Koroma v Mayor of Freetown, 1964-66 ALR S.L. 100

KOROMA v. MAYOR, ALDERMEN, COUNCILLORS and CITIZENS OF FREETOWN SuPREME CouRT (Cole, Ag. C.J.): August 31st, 1964 (Civil Case No. 162/64)

[1] Civil Procedure-declaratory action-plaintiff's interest-action im pugning subordinate legislation-plaintiff with substantial interest may maintain action although public rights involved: In declaratory proceedings challenging the validity of subordinate legislation, if the plaintiff has a substantial interest in the proceedings that will be sufficient to give him standing and he need not join the Attorney General as a party or prove special damage although public rights or public duties are in question (page 105, lines 28-36). (2] Civil Procedure-declaratory action-plaintiff's interest-action in volving construction of statutory provisions governing representative body-elected representative may maintain action: An elected repre sentative on a local government body who institutes declaratory proceedings necessitating the court's interpretation of statutory pro visions governing the body to which he is elected and the persons he represents has a substantial interest in the proceedings entitling him to institute them without joining the Attorney-General as a party (page 105, line 38-page 106, line 10).

[3] Civil Procedure-parties-action for enforcing public rights-special damage suffered by plaintiff-meaning of special damage: Special damage sufficient to entitle a party to maintain an action to restrain interference with a public right or compel the performance of a public duty, without joining the Attorney-General as a party, is loss measurable in pecuniary terms which arises from an injury distinct in character from the inconvenience suffered by other members of the public (page 105, lines 22-25).

[4] Civil Procedure-parties-action for en.forcing 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 interfered with (page 105, lines 13-21).

[5] Civil Procedure - parties-action involving public rights-construc tion of document or statute suught-plaintiff with substantial interest need not join Attorney-General: Where the construction of a docu ment or statute is required of the court, if the plaintiff has a substantial interest in the proceedings that will be sufficient to give

KOROMA v. MAYOR OF FREETOWN, 1964-66 ALR S.L. 100 S.C. him standing and he need not join the Attorney-General as a party or prove special damage although public rights or public duties are in question (page 105, lines 28-36).

[6] Civil Procedure-parties-declaratory action involving public rights -action involving construction of statutory provisions governing 5 representative body-elected representative may maintain action without joining Attorney-General: See [2] above.

[7] Civil Procedure-parties-declaratory action involving public rights -subordinate legislation impugned-plaintiff with substantial interest need not join Attorney-General: See [1] above. 10

Civil Procedure-parties-improper party-action defective for want of parties-objection to be taken in pleadings, by preliminary objection or at trial: An objection that an action is defective for want of parties should be taken as soon as possible and this may be done either in the pleadings or by way of preliminary objection; but being an objection in point of law it may be raised at the trial (page 105, lines 4-9). Civil Procedure-parties-plaintiffs-declaratory action-action in volving construction of statutory provisions governing representative body-elected representative may maintain action: See [2] above. Civil Procedure-parties-plaintiffs-declaratory action-subordinate legislation impugned-plaintiff with substantial interest may maintain action although public rights involved: See [1] above.

[11] Civil Procedure-pleading-objections-action defective for want of parties-objection to be taken in pleadings, by preliminary objection or at trial: See [8] above. 25

[12] Constitutional Law -legal officers- Attorney-General- necessary party to action for enforcing public rights: See [ 4] above.

[13] Constitutional Law-legal officers-Attorney-General-not necessary party to action seeking construction of statute or document though public rights involved: See [5] above.

[14] Constitutional Law-legal officers-Attorney-General-not necessary party to declaratory action by elected representative involving con struction of statutory provisions governing representative body: See [2] above.

[15] Constitutional Law-legal officers-Attorney-General-not necessary party to declaratory action impugning subordinate legislation: See [I] above.

[16] Injunction- enforcement of public rights -local government body improperly constituted-discretion of court to hold back injunction expecting voluntary compliance with law: Where a court has declared that a local government body is not properly constituted because one

of its members has not been elected in accordance with the relevant statutory provisions, the court may nevertheless refrain from granting an injunction restraining the body from functioning until it is properly constituted if the court considers it to be a responsible body which would respect the decisions of the courts (page 112, lines 36-39).

[17] Local Government-aldermen-aldermen of City of Freetown to be elected from both elected and appointed councillors: Vacancies in the offices of aldermen on the Freetown City Council should be filled by election from among both elected and appointed councillors (page 111, lines 7-9).

[18] Local Government-aldermen-alderman of Freetown ward not to be elected from councillors for another ward: An alderman to repre sent a ward of the City of Freetown on the City Council should be elected from among the elected councillors for that ward or, failing such an election, from among the appointed councillors, but not from among the elected councillors for another ward (page 111, line 35-page 112, line 7).

[19] Local Government-constitution-council improperly constituted if member's election contravenes relevant statute: A local government council is not properly constituted if the election of one of its members is not in accordance with the relevant statutory provisions (page 112, lines 8-15).

[20] Local Government-constitution-Freetown City Council-alderman for one ward not to be elected from councillors for another ward: See [18] above.

[21] Local Government- constitution- Freetown City Council properly constituted if alderman and three elected councillors represent each ward: A ward of the City of Freetown may lawfully be represented on the City Council by an alderman and three elected councillors and the Council will not be improperly constituted by reason only that there are not four elected councillors to represent a particular ward (page 110, lines 20-26).

[22] Local Government-constitution-number of appointed members on Freetown City Council: The number of appointed members of the Freetown City Council at any one time may exceed six provided that not more than six of them are serving in their capacity as councillors and two of them are Africans (page 111, lines 12-17).

[23] Local Government-legal proceedings-injunction-local government body improperly constituted-discretion of court to hold back injunc tion expecting voluntary compliance with law: See [16] above.

[24] Local Government -legal proceedings -proceedings against local government body-who may maintain proceedings-elected repre sentative may maintain declaratory action involving construction of statutory provisions governing body to which elected: See [2] above.

KOROMA v. MAYOR OF FREETOWN, 1964-66 ALR S.L. 100 S.C.

[25] Local Government-representation-Freetown ward lawfully repre sented on City Council by alderman and three elected councillors: See [21] above. The plaintiff brought an action against the defendants for declarations regarding the membership and constitutionality of the Freetown 5 City Council and an injunction. The plaintiff was an elected member of the Freetown City Council. The defendants were the Corporation of the City of Freetown. The plaintiff contended that each of the city wards should be represented on the council by four elected councillors and that two 10 wards were not so represented. He claimed declarations that the existing representation of wards on the Council was unconstitutional and ultra vires, that the Council so constituted was unconstitutional and ultra vires, that appointed members on the Council should not exceed six and that the election as alderman for one ward of an 15 elected councillor for another ward was unconstitutional, ultra vires and void. He also claimed an injunction restraining the defendants from continuing to function unconstitutionally or until the Council was properly constituted. The defendants contended that four councillors were not required to represent each ward and that the 20 existing representation of wards on the Council, and the Council itself, were not unconstitutional; that appointed members might exceed six; and that the election of the alderman was not uncon stitutional, ultra vires or void. They submitted that the plaintiff was not competent to bring the action without joining the Attorney- 25 General as plaintiff. Statutes construed : Freetown Municipality Act (Laws of Sierra Leone, 1960, cap. 65), s.8: The relevant terms of this section are set out at page 112, lines 11-12. 30 s.9: The relevant terms of this section are set out at page 110, lines 31-36. s.10: The relevant terms of this section are set out at page 107, line 6- page 108, line 13. s.11: The relevant terms of this section are set out at page 108, line 26- page 109, line 4. 35 s.12: The relevant terms of this section are set out at page 109, line 36- page 110, line 5. s.15(5) The relevant terms of this section are set out at page 109, lines 7-9. s.28: The relevant terms of this section are set out at page 106, lines

s.29, as amended: The relevant terms of this section are set out at page 106, lines 29-38.

s.50: The relevant terms of this section are set out at page 112, lines 19-22. Interpretation Act, 1961 (No. 46 of 1961), s.29(1): The relevant terms of this section are set out at page 112, lines 25-35. 5 E. L. Luke for the plaintiff; Okoro-Idogu for the defendants. COLE, Ag. C.J.: By his statement of claim, as amended, the plaintiff claims: 10 "(i) A declaration that the East, Central and West Wards should be represented in the Council by four elected members each. (ii) A declaration that the present representation of the wards (i.e. East four, Central three, and West three) by elected mem- 15 hers in the Council is unconstitutional and ultra vires. (iii) A declaration that the Council as at present constituted is unconstitutional and ultra vires. (iv) A declaration that appointed members in the Council should at no time exceed six. 20 (v) A declaration that the election of Mr. A. D. Wurie as Alderman for the West Ward is unconstitutional, ultra vires and void. And the plaintiff also claims an injunction restraining the defendants from continuing to function unconstitutionally or 25 until the Council is properly constituted." The defendants deny: "1. That there should be representation on the Council by four councillors in respect of each ward.

2. That the present representation of the wards by elected 30 members on the Council is unconstitutional.

3. That the Council as at present constituted is unconstitutional.

4. That the number of appointed members on the Council may not exceed six.

5. That the election of Councillor A. D. Wurie as Alderman 35 for the West Ward is unconstitutional, ultra vires and/ or void." In the course of his closing address learned counsel for the defend ants submitted, inter alia, that the plaintiff was not competent to bring this action without joining the Attorney-General as plaintiff. He 40 contended that the interests affected in this matter are those of the public at large and where the rights of the public were affected,

1WR0MA v. MAYOR OF FREETOWN, 1964-66 ALR S.L. 100 S.C. their interests being vested in the Crown, the Attorney-General, being an officer of the public, should have brought the action or at least he should have been joined as plaintiff. As I understand the authorities, an objection that an action is defective for want of parties should be taken as soon as possible. The point may be 5 raised on the pleadings or a preliminary objection taken. Neither course was taken by the defendants in this case. The objection, however, being one in point of law, it was open to the defendants to raise it at the trial even though not pleaded. I therefore allowed learned counsel for the defendants to raise and argue the point. 10 I shall at once dispose of this point. In 30 Halsbury's Laws of England, 3rd ed., at 310, para. 570, the following is stated: "In an action to restrain interference with a public right, whether committed or threatened, or to compel the performance of a public duty, the Attorney-General is a necessary 15 party, except (1) where the 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 (2) where the special damage is suffered over and above that suffered by the general public, though 20 no special private right is also interfered with." "Special damage" appears to mean loss which is measurable in pecuniary terms and which arises from an injury which is distinct in character from the inconvenience suffered by other members of the public. A study of the very long line of decided cases on the point 25 seems to show that this principle of law is more applicable to cases of public nuisance and other wrongful forms of interference with amenities enjoyed by the public as a whole. It would appear that where the validity of subordinate legislation, or possibly, of administrative acts of local authorities, is challenged in declaratory pro- 80 ceedings or where the construction of a document or statute is required of the court, the court does not require that the plaintiff, to establish his standing, should prove special damage or otherwise join the Attorney-General as a party. It is sufficient to give the plaintiff locus standi in such cases if he has a substantial interest in the 85 proceedings. All that the plaintiff must show is that he is one whose interests are affected sufficiently to enable him to sue. In this action certain acts of the defendants are being called in question necessitating an interpretation by the court of certain statutory provisions governing the defendants. The plaintiff is a 40 member of the City Council of Freetown (which I shall hereafter

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Tilt AFR1CAN i.AW Rli:PORTS call "the Council") representing the Central Ward under and by virtue of the provisions of the Freetown Municipality Act (cap. 65) (hereinafter referred to as "the Act"). He owes a duty to the electorate in the ward which he represents to see that that ward is well and truly represented on the Council in accordance with the Act and also to see that the provisions of the Act are substantially complied with. He is not a mere busybody but someone whose interest, in my view, is so substantial as to enable him to institute these declaratory proceedings without joining the Attorney-General as plaintiff. The contention of learned counsel for the defendants in this regard, therefore, fails. What should be the numerical strength of elected members on the Council representing each of the East, Central and West Wards of the city of Freetown 08 councillors? The plaintiff contends that it should be four. The defendants deny this contention. In order to arrive at an answer which would in my view be correct, it is necessary to consider the relevant provisions of the Act. Section 8 of the Act provides that the Council shall consist of the mayor, aldermen and councillors both elected and appointed. Section 28 and 29 of the Act provide : "28. On such date after the coming into operation of this section as the Minister may by Order declare, all members of the Council shall retire and there shall be held a general election of the elected members of the Council in accordance with the provisions of this Act and thereafter an election to fill vacancies caused by the retirement of those elected members whose term of office has expired shall be held annually on the first day of November." "29. Whenever a vacancy has occurred among the elected members of the Council, otherwise than by retirement or expiration of terms of office, the Council with the prior approval of the Electoral Commission shall appoint and notify to the Town Clerk the day for the holding of an election to fill such vacancy : Provided that where the vacancy is caused by the death or retirement of an elected member whose unexpired term of office is less than six months an election to fill the vacancy shall not be held unless the Council so directs." These ,sections, in my view, provide for- (i) a general election of elected members of the Council; (ii) an annual election to fill vacancies caused by the subsequent