Alhaji Samuel S.Sumana v Attorney-General Minister of Justice & Another (SC 14 of 2015) [2015] SLSC 1217 (9 September 2015)

S.C. 4/2015. IN THE SUPREME COURT OF SIERRA LEONE (IN ITS ORIGINAL JURISDICTION)

IN THE MATTER OF SECTIONS 124 AND 127 OF THE CONSTITUTION OF SIERRA LEONE ACT NO.6 OF 1991 AND IN THE MATTER OF THE OFFICE OF THE VICE-PRESIDENT OF SIERRA LEONE

BETWEEN: ALHAJI SAMUEL SAM-SUMANA - PLAINTIFF

AND

THE ATTORNEY-GENERAL MINISTER OF JUSTICE - 1 st DEFENDANT OF SIERRA LEONE

VICTOR BOCKARIE FOH - 2 nd DEFENDANT

Coram

The Hon. Mr. Justice V. V. Thomas, Acting Chief Justice - Presiding The Hon. Mr. Justice N. C. Browne-Marke, JSC. The Hon. Mr. Justice E. E. Roberts, JSC. The Hon. Ms. Justice V. M. Solomon, JSC. The Hon. Mr. Justice P.O. Hamilton, JSC.

COUNSEL:

C. F. Margai Esq., S. Banja Tejan-Sie Esq., M.P.Fofanah Esq. and R. B. Kowa for the Plaintiff.

Berthan Macaulay Jnr. Esq., Lahai Farmer Esq., Osman Kanu Esq., and Ernest Beoku-Betts for the 1 st Defendant

A. E. Manly-Spain Esq., L. Dumbuya Esq., S. K. Koroma Esq., B. Koroma Esq., R. A. D. Jones Esq., and R. A. NylenderEsq., for the 2 nd Defendant.

JUDGMENT DELIVERED ON THE 9 th DAY OF SEPTEMBER 2015

HON. MR. JUSTICE V.V. THOMAS – ACTING CHIEF JUSTICE

The Plaintiff, by Originating Notice of Motion dated 20 th March 2015 supported by two affidavits, has instituted an action in this Court in its Original Jurisdiction pursuant to section 124 and 127 of the Constitution of Sierra Leone, Act No. 6 of 1991 (the Constitution) for the determination of

two questions and prays that if the answers to those questions are negative, for c ertain reliefs (hereinafter referred to as “the action”). The provisions of the Constitution pursuant to which the action was instituted state as follows: “124.

(1) The Supreme Court shall, save as otherwise provided in section 122 of this Constitution, have original jurisdiction, to the exclusion of all other Courts—

(a) in all matters relating to the enforcement or interpretation of any provision of this Constitution ; and

(b) where any question arises whether an enactment was made in excess of the power conferred upon Parliament or any other authority or person by law or under this Constitution.”

For present purposes, subsection (2) is not relevant and so I will not reproduce that subsection.

“127.

(1) A person who alleges that an enactment or anything contained in or done under the authority of that or any other enactment is inconsistent with, or is in contravention of a provision of this Constitution, may at any time bring an action in the Supreme Court for a declaration to that effect.

(2) The Supre me Court shall, for the purposes of a d eclaration under subsection (1), make such orders and give such directions as it may consider appropriate for giving effect to, or enabling effect to be given to, the declaration so made.

(3) Any person to whom an order or direction is addressed under subsection (1) by the Supreme Court shall duly obey and carry out the terms of the order or direction.

(4) Failure to obey or to carry out the terms of an order or direction made or given under subsection (1) shall constitute a crime under this Constitution.”

It is clear from the papers filed by the parties in this action that several provisions of the Constitution call for interpretation before the questions posed by the Plaintiff can be answered by the Court. These questions are as follows: “(a) Whether the Constitution of Sierra Leone empowers the PRESIDENT “to relieve the Vice -President of his office and duties” in any way Other than by the procedure set out in sections 50 and 51 of the said Constitution?

(b) Whether the “Supreme executive authority” of the President mentioned in Section 40(1) of the Constitution of Sierra Leone includes the power to “relieve the Vice - President of his Office and duties”, other than by the procedure set out in Sections 50 and 51 of the said Constitution?”

The reliefs prayed for are in the following terms:

“If the Answer to the questions is NO, then the Plaintiff will seek the following further reliefs: (i) For a declaration that the Public Notice announcing that the Vice-President had been relieved of his duties and office (Exhibit A herein) is unconstitutional, null and void, and of no effect. (ii) For a declaration that the appointment of Victor BockarieFoh as Vice -President of Sierra Leone is also unconstitutional, null and void, and of no effect. (iii) For an Injunction restraining the said Victor BockarieFoh from acting in the Office of Vice -President of Sierra Leone, pending the hearing and determination of this action. (iv) For a declaration that the elected Vice-President of Sierra Leone (the Plaintiff herein) remains in Office as Vice-President thereof unless and until removed from Office as required by Section 50 and 51 of the Constitution of Sierra Leone.”

My appreciation of the issue before the Court is the interpretatio n to be placed on certain provisions of the Constitution so as to determine whether the President has the power to relieve the Vice President of his duties and office. For reasons to be advanced later in this judgment, the President does not have any power under sections 50 and 51 of the Constitution, nor does he play any direct role in the procedure set out in those sections. The second question posed by the Plaintiff in the action virtually asks the same question but this time it is directed to determining the extent of the President’s powers (if any) encapsulated in the expressi on “supreme executive authority” mentioned in section 40 (1) of the Constitution.

The first 3 paragraphs of the Press Release from the Office of the President dated March 17, 2015 and exhibited as “A” in the Plaintiff’s supporting affidavit are instructive in answering the questions posed by him. I reproduce same and his immediate response thereto hereunder for ease of reference:

“On the 6 th day of March 2015, t he National Advisory Committee (NAC) of the All Peoples Congress (APC) took a decision to expel Alhaji Samuel Sam Sumana from the APC; and by letter dated 6 th day of March 2015, Alhaji Samuel Sam Sumana was duly expelled from the APC.

The President of the Republic of Sierra Leone, as guardian of the Constitution of Sierra Leone pursuant to Section 40 (3) of the Constitution of Sierra Leone Act No. 6 of 1991, I have taken note of the decision of the public will recall, and I have also taken note of the fact that on Saturday March, 15, 2015, Alhaji Samuel Sam Sumana sought asylum from a foreign embassy demonstrating a willingness to abandon his duties and office as the Vice President of our beloved Republic.

And whereas Alhaji Samuel Sam Sumana is no longer a member of a political party in Sierra Leone and therefore does not have the continuous requirement to hold office as vice President of the Republic of Sierra Leone, provided for in Section 41(b) of the Constitution of Sierra Leone Act No. 6 of 1991, I hereby relieve Alhaji Samuel Sam Sumana of the duties and from the Office of Vice President of Sierra Leone with immediate effect, pursuant to my supreme executive authority as President of the Republic of Sierra Leone as enshrined in Section 40(1) of the sa id Constitution of Sierra Leone”.

In his response to the aforesaid Press Release from the Office of the President, the Plaintiff in a Statement issued by him dated 18 th day of March 2015, and also exhibited to his affidavit as “B”, stated inter alia,

“That the President has absolutely no power to “relieve me of the duties of Vice -President” in any part of the Constitution, Act No. 6 of 1991, but the said Constitution makes provision at section 55 thereof for the office of the Vice-President to become vacant either: a) On the expiration of the term of office of the Vice-President; b) If the Vice-President resigns or retires from the said office (…); c) If the Vice -President is removed from Office in accordance with either the provisions of Section 50 or 51 of the Constitution; OR d) Upon the assumption by the Vice-President to the office of the President under Section 49(4) of the said Constitution.”

On the 19 th March 2015, a Press Release was issued by the Office of the President appointing the

nd Defendant as Vice President in the following terms: “The General Public is hereby informed that following the vacancy which occurred in the Office of Vice-President, and pursuant to section 54 (5) of the Constitution of Sierra Leone 1991 (Act No. 6 of 1991), it has pleased his Excellency, the President to appoint Mr. Victor Bockarie Foh as vice-President of the republic of Sierra Leone with immediate effect.”

The provisions of the Constitution which are relevant in order to answer the questions posed for the Court’s determination, are as follows:

1. Section 35(1) dealing inter alia with the registration and conduct of political parties.

2. Section 40 (1) which states that there “shall be a President of the Republic of Sierra Leone who shall be Head of State, the supreme executive authority of the Republic and Commanderin-Chief of the Armed Forces.”

3. Section 41 which provides as follows: “No person shall be qualified for election as President unless he— (a) is a citizen of Sierra Leone; (b) is a member of a political party; (c) has attained the age of forty years; and (d) is otherwise qualified to be elected as a member of Parliament.”

4. Section 42 (1) which provides that “a Presidential candidate shall be nominated by a political party”.

5. Section 48(4) states that where any person holds or performs the functions of the office of President, no civil or criminal proceedings shall be instituted or continued against him in respect of anything done or omitted to be done by him either in his official or private capacity.

6. Section 50 which makes provision for the process by which the President “shall cease to hold office and a vacancy shall be deemed to have occurred” by reason of infirmity of mind or body. (mental or physical incapacity).

7. Section 51 which makes provision for the process by which the President “shall cease to hold office and a vacancy shall be deemed to have occurred” where Parliament has resolved that “the President has been guilty of such violation of the Constitution or as the case may (be) such gross misconduct”.

8. Section 53(1) which states inter alia that subject to the provisions of the Constitution, the executive power in Sierra Leone shall vest in the President. Subsection (4) of this section further states that the functions of the President shall be construed as reference to his powers and duties in the exercise of the executive authority of Sierra Leone and to any other powers and duties conferred or imposed on him as President by or under this Constitution or any other law.

9. The whole of section 54 and in particular subsections (2), (3), (5)and (8) which provide as follows:

(2) A person --- (a) shall be designated a candidate for the office of Vice -President by a presidential candidate before a presidential election. (b) shall not be qualified to be a candidate for t he office of Vice -President unless he has the qualifications specified in section 41.

(3) A candidate shall be de emed to be duly elected as Vice -President if the candidate who designated him as candidate for election to the office of Vice-President has been duly elected as President in accordance with the provisions of section 42.

(5) Whenever the office of the Vice -President is vacant, or the Vice -President dies, resigns, retires or is removed from office, the President shall appoint a person qualified to be elected as a Member of Parliament to the office of Vice -President with effect from the date of such vacancy, death, resignation, retirement or removal.

(8) The provisions of sections 50 and 51 of this Constitution relating to the removal from office of the President, shall apply to the removal from office of the Vice-President.

10. Section 55 which provides as follows: “The office of the Vice -President shall become vacant

(a) on the expiration of the term of office of the President ; or (b) if the Vice-President resigns or retires from office or dies; Or (c) if the Vice -President is removed from office in accordance with the provisions of section 50 or 51 of this Constitution; or (d) upon the assumption by the Vice-President to the office of President under subsection (4) of section 49.”

In both the Plaintiff’s Statement of Case and in his Counsel’s arguments and submissions, emphasis has been laid on the literal interpretation of the provisions of the Constitution . The central pillars of the Plaintiff’s Statement of Case are the following submissions, namely: Firstly, “That Section 40 (1) of the Constitution does not make any provision for the President to relieve the Vice-President of his position for any reason whatsoever and no such wor ds are to be found therein……. that Section 40 (1) is merely a general provision setting out the “Style and titles” of the President, and nothing more can be read into it.”

Secondly, Plaintiff’s Statement of Case relied heavily on the Nigerian Supreme Court decision in Attorney-General of the Federation of Nigeria & Ors. Vs Alhaji Atiku Abubakarr & Ors. (2007), (the Atiku Abubakarr case) and submitted that the President violated the Constitution and acted beyond his powers by purporting to relieve th e Vice-President of his office and duties as there is no such provision in the Constitution.

Thirdly, it is further submitted that having regard to the similarity of the Nigerian and the Sierra Leone Constitutions, this Court should accept and adopt the Jud gment in the said Nigerian case and illustrated the said alleged similarity by reference to Section 143 (ii) of the Nigerian Constitution and Section 51 of the Sierra Leone Constitution.

Lead counsel for the Plaintiff, C. F. Margai, Esq., in argument, referred to the Plaintiff’s Statement of Case dated and filed on the 30 th March 2015. He contended that the Court has been called upon to answer certain questions by interpreting the relevant provisions of the C onstitution and in doing so, every word must be presumed to have its significance and given a reasonable and natural meaning so that the true intention of Parliament is not misrepresented. Counsel cited the case of Gruderiche vs. Comptroller of Customs [1920-36] ALR S.L. 157 in support of this proposition. He s ubmitted that the only way the P laintiff can be removed from office is by the provisions found in section 55 (c) of the Constitution whether or not the word used is relieved or removed from office. He maintained that there is no other provision in the laws of Sierra Leone which addresses the removal of the Vice President from office. Counsel then referred the Court to section 40 (3) of the Constitution as the basis upon which the President relieved the Vice President of his duties and office an d to section 41 (b) of the Constitution. Counsel submitted that section 40 (3) of the Constitution does not give the mandate or authority to the President to remove an elected Vice President from office and that section 41 (b) of the Constitution has been

totally misrepresented and misused. He contended that the language used in the relevant provisions of the Constitution are quite plain, simple and not convoluted and that the literal rule in the interpretation of statutes is applicable in the case before the Court. It is Counsel’s contention that even assuming that section 41 (b) of the Constitution is triggered by the expulsion of the Plaintiff from the APC Party (which was not conceded by Counsel) all that can possibly do is to trigger an opportunity for invoking section 51 of the Constitution. Counsel finally submitted in respect of section 41(b) of the Constitution that the President’s act to relieve the Vice President of his duties and office must be condemned by the Court as unconstitutional, null and of no effect.

Dealing with section 40 (3) of the Constitution, Counsel submitted that the subsection does not clothe the President with executive powers and that it is subsection (4) of section 40 and section 53 (2) that grant executive functions and powers to the President. That these provisions do not give the President any power or mandate to relieve the Vice President of his duties and office and consequently the Plaintiff should be granted the declarations sought. Counsel referred to section 54 of the Constitution and submitted that b oth the P resident and Vice President are elected together on the same ticket and their removal from office are governed by the same provisions. That the vacancy mentioned in section 54 (5) of the Constitution is explained in section 55 of the Constitution dealing with vacancy in the office of the Vice President.

Lead Counsel for the Plaintiff further referred the Court to the Atiku Abubakarr case in the Nigerian Supreme Court and said he believed that it is the main authority that should guide this Court in the Plaintiff’s action. Counsel referred to page 10 of the copy of the judgment in tha t case that he supplied to the C ourt dealing with the general principles of interpretation of statutes including constitutions. The leading judgment in this Nigerian Supreme Court case is that of his Lordship Sunday Akinola Akintan JSC who expressly stated that the approach of the Nigerian courts in interpreting statutes and the Constitution is the literal approach. The learned Justice went on to state that this approach is the one that has been adopted in numerous cases but went on to say that in interpreting the Constitution, “a liberal approach should be adopted”. Counsel went on to submit that in Nigeria, section 143 of the ir Constitution provides that the process of removal of the President is by impeachment by the Federal National Assembly and that in Sierra Leone, the relevant provision is section 51 of the Constitution and that the two provisions are virtually the same. Counsel in conclusion submitted that unless there is evidence before the Court of an infraction by the Vice President in the performance of his constitutional functions or has