Sup Ct case  No  6/2018
 

[                      .

 

IN   THE SUPREME  COURT OF SIERRA  LEONE

 

BETWEEN ;
 

 

 

,   DR SYLVIA BLYDEN
 

• PETI  TI ONER/ RESPONDENT  

 

 

AND
 

 

 

o

•

 

 
 

 

 

1.  THE CHIEF ELECTORAL COMMISSIONER  - RESPONDENT  .

2.  NATIONAL ELECTORAL COMMISSION      - RESPONDENT

3. HIS  EXCELLENCY JULIUS MAADA BIO     -  RESPONDENT/ APPLICANT

4. SIERRA LEONE PEOPLES' PARTY                     - RESPONDENT/ APPLI CAN T

 

CORAM;

THE HONOURABLE MR JUSTICE NC BROWNE-MARKE, JUSTICE OF THE SUPREME COURT

THE HONOURABLE MR JUSTICE EE ROBERTS, JUSTICE OF THE SUPREME COURT

THE HONOURABLE MS G TH OMPSON , JUSTICE OF THE SUPREME COUR T

 

COUNSEL ;

I   SOURI E, ESQ for   the  Pet  it io ner, DR SYLVIA BLYDEN

MS  BERYL CUMMINGS and DE  TAYLOR ESQ for   the  s1t     and 2n  d      Respondents

G BANDA- THOMAS ESQ, A SANGARIE ESQ, M MEWA  ESQ , S U  B S AFF A ESQ

and J  A KALLON ESQ for  the  Respondents/ Applicants

 

ffbv

L DUMBUYA ESQ  for  Dr  SM  W KAMARA, 1st Petitioner in Sup Ct  Case No 7 /2018 and  the  other  2 Petitioners

RULING DELIVERED  THE                 OF JULY, 2018 BROWNE-MARKE,   JSC

THE  APPLICATION

 

1. This is an Interlocutory  Application filed on 29th May, 2018, br ought on behalf of His Excellency Rtd Brigadier Julius Maada Bio, "hereaf t er, ' HE The

 

President', and the  Sierra Leone Peoples' Party, the  3rd  and 4 -ht
 

Respondents

 

respectively, in the El ction Petition brought by Dr  Sylvia Blyden against  t he

 

election of HE The President as the winning candidate in t he last

•

Presidential elect ion. As regards that part of the heading used by  t he

Applica nts' Solicitors in this Application in relation to the par t ies, it should be noted that the Chief Electoral Commissioner and the Nat ional Elect or al Commission, are not Applicants in this Applicat ion. It is incor r ect t heref or e to describe them as such. The Application seeks to consolidat e the Pet it ion brought by Dr Blyden, that is, SC case 6/2018 with that brought by Dr Samura Kamara, Alhaji Minkailu Mansaray and Dr Osman Foday Yansaneh, that is, SC Case 7 /2018. In Dr Blyden's Petition, the Res pondent s ar e

r espectively , the Chief Electoral Commissioner, The Nat ional Elect or al Commission , HE Julius Maada Bio, and the Sierra Leone Peoples' Par t y. In the Petition brought by Dr Samura Kamara and 2 others, the Respondent s are three in number; Mohamed N'fah Allie Conteh, the National Elect or al Commission , and HE Rtd Brig Julius Maada Bio.

1. For convenience, all references to the "Pe titione r'' , are r ef er ences to Dr Blyden ; references to 1s t  and znd   Respondents, are to  the  Chief  Electoral Commissioner and the  National Electoral Commission r espec t ively; references to the Respondents/ Applicants are to HE The Pr esident and the SLPP, r espectively ; and references to the znd    Pet it ioner  are to  Dr Samur a

Kamara, the  s1t  Petitioner  in the Petition filed on 9t h  Apr il , 2018 and also

r epresenting the  other two Petitioners in that case.

 

LETTERS/MEMOS FROM THE PETITIONER

 

1. Bef or e the Application was first heard last Thursday, t he 12th instant, t his Court's Registry received two letters/ memos from Dr Blyden , st at ing t hat she was away from the jurisdiction. In the f ir st , dated t he 9th instant , she said she would instruct Counsel to appear on her behalf if the Court was minded to proceed , and that she had only been served with Not ices of Appear ance by the 3r d and 4th Respondents/ Applicants, but not with the Motion herein. In her second let t er, she stated that she had inst r ucted Mr Lansana Dumbuya to appear as Counsel on her behalf. On Monday last, t he 16th instant, the Registry received another piece of  cor r espondence from Dr

Blyden, bearing the  same date. It  was addressed to  the  Mast er and

Registrar of the High Court, and to  the  Registrar of this Cour t . I n t hat letter or memo, Dr Blyden first purports to instruct this Cour t' s Regist r ar ,

 

and the Master and Registr ar, to  draw this Court's at t ent ion t o a "Certificate' which she says was issued by the Registr y. She also contends that the Applicants  herein lack locus standi  for  failure to  comply  wit h Rule  92 [1] of the Supreme Court Rules, 1982 - her eaf t er " the Rules''. She also states that contrary to  what  is deposed to  in t he af fi davit  of  ser vice of

Eustace Sorbeh, she has no office at Rawdon Street. As to t his cont ention, we note that in her Pet it ion, she stated her address for  ser vice as 24

Garr ison Street. It  is an address within walking dist ance of  this Court , and we know where it  is vis-a-vis Rawdon Street. In  her  3r   d  par agraph, she alleges that this Court '.......is 're jecting ' [sic} for lansana Dumbuya esq to represent myinterests which diverge from interests o f hi s other clients in related matter SC7/ 2018.....'  As to  this allegat ion, t he t r ue posit ion is that

Mr Dumbuya informed this Court that as Solicitor and Counsel f or Dr Samura Kamar a, the 2nd Petitioner, he had no objection to t he application for Consolidation; but that as Counsel for Dr Bly den, he had inst r uct ions to oppose the same. These were evid ently cont radict ory instr uct ions. Thi s

Cour t then drew his attention to the Legal Pr act it ioners' Code of Conduct which instructs Counsel as to what he should do in such cir cumstances, and directed him to so inform Dr Blyden. As Mr Sourie did appear bef or e us on t he 16t h instant for  Dr Blyden, it  is clear our guidance was t aken in good   par t .

PRI NCI PAL ORDER SOUGHT BY THE APPLI CAN TS

 

1. To return to the substance of the Application before us, it is for the t wo Petitions I have referred to supra, to be consolidat ed int o one act ion. Mr Banda- Thomas, Counsel for   the  Applicant  s, during t he course of  argument, indicated that this was the purport of the Applicat ion, and, not t hat bot h Pet it ions should be tried or heard simultaneousyl , another cour se of

proceeding which this Court could or der. The basis of  t he Applicat ion  is

Or der 4, Rule 4  of  the  High Court Rules, 2007, her eaf t er , HCR,  2007. There is no provision in our Rules for actions to be consolidat ed, but Rule 98 states that where no rules have been expresslyprovided f or  t he procedure t o  be

f ollow ed in any process maint ainable in this Cour -M,,.e appropr iate High Court  Rules should be used instead.                                                                   ""

ORDER 4 RULE 1 OF THE HIGH COURT RULES, 200 7

 

1. Order  4  Rule 4[1] HCR, 2007 is the  appropriate  Ru le .  It  states; ''Where two or more causes or matters are pending in Court, and on an application to the Court or Judge it appears to the Court or Judge that; [a] some common question of law or fact arises in both or all of them; [b] the rights to relie f claimed in the causes or matters are in respect of or, arise out of the same transaction or series of transactions; or, [cl that for some reasonit is desirable  to make an order under this sub-rule,  the Court or Judgemay  order  those causes or matters to be consolidated  on such  terms as it  thinks

 

just or, may order them to be tried at the same tim, e
 

,or
 

one immediately

 

after another; or may order any of them to be stayed until a ft er the determination of any of them. [2} Where the Court or Judge makes an order under subrule [l] that two or more causes or matters are to be tried at  the same time, but  no order is made  for those causes or orders to be consolidated, then a party to one of  those causes or matters maybe  treated as if he were a party to any of those causes or matters for the purpose of making an order  for costs against him or, in his  favour."  As I  have indicated

above, the preference of the Applicants is that both actions should be consolidated  rather than both being tried at  the same time.

ORDER 4 RULE 9 WHITE BOOK 1999

 

1. Rule 4 HCR, 2007 is verbatim et literatim [verb lite] Order 4, Rule 9 of the English Supreme Court Rules, 1999 - White Book, 1999. The HCR, 2007 permit reference to the  notes  to  those  rules  where  they are  t he  same as ours. The relevant notes to those rules are at page 40 of  the  White Book. They s t at e;

''A  cause or matter is 'pending'  for the purpose of  this rule as soon as the   writ is issued, and therefore the court has jurisdiction to entertain an application for the consolidation of  two or more causes or mat ters even though one or more of the writs have not been served...... The main purpose o f consolidation is to save costs and time, and therefore it will not usuallybe ordered unless there is ''some common question of law or fact bearing sufficient  importance  in  proportion  to  the rest" of  the subject-mat ter  of the actions " to render it  desirable  that the whole should be  disposed of at the same time' ..... Where this is the case, actions may be  consolidated where

the plaintiffs are the same and the defendants are the same, ,or   where the

 

plaintiffs or defendants or all are different...... The circumstances in which actions may be consolidated are therefore generally similar to those in which parties may be joined in one action under order 15, r 4........ There may, however, be further circumstances which will militate against an order being made. Two actions cannot be consolidated where the plainti f f in one action is the same person as the defendant in another action, unless one action can be ordered to stand as a counterclaim or third party proceedings in another action. Moreover, as one firm of solicitors will usually be given the conduct of  the consolidated action on behalf of all the  plaintiffs it is generally

impossible to consolidate actions in which different solicitors have been instructed ..... unless all plaintiffs agree that one firm of  solicitors shall act  on their behalf, or, unless there  can be a  partial consolidation...."

1. The Learned Editors of  the 1999 White Book have given examples of  the   latter course of action - i.e.·'partial consolidation''. Where the question of liability is the same in more than one action , for instance , in an action for damages for personal injuries , the action could be given to one plaintiff's solicitor, and be consolidated up to the point of deciding liabilit y, but leaving the actions separate as to quantum of damages.  The learned Editors go on to state at page 31 that no order for consolidation will be made without hearing all parties affected, and therefore it will only be made on the hearing of applications in all actions.....'
2. What  I   have stated above is  the  position in the  High Court, and I   followed this procedure when I ordered consolidation of two actions in  the  respective cases CC5/09 and CC 9/09 - OLIVE MUSA  v ALHAJI SWARRAY  and OTHERS, Ruling delivered 2nd December, 2010. There, two set s of proceedings had been commenced; one before SEY, J and t he ot her before me;  on the  expiration of  SEY, J's  contract  in 2010 it  be              e necessary to continue  the  action which had been pending  before her,/                                    another Judge. It was at this point in time J B J enkins-J ohnst on esq, Counsel for Mrs Musa moved the Application before me. The Application was gr anted, and the appropriate directions  for   the future conduct  of   the  action wer e also  given.
3. In the present instance, one of the Petitioners, Dr Blyden has pr esented the Petition in-person, and the ot her , Dr Kamara is represented by Counsel.But  the principal relief and Order sought  by both of  them is the  same;  the annulment  of  the  election of  HE The President.  Another  factor  which is

 

highly relevant is that the Petitions have been brought and fi led in this Court . Our procedure is governed by Our Rules. When hear ing a Petition in respect of a Presidential Election, this Court does so in t he exer cise of it s original jurisdiction, and not in the exercise of its appellate or supervisory jurisdiction.

RULE 98 - SUPREME COURT RULES, 1982

 

1. Rule 98 states; ''Where no provision is expressly  made in these rules relating to the Original and the Supervisory Jurisdiction of the Supreme Court, the practice and procedure for the time being of the High Court shallapply mutantis mutandis" - with the  necessary  changes being made. I  t  follows, t hat  in  adopting  the   rules utilized or  applicable  in  the   High Court, we  must adapt

them to the procedure followed in this Court. Rule 97 deals with the procedure to be followed where this Court is exercising its or iginal

j ur isdict ion. A case could be determined on the basis of t he r espective statements of case filed by either side to the litigation wit ho ut an oral hearing. This is the effect of Rule 97[1]. The Court may, if it t hinks fit, decide to hear oral evidence. So far, there is no precedent for this, and in our view, such a course will only be permitted in extremely limit ed circumstances. In these several respects, an action being heard in t he Supreme Court, be it a Presidential Election Petition, or, an Or iginating Notice of  Motion, differs  from an action being tried in the High Cour t .

1. It is for this reason that the Election Petition Rules, 2007 speci f y the proceedings to which they are applicable in Section 1 t hereof; " These Rules have effect in relation to all proceedings brought in the High Court to hear

and determine whether - [a] any person has been validly elec te d asa member of Parliament; and [b} the seat                                                    Member of Parliament hasbecome ll.:-­ vacant."  The  last time express provision  was made  for   a Pr esid ent ial

Election was in 1985 with the passing of the Presidential Elect ions Act - Ac t No 1 of  1985 as amended subsequently by Acts Nos. 4 and 5 of  1985.

Section 21 of the Principal Act  made a challenge to  the  election of  a President, non-justiciable - the  Returning Officer's  [the Chief  J ust ice's] decision on whether the then sole candidate had been duly elect ed, was f inal. Presently, the hearing of an Election Petition in the High Court invariably  involves the  calling of  several witnesses though this could avoided, if  t he

 

Trial Judge so orders, by the filing of affidavits of evidence. Whichever way one looks at it , the procedure for  the hearing of a pet it ion int o the election of a Member of Parliament, is radically different from t hat which could be used in a petition relating to a pr esidential elect ion.

1. It  follows that the caution issued by the  Learned Editors of  the Whit e

Book, 1999 that an order for consolidation ought not to be or der ed where there is more than one plaintiff, and where there is more t han one solicitor appearing for each of them, does not apply in this Court where it is unlikely in t he extreme t hat oral evidence will be called . The imperat ive here is the

r esult which each petitioner seeks to achieve, and, as I have st at ed above, it is t he annulment of  the  election of  the  3r d Respondent as Pr esid ent. The directions which this Court will give, will take int o consider at ion t he evident differences between conducting a trial in the High Cour t , and t he hearing of an action or Petition in this Cour t .

APPLICANTS' LOCUS ST ANDI

 

1. Dr Blyden also addressed another issue in her letter of the 16th inst ant, i.e. the  locus standi of  the  3r d and 4t h Respondents. She st at es; "...... Thus, when I le ft  S ier ra  Leone  for my medical care oversea, s I                                                                   was o f  t h e  b e lie  f  t hat   the

y  d and 4t h   Respondents currently lack locus standi in this mat ter UN TIL the y  first and  foremost make an application to  the  Suprem e Court, under

the 1982 Supreme Court Rules,  for an enlargement of  tim, e  or, an extension

of  the period within which they can abide by the  dictates o f Rule 92[1}"

1. We ar e of  cour se, fully aware of  the  provisions of  Rule 9 2(1]. In  SC case 5/ 20! 5 - SLPP and PMDC v AG and MJ and Ot her s, Mr Char les Margai t ook objection to  Mr  Berthan Macaulay  proceeding with an int erlocut ory mot  ion

without first filing a statement of case on behalf of the def endant s he was representing. We ruled that Mr Macaulay could do so as his appli cat ion had to do with the jurisdiction of this Court to hear the Plaintiffs' Application, and as a ruling in his favour  would of  necessity have r endered it  unnecessar y c fo r him to go on to file a statement of defence on behalf of t he def endant s he was r epr esenting. The Application herein does not go t o t he j ur isdict ion of this Court, but to a matter which should be dealt  wi t h b ef or e going int o the mer it s of each case.

 

1. Without going into the merits of the decision, I shall her e ref er to SC case 4/2013 - JOHN OPONJO BENJAMIN and 2 others v DR CHRI STI AN A THORPE and 3 others, where this Court ruled on 18t h  Apr il, 2013, inter alia, that the issue of locus standi depended on whether a r espondent had f iled a notice appointing a legal pract it ioner to act as his agent or , st at ing t hat he intends to act for himself , and that the locus standi of a r espondent was not dependent on whether he had filed an answer to  t he pet it ion.
2. I have dealt with the letters sent in by Dr Blyden, not because t hey constitute documents filed in the suit brought by her, but because she has presented the petition in per son, and, according to her , is out of t he

j urisdict ion. Had these letters or memoranda been wr i t t en by a Legal

Pr act it ioner , they would not have been count enanced. Ther e is a well -k nown method for taking objection to the opposite part y's line or course of conduct in litigation in all our Cour t s. I  note that she has not indicat ed in any of her let t er s wher e, or how she could be reached, but as she has filed an addr ess for ser vice, that should suffice for present pur poses. Mr Sourie did indicat e that he would be travelling out of the jurisdiction on Wednesday 18t  h

instant. So, all documents for service on Dr Blyden will of necessity be served on her at  her address for  ser vice.

THE MERITS OF APPLI CAN TS ' APPLICATION

 

1. Turning to the merits of the Application herein, it is support ed by t he respective affidavits of Mr A Y Brewah deposed and sworn t o on 2 8t h   M ay and on 6t h J une, 2018. The reasons for making the Applicat ion are set out in paragraphs 6 - 9 of his first af f idavit ; common quest ions of law and f act arise in both petitions; the r elief s claimed in both pet it ions arose out of the last Presidential elect ion; and that it would be expedient t o consol idat e bot h act ions. The two Petitions are exhibit ed t heret o. I have examined bot h of

t hem, and as I have stated above, the principal r elief claimed in bot h is the annulment  of  the  election of  the  3r   d   Respondent  as Pr esident . The

cert if icat es attached to the document s exhibit  ed in t he af fi davit  were incorrect, and we asked Counsel, Mr Banda- Thomas, t o ensur e t hat corrections were done in a supplemental affidavit. This was done by one Mr Musa Mewa, a partner in t he firm of  Br ewah and Co. by way of  af f idavit

 

deposed and sworn to on the 13th instant, but only filed on the 16th instant. No affidavit  in opposition has been filed.

1. Mr Banda-Thomas also referred the Court to the consolidated cases of SC

case No 1/2007 - ABUBAKARR CONTEH v SE BEREWA and another; and SC case No 2/2007 - C F MARGAI v S E BEREWA and another. Both cases are to be found in the bound volume of Supreme Court Judgments for 2007 . Both cases were consolidated by Order of the Court made on 26th July, 200\ as they dealt with the same subject mat t er; the  eligibility of Mr Berewa to contest the 2007 Presidential Election. It is true that both  matters relate to the nomination of a Presidential candidate, and not to the election of a Pr esident, but in my respectful view, that is a dist inction without  a difference.

1. I have set out above, the factors the Court should consider when deciding for consolidation. The true effect of the BEREWA decision is that consolidation is something this Court could order.

THE POSITION OF THE 2ND PETITIONER

 

1. At the hearing on the 12th instant, Mr Dumbuya informed the Cour t that Dr Samura Kamara whom he was representing had no objection to the Application. As he was also representing Dr Blyden that day, he informed us that she had instructed him to  object to the  Application. It was at that stage the Court pointed out to him that he could not properly, in view of the Legal Practitioners' code of conduct , proceed with those instr uct ions as they contradicted the instructions of the 2nd Petitioner for whom he was both Solicitor and Counsel. He was not Solicitor for Dr Blyden. The Court

direct ed, as appears in my minutes of  the proceedings, that Mr Dumbuya should  write a letter  to Dr  Blyden, copying  in the  Court, stat ing that  he could not continue to appear for her , and that she should inst r uct Counsel to appear on her behalf  to reply to the Application on Monday 16t h   J uly, 2018.

MR SUMBUYA'S  PRELIMINARY OBJECTION

 

1. Prior to t his, Mr Dumbuya had raised a preliminary ob jection. He r ef erred to Rule 28 of  the  Election Pet it ion Rules, 2007. No answer  had been filed by  the 3rd and 4th Respondents. Our response was that it was not absolut ely necessary  for  that to be done by the  Respondents before coming up wi t h the

 

Application her ein. Looking through the documents filed, it appears that Mr Dumbuya has already filed a statement of case on behalf of  t he zn d Petitioner, a procedure mandated by Rule 92 SCR, 198 2, and not by the Election Petition Rules, 2007. The question of the applicabi li t y of all the provisions in the Election Petition Rules, 2007 will, if necessar y be dealt with at the main hearing. At  the  hearing on the  16th instant, Mr Dumbuya reiterated that, on behalf of the zn d Pet it ioner, he had no objection to the Orders sought.

 

 

T

THE 15

AND zND  RESPONDENTS POSITION

 

 

1. Ms Cummings on her part said that the 1s t   and zn d  Respondents  had no objection to  the  Application. In  addition, she notified the Court that  in  the

event the Order sought was granted, she would be handling those aspects relating to Dr Blyden's Petition; and that Mr D E Taylor would be handling those relating to  the  zn d   Pet it ion er's Petition.

 

 

T

MR SOURIE  APPEARS FOR THE 15     PETITIONER

 

1. At  the  hearing on the  16t h instant, Mr Sourie announced his r epr esentat ion for   Dr  Blyden. He reiterated  the position Dr  Blyden had t aken in her  let t er  of  the same dat e, that the 3rd and 4th  Respondents  had not  complied with  Rule 92,  and that  a Certificate  of  Non-Compliance  had been issued.  But at the  same time, Dr Blyden was not  opposed in principle  to  the  Application.  She was only insisting on full compliance by the 3r d and 4th Respondents with  Rule 92.
2. I n his reply to Mr Sourie, Mr Banda- Thomas said that Rule 92 does not preclude his clients from seeking int erlocut or y relief. Furt her , t hat since the Petitions were filed, no new or fresh steps had been t aken to f or eclose the  Respondents/ Applicants. He said further  that the

Respondents/ Applicants intend to file objections to the Pet i t ions, and will not be in a position to do so if previously, they had each fi led a st at ement of case or, answer. Thereafter, we adjourned for  ruling.

CONCLUSION

 

1. We have given careful consideration to this Application and it is our judgment, in view of  the  authorities cited, that it  should be granted.  We

 

riote, and vie h0ve borne 1n t ind 1 ha1 er Blyde,n
 

s·unrepresented by Counsel.

 

Due co,,s1dcrat ion wili beg·. ,n ,:.i tf .ct ;n t he oirections we shall give. It  1s

clear tr·ct _the points of lav.1 Gr•d the fn'.:ts relevant to the issues in dispute are the same. or very much i h  somr-.

26 The  Applico·r:on for  C0Molir.atio11 cf  i :·1e 1 wo Ft?tit1ons is hereby granted and we give::: the following directions

1.        PURSUANT TO THE ORDER COl'-JSOLIDATING SC case 6/2018 and

7 /2018 +he new he.ading for rhe Consolidated action shall be; "Sup Ct Cases 6 and 7 /2018

Tre 1'eSi of the headings including 1he names of the parties, shall follow, "1hut f vr :).C. Case 6/2018 preceding SC Case 7 /2018. A draft of the new heading shall be submit1ed to the Court for appr oval, by Counsel for the RPsrondents/ Applicants after serving t he said draft on the 151 Pet it ioner ci h .,- :iddress tor service, c'.4 Garrison Street, Fr eetown, and on the

;.:; • 1·,:  -1 o:-·. h :' ·1 lw. :!·,d Pc.1ition r, and cti the. .Sc:lici tors for the f 1 and 2 :".d

 

Ii         Ariy further  or other I nterlocutor y  Applicat  ion to  t he Court, shall be tiled  within 5 days of   the  date of  this  Order.

111.    Unless otherwise ordered, the 151  Petitioner, Dr SYLVIA  BLYDEN shali

file  and serve her  tatcmcnt of case wi1!·1i11 15 duys u (  1 in:: Juk   of 1his

r_:rdei·. The Z"d Petitioner, DR. S/\MUP...I, KAt\\ARA  who is ulsu Ihe::: f  1

Pri itif"lr. r in SC Cose 7 / 2018, ha$ already filed a Statement of Case. The Petitioners in SC Case 7 /2018 shall, if they so desire, amend, file and serve r ! eir statement of case filed on 9th   Apr il, 2018.

;v.       L1bcriy to Ap 1ly in order to give ef f ect to any of the above Orders.

v          Costs in theJCa\uLse.                            .

THE HONOURABLE  MR JUSTICE NC  BRO\VNE-MARKE, JSC

r-' ,--11,    -- , ,.I                  \i

(-          ,     ;     1       "            '     1  ,      )     (          C

THE HOt\JOURABLE MR JUSTICE EE ROBERT S. JSC

t                                       -

THE HONOURABLE .MS JUSTICE G THOMPSON , JSC

 

11