RULING DELIVERED ON THE 29TH DAY OF APIUL, 2002

 

 

WRIGHT J.S.C. :-  this  is  an  application  on  behalf of the Defendant/Applicant  by way of motion dated the I 5 th April 2002 for the following orders:-

 

!.      That the Originating Notice of Motion dated I I th  day  of  April  2002  and  all subsequent

proceedings  be set aside on the grounds of irregularity to wit:-                                                                    that the same is not properly before this Honourable Court for the following reasons:

 

1. The proceedings commenced  by  Originating  Notice  of  Motion  herein  dated 11 th April 2002 by the Plaintiff has  failed  to  comply  strictly  with  the provisions of the said section 32 (2) of the Electoral  Laws  Act.  No.  2  of 2002 as no objection to the nomination of the defendant herein  has  in  fact  been lodged with the Supreme Court within seven days of the publication of the relevant Government Notice  No  129  published  in  the  Sierra  Leone  Gazette No 17 of the 4th April 2002.

 

•

 

 

1. That the said Originating Noti'ce of Motion is irregular  in form and  content  in that through it purports to invoke the Original  Jurisdiction  of  the  Supreme Court, it docs not comply with Rule 89 (l) ,of -.P-11blic NotittcNo 1 of 1982  which requires such an Originating  Notice  of  Motion  to  be  in form  8 set  out in the first schedule of the said Rules nor as required by Ruic 98 of the said Supreme Court Rules Public Notice No I of i 982 nor does it comply with the relevant provisions of the High Court Rules governing the  issue  of  an Originating Notice of Motion as supplimented by the Rules procedure

• practice and forms in force in the High Court of Justice in England on the ! st

day of January 1960 in accordance with Order 52 Rule 3 of the High Court Rules.

 

1. Any other or further reliefs.

 

1. The costs of this application be borne by the Plaintiff.

 

The application is supported  by the affidavits  of  Ransford  Johnson  sworn  to on  the 1 2th and I 5 th April 2002 respectively. There were several  exhibits  attached  to the said affidavit including the Originating Notice of Motion dated 11 t h  April  2002 which they are seeking to  set  aside  and  the  Sierra  Leone  Gazette  of  4th  April 2002.

 

Counsel for the Defendant submitted that the Electoral Laws Act 2002  as amended confers original jurisdiction on the Supreme Court. The said Electoral Laws created a separate regime for the objection of candidates with the lodging of objections as required by section 32 (2) of the Electoral Laws Act 2002 as amended which is a condition precedent and must all be completed within  30 days. He reiterated that it was incumbent upon the person making the objection to fix a date promptly thereafter for the objection to be heard. Time being of the essence. He submitted that the notice of intention to object was not an objection. There was no ruturn date in the originating notice of motion dated I I th April 2002. He further submitted that strict compliance was necessary in this case. He referred to Bennion Statutory Interpretation 1992 2nd Edition by Butterworth where directory and mandatory requirements were  fully discussed. He concluded  that the compliance was mandatory, and that non-compliance was fatal and incurable. Her also referred to several authorities in support of his submissions.

 

On ground I, the Electoral Laws Act No 2 of 2002 Sec 32 (3) states" The Government Notice referred to in sub section (I) shall direct that any citizen of Sierra   Leone   may  lodge  an  objection   if any,  against                                                               the nomination of a presidential candidate but that such objection shall be lodged with the Supreme Court within seven days of the publication of the Government Notice.

 

1. Any objection against the nomination of any presidential candidate shall be

heard by the Supreme Court made up of three Justices whose decision shall be given within thirty days of the lodging of the objection."

 

In computing time for the purposes ofan Act, according to sec 39(1) (a) of the Interpretation Act 1971 No.8 of 1971 " a period reckoned by days from the happening of an event or the doing of any act or thing done shall be deemed to be exclusive of the day on which the event happens or the act or thing done.

"

 

'l !:)b

'   '                  The publication in the gazette stating the nomination of Alhaji Dr. Ahmed Tcjan Kabbah was on the 4TH April 2002. The purported originating notice of motion to

object was filed on the  11 th  April  2002.  In  view of the  Electoral  Laws Act No. 2  of 2002 as amended section 32 (2) there was no objection filed.

 

I now tum to Exhibit RJ 1 which is the originating notice of motion dated 11 th

April 2002 which reads:

 

" Take Notice that at a date, time and place appointed by the Honourable Supreme

• Court the Applicant intends to object to the presidential nomination of Alhaji Dr.Ahmed Tejan Kabbah pursuant to section 32 (2) of the Electoral Laws Act

No 2 of 2002 as amended etc."

 

The above does not comply with the  provision  of  Rule  89  (I)  of  the  Supreme Court Rules Public Notice No I of 1982. This rules states:

 

1. Save as otherwise provided in these Rules, an action brought to invoke the original jurisdiction of the court shall be commenced by originating  notice of motion in form 8 set out in the first schedule of these rules which shall be signed by the Plaintiff or his Counsel.

 

Is the non-compliance mandatory? In Bennion Statutory  Interpretation  2nd edition by Butterworth page 28 under Section 10 mandatory and directory requirements states :

 

" (I) This section applies where:-

 

1. a  person  ("  the  person  affected  "  ) may  be affected  by                                          thing done under an enactment, and

 

1. the legal effectiveness of that thing is subject to the performance by the same or any other person ( " the person bound " ) of some statutory requirement (" the relevant requirement"), and

 

1. the relevant requirement is not complied with, and

 

1. the intended consequence of the failure to comply is not stated in the legislation

 

1. In ascertaining, in a case where this section applies, the effect of the failure to comply with the relevant requirement, it is necessary to detem1ine whether the requirement was intended by the legislature to be mandatory  or  merely directory. For this purpose it maybe relevant to consider whether the person affected and the person bound are the same, and whether the thing done under the enactment is beneficial or adverse to the person affected.

 

 

1. Where the relevant requirment is held to be mandatory, the failure to comply with it will invalidate the thing done under the enactment.

 

1. Where the relevant requirement is held to be merely directory, the failure to comply with it will not invalidate the thing done under the enactment; and the law will be

• applied  as  nearly  as  may   be  as  if   the  requirement   has  been   complied  with" In

 

 

 

 

deciding one has to look at the consequences Parliarnent intended to

 

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2000 page 275 it \\'as una.,.imously held that  the defendant's  preliminary objection  to the   plaL. tiff's   \\Tit   per Barnford-Addo  J.S.C.                                                                           "vould he struct out because the requ.ire1nents in Rule 45 (1) of the Supre1ne. Court Ru!es 1996 (Cl16) v.1ere not complied  \Vith by the plaintiff,  no action havi..,g  been  initiated by  a  \\Tit.   The  other

documents  i.e. the statement of case filed  by the plaintiff and an affidavit  were of no

< >consequence and the saine are null and void. The p1ai.'1tiff's request ir. thesupplementary affidavit filed on 30th September 1999 that the  said  invalid documents should be attached to the writ filed on 30th September 1999 is misconceived. It is not for the Registrar to rectil)· lapses in the filing of papers for parties who failed to comply with rules of procedure, nor has he any power to do so. Neither can invalid and void documents be resurrected and given life by attaching same to a later valid document. Raman vs. Cumarasmy ( 1965 ) WLR 8 PC, Revoco Vs Prentice Hall Incorporated ( 1969) WLR157, Ci\ were cited.

 

 

Per Bamford-Addo JSC said in this case" many a time litig:u1ts and their

Counsel have taken the rules of procedure lightly and ignored them altogether as if those rules ,vere made in vain and without any purpose. Rules of precedure setting time linlits arc important for the administration of Justice, they are meant to prevent delays by keeping the wheels of justice rolling smoothly. If this were not sc, parties would initiate actions in court and thereafter go to sleep only to wake up at their own

. appointed time to continue  with such  litigation.  "  I  entirely  agree  with the decision a.-.d I adopt it.

 

In view of the fact that Rule I 03 of the Rules of the Supreme Court is not applicable in the present matter I now turn to Rule 98 of the Supreme Court Rules which states "where no provision is expressly made in these Rules relating to the original and the supervisory jurisdiction of the Supreme Colli-t , the practice ::md procedure for the time being of the High Court shall apply mutantis mutandis".

 

This Ruic 98(1) of the Supreme Court Ruks Public No. of 1982 empowers the Court to use the practice and procedure in the High Court in the  absence  of  a relevant rule in the Supreme Court Rules. The practice in the High Court in application before the court in trials ifthe plaintiff or his counsel fails to appear and reasons for their non appearance \vere not given to this court the :rnatter is struck out for want of prosecution. This court has already  adjourned once to allow the plaintiff to appear by hinlself or his counsel but he has not appeared and  there  was  an affidavit of service filed. The law requires that a person must register an objection in the Supreme Court. If such a person or his counsel does not appear the court is left with no alternative but to strike out the origL--mting notice of motion.

 

In view of what has been said supra· the matter is struck out.