Borbor Fefegula-Kamba v Margaret G. Baio-Gbanie (CIV APP 44 of 2016) [2019] SLCA 4 (16 October 2019)

— I

IN THE COURT OF APPEAL OF SIERRA LEONE |

CIV. APP. 44/2016 |

BORBOR FEFEGULA-KAMBA APPELLANT. |

| AND MARGARET G, BAIO-GBANIE RESPONDENT

REPRESENTATION: REPRESENTATION: | PATRICK JOHN-BULL ESQ, COUNSEL FOR THE APPELLANT CHARLES VANDY ESQ. COUNSEL FOR THE RESPONDENT

Coram

| HON. MR, JUSTICE SENGU M KOROMA JSC (PRESIDING) HON. MRS. JUSTICE MUSU D. KAMARA JA | HON. MR. JUSTICE JOHN-BOSCO ALLIEU JA

JUDGMENT DELIVERED ON THE 16"™ OCTOBER, 2019.

1. This an appeal from the Judgment of Alusine Sesay - JA (as he then was) dated the 23° day of May, 2016 on the following

Grounds

(a) The Judgment is against the weight of evidence;

(b) The Learned Trial Judge erred in law in holding that in the absence of the Provincial Secretary no one else should preside over the election of the Paramount Chief; and

(c) The Appeliant will seek leave to add further grounds of appeal.

2. The Appellant subsequently filed six additional grounds of appeal. I shall however only set out a summary of those that are germaine to this Appeal.

i) That the Learned Trial Judge erred procedurally when he firstly proceeded to determine an application dated 8” April, 2016 for stay of any action pursuant to the result of the election of Paramount Chief in Valunia Chiefdom, Bo District on the 28" November, 2015 pending the determination of the petition; when there was before the Court an earlier Jurisdictional objection application dated 21° December, 2015 on behalf of the Appellant herein to strike out the said Petition on the ground that it was filed outside the seven day period as provided by law.

ii) The Learned Trial Judge, assuming without conceding that the proceedings were procedurally correct was biased in his Judgment in that it was one-sided in favour of the Petitioner by believing everything alleged in the Petitioner's Petition even though the allegations were not substantiated by oral evidence of any witness and there being an Answer filed which was not replied to.

Background

3. The Petitioner, Respondent herein petitioned the High Court by Petition dated 7” December, 2015 seeking the following relief:-

a) That the irregularities mentioned aforesaid are so fundamental and contrary to natural justice that it would be unsafe for the election of the first Respondent( Appellant herein) to stand as declared;

b) Should the Petition meet with the favour of this Honourable Court as prayed, that the Honourable Court proceed to nulify the said result and order a re-run of the elections with a Provincial Secretary assisted by different assessors;

©) Such further or other relief as may be made available to your Petitioner to meet the justice of the case; and

4) Cost of these proceedings to be borne by the Petitioner herein.

4. On the 16" day of April, 2016, Alusine Sesay JSC (as he was later to become) on the application of the Petitioner dated 8” day of April, 2016 granted an interim stay of action pursuant to the result of a purported election for Paramount Chief of Valunia Chiefdom, Bo District on 28" November, 2015 pending the hearing and determination of the Petition dated 7" December, 2016. The relief prayed for in the said application was granted,

5. The Petition was heard and Judgment delivered on the 23’ May, 2016 against which the 1* Respondent has now appealed.

BRIEF FACTS

6. The brief facts of this case are that the Appellant and the Respondent both contested for the Paramount Chieftaincy of Valunia chiefdom in the Bo District. The election was held in two rounds. In the first round, neither of the candidates polled the required 55 percent: the Respondent polled 361 votes representing 44.5 percent of the votes while the Appellant

polled 193 votes representing 23.8 percent of the total votes cast. The election was conducted late into the night. The runoff election was held on the same night in which the Appellant polled 379 votes and was duly elected. The election was conducted by the Senior District Officer (SDO) assisted by two Assessors.

7. The Respondent after the election petitioned the High Court on Grounds of several irregularities which were answered by the Appellant. The High Court having heard both sides nullified the said elections and ordered fresh polls with the Provincial Secretary presiding assisted by two different assessors.

The Appeal

8. I shall deal with the second ground of appeal as a preliminary issue, to wit: “The Learned Trial Judge erred in law in holding that in the absence of the Provincial Secretary no one else should preside over the election of a paramount Chief because if the Court comes to the conclusion that the District Officer lacked authority to conduct and declare the winner of a Chieftaincy election then the result of the run-off elections would be null and void as having been conducted in breach of Section 10 of the Chieftaincy Act, 2009.

9. In his synopsis and oral argument on this point which was argued as Grounds 8, Patrick John Bull Esq. submitted that the said Section does not state that it is only the Provincial Secretary who shall conduct Chieftaincy elections. Another Public officer could be appointed to act in that capacity. He submitted that the substantive Provincial Secretary had Conducted the “Declaration of Rights” meeting but was suspended from office prior to the elections and both the Appellant and Respondent were informed that the Senior District Officer had been appointed by the Ministry of Local Government to conduct the elections. In fact the Director of

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