provision for the reburial of deceased Paramount Chiefs and the relevant funeral rites to be performed in their respective chiefdoms before the election process could commence in cases where the funeral rites had not been performed or the chief had been buried outside his chiefdom.

The Plaintiff further alleged that both the Declaration of Rights and the subsequent elections were conducted without a proper and valid list of chiefdom councilors as required by law. He alleged that there was no list of recently revised and verified chiefdom councilors of Luawa Chiefdom published in any issue of the Sierra Leone Gazette used during the elections. As a result it had not been possible for the aspirants, candidates, chiefdom councilors and the general public in the said chiefdom to verify the list of

voters before and during the elections. He further alleged that this anomaly left the election open to high level of unathorised proxy and multiple voting as well as rampant impersonation by individual voters which actually took place during the said election, thereby rendering the entire election suspect and unreliable.

The Plaintiff further allege that the valid list of chiefdom councilors was only published a few weeks after the said elections and not before the elections as required by law.

Further it was pleaded that there were incidents of oppressiveness and intimidation of voters and acts of undue influence occurring from well before the Declaration of Rights and up until the date of the elections. These acts he alleged operated to render the election oppressive unfair and lacking in transparency. Details of these acts were given in the particulars and also in the testimony of the Plaintiff and these will be dealt with later in this judgment.

The Plaintiff also allege that there were several electoral malpractices during the two elections conducted on 17 January 2003 such anomalies as the failure to provide voters with indelible ink for marking the thumbs of voters as required by law, changing the order of candidates and their symbols on the ballot paper thus causing confusion for the voters who were largely illiterate; encouraging certain dignitaries to occupy the high table even though they had no role to play in the conduct of the elections and persons who wielded a lot

of influence over the voters; allowing certain person not officials connected with the elections to interfere with the voting process and enter the polling booths to show voters how to vote, allowing members of the 1st Defendants extended family to influence the voting process and carry out several malpractices particularly during the second ballot as a result of which the whole voting exercise was rendered suspect and unreliable.

The Plaintiff further averred that these malpractices were allowed to occur inspite of his protests to the 2nd and 3rd Defendants and the Plaintiff prevailed on his supporters not to insist on objections during the elections to avoid the possibility of arrest or provoking any crisis that might lead to the cancellation of the election.

It was further pleaded that at the end of the elections the 1st Defendant was declared duly elected after the second ballot and was subsequently recognised as the Paramount Chief of Luawa Chiefdom by His Excellency the President.

The Plaintiff secured the consent of the Attorney General and Minister of Justice to institute the present action which he has instituted seeking the several reliefs already mentioned.

The Defendants entered appearance and filed a defence denying the several averments contained in the said particulars of claim. They denied that there was any intimidation of the voters or supporters and candidates and they averred that the elections were free and fair. They further averred that no formal reports or protest by the Plaintiff was made to them complaining of

such intimidation or oppression of any voter or supporter before or during the elections.

They further deny that the occasion of the reburial of the late Paramount Chief was used as an opportunity to campaign for the member of the Banya family to be elected Paramount Chief. They averred that the said elections were fairly and transparently conducted in accordance with the electoral laws and regulations and that only the employees and agents duly authorised conducted and supervised the elections and they performed their duties fairly and impartially.

At the hearing the Plaintiff PW1 was the first to give evidence. He testified that he was a candidate at the Paramount Chieftaincy elections for Luawa Chiefdom held on 17th January 2003 in Kailahun Town. He told the court that the 1st Defendant was another candidate and he was declared duly elected at the end of the elections. The other candidates were LAMIN GBONGAY NGOBEH and MAADA FAHBUNDEH. The witness PW 1 told the court that the 2nd Defendant, the National Electoral Commission was responsible for the conduct and supervision of elections throughout the country and was represented at the said elections by the Western Area Commissioner. The 3rd Defendant the Provincial Secretary, Eastern Province is the head of administration in the said province and represented the Minister of Local Government, the 4th Defendant in Local Government Affairs including elections of Paramount Chiefs. He stated that the said Provincial Secretary, Mr. Kpakiwa conducted the elections and supervised the Declaration of Rights. He referred to the 4th Defendant, the Minister of Local Government

who he stated was responsible for the compilation of the list of chiefdom councilors which should be published in the Sierra Leone Gazette to enable the Councillors, voters and candidates on the names appearing on the list before the elections. He told the court that no such gazette publication was used during the elections and that what was used was a typed A4 paper containing the names of the chiefdom councillors. The list of voters used on the elections was tendered as Exh."A". He stated that he complained to the 3rd Defendant the Provincial Secretary about this anomaly, but he said he would use the list as this was what had been given to him to use and advised that he could make his objection later. He said he saw the gazette publication containing the revised list of chiefdom councillors dated the 21st January 2003 after the elections.

The witness further testified that the Declaration of Rights was supervised by the Provincial Secretary and two Assessor Chiefs both of whom came from Kono District. He said no gazette publication was used for the process and his candidature was accepted and he was informed he could contest the elections. He said the other three candidates were also accepted. He said the order of acceptance was LAMIN GBONGAY NGOBEH, MOHAMED KAILONDO BANYA, MAADA FANBUNDEH and he was the last candidate, and that was the order the names were published together with their respective symbols from the 27th November 2002 to 6th January 2003. He told the court that on the eve of the elections he observed that the order had been altered and his name was now placed second and MOHAMED KAILONDO BANYA's name was placed last. He stated that his supporters had been

instructed that his name would appear last on the list and they should vote for him in the fourth position. The witness PW1 was shown Exh. "A' and he told the court the number of chiefdom councillors listed therein are numbered serially from 1 - 1927. He went through the list and observed that there were a number of anomalies in the list as some villages could not have the number of councillors alleged to be listed there as some are small villages with only a few people living there. In some cases he cited villages where there were no residents and therefore cannot have councillors for example he said Madina in Gao Section does not exist as a town and there are no residents therefore there are no councillors. The witness gave a detailed analysis of the discrepancies in the councillors listed for certain villages in the chiefdom.

Further in his testimony, the Plaintiff PW1 told the court that two days before the election itself, the 1st Defendant and his family members transported the . councillors from various sections in the chiefdom to the Banya compound and camped them there up to the day of the election. He said that on the eve of the . election members of the Banya family, friends and sympathizers came from , Freetown, Kenema and Bo and converged at the Banya compound. On that same day he said the NEC officials called a meeting of the councillors and candidates at the court barrie to discuss the conduct of the election and on his way to the said court barrie, the Plaintiff said he met PATRICK FOYAH and MRS. ELIZABETH LAVALIE. He stated that Mr. Foyah introduced him to Mrs. Lavalie and told him she was the Deputy Speaker of Parliament, he stated that on the day of the election highly placed personalities from Freetown were sitting at the High Table together with the representative of the 2nd and 3rd Defendants although they had

nothing to do with the elections. He stated that among the said influential people were PATRICK FOYAH, the Ambassador to Liberia, MRS. ELIZABETH LAVALIE, FODAY SAWI, CHAIRMAN OF GUMA WATER CO., MRS. COMFORT KABBA, HON SALIEU N'DOLLEH and HON. MARTIN BANYA, Deputy Minister. He said these people were supporters of the Banya family. He testified that the NEC officials set up two polling booths, one for Luawa Foiya section facing the Banya compound and the other for the other nine sections facing the market and thereafter the NEC officers called names of councillors from the prepared list and not from the Gazette. He stated that no Gazette was available. The witness PW1 then went on to describe the voting procedure stating that voting went on in the two booths simultaneously but the number of registered voters was not announced to the public nor were they told the number of voters on the list. He stated that indelible ink was not used on the thumbs of voters and when he protested he was told that there was no indelible ink. He stated further that there were some disabled voters and a lady who was not a NEC officials helped them to vote. He said he protested to the Western Area Electoral Officer who was in charge that the lady should not help the disabled voters by placing their thumbprint on the ballot paper. The commissioner then cautioned her and she stopped.

The Plaintiff continued his testimony and told the court that about the middle of the voting exercise, the booth facing the Banya compound was taken over by the Banya supporters and sympathizers. He said some of them called names of councillors from the list and he named the persons who he said

actually called out names of voters and he stressed that this was done in the fall view of the Electoral Officers. He gave an example of an impersonation of a chiefdom councillors, one M.S. NGOBEH who he knew was at that time in Freetown but when his name was called was impersonated by a youth. Such irregularities continued to the end of the voting and the Electoral Officers did nothing to stop them.

At the end of the voting, the NEC officials, he explained only announced the spoilt votes and did not tell them the number of councillors who voted nor did they announce the number of voters listed. After the first ballot the officials announced the results with the 1st Defendant polling 899 votes and the Plaintiff 642 votes. He stated that they then announced that since neither candidates had polled the required 55% there had to be a second ballot. He said that they were given thirty minutes break and during the break he and his brother who was one of the candidates went to the Ngobeh compound and took steps to resolve their differences and whilst there he said MRS. LAVALIE and two other women came to speak with his brother and the plaintiff left them and returned to the court barrie. He stated that during the second round of voting, the irregularities already complained of continued and the supporters of the Banya family now dominated the procedure and called out the names of councillors. He further testified that during the election there were camera men videoing the process and he was later given a copy of the cassette. He told the court that he prevailed on his supporters not to insist upon the objections as that would spark up problems because of past experience during the previous elections in 1988.

At the end of his testimony the witness PW1 was shown a copy of the Sierra Leone Gazette containing the names of chiefdom councilors dated 21St January 2003 which he tendered as Exh. "B".

Under cross-examination the witness PW1 confirmed that there were four candidates from three Ruling Houses and that he was present together with the other candidates at the court barrie with lots of supporters of the various candidates. He said he only knew one of the NEC officials a MR. KING from Freetown and there were five NEC officials and the Provincial Secretary and the two Assessors chiefs. He said he complained to Mr. King and the Provincial Secretary. He told the court that there were people taking photographs and video and that he had someone taking them on his behalf and that he did not seek permission to do so but when he saw the other candidates bring photographers into the hall he did the same. He admitted that he knew MRS. ELIZABETH LAVALIE in Parliament but that that was the first time he saw her in Kailahun Town and that she did not call out names of councillors nor hand out ballot papers or count votes.

The second witness for the Plaintiff was LAMIN BUNUMBU NGOBEH who recalled the Paramount Chief elections held in Kailahun Town on 17Ih January 2003. He told the court that he was present at the said election and voted as a chiefdom councillor. He identified Exh, "A' as the list used in the said elections. He testified that two days before the election he received information that three out of the four candidates had been summoned by the D.O. the late SENGU KOROMA to his office. The candidates were the lst

Defendant, MOHAMED BANYA, MAADA FAHBUNDEH and LAMIN

GBONGAY NGOBEH. He said he then went with one of his brothers to the said D.O's office to verify this. On arrival at the office he inquired from the D.O why he had not invited his candidate, the Plaintiff to his office as the three other candidates were already in the said office.

The D.O told him that he thought that it was the three candidates who needed advice. He said he saw the three candidates each holding Exh."A" and he was told not to ask questions and the three candidates left with the documents. He told the court that he reported this incident to the Plaintiff who later went to the D.O to request a copy of Exh "A" but he was not given one. He told the court that on the day of the election the names of chiefdom Councillors were called from the list and he narrated an instance when the name of his brother LAMIN JAJAH NGOBEH was called and he was then in Freetown, somebody else responded to that name and voted. He said he informed the Plaintiff who then protested to the Provincial Secretary and the Provincial Secretary retorted that he could petition later on. The witness went on to describe the method of counting and stated that members of the public were not shown the ballot papers to see how the witness voted before they were put in packs of four.

The witness told the court that after the first ballot the Plaintiff's elder brother invited the Plaintiff to the Ngobeh compound and as they proceeded to the said compound he saw MRS. ELIZABETH LAVALIE with a bundle under her arm and accompanied by one Comfort Kabba. He said she then entered a

room together with LAMIN NGOBEH (Snr), LAMIN GBONGAY NGOBEH, JENEBA NGOBEH and MRS. COMFORT KABBA. He said he and the Plaintiff stayed behind in the parlour and when MRS. LAVALIE came out of the room, she no longer had the bundle with her.

The witness PW2 also confirmed that no indelible ink was used and that the ink provided was from an ink pad. The witness was also shown Exh "A' and he testified that some villages whose population would not warrant more than three chiefdom councillors had many more listed and those purported councillors were allowed to vote. The witness identified Exh "B' the Sierra Leone Gazette dated 21st January 2003.

Under cross-examination the witness PW2 admitted that the Plaintiffs candidate was approved by the Declaration of Rights process and that he is a supporter of the Plaintiff. He also admitted that the Plaintiff was satisfied with the Declaration of Rights process which was supervised by the 3rd Defendant the Provincial Secretary. He further admitted that the Plaintiff polled 642 votes but that he the witness was not satisfied with the number of votes polled by the Plaintiff. He told the court that it is true that one MAURICE BANYA a school teacher called out the names of chiefdom councillors who were to vote but that it was a NEC official who would hand the voting slip to the voter who would take it to be stamped and the voter would then cast his vote, "He also admitted that MRS. ELIZABETH LAVALIE did not call out names nor did she count votes or conduct the election.

He admitted that the Plaintiff is his elder brother but denied that he only came to testify to support the Plaintiffs case.

That end the Plaintiff's case.

Several adjournments were taken for the Defendants to proceed with their case and inspite of the notices of hearing served on them, no counsel turned up on their behalf. Counsel for the Plaintiff then applied for leave to re-open the Plaintiff's case as the consent of the Attorney General for the Plaintiff to proceed with the suit had not been tendered in evidence.

The leave sought was granted and the plaintiff was able to tender the Attorney General's consent as Exh "C", and with that the Plaintiff's case was closed.

As the Defendant's counsel had still not turned up, counsel for the Plaintiff applied for the Defence to be deemed close pursuant to the Rules of the High Court 2007 and for him to proceed with his closing address. The application was granted and a date fixed for the said address and counsel did proceed to address the court and Judgment was then reserved.

Thereafter there was filed on behalf of the Defendant's by the Law Officers Department a notice of motion seeking leave to re-open the case supported by affidavit giving reasons for the delay and exhibiting the defence filed. Submissions were made by both counsel on the application which was opposed by counsel for the Plaintiff. The leave sought was granted and counsel for the Defendant was permitted to put the case for the Defendants.

The first witness for the Defendants was Dr, Kai Moses Kpakiwa. the then Provincial Secretary who served as Presiding Officer at the said elections. He told the court that on the morning of the 17th January 2003, he called a meeting of chiefdom Councillors where he and the two Assessor Chiefs addressed the candidates. He said before the voting commenced he gave instructions for the chiefdom councillors list to be read to enable the chiefdom Councillors and the candidates to know the names on the list. He said there was no objection from the candidates and the Chiefdom Councillors to any of the names on the list that was read out. He stated that before that the Councillors were asked to sign a document which was a list of the Chiefdom Councillors and it was a sign of loyalty that any of the candidates elected would be obeyed. He said again there was no objection to the signing of the document as to any eligibility of the candidates. He told the court that voting started thereafter and each candidate signed in order to cast their vote and each councillor also signed. He told the court that he could not recollect the number of votes cast in favour of the 1st Defendant but he recalled that he won the elections. He stated that there was a second ballot after which the 1st Defendant was declared the winner. He stated that no objection was sent to him about the election and that on the day of the election, the atmosphere was very peaceful and nobody was prevented from voting.

Under cross-examination, the witness DW1 admitted that he supervised the conduct of the elections as well as the Declaration of Rights and that he acted as Presiding Officer. He stated that there was code of conduct for the elections prepared by the Ministry of Local Government. He said he was sent

a copy but he did not have it with him as he was no longer Provincial Secretary. He stated that the contents of the said code of conduct were well within his knowledge as he conducted the said elections. He admitted that the names of the Chiefdom Councillors should appear in the Gazette three times but that the names of the chiefdom Councillors were not gazetted. He told the court he had no idea that the names were subsequently gazetted. The witness identified Exh "A" and admitted that he had it in his possession when conducting the elections. When shown Exh."B", he admitted he had not seen it before and that he did not have it with him when conducting the elections. He further admitted that the Gazette was dated Tuesday, 21st January 2003 and that the elections were conducted on 17th January 2003 before the Gazette was published.

The witness DW1 identified the Plaintiff in court and stated that he was one of the candidates at the said election. He told the court that the Plaintiff did not protest that the elections were being conducted without the gazetted names of Councillors. He denied that he had told the Plaintiff that if anyone was dissatisfied he should go to court. He admitted that he was under great pressure whilst conducting the said elections. He denied that Dr. Sama Banya was in the hall on Election Day as he did not see him. He told the court that he did not know MRS. ELIZABETH LAVALIE nor MR. PARTICK FOYAH. He said that there were other people at the High Table and two were the Assessor Chiefs but he could not recall who the other people were. He admitted that it was the SLPP Government in power then and that he was still in the Civil Service attached to the Ministry of Local Government as Chief Registrar.

The second witness for the Defendants was LAMIN GBONGAY NGOBEH

who is now Chiefdom Speaker and Acting Paramount Chief. He told the court that he contested the Paramount Chief elections and that the Plaintiff herein is his cousin and that they both hailed from the Ruling House, The Ngobeh family. He said that during the Declaration of Rights, the Provincial Secretary called out the roll of candidates and they answered to their names. He stated that he was approved and that only one candidate, SAHR BOCKARIE was not approved. The process of Declaration of Rights he said was supervised by the Provincial Secretary and that he was happy with the process.

On election day, he stated that the Provincial Secretary called out the names of chiefdom councillors to notify all of who the councillors were and for them to state whether they agree or disagree with any of them. He said there was no objection to any of the names called. He said that the Assessor chiefs, the Provincial Secretary, the Chiefdom Councillors, the Police and NEC officials all supervised the said elections. He said he was not aware of any one else on the High Table. He stated that his representatives were also there. He gave details of the votes cast for four candidates and stated that at the end of the second ballot the 1st Defendant was declared the winner. He told the court that as a candidate he was not intimidated and that there was no intimidation. He said he did not receive any complaint from his supporters of any allegations of bribery. He said the atmosphere was peaceful and calm on Election Day. He said when the candidate was declared a winner he went to congratulate him and that there was general jubilation and he was happy with the results.

Under cross-examination, the witness PW2 stated that it was after the elections that he was appointed Chiefdom Speaker and that the Paramount Chief, the 1st Defendant was his immediate boss and that the working relationship between himself and the 1st Defendant is very cordial. He stated that he knew Dr. S. Banya who was at the time Adviser to the then President and National Chairman of the SLPP. He stated that the 1st Defendant is the nephew of Dr. Banya but he could not recall whether Dr. Banya was present at the elections. He stated that he did not know Mrs. Elizabeth Lavalie but he knew Mr. Patrick Foyah who was supporting him. He said he did not know if he was supporting the Banya family. He stated that on Election Day about 1927 chiefdom Councillors were present but that he did not know all of them. He said he did not see the Gazette containing the list of chiefdom councillors and that after the elections he did not think of petitioning the election. He said . he was not appointed Chiefdom Speaker a month after the elections and that it came as a surprise that he was appointed Chiefdom Speaker.

The third witness for the Defendants was CHIEF SUMAILA LANSANA TODAY, Senior Section Chief. Luawa Chiefdom. He said he was one of the chiefdom councillors at the election and one of the voters. He stated that he observed the process of the Declaration of Rights and that it was the Provincial Secretary who supervised the said process. He told the court that UN personnel, the Aspirants, Police, NEC officials were all present. He said on Election Day they were all assembled and he heard the Provincial Secretary read out roll of councillors and all four candidates were present. He stated that they were given the opportunity to identify the chiefdom councillors and there was no objection to any councillor. He said he was

happy with the list. He then gave details of the votes polled by each candidate and stated that at the end of the second ballot the 1st Defendant was declared the winner. He told the court that there was no intimidation from any candidate and that he was not coerced to vote for any candidate.

Under cross-examination, the witness DW3 stated that the Section Chief is elected by the villagers and that it was the Paramount Chief who approves the election. He confirmed that it was the 1st Defendant who approved his election. He said he could not remember the exact number of chiefdorn councillors at the elections. He was shown Exh."B" and he said he did not see it before the elections and that was the first time. He said he knew Dr. S.S. Banya and that he was not in Kailahun on the day of the election and that he did not know Mrs. Lavalie. He said he knew Mr. Patrick Foyah who is a native of Kailahun but he did not remember seeing him on the day of the election.

The fourth witness for the Defendant was lst Defendant MOHAMED S. KAILONDO BANYA. He told the court that he contested in the elections and was a candidate in the Declaration of Rights were he was approved. He confirmed that it was the Provincial Secretary who supervised the process and that the District Officer Kailahun, the two Assessor Chiefs, NEC officials, the UN personnel and the Police were all present. He said the names of the Chiefdom Councillors were called out and each one presented his document that qualified him to be a Chiefdom Councillor in the presence of all the candidates and there was no objection made to any of them. He stated that it

would not have been possible for any impersonation of the chiefdom councillors as the town chiefs, and section chiefs of the chiefdom were present and they all knew these people. He said all the candidates were present and they saw the persons called out as chiefdom councillors and none of them raised an objection to any of them.

The witness denied that prior to the election any of the candidates took into his compound any of the councillors. He said he did not bribe any councillor to vote for him nor did he subject any councillor to take an oath on his behalf. He admitted he knew Dr. Banya who is a senior member of his family and also his uncle. He said he was never present during the campaign and during the election, and that he was one of the chiefdom councillors entitled to vote. He said he did not intimidate any of the supporters of the other candidates, nor did any candidate intimidate his own supporters. He said at the end of the second ballot when he was declared the winner, the Plaintiff congratulated him and the following morning led a team of his supporters to his compound and in the presence of a number of people congratulated him and promised to work with him for the development of the chiefdom. He said five months later in June 2003 he was served with a petition from him.

Under cross-examination, the witness DW4 confirmed that the Provincial Secretary conducted the Declaration of Rights and the NEC officials and the Provincial Secretary conducted the elections. He also confirmed that he did not see Exh. "B" during the elections. He said that 1927 chiefdom councillors were entitled to participate in the elections and that he did not know all of

them. He said he canvassed all the councillors and it took him 6 months to do so.

The witness DW4 told the court that Dr. Banya was his uncle and at the time of the elections the SLPP was in power. He said Dr. Banya was the National Chairman of that party at the time and though he was not actively supporting him, he was supporting him. He said his predecessor, the late P.C. SAMA GBALAHUN BANYA died on 25th March 1995 and his remains were later . taken to Kailahun for burial in November 2002 and the election took place in January 2003. He denied that it was Dr. Banya who led the team to bury the remains but that it was Mr. G.S. Banya who did though Dr. Banya was present. He stated that he did not recall Dr. Banya giving the address at the funeral nor was it to his knowledge that Dr. Banya presented him as the official candidate. He denied that Dr. Banya told the audience that if he did not give his approval, no candidate would win the election. He said Dr. Banya was not present at the elections and Mr. Patrick Foyah was also not present at the elections nor was Mrs. Elizabeth Lavalie. He denied that some councillors were allowed to stay in the chiefs compound nor did they administer the oath to the councillors;

That ended the case for the Defendants.

In his submission to the court, counsel for the Plaintiff submitted that the 3rd Defendant, the Provincial Secretary was in breach of the Constitution of Sierra Leone in conducting the Paramount Chieftaincy election.

He submitted that he had no authority to conduct the said elections as s.33 of the said Constitution makes it the responsibility of the Electoral Commission to conduct and supervise all public elections and it was therefore its duty to conduct these elections and not the Provincial Secretary. He further submitted that the Provincial Secretary's role is limited to the declaration of rights and nothing more. In the circumstance he submitted the elections were seriously flawed and should be annulled.

Counsel further referred to the selection of the two Assessor chiefs and submitted that the presence of the Assessor chiefs is a must at such elections and the Guidelines for elections for Paramount Chiefs and sub chiefs make it mandatory for one of the Assessor chiefs to hail from the District affected by. such an election. He stated that the uncontroverted evidence of PW1 is that, both Assessor chiefs hailed from Kono District and he submitted that such a breach is a serious violation sufficient to vitiate the said elections.

With regard to the use of Exh "A is in the conduct of the said elections, counsel referred to the testimony of DW1, the Provincial Secretary where he said that it was mandatory that any chieftaincy election should be preceded by three publications in the gazette of the revised list of chiefdom councillors. Counsel referred the court to paragraph 13 page 3 of the Code of Practice for Chiefdom Administration. Counsel submitted that the witness DW1 admitted that he used Exh "A' to conduct the said elections and that he saw Exh "B" for the first time after the elections. Counsel drew the court's attention to the

testimony of DW4, the 1lst Defendant who also admitted that Exh "A” was used during the elections but that he canvassed all 1927 councillors listed in Exh "B' before the elections. Counsel submitted that the elections were evidently flawed in not conducting them according to the rules. Counsel also drew the court's attention to the unaccounted figure of 284 councillors who apparently did not vote in the said election and submitted that that number was substantial and there has been no explanation of the absence of these voters which would mean that there is a lacuna in the conduct of the election vis-a-vis participation or non-participation in the said elections.

Further in his submission, counsel for the Plaintiff submitted that by the use of exhibit "A" instead of Exh. "B", Exh "A" exposed the elections to a high level of unauthorized proxy, multiple voting and impersonation of individual voters. He submitted that this is evidenced by the testimony of the Plaintiff who gave statistics of the population in some of the villages constituting the chiefdoms vis-a-vis the number of chiefdom councillors to be accredited. Me stated that the Plaintiff mentioned BANGURA, DABOMALO, KPENALU and Joly villages as instance of such.

Counsel also referred to the activities and the high powered presence of members of the governing party at such an election testified to by the Plaintiff although denied by the witnesses for the Defence. He submitted that the presence of these influential people at such an election was capable of sending the wrong signal not only to the Councillors whose duty it was to elect the Paramount Chief but also to the presiding officers and staff. Counsel therefore submitted that all norms of fairness, transparency and decency that

should have characterised the conduct of the elections were breached thereby causing irreparable flaw in the conduct of the said elections. He therefore urged the court to uphold the complaint and declare the elections null and void.

In response to these submissions, counsel for the Defendants submitted that there was no breach of s.33 of the Constitution of Sierra Leone by the 3rd Defendant, the Provincial Secretary. He submitted that the act of the said 3rd Defendant in conducting the said elections is not in breach of the said provisions of the Constitution and he relied on the case of the election for the office of Paramount Chief of Biriwa Chiefdom a decision of the Supreme Court of Sierra Leone in 2006 where it was held that paramount chieftaincy elections were not within the category of public elections dealt with in the context of s. 33 of the Constitution. He therefore submitted that the conduct of the Paramount Chief election is not the function or duty of NEC.

With regard the selection of the Assessors, he submitted that it is not mandatory for one of the Assessor chiefs to hail from the District affected by such election. He said the wording in the Guidelines relating to Appointment of Assessors Chiefs is "more often than not the appointment are made as follows". He submitted that there are no mandatory words used in the said section. He therefore submitted that there was no breach in the selection of the two Assessor Chiefs. Counsel referred to the reference by counsel for the Plaintiff to the decision in the case of Doris Lenga Koroma and Others vs. Sigismond Oldman Caulker a recent decision of the High Court which dealt with the role and important of Assessor Chiefs in Paramount

Chieftaincy elections and submitted that the ratio in the judgment has no relevance to this case in which Assessor Chiefs were present. He further submitted that the point as to whether the Assessor Chiefs as alleged come from different Chiefdom/District is of no relevance to the efficacy of the declaration of rights.

Counsel further submitted that with regard the issue of the use of Exh "A" the conduct of the elections, administrative guidelines such as the "Code of practice for the election of Paramount Chiefs" are not laws and are therefore not legally binding in their own right. Counsel relied on the case of Ngandi Tamba Amadu Sokoyama vs. P.C. Sheku Amadu Tejan Fasuluku Sonsiama III where it was held that these guidelines are not law and therefore cannot offend the Constitution. He also submitted that where Parliament has never made provisions pertaining to matters connected with Paramount Chiefs as provided for by s. 72(5) of the Constitution then in the absence of such legislation, it is the general principle that one should fall on existing laws and the relevant statute which governs the election of paramount chiefs in Sierra Leone is the Provinces Act, Cap 60 of the Laws of Sierra Leone and not the guidelines or code of practice.

Further he submitted that the publication of Councillors names in the gazette is to notify the Councillors as well as the chiefdoms of the persons selected by their customs and traditions to elect their chiefs and it is not governed by law, and that whether these names are published or not has little or nothing to do with the electoral process, as they form the Tribal Authority and are all

well known. Counsel drew the court's attention to the evidence of DW3 and DW4 both of whom were aspirants in the said elections that opportunity was given to the aspirants to vet and object to the names of Chiefdom Councillors as they were being called by DW1 according to customary law. Counsel relied on the case of Munich vs. Godstone Rural District Council (1966) 1 AII E.R. 934 which dealt with notice and submitted that the aspirants were given notice of the names of Chiefdom Councillors and the opportunity to agree or disagree with the names of any Chiefdom Councillor before the voting commenced.

He submitted that the voting was done by chiefdom councillors who are well known within the Luawa Chiefdom and that the voting itself was done by councillors vetted and approved by the aspirants thereby eliminating the likelihood of any unathorised proxy multiple voting and rampant impersonations as alleged.

Counsel drew the court's attention to the number of unaccounted councillors and said that the total number of voters cast was 1836 and not 1643 as alleged by counsel for the Plaintiff.

Finally with regard the presence of the high powered personalities Dr. S.S. Banya, Mrs. Elizabeth Lavalie and Ambassador Patrick Foyah, counsel submitted that there was no evidence before the court that these persons were chiefdom councillors or conducted the said elections. He maintained that the matter before the court was a Paramount Chieftaincy election and not a general election between political parties and therefore the mention of their

presence is irrelevant and the evidence of their presence has been denied by the Defendants I believe I have dealt exhaustively with the facts evidence and submissions relating to this matter. I believe the first issue to determine is whether or not there has been a breach of s.33 of the Constitution of Sierra Leone 1991. There is clear evidence that the declaration of rights and the election on the 17th January 2003 were conducted by the 3 rd Defendant, the Provincial Secretary. Counsel for the Plaintiff has alleged that this is irregular. I must state here that the issue whether a Paramount Chieftaincy election is a public election or not has been settled by the Decision in the Biriwa Chieftaincy Election case of the Supreme Court in 2006. A decision by which this court is bound. The said Supreme Court held that the Paramount Chieftaincy election was not a public election within the meaning of s.33 of the Constitution. In these circumstances it was not a breach of the Constitution of Sierra Leone for the Provincial Secretary to conduct the said elections.

Counsel for the Plaintiff has raised the issue that the two Assessor Chiefs came from Kono and thus breached the provision in the Guidelines that one of the Assessor Chiefs should hail from the District affected by such an election. Counsel for the Defendant has urged that the relevant provision is not mandatory. There is clear evidence that the selection of the Assessor Chiefs has not been in consonance with the provisions in the Guidelines for the election of Paramount Chiefs. I agree with counsel for the Defendant that the provision that one should hail from within the District where a new chief is to

be elected is not mandatory. The provision is clearly preferable and as it states "more often than not" but failure to adhere to the provision is not sufficient in my view to vitiate the whole process.

Of great importance in my view is the complaint that the list of chiefdom councillors used in the election was Exh "A' and not the list of chiefdom councillors contained in the official Gazette. Counsel for the Plaintiff has alleged that this failure to use the official list has given rise to a number of irregularities in the conduct of the election. The provision relating to the compilation of chiefdom councillors list is found in paragraph 13 of the Code of Practice for chiefdom Administrations. It provides as follows:

"13. The election of Paramount Chief is the responsibility of the chiefdom people and not that of outside parties or of government.

When a vacancy occurs in the office of a Paramount chief, the full chiefdom councillors list as composed in paragraph 2 will be published in the Sierra Leone Gazette three times in not less that one month before the election takes place."

There is clear evidence that this procedure was not complied with in these election. Instead of the full chiefdom councilors list published in the Sierra Leone Gazette which is Exh. "B" another list of chiefdom councilors was used. Now the Plaintiff has challenged the contents of that list. He has testified as to the statistics of the population in some of the villages constituting the chiefdom vis a vis the number of chiefdom councilors to be accredited.

Counsel for the Defendant has strenuously argued that the candidates were given the opportunity to challenge the names of any chiefdom councilor before the voting commenced. The question that I ask is; is that in compliance with the practice and procedure set out for these elections? The provision is that the list should be published in the Sierra Leone Gazette three times in not less than one month before the election takes place. I do not believe just a few minutes before the election commences gives the candidates and the chiefdom councilors sufficient time to go through a total of over one thousand names.

The Plaintiff has alleged that as a result of the use of this unauthorized list it has given rise to a high level of unauthorized proxy, multiple voting and rampant impersonation of individual voters. The plaintiff and his witness P.W 2 gave an instance of a chiefdom councilor whom they knew and who was their relation who had his name called, and a 14 year boy answered and voted for him. This evidence has not been controverted by the defence. Who knows how many other instances of such a nature occurred during the elections.

Counsel for the Defendant has stressed that the voting was done by chiefdom councilors who are all well known within the Luawa Chiefdom. I doubt if the chiefdom councilors can vouch for each of these 1927 names in that list. We have concrete evidence of at least one impersonation which went through.

Counsel for the Defendant has urged, that whether these names are published or not has little or nothing to do with the electoral process. I beg to differ. The published list of chiefdom councillors has everything to do with the electoral process. It is the basis on which the whole process revolves. This is all the more reason why there is provision that it must be the authenticated list published in the official Gazette that must be used at these elections otherwise it gives rise to all forms of malpractices as happened in this case. It is my view that this use of Exh "A" is a serious flaw in the conduct of the said elections and it has rendered the whole procedure suspect and unreliable.

The Defendants have offered no defence to the allegations of unreliable statistics contained in Exh "A" made by the Plaintiff. It is my view that this is a serious allegation which shows a fundamental flaw in the list of voters in the exercise.

Now, counsel for the Defendant has contended that the Code of practice and the Guidelines are not laws and are therefore not legally binding in their own right and cited authority to that effect. That may well be. The position is that Parliament has yet to make the necessary laws pertaining to matters connected with chieftaincy. The Government in its wisdom has formulated these Codes of Practices and Guidelines for the conduct of elections of Paramount Chiefs to standardize the procedure. If in the event these Codes and Guidelines are not complied with rendering the elections suspect and unreliable, surely it would be against public policy for the court to disregard the breaches.

Counsel for the Plaintiff has stressed that the presence of high powered members of the governing party influenced the voting in favour of the 1st Defendant. The witnesses for the Defence have categorically denied that these persons were present at the elections. There is no evidence that these persons took any part in the conduct of the elections. I therefore do not accept that they interfered in any way with the elections or made them unfair for the Plaintiff.

However it is my view that the use of the unauthorised list of chiefdom councillors Exh "A" in the conduct of the elections was a serious flaw in the conduct of the elections. I believe the evidence of the Plaintiff that there were multiple voting and impersonation of voters during the election. This was caused principally by the use of the unauthorised list of chiefdom councillors Exh "A" as a result of which use there has been

caused an irreparable flaw in the conduct of the election. The elections are therefore declared null and void.

I make the following Orders

1. A declaration that the Paramount Chieftaincy election conducted on Friday 17th January 2003 at Kailahun whereby the 1st Defendant MOHAMED KIALONDO BANYA was declared duly elected as Paramount Chief of Luawa Chiefdom Kailahun District was irregular and is therefore null and void.

2. A order that the recognition by His Excellency the then President of Sierra Leone of the 1st Defendant MOHAMED KAILONDO BANYA as Paramount Chief of Luawa Chiefdom, Kailahun District is hereby cancelled and nullified.

3. An injunction restraining the 1st Defendant herein from holding himself out or acting or serving in any way whatsoever is Paramount Chief of Luawa Chiefdom Kailahun District, Eastern Province or enjoying and rights, privileges of any nature pertaining to a Paramount Chief.

4. No or as to costs.

SIGNED: - A. SHOWERS J.

13/1/09

NGOBEH v BANYA and Others (C.C. 546/03 ) [2009] SLHC 1 (13 January 2009);

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NGOBEH v BANYA and Others (C.C. 546/03 ) [2009] SLHC 1 (13 January 2009);

Slone Links

Other African Law

Foreign Law

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