Alhaji Samuel S.Sumana v Attorney-General Minister of Justice & Another (SC 6 of 2015) [2015] SLSC 1216 (15 June 2015)

S.C. 4/2015, ‘HE SUP! RT OF SIER! 4 (IN ITS ORIGINAL JURISDICTION) A] . IN THE MATTER OF SECTIONS 124 AND 127 * iF NSTITUTI TE! ).6 OF 19: AND INTHE MATTER OF THE OFFICE OF THE VICE PRESIDENT or SIERRA LEONE BETWEEN: ALHAJI SAMUEL SAM-SUMANA - PLAINTIFF AND THE ATTORNEY-GENERAL MINISTER OF JUSTICE -IDEFENDANT OF SIERRA LEONE, VICTOR BOCKARIE FOH -2*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: 4.3 JenkinsJohnston Esq., Leon Jenkins Johnston Fsq., and Mohamed Pa Momoh Fofanah Esq, for the Plainttt Berthan Macaulay Jnr. Esq., Lahai Farmer Esq., Osman Kanu Esq., and Emest Beoku-Betts for the 1" Defendant. A. E. Manly-Spain Esq., L. Dumbuya Esq., S. K. Koroma Esq., B. Koroma Esq., R. A. D. Jones Esq., and R. A. Nylender Esq,, for the 2 Defendant.

, ‘The following opinions were delivered: . THOMAS. IS.C (ACTING CHIEF JUSTICE, ‘The Phintif, by Originating Notice of Motion dated 20" March 9015 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 1991 Constitution) for the determination of two questions and prays that if the answers to those questions are negative, for certain reliefs (hereinafter referred to as “the action”). Subsequent to the filing of the action (the trial of which has not yet commenced), the Plaintiff has applied by Notice of Motion dated 24* March 2015 for an interlocutory injunction to restrain the 2“ Defendant from. performing the duties or holding the Office of Vice President of Sierra Leone Pending the hearing and determination of the action. ‘This application which is the subject-matter of this Ruling is supported by the affidavit of the Plaintiff, Samuel Sam- ‘Sumana, sworn to on the 24* March 2015 together with certain Exhibits (“A” to “E”) attached thereto (the Ist Affidavit) ranging from: a Press Release from the Office of the President dated March 17, 2015 (Exhibit “A”) to a copy of the Originating Notice of Motion and Supporting affidavit filed in the action (Exhibit “E”), Exhibit “BY is a statement issued by the Plaintiff dated 18* March 2015; Exhibit “C” is a copy of an open letter dated 18* March 2015 addressed to the President of the Republic of Sierra Leone written by Dr. Abdulai Conteh who is a Justice of Appeal of the Court of. Appeal in the Bahamas and Exhibit “D” is a copy of an SLPP Press Statement dated 19° March, 2015, ‘The Plaintiff filed a supplemental affidavit (the 2nd affidavit) sworn to by him on the 8*March, 2015 with five exhibits attached. Exhibit “E” is a copy of a letter expelling the Plaintiff from the All Peoples Congress (APC) Party. Exhibit “F is 4 copy of the appeal lodged with the APC party by the plaintiff. challenging his expulsion from the party. Exhibit “G” is a copy of the APC party Constitution. Exhibit “H” is a copy of a letter written by Dr, Jengo Stevens

addressed to the APC Party Secretary, Mr Foday Yansaneh and Exhibit “J” is a State House Press Release dated 19* March 2015. 3 ‘The Defendants have opposed the application and filed alfidavits in opposition. ‘The I" : Defendant’ affidavit in opposition to the application is sworn to by Dr. Julius Fofanah Sands,

Secretary to the Vice President of Sierra Leone. ‘The 3 Exhibits atached to his affidavit are respectively a copy of his Certificate of Oath taken by him dated 5* April 2013 (Exhibit JRS 1", a copy of the Oath of Office taken by the 2 Defendant dated 19*March 9015 (Exhibit “IFS 2 and a copy of the Sierra Leone Gazette (Extraordinary) Vol. CXXIX No. 91 of Wednesday 30° April 2008 (Eshibit “JFS 3"). ‘The allidavit in opposition filed on behalf of the 2" Defendant is that of Ajbola Emmanuel Manly-Spain, one of the solicitors and counsel for the 2° Defendant, sworn to on the 9* April 2015. He deposes that he has seen and read the alidavit in opposition filed on behalf of the 1* Defendant (which he Exhibits as “AEMS 1P) and that his instructions from the 2* Defendant was to adopt same and use it in opposition to the Phaintif?’s application,

Counsel for the Phin, J. B, JenkinsJohnston Esq. submitted that his application for an

ineslocuory injunction is made pursuant to Order 85 (I) of the High Court Rules 2007,

which states in part as follows:

(The Court may grant an injunction by an interlocutory order in all eases in which it appears tothe court to be just or convenient todo so and the order may be made either tnconditionally, or upon such terms and conditions as the court considers just

@ A patty to a eause or mater may apply forthe grant ofan injunction before ot after the tial of the cause or matter whether or nota claim for the injunction was included in the party's writ, counterclaim or third party notice.

Tels been necessary forthe Plintif to make his application for an interlocutory injunction

under the above-mentioned Provisions of the High Court Rules, 2007 because of Rule 98 of

the Supreme Court Rules 1982 which makes the following provision:

an junction pending the heaving and determination ofthe action, itis therefore ft and proper for this Court to grant an interlocutory order restraining the 2* Defendant from performing the . duties or holding the Office of Vice President in the meantime, He referred to Exhibit “E” and read the questions posed for determination in the action. ‘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?

(0) 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?” Although it was only a passing reference that was made by Counsel to guidelines (4) and (5), it is useful to set these out below so as to appreciate the context in which a decision is to be made. ‘These guidelines state as follows: “() When an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be in violation of the plaintif’s legal right is made on contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex hypothesi the existence of the right or the Violation of it, or both, is uncertain and will remain uncertain until final judgment is given in the action.

(5) Tt was to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved that the practice arose of granting him relief by way of interlocutory injunction.” Itis in the above context thatthe courts have utilized the adequacy or otherwise of damages on the possible violation of the rights of the partes in determining whether to grant an interlocutory injunction. ‘The question of whether the plaintiff can be adequately compensated

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