Francis F. Koroma v Kusan Sesay & 3 Others (EP CIV APP 52 of 2018) [2019] SLCA 29 (10 April 2019)

lou EP Civ. App. 52/2018 rf IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN FRANCIS FORAY KOROMA PETITIONER/APPELLANT AND KUSAN SESAY 18" RESPONDENT ; THE NATIONAL ELECTORAL COMMISSION 2" RESPONDENT THE NATIONAL RETURNING OFFICER: 3°° RESPONDENT THE REGIONAL COMMISSIONER 4™ RESPONDENT RULING OF HON. JUSTICE E. TAYLOR-CAMARA DELIVERED THE 10" DAY OF APRIL 2019 'have had the privilege of reading in draft the Judgment just delivered by his Lordship M M Sesay, JA. In is judgment, his Lordship has set outin deta, the history ofthis mater, stating trom the activites that led to and followed from the election, and fom the fig of the Petition by the Petitioner to the point we are now currently facing, which is the ‘objection taken by the 1% Respondent to the hearing of the Petitioner's appeal. His Lordship has also set out in detail the issues that arise from this objection, and the arguments of Counsel on both sides. | do not therefore repeat the same here.

In his Ruling of 10 July 2018, Koroma J struck out the Petition of the Petitioner on the ground there had been non-compliance with the strict provisions of the Election Pelition * Rules 2007. In essence, the Court ruled that the rules that stipulate how and when Petitions should be filed and presented were not fully complied with and that as a result the Petition could not be entertained by the Court as it was non-compliant. It is this decision that the Petitioner is dissatisfied with and wishes to appeal against. The High Court granted the Petitioner leave to appeal against its decision and the appeal was ‘subsequently filed in the Court of Appeal. The 1* Respondent has objected to the appeal being heard on the grounds stated in his Notice of Intention to take a Preliminary Objection, which grounds have been set out in the Ruling of my brother M M Sesay JA In summary, the first two objections raised by the Respondent are objections to the competency of the appeal to this Court. They effectively question the jurisdiction of this Court to hear the appeal ‘Section 78 (3) of the Constitution of Sierra Leone 1991 provides that: “An appeal shall lie to the Court of Appeal from any decision of the High Court on any matter determined pursuant to subsection (1) save that no appeal shall lie in respect of any interlocutory decision of the High Court in such proceedings.” ‘The argument is that as $78 (3) precludes an aggrieved party from appealing to the Court of Appeal against an interlocutory decision of the High Court on an election petition issue, if this Court determines that the decision (and consequent order) of the High Court, is an interlocutory decision, then this Court will have no jurisdiction to hear the appeal against it. The key issue before this Court then is whether the order of the High Court dated the 10 July 2018, is an interlocutory decision or not? Is it an interlocutory decision or a final decision? . How does the Court approach the Issue? There is no statutory definition of what is a“hnal ‘or Yaterlocutory’ order. The Courts have theretore traditionally looked to the case law for a

[oo guidance as to how to approach the issue. This question of what is final or interlocutory . is one which has bedeviled ic the Courts for well over a century. Following a long line of * cases, Sir John Donaldson MR, in the Court of Appeal case of White v Brunton (1984) 2 All ER, 606, identified the two tests that were being developed by the English Courts. One was the “application” test, formulated in the case of Salaman v Wame (1891) 12 QB 734, in which Lord Esher MR, held that: “Afinal order is one made on such an application or proceeding that, for whichever side the decision is given, itwilifit stands, finally determine the matter in litigation.” The other test, referred to as the ‘order’ test was developed in the case of Bozson v Altincham UDC (1903) 1 KB 547 where Lord Alverstone, re-echoing the view expressed in Shubrook v Tufnel (1882) 9 QBD 621, held that the real test for determining the question is: “Does the Judgment or order, as made, finally dispose of the rights of the parties? Ifit does, then | think it ought to be treated as a final order; but if it does not, then itis in my opinion, an interlocutory order. * For a long time the two tests were being applied side by side in England by different courts depending on the issue before them. There did not seem to be any clear directive or direction in terms of which of the two tests was the preferred test to be applied. In the case of Salter Rex and Co v Ghosh (1971) 2 All ER 865, Lord Denning MR considered and contrasted the Judgment of Lord Alverstone CJ in Bozson's case with that of Lord Esher in Salaman v Warne and concluded that: ‘Lord Alverstone CJ was right in logic, but Lord Esher was right in experience. Lord Esher's test has always been applied in practice." In White v Brunton, Sir John Donaldson confirmed the view that the English Courts were * committed to the application approach identified by Lord Esher MR as being the general

[ot rule, and that Bozson v Altincham UDC was no longer to be regarded as any authority for applying tne order approach White v Brunton then, settled the issue in the English Courts, and indeed the English Rules Committee introduced rules which are set out in Order 59 Rule 1A of the Supreme Court Practice, 1999. Those rules make it abundantly clear that where the question whether a decision is final or interlocutory arises, recourse should be had to the list of ‘matters identified in Order 59 Rule 1A. There is in that rule, a list of specific types of orders which are to be treated as interlocutory and another for types of order to be treated as fina. Ihe type of order isnot ited in ether of those two lists, then the test set out in Ord ‘59 1A(3), which re-enacts the (application) test in White v Brunton should be applied to

determine whether the order is final. If the order does not ‘Satisfy the finality test, then the oder is deemed interlocutory ‘The simplicity of this approach is that lawyers that are intent upon appealing against any Particular decision of the High Court can just look up the list of matters identified and listed in Order 59 Rule 1A of the Supreme Court Practice 1999, and if the matter is listed as final then the appeal should be proceeded with as an appeal against a final decision. If it is listed as an interlocutory decision, then itis an interlocutory appeal. Under Ord 59 RIA (K) of those rules, striking out is clearly identified as an interlocutory order. In England the Access to Justice Act 1999 (Destination of Appeals) Order 1999 set out in statutory rule, the lists of which orders are regarded as interlocutory and those that are final. However the Access to Justice Act 1999 (Destination of Appeals) Order 2016 has now revoked these ists The English cases, and the rules and practice, although in many cases persuasive, are not applicable or binding on the Sierra Leone Courts. This said, the English practice is applied in many Common Law and Commonwealth countries. It is applied in Hong Kong and many ofthe West indian island counties, but itis by no means universally aceepted

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