Kallon v Stevens, 1964-66 ALR S.L. 300

THE AFRiCAN i.AW REPORTS KALLON and WURIE v. STEVENS and OTHERS SuPREME CouRT (Dobbs, J.): January 4th, 1966 (Civil Case No. 389/65)

[1] Civil Procedure-declaratory action-plaintiff's interest-action chal lenging validity of election in City Council of Freetown-Minister of Interior may maintain action: The Minister of the Interior, as the Minister exercising the powers of the Governor-General in relation to the Council of the City of Freetown, has more than a mere academic interest in the question whether a mayor of Freetown has been properly elected and may maintain an action for a declaration that the election was irregular and void (page 314, lines 14-26).

[2] Civil Procedure-declaratory action-plaintiff's interest must be real and not merely academic: The plaintiff in an action for a declaration must have some real interest in the ruling asked for, not merely an academic one (page 314, lines 2-4).

[3] Civil Procedure-parties-action for enforcing public rights-when Attorney-General is necessary party: In an action to restrain inter ference with a public right, whether committed or threatened, or to compel the performance of a public duty, the Attorney-General is a necessary party except (a) where interference with the public right is at the same time an interference with some private right or is a breach of some statutory provision for the protection of the plaintiff and (b) where special damage is suffered over and above that suffered by the general public though no special private right is also inter fered with (page 314, lines 31-39).

[4] Civil Procedure-parties-plaintiffs-action challenging validity of proceedings in Freetown City Council-non-resident of Freetown cannot maintain action: A person who is not resident within the limits of the City of Freetown cannot in his ordinary personal capacity be a plaintiff in an action for a declaration and an injunction in regard to an election to the office of Mayor of Freetown (page 305, lines 22-25; page 306, lines 1-3).

[5] Civil Procedure-parties-plaintiffs-declaratory action-action chal lenging validity of election in City Council of Freetown-Minister of Interior may maintain action: See [1] above.

[6] Civil Procedure- parties- plaintiffs-declaratory action-plaintiff's interest must be real and not merely academic: See [2] above.

[7] Civil Procedure-pleading-objections-objection in point of law objection may be vitiated by failure to object to allegations in open ing address: A failure on the part of the defence to object that the plaintiff's opening address alleges something that has not been 'pleaded may deprive the defence of the benefit of an objection that no cause of action has been disclosed in the statement of claim (page 305, lines31-38).

KALLON v. STEVENS, 1964-66 ALR S.L. 300 S.C.

[8] Civil Procedure-pleading-setting out party's case-opening address -failure to object to allegations in address may vitiate objection to statement of claim: See [7] above.

[9] Constitutional Law - legal officers - Attorney-General- necessary party to action for enforcing public rights: See [3] above. 5

[10] Injunction-enforcement of public rights-when Attorney-General is necessary party: See [3] above.

[11] Local Government-central government's functions-legal proceed ings against local government body-Minister of Interior may maintain action challenging validity of proceedings in Freetown City 10 Council: See [I] above.

[12] Local Government -legal proceedings- proceedings against local government body-who may maintain proceedings-Minister of In terior may maintain action challenging validity of proceedings in Freetown City Council: See [I] above. 15

[13] Local Government -legal proceedings- proceedings against local government body-who may maintain proceedings-non-resident of Freetown cannot maintain action challenging validity of proceedings in Freetown City Council: See T 4] above.

[14] Local Government-meetings and proceedings-chairman-invalidly appointed chairman cannot conduct election: An election by a local government council under a chairman who has not been validly ap pointed, is invalid (page 308, lines 24-31; page 313, lines 17-20).

[15] Local Government-meetings and proceedings-election and appoint ment of officers-voting unnecessary when candidates nominated un opposed: A local government council empowered to elect a mayor or appoint a member to preside at a meeting may do so without taking a vote if only one candidate is nominated (page 308, lines 4-23).

[16] Local Government- meetings and proceedings- standing orders Freetown City Council standing order authorising suspension not limited to orders which precede it: Standing order 35 of the Standing Orders of the Council of the City of Freetown, 1964, which gives power to suspend "these standing orders," applies not only to the standing orders which precede it but to all standing orders except those whose suspension would be inconsistent with the Freetown Municipality Act (cap. 65) (page 312, lines 4-18; page 313, lines

[17] Local Government - meetings and proceedings-standing orders Freetown City Council standing order governing corporation con tracts cannot be suspended under standing orders: Standing order 35· of the Standing Orders of the Council of the City of Freetown, 1964, which gives power to suspend the standing orders, does not authorise the suspension of standing order 47, which contains pro visions as to contracts by the corporation (page 312, lines 5-11).

[18] Local Government- meetings and proceedings- standing orders Freetown City Council standing order governing selection of chair man cannot be suspended under standing orders: Standing order 35 of the Standing Orders of the Council of the City of Freetown, 1964, which gives power to suspend the standing orders, does not authorise the suspension of standing order 6, which regulates who shall preside at meetings of the Council (page 313, lines 8-11).

[19] Local Government- meetings and proceedings-standing orders power to suspend subject to chairman's view of situation to be ex ercised after chairman's recorded ruling on situation: Where a local government council has power to suspend its standing orders pro vided the chairman deems the situation one of sufficient importance to warrant it, then for the proper exercise of the power the chairman must apply his mind to the question whether the situation is of sufficient importance and give a ruling which should be recorded in the minutes (page 309, lines 36-41).

[20] Local Government-residents-rights and duties-non-resident of Freetown cannot maintain action challenging validity of proceedings in Freetown City Council: See [ 4] above. 20 The first plaintiff brought an action, in which the second plaintiff was later joined, against the defendants for a declaration that the election of the first defendant as Mayor of Freetown was irregular and void and for an injunction. The plaintiffs held the office of Minister of the Interior in suc- 25 cession. The defendants other than the first defendant were sued as the second defendants, being collectively the Corporation of Freetown. The first defendant was Mayor of Freetown for a term which expired on November 8th, 1965. On November 5th, he sent notice 30 of an extraordinary meeting of the Council of the City of Freetown to be held on November 9th for the election of mayor. On November 8th, there was an ordinary meeting of the Council presided over by the first defendant. One of the members present was nominated unopposed, and declared elected, to preside at the extraordinary 35 meeting to be held the following day. The members then voted a month's suspension of two standing orders, one of which provided that meetings should be presided over by the Mayor or in his absence the Deputy Mayor and that in the absence of both the Council should appoint one of the wembers present to preside. At 40 the extraordinary meeting on November 9th, presided over by the member elected the previous day for that purpose, the first defendant

KALLON v. STEVENS, 1964-66 ALR S.L. 300 was the sole nominee for election as mayor and the member pre siding declared him duly elected. The facts alleged in the statement of claim did not on their face show how the election of the first defendant was contrary to law and the second defendants pleaded that the statement of claim 5 disclosed no cause of action. The Attorney-General in his opening address for the plaintiffs elaborated on the facts alleged in the statement of claim and explained their significance. The Attorney-General contended that the suspension of standing orders, the election of the chairman for November 9th and the 10 election of mayor were invalid because the provision for the sus pension of standing orders was ultra vires and because no vote had been taken for either election. The first defendant contended that he was elected mayor according to law. The second defendant contended that the plaintiffs were not entitled to sue because they 15 did not reside in Freetown and that the second plaintiff had no responsibility for the procedure at meetings of the Council. Cases referred to :

(1) Gilbey Construction Co. Ltd. v. Bangura (1957), 16 W.A.C.A. 37, dicta of Verity, P. followed.

(2) Merricks v. Nott-Bower, [1965] 1 Q.B. 57; [1964] 1 All E.R. 717, dictum of Lord Denning, M.R. applied. Statutes, Rules and Orders construed: Freetown Municipality Act (Laws of Sierra Leone, 1960, cap. 65), s.16: "(1) If at any time the Governor-General is of the opinion that the Council is no longer exercising any of its powers or performing any of its duties under the Act in a manner conducive to the welfare of the City, he shall issue a Commission of Inquiry ... and after receiving the report of the Commissioners, may appoint a Committee of manage ment forthwith if the matter of inquiry related to public health, and in all other cases after failure of the Council to rectify . . . any default in the exercise of its powers and duties established by the Com missioners.

(2) Any such Committee of Management may be appointed . . . to exercise . . . any specified powers and duties of the Council and the Council shall forthwith cease to exercise and perform such powers and duties accordingly." s.48: The relevant terms of this section are set out at page 310, lines 28-36. Interpretation Act, 1965 (No. 7 of 1965), s. 23: The relevant terms of this section are set out at page 311, lines 15-21.

Supreme Court Rules (Laws of Sierra Leone, 1960, cap. 7), O.:XXI, r.5: The relevant terms of this rule are set out at page 313, lines 34-38. City of Freetown, Standing Orders of the Council, s.o.6: The relevant terms of this order are set out at page 308, line 39-page 309, line 1. s.o.7(1): The relevant terms of this order are set out at page 307, lines

s.o.35: The relevant terms of this order are set out at page 309, lines

B. Macaulay, Q.C., Att.-Gen., for the plaintiff; Smythe and johnson for the defendants. DOBBS, J.: In this case the plaintiffs are successively the holders of the office of Minister of the Interior in the government of Sierra Leone. At the commencement of the action the first plaintiff held that office and during the course of the proceedings was replaced by the second plaintiff who was then by order of the court joined in the action as a plaintiff. The plaintiffs claim (a) a declaration that the purported election of the first defendant on February 9th, 1965 as mayor by the City Council of Freetown is irregular, void and of no effect; and (b) an injunction restraining the first defendant from performing any of the functions, or acting in the office, of Mayor of the City of Freetown. The second defendants are the Mayor, Aldermen, Councillors and Citizens of Freetown or in other words "the Corporation." The defence of the first defendant is, briefly, a denial that his election is contrary to law or irregular and an assertion that he was according to law elected mayor by the aldermen and councillors of the Freetown City Council at a meeting of the Council held on November 9th, 1965. The defence of the second defendants is briefly that the plaintiffs as Ministers of the Interior have no responsibility whatsoever for the conduct of meetings of the Freetown City Council or any responsibility at all for fixing or supervising or controlling or directing the fixing of the date for the holding of meetings by the second defendants for the election of the Mayor of the City of Freetown. The second defendants do not specifically deny that the election was irregular. To quote verbatim, para. 4 of the amended defence reads,: "The second defendants admit that they elected the first defen dant Mayor of the City of Freetown at their meeting of November 9th, 1965 but state that such election did not

KALLON v. STEVENS, 1964-66 ALR S.L. 300 constitute and is not in the nature of a crime as seems to be alleged in para. 5 of the statement of claim." S.C. I do not think this form of pleading is very helpful but as it has not been objected to I shall treat it as being an assertion that the first defendant was duly elected. Paragraph 5 of this defence merits setting out in full and is as follows: "As to the reliefs sought and as to para. 5 of the plaintiffs' statement of claim, the second defendants will object that in respect of both the first and the second plaintiffs, the statement of claim is bad in law and discloses no cause of action against them on the grounds that : (a) no fact, circumstance or matter precluding the second defendants from holding their meeting of November 9th, 1965 under the chairmanship of Alderman Hadson Taylor and from electing the first defendant as Mayor of Freetown, is alleged; (b) no procedural irregularity or otherwise and/or no fact or matter capable of vitiating and/ or rendering or making to no effect the election of the first defendant as mayor in support of the declaration sought are alleged; (c) the said Maigore Kallon and the said Amadu Wurie, not being citizens of Freetown, that is, not residing within the limits of the said City of Freetown, cannot in law be plaintiffs in this action; (d) standing orders of the second defendants governing the conduct and procedure at meetings are not matters requiring the consent of the Governor-General and therefore not matters for which the second plaintiff can be said to have any responsibility." With regard to (a) and (b), I am prepared to agree that the facts alleged in paras. 3, 4 and 5 of the statement of claim do not on the face of them show how the purported election was contrary to law. The Attorney-General, however, in his opening elaborated on these facts and explained their significance. Counsel for the defendants made no objection during the opening that the Attorney General was alleging anything not pleaded. I therefore think they are precluded from taking this point of defence. For authority I would refer to the judgment of the West African Court of Appeal in the case of Gilbey Construction Co. Ltd. v. Bangura (1) and particularly to the penultimate paragraph (16 W.A.C.A. at 40).

With regard to para. (c) I think it is conceded by the Attorney General that the only standing the plaintiffs could have 'is as Minister of the Interior. This leads on to para. (d), which I propose to deal with later in my judgment. I shall now briefly deal with the law relating to the office of mayor and with the facts leading up to the disputed election. The facts are mostly set forth in the minutes of the meetings of the Council which took place on November 8th, 1965 and November 9th, 1965, these minutes having been put in evidence and marked respectively E and F. The Act governing the matter is the Freetown Municipality Act (cap. 65) and I shall hereafter refer to it as the Act. Section 7 of the Act provides for the establishment of the City Council of Freetown and s.8 thereof says "the Council shall consist of the Mayor, Aldermen and Councillors elected and appointed as hereinafter provided." Sub sections (2) and (3) of s.ll provide for a mayor to be elected by the aldermen and councillors after the election of aldermen and thereafter whenever the office of mayor shall become vacant. The person elected shall either be one of the aldermen or councillors or a person qualified to be elected as councillor. Sub-section (2) of s.13 of the Act provides that the mayor shall hold office for one year and shall then retire. It seems clear therefore that in any event there must be an election of mayor after the completion of a year from the date of the previous election of mayor. The first defendant was elected on November 9th, 1964, so his term of office expired at midnight on November 8th, 1965. On November 5th, 1965 the first defendant caused notice of an extraordinary meeting of the Council to be held on November 9th, 1965 to be sent to members, the business of such meeting to be the election of mayor for 1965-1966. On Monday, November 8th, 1965 the normal monthly meeting required by standing orders to be held on the second Monday in each month was duly