Gabriel Korvebor v Mr. Combay (Misc App 11/2024) [2024] SLCA 9 (14 November 2024)

MISC. APP No: 11/2024 2024 IN THE COURT OF APPEAL OF SIERRA LEONE IN THE MATTER OF SECTION 72(1)(5) OF THE CONSTITUTION OF SIERRA LEONE 1991 (ACT NO.6 OF 1991) AND IN THE MATTER OF THE CHIEFTAINCY ACT 2009 (ACT NO. 10 OF 2009) AND IN THE MATTER OF THE HIGH COURT RULES 2007 AND IN THE MATTER OF THE PARAMOUNT CHIEFTAINCY ELECTIONS FOR NJALA KOMBOYA CHIEFDON, BO DISTRICT IN THE SOUTERN PROVINCE OF SIERA LEONE

AND IN THE MATTER OF THE APPLICATION FOR A DECLARATION OF ERROR IN LAW AND CUSTOMS ON THE PART OF THE DECLARATION OFFICER/PROVINCIAL SECRETARY SOUTH IN THE NJALA KOMBOYA CHIEFDOM PARAMOUNT CHIEFTAINCY ELECTION SCHEDULED AND CONDUCTED ON THE 19 DAY OF FEBRUARY, 2024 AND/OR THE QUALIFICATION AND/OR DISQUALIFICATION FOR ELECTION AS CANDIDATE IN THE NJALA KOMBOYA CHIEFDOM PARAMOUNT CHIEFTAINCY ELECTION, BO DISTRICT IN THE SOUTERN PROVINCE OF THE REPUBLIC OF SIERRA LEONE AND FOR THE DECLARATION OF RIGHTS MEETING HELD ON THE 5™ DAY OF FEBRUARY, 2024 TO BE SET ASIDE FOR WANT OF COMPLIANCE WITH VARIOUS PROVISIONS OF THE CHIEFTAINCY ACT 2009 (ACT

NO. 10 OF 2009) BETWEEN: GABRIEL G. M. T. TOMMY KORVEGOR = APPLICANT (SUING AS ASPIRANT/CANDIDATE AND/OR CHIEFDOM COUNCILLOR OF NJALA KOMBOYA CHIEFDOM BO DISTRICT) i a

AND MR. COMBAY 1°" RESPONDENT DIRECTOR MINISTRY OF LOCAL GOVERNMENT AND RURAL DEVELOPMENT THE PROVINCIAL SECRETARY SOUTH 2" RESPONDENT (SUED AS DECLARATION OFFICER) THE ELECTORAL COMMISSION OF SIERRA LEONE 3" RESPONDENT P.C. PRINCE BOIMA 4'"" RESPONDENT KAKUA CHIEFDOM, BO P.C, LAHAI SOWA 5!" RESPONDENT THE MINISTER OF LOCAL GOVERNMENT 6!" RESPONDENT AND RURAL DEVELOPMENT

Coram

Hon. Justice Monfred M. Sesay J.A. (Presiding) Hon. Justice Jamesina E. L. King (Mrs) J.A. Hon. Justice Samuel O. Taylor J. A. Counsel

5. M. Roberts (Mrs) for the Applicant tu RULING DELIVERED THIS |, DAY OF NOVEMBER 2024

1. Bya Notice of Motion dated 23 July 2024 the Applicant applied to this Court for inter alia leave to appeal against the ruling dated 24'" April 2024 of the Honourable Justice Mr. M. Stevens J.A. and leave to file a Petition against the conduct of the entire Paramount Chieftaincy Elections conducted on 19" February 2024.

2. The application is supported by the affidavit of Gabriel G. M. T. Tommy sworn to on 23" July 2024 together with the exhibits attached thereto marked GGMITK 1 ~ GGMITTK6. These were a local tax receipt, letter of 7” February 2024 from the Applicant challenging the conduct of the elections to the Minister of Local Government, Originating Notice of Motion dated 12” February 2024 and affidavit in support filed in the High Court for an injunction and other related orders, Court order of 20” February 2024, Notice of Motion dated 25" February 2024 and affidavit in support for leave to file a Petition out of time, Court Order dated 24° April 2024 and the Proposed Petition.

3. The Applicant in his affidavit stated that he was one of the Aspirants/Candidates vying to be elected as Pararnount Chief Njala Kombuya Chiefdom, Bo District in the Southern Province of the Republic of Sierra Leone and that he was a Chiefdom Councillor of the said Chiefdom and a local tax payer, hailing from Pa Tommy Korvegor ruling family who was the first Paramount Chief of the said Chiefdom

4. After payment of his candidature fees he referred to what transpired during the Paramount Chieftaincy Declaration of Rights process on 5” February 2024 for the said Chiefdom elections which pronounced him ineligible contrary to the procedure and conduct provided by the Chieftaincy Act 2009.

5. He wrote a letter to 1”, 2", 4" and 5" Respondents and also instructed his Solicitor to file an application in the High Court dated 12" February 2024 for an injunction among several orders. The Court gave an order dated 20° February 2024 directing him to file a Petition after the conduct of the elections. His Solicitor filed an application dated 25" February 2024 for leave to file a petition out of time which the Court refused on 24" April 2024. He concluded that his proposed petition had meritorious grounds with a good chance of success.

6. He is challenging the conduct of the Paramount Chieftaincy Elections conducted on 19" February 2024 from the declaration process which he claims was procedurally flawed leading to a defective outcome and stated that it is in the interest of justice for the Court to grant him the orders prayed for.

7. Counsel for the Applicant, Mrs. S. M. Roberts made the application pursuant to Rule 10(2) of the Court of Appeal Rules 1985, P.N. 29 of 1985 and section 18 of the Chieftaincy Act 1989 and made submissions to the Court. There was no representation on behalf of the Respondents.

Analysis & Decision

8. Section 18(1) of the Chieftaincy Act 2009 states as follows “18.

(1) The validity of the election of any person 05 0 Paramount Chief may be challenged by any candidate or Councillor of the Chiefdorn Council within seven days after the declaration of the result of the election by a petition addressed to the High Court on the ground that (a) the person so elected

(ijis not qualified under section zg {ii) is disqualified under section 9, (iii) was elected on the basis of any claim of a materially false nature under subsection (2) of section 14; or (b) the election was otherwise proper.

9. The Applicant being an aggrieved candidate and Chiefdom Councillor intending to challenge the validity of the said election on the grounds highlighted in his said letter and proposed petition, could have done so pursuant to section 18 set out above, by filing a petition seven days after the declaration of the result of the election.

10.This Court notes that prior to the election the Applicant sought an injunction from the High Court by an originating notice of motion dated 12” February 2024 to restrain the 2" and 3” Respondents from conducting the Njala Komboya Chiefdom Paramount Chieftaincy election scheduled on 19” February 2024. He applied for a declaration that the 2" Respondent herein in establishing the claims for persons to be qualified as candidates, erred in law and customs of the Njala Komoya Chiefdom by out rightly disqualifying four candidates out of eight aspirants and blatantly denying them symbols to participate in the said election. The Applicant also applied for an order

compelling 2" and 3” Respondents herein to recall and/or re-conduct another Declaration of Rights meeting for the purpose of the declaration of rights of aspirants for the said Chieftaincy election and to set a new date for the election.

11.This was as a result of what had allegedly transpired during the Declaration of Rights Meeting held on 5" February 2024. The Applicants in his affidavit sworn to on 12" February 2024 deposed to several facts regarding his allegations. The High Court by an order dated 20" February 2024 directed Counsel representing the Applicant to file a Petition against the Paramount

Chief elected on 19" & 20" February 2024, if he is dissatisfied with the conduct and result of the said elections.

12 After the said election, the Applicant did not file the Petition within the time prescribed in the Chieftaincy Act aforesaid, but proceeded during the said period to make another application to the High Court. This was by a Notice of Motion dated 25" February 2024 for leave to file a Petition on the grounds that the Applicant has a good/meritorious petition which had not been filed after receiving an order of the court because the Solicitor was out of the country

13.\t is necessary to note that the order of the court referred to in the application was the Court Order dated 20'" February 2024. This court order did not stipulate any time limit for the filing of the said Petition and could not have done so. The Petition should have been filed within 7 days after the declaration of the result of the elections. Assuming the result was announced on the 20" February 2024 the Applicant had up to 27" February 2024 to have filed the petition

14.Regrettably, Counsel for the Applicant failed to file the Petition within the statutory time frame, but he proceeded to file the Notice of Motion of 25" February 2024 for leave to file the Petition. This Court finds no justification for this approach taken by Counsel as the application of 25" February 2024 was unnecessary as leave was not required by any law or order of the Court before the filing of the petition. As at 25" February and even 2 days thereafter it was lawful for the Petition to have been filed without any leave of the court.

15. The delay occasioned by this wrong procedure adopted by Counsel, deprived the Applicant of his statutory right to file the Petition within the stipulated time. The Court ought not to have entertained the application as there was no legal basis for it. The order of 24" April 2024 refusing the Applicant's application for leave to file the Petition was irregular as there was no basis for the application at the time it was filed. Be that as it may, at the date of the said Order refusing leave to file the Petition, the Applicant was

now out of time, a dilemma the Applicant is faced with as he desires to proceed to file a petition challenging the elections.

16.The Applicant is now in this Court and seeks this Court's leave to file a Petition. Shortly after the Declarations of Rights meeting the Applicant was in court challenging the process and 5 days immediately after the elections he was also in court challenging the elections but unfortunately his Counsel

did not do what was required. His Counsel seem to have misconstrued the Order of the Court of 20 February 2024 directing him to file the Petition. 17.Counsel for the Applicant herein submits that the Applicant has meritorious grounds as exhibited in the Proposed Petition and urged that leave be

granted to file the Petition.

18.The proposed petition states that the election conducted on 19" & 20" February 2024 was improper due to the error of the 2° Respondent in establishing the claims for persons qualified to be candidates and also complained about the interference of one Director from the Ministry of Local Government who threatened to arrest and detain the Applicant’s herein supporters, and was involved in selecting candidates for the election. The proposed petition states that the irregularities mentioned are so fundamental and contrary to natural justice that it would be unsafe for the election of the 1* Respondent to stand as declared, and asks the Court to nullify the said results and order a Rerun of the elections with a Provincial Secretary assisted by different Assessors.

19. Section 18 of the Chieftaincy Act gives the Applicant the right to file a petition to challenge the validity of the election. This Court finds that the Applicant being a lay person placed reliance on his Counsel to enable him exercise this right and obtain redress. The Applicant took all the necessary steps a reasonable and diligent person could do before and after the elections. He must not be punished for the conduct of his Solicitor who failed to comply with section 18 of the said Act to file his petition.

20.In Gatti v Shoosmith [1939] 3 AER 916 at p. 919 the Court in exercising its discretion to grant an appeal to be made out of time stated thus:

“on consideration of the whole matter, in my opinion under the rule as it now stands, the fact that the omission to appeal in due time was due toa mistake on the part of a legal adviser may be a sufficient cause to justify the court in exercising its discretion.....What | venture to think is the Proper rule which this court must follow is: that there is nothing in the nature of such a mistake to exclude it from being a proper ground for allowing the appeal to be effective though out of time and whether the matter shall be so treated must depend upon the fact of each individual case....The discretion of the court being as | conceive it a perfectly free one, the only question is whether upon the fact of this particular case, that discretion should be exercised. if ever there was a case in which it should be exercised, | should have thought it this was one........”

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