David Fornah v Alhaji Kandeh k.Yumkella And Others (SC APP 2 of 2018) [2021] SLSC 40 (3 September 2021)

= {5b~ = % Sp v Aye >, \ Sup Ct. Case No. 2/2018 Fy Sil Ve Iv THE SUPREME COURT OF SIERRA LEONE \ \@5RERS / "90? \ IN THE MATTER OF THE CONSTITUTION OF SIERRA LEONE 1991 ~ ANLQ.6 OF *y i 1991 (AS AMENDED) SECTIONS, 41, 75 & 76 SCistet IN THE MATTER OF THE SIERRA LEONE CITIZENSHIP ACT, 1973 ~ ACT NO. 4 OF

IN THE MATTER OF THE SIERRA LEONE CIT ‘ZENSHIP (AMENDMENT) ACT, 1973 — ACT NO, 13 OF 1973 IN THE MATTER OF THE SIERRA LEONE CIT ‘ZENSHIP (AMENDMENT) ACT, 2006 = ACT NO 11 OF 2006 IN THE MATTER OF AN ACTION PURSUANT ‘TO THE SUPREME COURT RULFS, 1982 - PART XVI RULES 89 - 98, S.1. NO 1 OF 1982. BETWEEN: DAVID FORNAH - PLAINTIFF AND

1. ALHAJIDR. KANDEH KOLLEH YUMKELLA - DEFENDANTS.

2. THE ATTORNEY-GENERAL & MINISTER OF JUSTICE

3. MOHAMED N'FAH ALIE CONTEH

4. NATIONAL ELECTORAL COMMISSION (NEC)

5. DR. DENNIS AYODELE BRIGHT

6. FRANCIS HINDOWA

7. NATIONAL GRAND COALITION

Coram

‘THE HONOURABLE MR. JUSTICE N.C. BROWNE-MARKE_ JUSTICE OF THE SUPREME COURT ‘THE HONOURABLE MR. JUSTICE E.E. ROBERTS: JUSTICE OF THE SUPREME COURT THE HONOURABLE MS JUSTICE G. TI 1OMPSON JUSTICE OF THE SUPREME COURT ‘THE HONOURABLE MR. JUSTICE A.S. SESAY JUSTICE OF THE SUPREME COURT THE HONOURABLE MR. JUSTICE SENGU KOROMA* JUSTICE OF THE SUPREME COURT

COUNSEL:

CENTUS MACAULEY ESQ FOR THE PLAINTIFF

DR. A. O. CONTEH, F.M. DABOR ESQ, & MS. YASMIN JUSU-SHERIFF

FOR THE 18' DEFENDANT.

OSMAN KANU ESQ, ABIGAIL SUWU (MS) & P. FEWRY (MS) FOR THE + ad DEFENDANT

MS B.£.T CUMMINGS, DRUCIL E. TAYLOR ESQ & J.E. KAPUWA ESQ FOR THE 3° AND 4™ DEFENDANTS:

LS. YILLAH ESQ & M.S BANGURA ESQ FOR THE 5™ DEFENDANT

S.B. TEJAN-SIE I ESQ FOR THE 6™ DEFENDANT

MS YASMIN JUSU-SHERIFF, ALEX MUSA ESQ & ALHAJI M. KAMARA ESQ FOR ‘THE 7™ DEFENDANT wk JUDGMENT.DBLIVERED THIS 4" DAY OF Dyeleahfini ROBERTS, JSC.

1. My lords and my lady, I have had the benefit of reading the Judgment of my brother Browne-Marke, JSC. I agree with and adopt his summary of the facts of this case, his identification of the issues for determination and the arguments of counsel. [also agree with his final declaration and orders. However, and to the extent that my consideration of the issues may well be in addition to or.in furtherance of his, permit me to give my judicial opinion albeit a concurring one. The following summary of the relevant and salient filings and applications in this action is therefore only necessary for clarity and ease of reference.

2. By an Originating Notice of Motion (ONM) dated 5" February, 2018 one David Fornah, the Plaintiff in this action, sought, among others, an interpretation of Sections 41, 75 and 76 of the Constitution of Sierra Leone, Act No. 6 of 1991 (the 1991 Constitution) by the determination of several questions contained in the ONM. He also prayed for several declarations which I do not find necessary to reproduce here as in any case he has applied to discontinue the action. The sole declaration that warrants further consideration will be dealt with later in this judgment. The ONM is

‘ supported by several affidavits by David Fotnah with exhibits attached.

3. In the ONM the Plaintiff named Alhaji Dr. Kandeh Yumekella as the 1" Defendant, the Attorney-General as the 2™ Defendant, Mohamed N’fa Alie Conteh as 3" Defendant and the National Electoral Commission as 4" Defendant x

4. An application was made for Dr. Dennis Bright, Chairman and Leader of National Grand Coalition (NGC), Francis Hindowa, Secretary of NGC and the NGC Party to be added as parties to this action. By order of this Court made on the 2" March, 2018 the aforementioned were added as 5“, 6" and 7 Defendants respectively. A Statement of Case was filed on behalf of each defendant.

5. After adjournments for further hearing the Plaintiff filed a Motion dated 28" March, 2018 praying that the action against all the defendants be discontinued and/or in the alternative that leave be granted for the withdrawal of the action. :

6. An affidavit in opposition filed Yasmin Baindu Sandoh Jusu-Sheriff on behalf of the Defendants.

7. Atthe hearing of the application for discontinuance, Dr. Abdulai O. Conteh of Counsel for Ist Defendant stated that he was not opposing the application, noting that Dr. Yumkella’s status was made known to the plaintiff long ago and he therefore asked for costs.

8. Notwithstanding the affidavit in opposition, Yasmin Jusu-Sheriff said she was not opposed to the application. She however referred to the ONM as well as the Statement of case for the 7th Defendant and asked this Court to make the following declaration to wit:

Any person who upon attaining the age of twenty-two years was or is citizen of Sierra Leone and also a citizen of any other country did and does not by operation of law or any other means cease to be a Sierra Leone.

9. IS. Yillah of Counsel for the 5" Defendant said he was not opposed to the application for discontinuance, noting however that the 5" Defendant suffered financial loss as a result of the institution of this action by the Plaintiff. Counsel stated that supporters who were supposed to have given funds withdrew at the last minute because of the uncertainty this action created. D. Taylor of Counsel for the 3" and 4" Defendants also said he was not opposed to the application.

P |

10.At this stage it became clear to me that apart from procedural issues which have been dealt with in the judgment of Browne-Marke, there were two main issues for consideration by this Court. The first is the application for discontinuance by the Plaintiff and the second is the declaration sought an . urged by counsel on behalf of the 7" Defendant. I shall deal with them in the order they have been mentioned here.

IL Indeed there is no express provision in the Supreme Court Rules, 1982 for the discontinuance or withdrawal of an action commenced by Originating Notice of Motion. However by virtue of Rules 98 thereof this Court is authorized to use the relevant practice and procedure in the High Court and itis by this authority that order 24 of the High Court Rules 2007 relating to discontinuance becomes applicable.

12. note that the Plaintiff in his application prayed for “...the action herein be discontinued and in the alternative that leave be granted to the plaintiff herein for the withdrawal of the said matter”. In my view, ‘discontinuance’ ofan action usually refers to where the party wishes to abandon the whole or entire action, while ‘withdrawal’ refers to abandonment of a part of or a claim in his action. Indeed the Plaintiff in his affidavit in support of the

application deposed ‘...J have now instructed my Solicitor to discontinue the action.” It would only be proper therefore for the application to be treated and considered as one for discontinuance.

13.Having read the application and having heard Counse! for the Plaintiff and the Defendants respectively, I do not find any reason(s) why the application should not be granted especially so when counsel for the Defendants have stated that they are not opposed to it. I therefore join my brethren in granting that application save for the consideration of the

declaration sought and urged by the 7 Defendant which I shall now tum to.

14,Following the Plaintiff's application for discontinuance of his case, the defendants accepted and did not in the main oppose it. Counsel for the 7 Defendant however sought and urged the declaration stated above.

15.On careful perusal of this declaration sought, I find its wording rather curious. For a start its seeks a declaration on a state that can no longer exist in law by virtue of the Citizenship Act no. 4 of 1973 (the 1973 Act)

as amended by the Citizenship (Amendment) Act no. 11 of 2006 (the 2006

. Amendment Act). 7

The pages read for this report end here. The judgment continues in the PDF.