Gulama & Anor v Gulama & 2 Others (CIV APP 36 of 2012) [2012] SLCA 18 (22 November 2012)

(S4- 36 V A P P ^/2012 IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN: FODAY MOMOH GULAMA - APPELLANTS NATIONAL ELECTORAL COMMISSION AND SAMUEL NAGATEY GULAMA J.B. TOMAH KPANGA VIA MRS. DORIS FARMAH ORAM: HON. JUSTICE P.O. HAMILTON HON. V.M. SOLOMON HON. JUSTICE A.H. CHARM SOLICITORS RESPONDENTS JSC JA J N,D. Tejan-Cole Esq. for the Appellants E vis Kargbo Esq. for the Respondents JUDGMENT DELIVERED ON THE OF jlJoVejJU it., 2012 HAMILTON - JSC This is an Appeal against two Rulings and one Judgment dated 4th February, 2010, 23r d March, 2010 and 6th July, 2010 respectively all delivered by Hon. Justice S.A. Ademosu (deceased). T J10 for which an interim injunction was granted on 4 February, 2010. On lis Appeal involves an election petition dated 27'h January, 2010 instituted gainst the Appellant. A motion for an injunction was filed on 29'u January, th 1 21 to I 55 February, 2010 an appearance was filed together with an affidavit sworn on 24th March, 2010. On 24f l 1 March, 2010 a supplemental affidavit was sworn which contained an undertaking in respect of damages if the petition fails. On 6th July, 2010 an injunction was granted as contained in the Ruling/Judgment dated 6th July, 20 0. Pursuant to this ruling leave was sought to appeal to the Court of Appeal which leave was granted on 20|J | August, 2012. It i s against this brief background that the Appellant filed a notice of appeal dated 30l n August, 2010 on the following grounds:- 1. That the absence of a seal in a Petition on the face of the Petition and its absence is fatal and cannot be cured under Order 2 o f the High Court Rules 2007 The provision is mandatory and the subsection is a deeming one. 2. The supplementary affidavit sworn to by the Petitioners contains a note of the wrong person on whose behalf it is filed and is incurable. Furthermore, the said affidavit was used as a substitute for an undertaking required on an application n respect of an injunction for damages that a person may offer as a result of the grant of the application. 3. It is submitted that the undertaking is a pre-condition to the making of the Order and in the present case the Order was made on the 4th February, 2010 and the application on 23r d March, 2010. 2 I S f c 4. The Court erred when it said the undertaking should remain in force until the final determination of the Petition. What was in force was an interim injunction which has lapsed. The present interlocutory is irregular and a misdirection. I shall consider ground 1 separately and grounds 2, 3 and 4 together. GROUND J Counsel for the Appellant submitted that every Petition issued out of the Master’s Office shall be sealed by the Master and Registrar and being sealedshall be deemed to have been issued and the Petition of the Respondent dated 27,h January, 2010 is not sealed and this makes the infraction fatal. On the absence of the seal the Learned Trial Judge at Page 52 lines 7 to 17 the records said: “ Another important issue raised by Mr. Tejan-Cole is that the Petition was not sealed and therefore is not properly before this Court, He submitted that if it was not sealed it does not issue from the Registry Office. He relied on Order 6(7)(1) o f the High Court Rides 2007 and Order 8 Rule 4(4) but the appropriate Order is Order 8 Ride (8)(4) as regards a Petition. This is a correct statement o f the law it requires no further authority but Mr Kargbo maintained fhat the Petition was signed and sealed by the Master and Registrar. He referred to the copy in the file . As I stated earlier, I know for a fact that the original file in this matter disappeared mysteriously and it was after its disappearance had been reported to the Hon, Chief Justice before the 3 matter could continue. In these circumstances, I cannot see how the Registry Office which seal Notice o f Appearance filed and served couldfail to seal a Petition to which the Appearance related” . Counsel then submitted that the language of the sub-rule is mandatory and it commences with the word “every” which means such singular and without exception. Therefore every copy of the Petition ought to be sealed. Learned Counsel finally submitted that the omission is incurable and cannot be saved by Order 2 Rule 1 o f the High Court Rides, 2007 which requires a Judge to exercise his discretion in case of irregularities consisting of failure to comply with the High Court Rules and not intended to remedy failure of a mere fundamental kind. Counsel for the Respondent in his reply submitted that the application was for an injunction and nothing to do with whether the Petition was sealed or not. He contends that it was sealed before the original file got mission and the respondents were present in Court and none of them raised any objection as to whether it was signed or sealed. Order 9 Ride 2(2) provides: “ Eveiy Petition shall be issued out o f the Master’ s Office or District Registry and shall he sealed by the Master or District Registrar and upon its being sealed then be deemed to be i s s u e d (Emphasis added) 4 , 1 5 4 In my humble opinion, it is mandatory that the Petition must be sealed and only when it is so sealed can it be deemed to have been issued. Where the Petition is not so sealed as in this present appeal the provision contained in Order 9 Rule 2(2) is clear that such Petition is deemed not to be issued, In this appeal therefore I do hold that since the petition is not sealed it is fatal. This ground therefore succeeds. GROUNDS 2,3 AND 4 Counsel for the Appellant in arguing these tliree (3) grounds dealing with a supplemental affidavit and an undertaking in respect of an interim injunction. The supplemental affidavit was sworn to on 24th March, 2010 and filed the following day but was filed erroneously on behalf of the Defendant/Respondent. Counsel submitted that an objection was taken pursuant to Order 39 Rule 9(2) o f the High Court Rules, 2007 but the Learned Trial Judge invoked Order 31 Rule 4 regarding the use of defective affidavits and the affidavit was also an undertaking as to Damages in respect oi" the Notice of Motion dated 291 1 January, 2010 for interim and interlocutory injunctions. Lbamed Counsel submitted that on 4th February, 2010 the Learned Trial JUdge ordered both injunctions and service of the Petition on the 1s t Respondent and the National Electoral Commission and on 23 rd March, 2010 the interim injunction of 4th February, 2010 was extended and on the same day the undertaking for damages was filed. Counsel finally submitted that the Learned Trial Judge without an application voluntarily converted the interim injunction to an interlocutory injunction. 5 IS1 Counsel for the Respondent n his argument or grounds 2, 3 and 4 submitted thht the Learned Trial Judge was right to allow the use of the supplemental affidavit pursuant to Order 31 Rule 4 o f the High Court Rules, 2007. Counsel submi tted that an undertaking is a precondition to the making of the Ofder of 5th February, 2010 and the application on 23rd May, 2011. Counsel further submitted that the Order of 4a February, 2010 was an interim Order to last until the adjourned date when the application would be heard inter partes and the undertaking was made pursuant to Order 35 Rule 9. Counsel farther submitted that the interim injunction which was pronounced to be interlocutory was made pending the determination of the Petition. Learned Counsel finally submitted that the injunction application was never argued as to whether t should be granted or not. IT rie Learned Trial Judge at Page 53 lines 4 to 7 of the said records said: "In this regard, I have not seen any fundamental defect that can take this Petition outside the umbrella o f Order 2 o f the High Court Rides o f 2007. The result is that I rule that this Petition should go to trial after seven days or any other day agreed by both sides. The Order for , * interlocutory injunction remains in force until the final determination o f the Petition ” The Learned Trial Judge without an application converted the interim injunction into an interlocutory injunction which should remain in force until the determination of the petition. This is in contrast to the interim injunction granted on 251 , 1 March, 2010. The Petition therefore ought to be dismissed ar)d is accordingly dismissed. 6 REF: PQ U/HJ 7