Kadie Kallon (nee Davies) v Josephine H.M Jackson (EP CIV APP 59 of 2019) [2020] SLCA 3 (15 April 2020)

t 'T I '

IN THE. COURT OF APPEAL OF SIER.AA L£0NE. CIVIL DIVISION E P. CIV. APP. 59/2019 ~

BE'IWEEN: : KADLE. KALLON( NEE DAYlf.S) -APPE Lt. ~ , ANT AND JOSEPHINE.HM JACKSON - A RE.PRE ADYM ' ,p . MUSA \'. CORAM; .. .1 ST RESPONDENT &. 3 OTHE.R,S COUNSEL. FOR. THE. APPLICANT COUNSEL FOR THE. RESPO.NOE.NT HON. MR. JUSTICE. SENEiU M. KOROMA - JSC (PRESIDING.) HON. MR. JUSTICE. ANSUMANA lVAN SESAY- JA HON. MRS. JUSTICE TONIA BARNE.TI J t ti RULING DELIVERED ON THE 1 ST APRIL, 2020~ HONOURABLE MR. JUSTICE SENGU MOHAMED KOROMA JSC

1. The Appellant/ Applicant (hereinafter referred to as the 'APPLICANT') applied to this Court by Notice of Motion dated 26th February, 2020 for the following

Orders

1) That the Honourable Mr. Justice Ivan Sesay, JA recuses himself from hearing of the matter intituled : CIV. APP.59/2019 BE1WEEN: KADIE KALLON (NEE DAVIES) AND JOSEPHINE H.M. JACKSON & 3 OTHERS 2) That the Honourable Ansumana Ivan Sesay JA disqualifies himself from being a member of the Panel of Judges that will hear this Appeal on the following

Grounds

a. That the said Justice has twice contested General elections for the parliamentary seat at a constituency now known as constituency 93 at Rutifunk in the Moyamba District in the Southern Province of the Republic of Sierra Leone on the platform of the Sierra Leone Peoples Party (SLPP) in 2007 and 2012 respectively b. That because of his past affiliation and connection with the SLPP, justice may not manifestly be seen to be done by him in this case if he continues to be on the Panel because of the appearance of or presumed bias he holds towards the Sierra Leone People's Party. 3) Any further Order(s) that this Honourable Court may deem fit and just 4) Costs in this application be costs in the cause.

2. The Application was supported by the affidavit of KADIE KALLON (nee Davies) sworn to on the 26th day of February, 2020 together with the exhibits attached thereto and relied on therein.

3. The application was opposed by the 1st Respondent by an affidavit filed by JOSEPH HINDOGBAE KPOSOWA sworn to in Freetown on the 2nd day of March,

PROCEDURA L HISTORY : 4) As a result of the decision of the High Court dated the 31st May, 2019 against the Applicant herein, the Applicant filed (therein referred to as the Defendant) filed a Notice and Grounds of Appeal against the said decision. 5) At the first hearing of the said Appeal, Counsel for the Appellant/ Applicant herein (hereinafter referred to as the "Applicant") intimated this Court of their intention • to seek the recusal of Hon. Mr. Justice Ansumana Ivan Sesay. The Court Ordered the said Counsel for the Applicant to make the Application by Notice of Motion. This Application was duly filed . THE PRESENT APPLICATION: 6) The Application was heard on the 5th day of March, 2020 with the Applicant represented by Ady Macauley Esq., and the Respondent by Musa Mewa Esq. AFFIDAVIT IN SUPPORT: 7) In this application, the Applicant relied on the affidavit of KADIE KAtLON (nee Davies) sworn to on the 26th day of February, 2020 together with the exhibit attached thereto. 8) I shall now deal with the parts of this affidavit germaine to this application. The Deponent averred as follows:- i) PARAGRAPH 3 : "That I am reliably informed by my Solicitors and verily believe that the members of the Panel (in this appeal) include Hon. Mr. Justice Ansumana Ivan Sesay, JA." ii) PARAGRAPH 4 : "That the subject matter of my Appeal touches and concerns the 1st Respondent; Josephine Jackson who was the candidate presented by the Sierra Leone Peoples Party (hereinafter referred to as "SLPP'') for the same constituency seat (Constituency 110) contested by me under the ticket of the All Peoples Congress Party (hereinafter referred to as "APC'')

iii) PARAGRAPH 5 : "That the Hon. Mr. Justice Ansumana Ivan Sesay had in 2012 contested to become a Member of Parliament for the Parliamentary Constituency now known as Constituency 86 at Rutifunk in the Moyamba District in the Southern Province of the Republic of Sierra Leone (hereinafter referred to as "the Constituency'') under the political platform of the SLPP; the same political party on whose platform the 1st Respondent is contesting under. The Deponent exhibited KKl being a list of 2012 nominated candidates published by the National Electoral Commission (hereina~er referred to as "NEC")" iv) PARAGRAPH 6: "That the Judge had also by his conduct and participation in the said election under the SLPP no doubt shown publicity his emotional and ideological attachment and commitment to the SLPP and therefore not qualified to hear and determine this appeal which borders on my lawful. election as a Member of Parliament. v) PARAGRAPH 7 : "That a good number of Members of the public in my Constituency who have now come to the know that the Learned Judge was once a member of the SLPP have walked up to me in the Streets and expressed doubts and reservations about the fairness of the Learned Judge in adjudicating this Appeal." vi) In PARAGRAPHS 8 and 9, the Deponent averred that because of the affiliation of the Judge with the "SLPP", he will not be seen to exercise his judicial function impartially and also prevent him from bringing an open mind to the hearing and resolution of her appeal. vii) PARAGRAPH 10: "That it is the identification of both the Judge and the 1st Respondent herein with the "SLPP" because of their respective aspirations during the 2012 and 2018 Parliamentary elections that brought about the likelihood, perception, suspicion, impression, possibility and appearance of "bias to mind". ORAL SUBMISSIONS OF COUNSEL FOR THE APPLICANT : 9) In his oral submission, Counsel for the Applicant, Ady Macauley Esq., reiterated the averments -in the affidavit-in s1;1pport asserting -that the-Judge havjng been a candidate for a political party must have emotional and ideological commitment to that party. lO)Mr. Macauley clarified that the reason for their objection was not to doubt the integrity of the Judge but to help develop our jurisprudence on judicial bias by

canvassing the circumstances under which a Judge must recuse himself or be disqualified from hearing and determining a matter. ll)In his further submission, Mr. Macauley drew the Court's attention to the distinction between 'actual bias' and the 'appearance of bias'. In drawing this distinction he referred to ZUKERMAN ON CIVIL PROCEDURE 2ND EDITION (2006) paragraph 2.55. Mr. Macauley also referred to "BENNION ON STATUTORY INTERPRETATION" 6th Edition (2012) at page 1011. Counsel further referred to the case of R-V- SUSSEX JUSTICES, EX. PARTE MACARTHY. 12)On the argument regarding "Perceived bias", Mr. Macauley cited the case of R-V BOW STIPENDIARY MAGISTRATES EX.PARTE PINOCHET' PAGE 1012 of BENNION and the case of MORRISON & ANOR. -v- AWG GROUP LTD & ANOR. (2006) EWCA. 13)Mr Macauley additionally mentioned the case of PORTER AND WEEKS- V- • MAGILL (2001) UKHL 67-Per Lord Hope; METROPOLITAN PROPERTIES CO. Ltd. V- LANNON & OTHERS- REGINA -V- LONDON RENT ASSESSMENT PANEL COMMITTEE (1969). AFFIDAVIT IN OPPOSITION : 14)The 1st Respondent by his Counsel, Musa Mewa Esq., relied on the affidavit of Joseph Hindogbae Kposowa sworn to on the 2nd day of March, 2020. 15)As I did in the case of the affidavit in support, I shall deal only with the relevant averments herein. 16)The Affidavit herein averred the following facts in response to the allegations made in affidavit in support: i) PARAGRAPH 6 -' That I have perused the affidavit in support of the application and have realised that it lacks merit to warrant the recusal of a Judge duly appointed and approved by Parliament from carrying out all of his jud icial functions inclusive of the hearing of this Appeal. ii) PARAGRAPH 7 : 'That notwithstanding Justice Ansumana Ivan Sesay's past activities seeking to be a Member of Parliament, he was appointed by former President Ernest Bai Koroma (hereinafter referred to as "Former President) to the High Court and that appointment was approved by the 4th Parliament of the second Republic of Sierra Leone Constituting members of both the APC and SLPP. He was never rejected because he sought to be elected to Parliament in 2012 on an SLPP symbol."

iii) Paragraph 9: "That Judges are trained to be impartial and theref ore their past occupation and activities do not hold sway over the facts and law before them. That to have contested under a political party does not leave a Judge under a permanent and ideological attachment and commitment to that political party." iv) PARAGRAPH 10: " That an application for the recusal of a Judge must be based on the firm foundation of his actual or apparent disposition to do injustice and not on claims of public opinion and the past affiliations and activities of the Judge before his appointment." v) PARAGRAPH 13: "That a reasonable belief by the Appellant/Applicant that the Judge's affiliation with the SLPP might prevent him from bringing an open mind to the resolution of her appeal is misleading since that belief is not supported by any fact to show that the said Judge has participated in any political activity • since his appointment and therefore cannot ·be affiliated with the SLPP". vi) PARAGRAPH 15: "That the Appellant/Applicant has failed to show cause either by actual or apparent bias why Honourable Justice Ansumana Ivan Sesay should recuse himself from forming part of the Panel hearing the Parliamentary Election Appeal. ORAL SUBMISSIONS OF COUNSEL FOR THE RESPONDENT. 17)In his oral submission, Musa Mewa Esq., Counsel for the Respondent argued that applying for the recusal of a Judge is a matter that requires substantial evidence whether it is a case of actual or apparent bias. An application of this nature should not be made on flimsy grounds because if it were so, no Judge should be qualified to preside over any matter. He submitted that the test would be whether there is a real danger of bias. In support of this submission, he cited the case of LACOBAIL (UK) Ltd -V- BAYFIELDS PROPERTY LIMITED & ANOR. (2000) ALL ER 1 particularly page 66, paragraph 4. 18)Musa Mewa Esq. further submitted that a period of seven years had elapsed since the Judge contested Parliamentary elections. In any event, recusal must not be based on political affiliations. He referred to the case of PRESIDENT OF SOUTH AFRICA & ORS -V- SOUTH AFRICAN RUGBY UNION & ANOR. (1999) S.A.144. Counsel for the Respondent contended that there were no political parties in these proceedings but private individuals. He further cited the following authorities:-

R MAHFOUZ V GMC {2004) EWCA CIV.233 ; SUBRAMANIAN -V- GMC {2002) UK PC 2003 ; ZN -V- SECRETARY OF JUSTICE & ORS (2015) H.K. C U 2738; FALCON PRIVATE BANK LTD V SORRY BERNARD EDOURD CHARLES ltd . (2014) 17 HK CFAR 281; KOMAL PATEL & ORS - V- CHRIS & ORS.( 2015) HKCU 2700 19)In his final submission, Mr. Mewa opined that all the authorities cited by the Applicant are more favourable to the Respondent. He cited in particular the case of P.C. MANSAKAY -V- AMADU SANKOH CIV.APP10/2011(unreported).

Issue for Determination

20)The operative issue for determination in this Application is whether the Learned I Judge having contested Parliamentary Ele0ions on the ticket of the SLPP should recuse/disqualify himself from sitting on the Panel to hear the various Appeals herein. Alternatively, should he fail to recuse/disqualify himself, be ordered to do so by this court. 21)The Applicant is contending that because of the Judge's past membership of the SLPP, he will be presumed to be biased. The 1st Respondent on the other hand is contending that past political affiliation should not be a ground for recusal/disqualification. 22)In order to determine this issue, I shall first of all review the authorities relied on by both Counsel. I note that Counsel relied largely on the same cases. 23) REVIEW OF AUTHORITIES : a. ZUKERMAN ON CIVIL PROCEDURE(2006)-Paragraph 2.55 At this paragraph, it was stated that "English Law insists not only on the appearance of bias, but also on the absence of bias. As Lord Hewart CJ puts it in the case of R-V- SUSSEX JUSTICES EX.P MACARTHY( 1924) 1KB, it is "of fundamental importance that justice should not only be done, but must manifestly and undoubtedly be seen to be done". The absence of an appearance of impartiality is essential for public confidence in the administration of justice. This authority seems to be re-emphasising what Counsel for the Applicant stated in his oral submission, that his client has no doubt in the integrity of

the Judge but rather by his having contested two Parliamentary elections on the ticket of the SLPP, he was presumed to the bias. To my mind, this authority lays the foundation of the Applicants contention in this case. b. BENINION ON STATUTORY INTERPRETATION 6th Edition (2012) at Page 1011. The relevant passage here refers to the principles applicable to cases of bias. The said passage reads thus: "The principle applicable to cases of bias was reviewed by the House of Lords in R-V- GOUGH (1993) A C

646. They distinguished the case where a person acting in a judicial capacity has a direct pecuniary interest, where he or she is automatically disqualified from sitting on the case from where the test is whether, having regard to the relevant circumstances there is a real danger of bias. The term 'danger' was considered preferable to 'likelihood' as indicating that the test is one of possibility of bias rather than the probability of bias. I :) R-V- SUSSEX JUSTICES, ex-parte MAR~ARTHY (1924) 1 KB rhis case is famous for the oft quoted dictum of Lord Hewart CJ (which I have 1lready cited above) I) R-V- BOW STREET STIPENDIARY MAGISTRATE & OTHERS, ex-parte 'inochet Ugarte (No.2) (1999) 1 ALL ER 577. ·his case deals with the principle of apparent bias. In the case, Lord Hoffman, ,ho had formed part of a 3-2 majority in the House of Lords trial which had ecided that General Pinochet had no- immunity from arrest, had failed to isclose his links to Amnesty International, which had intervened in the appeal. e was director and chairperson of Amnesty International Charity Ltd, which had een incorporated to carry out Al's charitable purposes. The House Lords held 1at "in the instant case, the facts were exceptional in that AI was a party to the ppeal, it had been joined in order to argue for a particular result and the Law )rd was a director of a charity closely allied to AI and sharing its objects. :cordingly, he was automatically disqualified from hearing the appeal". The relevance of this case in the development of English (and by practice) erra Leonean jurisprudence on presumed bias cannot be over stretched. The !Cision of the Court, the latter part of which was relied on by the Applicant 1ich is thus: "The principle that a judge was automatically disqualified from :aring a matter in his own cause was not restricted to cases in which he had a ·cuniary interest in the outcome, but also applied in cases where the Judge's cision would lead to the promotion of a cause in which the Judge was in ~ether with the other parties. That did not mean that Judges could not sit on

case concerning charities in whose work they were involved, and Judges would normally be concerned to recuse themselves or disclose the position to the parties only where they have an active role as trustee or director of a charity which was closely allied to and acting with a party to the action. f) MORRISON & ANOR. V. A.W.G. GROUP (2006) EWCA. In this case, in the judgment with which the two other Judges of the Court of Appeal agreed, the Learned Lord Justice stated the test of for apparent bias thus: "The test for apparent bias is now settled by a line of recent decisions of this Court and the House of Lords is that, having ascertained all the circumstances bearing on the suggestion that the Judge was (or would be) biased, the Court must ask whether those circumstances would lead to a fair minded and informed observer to conclude that there is a real possibility of bias. In the Judgment of the Court, the Judge ought to have recused himself in the unfortunate circumstances, in which, through no fault of his or anyone else, he • was placed. g) The test applied in this case is that even where a situation arises that would give rise to the apprehension of bias through no fault of the objected Judge, he should still recuse/disqualify himself from hearing the matter as long as a case for doing so has been properly made out. h) This case referred to the Judgment of the House of Lords in the case of R-V- BOW STIPENDIARY - MAGISTRATE EXPARTE PINNOCHET where Lord Nolan has this to say "In any case, where the impartiality of a Judge is in question, the appearance of the matter is just as important as the reality". i) LOCOBAIL -V- BAYFIELD PROPERTIES (2000) ALLER