Lamin V.Ngobeh v P.C Mohamed K. Banya And Others (SC CIV APP 4 of 2010) [2021] SLSC 38 (15 June 2021)

. N-THE SUPREME COURT OF SIERRA LEONE SC.CIV. APP 4/2010 ¥ BETWEEN: LAMIN VONJO NGOBEH Appellant And P.C. MOHAMED KAILONDO BANYA Respondents AND KAILAHUN LUAWA CHIEFDOM KAILAHUN DISTRICT AND PROVINCIAL SECRETARY, EASTERN PROVINCE AND MINISTER OF LOCAL GOVERNMENT & COMMUNITY DEVELOPMENT AND ATTORNEY GENERAL AND MINISTER OF JUSTICE ‘CORAM: Hon. Justice G. Thompson JSC - Presiding Hon. Justice A. B. Halloway JSC Hon. Justice A. S. Sesay JSC Hon. Justice M.F. Deen-Tarawally JSC Hon, Justice M. Sengu Koroma JSC Mr. M.P Fofana for the Appellant Mr. OI. Kanu for all the Respondents

Judgment

Delivered [Slay of June 2021 G. Thompson JSC:

Introduction

1. This appeal arises out of the chieftaincy elections held on the 17 ‘ January 2003 in Luawa Chiefdom, Kailahun District in the Eastern Province of Sierra Leone. The Appellant was a candidate in those elections which were eventually won by the 1% Respondent. The other candidates were Lamin Gbongay Ngobech and Maada Fahbundeh. Being dissatisfied with the result, the Plaintiff sought . orders from the High Court which can be summarised as follows

1) A Declaration to the effect that the Paramount Chieftaincy election conducted on Friday 17% January 2003 at Kailahun for the purpose of electing a Paramount Chief for Luawa Chiefdom, Kailahun 1 District, Eastern Province, at which said election and in consequence whereof Mr Mohamed Kailondo Banya was declared duly elected as Paramount Chief of Luawa Chiefdom aforesaid and subsequently recognised as such by His Excellency the President of the Republic of Sierra Leone, was fatally irregular, defective and vitiated, and accordingly was and is invalid, null and void of no lawful effect whatsoever for the aforesaid purpose or recognition.

2) A Declaration to the effect that the recognition by His Excellency the President of the Republic of Sierra Leone of Mr Mohamed Kailondo Banya as Paramount Chief of Luawa Chiefdom on Monday 27% January 2003 was and is however invalid, null and void of no lawful effect whatsoever.

3) An order that the aforesaid Paramount Chieftaincy election for the Luawa Chiefdom, conducted on Friday 17% January 2003 at Kailahun for the purpose of electing a Paramount Chief for Luawa Chiefdom, Kailahun District, Eastern Province, be hereby cancelled and nullified by the Court.

4) An order that the aforesaid recognition by His Excellency the President of the Republic of Sierra Leone of Mr Mohamed Kailondo Banya as Paramount Chief of Luawa Chiefdom be cancelled and nullified by this Honourable Court.

5) A permanent injunction restraining the 1% Defendant (the 1% Respondent herein) from holding himself or acting as a Paramount Chief, or as the Paramount Chief of Luawa Chiefdom, also from exercising or enjoying, or attempting or purporting to exercise or enjoy, any of the rights, duties, functions and privileges of any nature whatsoever, whether customary or otherwise, as are conferred upon, exercised or enjoyed by a Paramount Chief, or the Paramount Chief of Luawa Chiefdom, unless of course in

¢ consequence of a subsequent valid such election.

2. The High Court (Showers J, as she was then) on the 13" January 2013, declared the elections null and void and granted the Declarations sought. The Respondents herein appealed to the Court

* of Appeal (Hamilton JA, (as he was then) presiding with Browne

Marke JA (as he was then) and Ademosu JA) by a majority decision (Hamilton JA dissenting), overturned the High Court ruling and reinstated the 1* Respondent. ¥

3. The Grounds of Appeal are as follows:

1) That the Court of Appeal (Ademosu JA) was wrong in law when they stated that the non-observance of a public duty - ie the gazetting of list of chiefdom Councillors by Government Officials (such as the 2¢ to 5 Respondents) imposed on them by law ought not to affect the 1% Respondent, even where such non-observance of such public duty had led to an irregularity in the conduct of the Paramount Chieftaincy elections in Luawa Chiefdom, Kailahun District on 17% January 2003.

2) That the Court of Appeal (Ademosu JA) was wrong in law to describe the Publication of the list of chiefdom councillors in the Government Gazette before the elections are held as “mere formalities” when in fact this was a prerequisite to the holding of Paramount Chief elections in the said Luawa Chiefdom, Kailahun District on 17% January 2003, and which had not been complied with by the 2™4 to ‘5 Respondents.

3) That the Court of Appeal (Ademosu JA) was wrong in law to have concluded that the Learned Trial Judge merely “glossed over the defence case”, and by substituting its own conclusion for those of the Learned Trial Judge and castigating her in the process, without regards for the fact that the Learned Trial Judge had seen and heard the witnesses and therefore had obvious advantages over the Court of Appeal who only had the printed record to go by.

4) That the Court of Appeal (Browne-Marke JA) was wrong in law to have described the “Guidelines for Elections for Paramount Chief and Sub-Chiefs” and “Code of Conduct for Chiefdom Administration” as being “inadmissible evidence,” after both sides had repeatedly referred to them during the trial and witnesses had been crossexamined on them as well, but more so because the remarks of

‘ Learned Trial Judge on both documents were merely “obiter dicta,” and did not form the basis of her judgement.

5) That the Court of Appeal (Browne-Marke JA) was wrong to castigate the Appellant herein by suggesting or concluding that there were

? serious crrors in the Learned Trial Judge’s findings of facts induced

1S by the “duplicity and legerdemain” displayed by the Respondent, when the Learned Trial Judge had all the facts, evidence (oral and documentary) before her and based her decision on them accordingly.

6) That the judgment of the Court of Appeal (Ademosu JA and Browne- Marke JA) is against the weight of the evidence led in the Lower Court and contained in the record of the court.

4. It is extremely regrettable that this matter which was filed on the 11% May 2011 was only heard at the tail end of 2020. It is rightly often said that justice delayed is justice denied. The clection took place in 2003. Each of the Parties deserves to know the fate of their case so they can move on. It is manifestly unfair for a case to take almost 10 years before it is heard. For that part which the Judiciary played in this delay, this court offers its apology.

5. Despite the elaborate document filed as a Case for the Appellant, the essence of this appeal falls to be decided by a determination of the status to be attached to the “Guidelines for Elections for Paramount Chief and Sub-Chiefs” and “Code of Conduct for Chiefdom Administration.” Both documents were apparently prepared by the Ministry of Local Government.

Grounds 1,2 and 4

6. These three grounds can be dealt with together as at the heart of them is the status of the documents mentioned above, the Guidelines and the Code. The complaint here is that the failure of the 3*4 and 4% Respondents to publish the list of candidates in the Government Gazette as per the Guidelines for the Election of Paramount Chiefs and Sub-Chiefs and Code of Practice for Chiefdom

Administrations, led to a flawed election process and that Ademosu JA was wrong to hold that this ought not to affect the election of the 1% Respondent.

7. This election was conducted prior to the coming into force of the Chieftaincy Act 2009 and under the previous legislation (the Provinces Act, Chapter 60 of the Laws of Sierra Leone and the amendments thereto). Under Cap 60, there was no requirement for the names to be published in the Government Gazette. The Appellant has relied on the provision in Paragraph 13 of the Code to support

+ his proposition that “publication thereof in the Sierra Leone Gazette three (3) times within not less than one (1) month before the chieftaincy election was a condition precedent to holding the election and that the failure to do so vitiated the whole election as held by the trial judge.” Ihave considered both the Guidelines and the Code. There is a good reason for that and that is because it is neither an Act of

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