Francis F. Koroma v Hon Kusan Sesay & 3 Others (EP CIV APP 52 of 2018) [2019] SLCA 30 (10 April 2019)

EP, CIV. APP. 52/2018 IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN: we ‘ . FRANCIS FORAY KOROMA-PEITIIONER/APPELLANT AND HON.KUSAN SESAY + FIRST RESPONDENT/RESPONDENT 9 HILL ROAD FREETOWN AND THE NATIONAL ELECTORAL COMMISSION TOWER HILL FREETOWN = SECOND RESPONDENT RESPONDENT AND THE NATIONAL RETURNING OFFICER THE NATIONAL ELECTORAL COMMISSION TOWER HILI. FRRETOWN - THIRD RESPONDENT/RESPONDENT AND THE REGIONAL COMMISSISONER THE NATIONAL ELECTORAL COMMISSION NORTHERN PROVINCE MAKENI ~ FOURTH RESPONDENT/RESPONDENT

Coram

HON.MR, JUSTICEMONFRED MOMOH SESAY —-JA HON.MRS. JUSTICE MUSU DAMBA KAMARA = -JA HON.MRJUSTICE ELDRED TAYLOR-CAMARA - JA ADVOCATES: Musa Mewa Esq and 1LF, Sawaneh for The Petitioner/Appellant Boniface Sidikie Kamara Esq for The First Respondent/Respondent RULING DELIVERED ON THE. UO bay OF Nov 2019 By Notice of Intention to Take a Preliminary Objection date the 15° August.2018 and filed in this Court on the same date, Eddie Turay and Associates. Solicitors for The First Respondent Respondent gave notice to raise preliminary objections to the hearing of the appeal by way of Notice of Appeal dated the 3° August, 2018 by the Petitioner/Appellant. The Notice of Intention to Take

Preliminary Objection was filed pursuant to Rule! 9(1) of the Court of Appeal Rules, 1985, Public Notice No.29 of 1985. ‘The grounds of objection are stated as follows: |

go.

1. That the Appeal filed was deemed to be from an interlocutory decision of the High Court since same was filed by seeking leave first before the High Court. However Section 78(3) of Act No.6 of 1991 Constitution bars the

: filing of an appeal on an interlocutory decision of the High Court in election petitions.

2. That the order granted by the High Court was to striking out the action and not dismissing same therefore a fresh petition ought to have been filed rather than filing a notice of appeal to the said decision since orders striking out applications are interlocutory in nature unlike dismissal orders which are final. Therefore, Section 78(3) of Act No.6 of 1991 Constitution bars appeals to the Court of Appeal in interlocutory decisions in election petitions.

3. That the Notice of Appeal filed herein did not indicate that leave to file same was granted by the High Court on the 25" day of July 2018 pursuant to Rule 10(5) of The Court of Appeal Rules. Public Notice No. 29 of 1985.

4, That the order for leave granted by the High Court pursuant to which the Notice of Appeal herein was filed was made and granted ex-parte when same ought to have been made inter-parties pursuant to Section 56(2) (b) of The Courts Act No.3 1of 1965 and Rule 10(1) of The Court of Appeal Rules Public Notice No. 29 of 1985 as repealed and replaced by Constitutional Instrument No.of 2003.

Background

In the Parliamentary elections held nationwide in Sierra Leone on the 7

Merch,2018,both the Petitioner/Appellant and The First RespondenyRespondent contested with others for election as Ordinary Member of Parliament for

om Constituency 045 in Koinadugu District in the Northern Province of the Republic of Sierra Leone. The Petitioner/Appellant contested under the Sierra !.cone Peoples Party (SLPP)whilst The First Respondent/Respondent contested under the All People Congress (APC) party.

Bl Other candidates who contested that election in the same said constituency are Lmmanuel Bangura for the Coalition for Change (C4C) Party; Paul Foray Fofana for The Citizens for Democratic Party (CDP)Party; Foday Magba Koroma for the * National Grand Coalition(NGC) Party and Salamatu Manley who contested as an Independent Candidate Out of these six candidates, the Third RespondenURespondent announced the First Respondent/Respondent as duly elected ordinary Member of Parliament for the said constituency 045 and subsequently caused to be published certified final results of same in Freetown in The Sierra Leone Gazette (Extraordinary) with Government Notice No. 259 dated the 10" April, 2018. The Petitioner/Appellant being dissatisfied with the declaration of The First RespondenU/Respondent as duly elected ordinary Member of Parliament for constituency 045 petitioned the said election results by way of a Petition dated the 20* day of April, 2018 at the High Court holden at Makeni in the Northern Province aforesaid on the same 20" April,2018. The First RespondenU/Respondent through his counsel, Eddie Turay and Associates, filed an application by way of Notice of Motion dated the 30" day of May, 2018 and filed same on the 31" May 2018 applying for the Petition to be struck out for want of jurisdiction on the grounds that the Petitioner/Appellant had failed to comply with certain procedural requirements in filing the said Petition. The Court heard the application and ruled on the 10" July. 2018 striking out the Petition. The Petitioner/Appellant being dissatisfied with that Ruling striking out his Petition, filed an Ex Parte Notice of Motion dated the 23” day July. 2018 seeking. inter alia, leave of the Court to appeal to this Court against the said Ruling of the * Court striking out his Petition, The said Ex-Parte Notice of Motion was filed by Brewah & Co, Solicitors for the Petitioner/Appellant.

Br

‘The Court again heard the said Ex-Parte Notice of Motion for leave and ruled on the 25" day of July, 2018 granting leave to the Petitioner/Appellant to file ‘ait appeal against the Ruling of the 10" July, 2018 striking out the Petition.

~ ‘The Petitioner/Appellant, through his Solicitors then filed the appeal by the Notice of Appeal dated the 3" August, 2018 on the 7 August,2018.

The First Respondent/Respondent through his Counsel and/or solicitors filed a Notice of Intention to Take Preliminary Objections to the said Notice of Appeal dated the 15" August, 2018. This Court, as a matter of law. had to pause and defer the hearing and determination of the said appeal in order to hear and determine the said objection.

We heard the objection and nine other preliminary objections to nine other appeals of similar nature on two sittings i.e. on the 15" day of November, 2018 when we gave directions and on the 20" and 21" days of December, 2018 we heard the arguments in two batches (je E.P. Civ. App. Nos. 52/2018, $3°2018. 54/2018, 55/2018 and 56/2018 on the 20" December,2018 and E.P. Civ. App. Nos. 59/2018,61/2018, 62/2018, 63/2018 and 65/2018 on the 21" December, 2018).

We reserved Rulings for each batch on those last two dates respectively We now deliver the said Rulings.

Arguments and Submissions of Counsel

Lead Counsel for The First RespondenURespondent Boniface Sidikie Kamara Esq in his written arguments dated the 28" day of November, 2018 argued that the order of the High Court dated the 10" July, 2018 striking out the Petition following an application by Notice of Motion dated the 30” May. 2018 is an interlocutory order and that by the provisions of Section78(3) of The > Constitution of Sierra Leone, 1991 Act No.6 of 1991 this Court does not have juriseiction to hear and determine an appea! emanating, from an interlocutory ordes in an election petition ; He submitted that: |

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