Dr Sylvia Blyden v The Chief Electoral Commissioner (Sup Ct case no6/2018)  SLSC 1 (18 July 2018);
Sup Ct case No 6/2018
IN THE SUPREME COURT OF SIERRA LEONE
, DR SYLVIA BLYDEN
- PETI TI ONER/ RESPONDENT
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
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
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
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
- 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
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.
- 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
- 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  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
- 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
- Order 4 Rule 4 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
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
- 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...."
- 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.....'
- 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.
- 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
- 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. 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 .
- 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.
- 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
- 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}"
- 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.
- 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.
- 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
- 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.
- 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.
- 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
- 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
- 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.
AND zND RESPONDENTS POSITION
- 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.
MR SOURIE APPEARS FOR THE 15 PETITIONER
- 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.
- 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.
- 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
THE HONOURABLE .MS JUSTICE G THOMPSON , JSC