P.C Mohamed Kailondo Banya & Ors v Ngobeh & Ngobeh v Kailondo Banya & Ors (CIV APP 13 of 2009; CIV APP 5 of 2009) [2010] SLCA 7 (5 March 2010)

\J IU Cil AI fJ-(_ CIV APP 5/2009 & civ APP 13/2009 IN THE COURT OF APPEAL OF SIERRA LEONE BETWEEN: PC MOHAMED KAILONDO BANYA - APPELLANTS NATIONAL ELECTORAL COMMISSION PROVINCIAL SECRETARY, EASTERN PROVINCE MINISTRY OF LOCAL GOVERNMENT & COMMUNITY DEVELOPMENT ATTORNEY-GENERAL & MINISTER OF JUSTICE AND LAMIN VONJO NGOBEH - RESPONDENT AND BETWEEN: LAMIN VONJON NGOBEH APPELLANT AND PC MOHAMED KAILONDON BANYA & OTHERS - RESPONDENTS

Coram

HON JUSTICE P 0 HAMIL TON , JSC HON JUSTICE N C BROWNE-MARKE , J A HON JUSTICES A ADEMOSU,J A COUNSEL: OSMAN KANU Esq for The Appellants in Civ App 5/2009, and for the Respondents in Civ App 13/2009 C f MARGAI Esq (with him, R B KOWA Esq) for the Respondent in Civ APP 5/2009, and for the Appellant in Civ APP 13/2009 JUDGMENT~ /ti_J)i_ ~ ~ ~~~01~

1. There are two appeals here. The first one, Civil Appeal 5/2009 is brought by PC Banya and others against the Judgment of SHOWERS ,J delivered in favour of Mr Lamin Vonjo Ngobeh, on 13 January,2009 . The o.ppeal appears at pages 252-254 of the Record. The other is Civil Appeal 13/2009 brought by Mr Lamin Vonjo Ngobeh against the Decision of SHOWERS,J dated 23 February ,2009 in the same substantive matter , in which she granted a Stay of Execution of the Orders made in that Judgment, pending the hearing and determination of PC Banya's appeal t o this Court . It appears at pages 255 - 257 of the Record .

2. Early last year, before arguments commenced in Civil Appeal 5/2009 we had overruled Mr Kanu's preliminary objection to the hearing of Civil Appeal 13/2009 that the Appellant in that appeal ought to have first sought Leave from the Court below, or this Court, before filing .his appeal, as the appeal was against a Decision which was Interlocutory , since it d id not finally decide the rights of the parties. At the time. we were concerned with progress being made, as the issues in the substantive appeal dealt with matters relating to Governance at the Chiefdom level. ,,. We think Mr Kanu was right , but as we had no intention of reversing SHOWERS,J's Decision on whether to grant a Stay of Execution or not , we overruled his objection . But we were firmly of the firm opinion t hat she was absolutely right in Granting a Stay of Execution. and that once she had so decided, the important thing was to get on with the substantive appeal, and not to entertain any diversionary tact ics which might delay the most important issue, which is, whether she was right in the Judgment she had delivered .

3. For the record, we wish to point out that the reference in Civ App 13/2009 in sub-paragraph 3a. thereof , to " .. .judgment de//vered on the JJ'h day of March,2009 ... "is clearly wrong, as the Decision was that of 23 February,2009 . And as a pointer for future purposes. where the Judgment delivered, does not involve invoking the Writs of Execut ion, such as Writs of Fieri Facias and Sequestration , but makes Declarations as to Rights only, the Courts will be loath, as rightly pointed out by SHOWERS,J at pages 179-180 of the Record , to refuse an Appl ication for Stay of execution of the Judgment, where matters relating to governance are involved, be it at National, Governmental, Local or Institutional levels.

4. Our Decision in Civ App /2008 INSTITUTE OF CHARTERED ACCOUNTANTS OF SIERRA LEONE v CAPT (RTD) M F SPENCER, is a case in point . There, the Appellant Institute sought a Stay of Execut ion of .the Judgment of EDWARDS ,J compelling the Institute to reg ister Capt Spencer as an Accountant. The Institute had contended throughout the Trial that he was not qualified to be so registered , and that to comply immediately with the terms of the Judgment, would render nugatory th e appeal, as Capt Spencer would be allowed to practise as an Accountant with the blessings of the Institute, and innocent consumers of his service, may not know that his Status as an Accountant was under attack by the Institute. The lower Court had Declared that he had a right to be so registered. In view of what I have said above, we had no hesitation in granting The Stay applied for by the Institute.

5. We have studied SHOWERS,J's Ruling which appears at pages 176-180 of the Record . We agree with her reasoning, and the conclusion she reach ed. Mr Lamin Vonjo Ngobeh's appeal Civ App 13/2009 is therefore · DISMISSED with Costs to the Repondents therein . We do not think there is any other Order "as the justice of the case may demand' that this Court can make, as prayed for by Mr Lamin Ngobeh in paragraph 5 of his Notice of Appeal.

6. We now turn to the substantive appeal, Civil Appeal 5/2009. It concerns the' holding of the Chieftaincy Election in Kailahun. The Appellants say that

(1) The Learned Trial Judge (L TJ) erred in Law when she held in her Judgment that the Defendant did not rebut the claim by the Plaintiff that people of lower ages voted at the election nor, did she take cognisance of the fact that the Plaintiff failed to prove that the election was fraught with fraud and multiple voting. There is a reference here to the L TJ's Judgment at page 29.

(2) The L TJ erred in Law when she held for the Petitioner that there was (a) high level of unauthorized proxy, ( I believe, the Appellant here meant, 'proxies'), multiple voting and· rampant impersonation of individual votes without any or any sufficient evidence substantiating these allegations and without the Petitioner proving the said allegations in accordance with the required standard of proof .

(3) The L TJ erred in Law when she relied on the Government guidelines as the basis of her Judgment after she had previously held that the said Government guidelines do not have the force of law in the case of C.C. 800/2006 S No. 80 NGANDI TAMBA AMADU SOKOYAMA vs PC SHEKU AMADU TEJ AN FASULUKU SONSIAMA III unreported ." (4) that the Judgment is against the weight of the evidence .

7. The first thing we have to do , is to find out whether the Appellants complaints are borne out in the Record . Then we shall go on to state the duty of this Court, where it differs with the lower Court on the assessment of evidence led before it, as an appeal to this Court is by way of rehearing . Lastly, we shall state whether the L TJ was right in the conclusions she reached on the evidence, and whether her decisions on points of Law were right, and in accordance with the authorities .

8. Now, Grounds 1 and 2 are not really errors of law: they were findings of fact based on the L TJ's assessment of the evidence . As to Ground 3 , what the L TJ said at page 172 was that it would be against public policy for the Court to disregard breaches of these guidelines . She did not really hold that they had the force of Law. It seems to me, that the L TJ grounded her decision on the use by the 3rd Defendant at the trial , of exhibit A, and the non-publication at the time of the election of exhibit B. At page 172, she says, " .... .it is my view that the use of the unauthor1'sed l1'st of chiefdom councillors exh "A" in the conduct of the elections was a serious flaw in the conduct of the elections . I believe the evidence of the Plaintiff that there were multiple voting and impersonation of voters during the election . Th1's was caused principally by the use of the unauthorised /!'sf of chiefdom councillors, exhibit "A " as a result of which use there has been an irreparable flaw in the conduct of the election. The elections are therefore declared null and void "The question for this Court to answer is whether she was right in holding that the absence of the Gazetted list of chiefdom councillors , which necessitated the use of exhibit "A" rendered null and void the elections .

9. Prior to the passing of the Chieftaincy Act ,2009 Paramount Chieftaincy elections were governed by the very scanty provisions of Section 5 of the Provinces Act, Chapter 60 of the Laws of Sierra Leone,1960 , and by the amendments introduced by Acts Nos.4 and 47 respect ively, of 1961. There is no provision in the older Legislation , for the names of the Chiefdom Councillors to be first Gazetted at least three times before the election. It appears from the evidence led at the trial , that this requirement was introduced by a document described as the "Code of Conduct for Chiefdom Administration . Though there are several references to this document during the course of evidence , and in the L TJ's Judgment, it does not appear that was it tendered at any stage . There is also reference by Mr Margai, during the course of his closing address at page 86 of the Record, to" GUidelines for elections for Paramount Chiefs and Sub Chiefs . "Both documents are however attached to Mr Margai's written address, and described as annexure Cat pages 89 to 105 . Since they relate to matters of fact which were in contention at the trial, I should have thought they would be tendered . All factual evidence which a party intends to rely on in support of his case , has to be led or tendered during the trial, save those matters which of the Court could take Judicial Notice of. Could the Court take Judicial Notice of these documents? Save for Mr Margai attaching them to his written arguments, they are not in any way authenticated . They are unsigned , and undated . They were not shown to any witness, including DWl the Provincial Secretary, who admitted at page 78, that he had been sent a copy of the code of conduct . Notwithstanding the absence of the document , Mr Margai was allowed to cross-examine the witness at the same page 78 on the contents of a document which was not in evidence .. In answer to one of Mr Margai's questions, DWl said on the same page : " .. .I read the code of conduct . Yes, the contents were within my knowledge as I conducted the election . The names of chiefdom coundllors should be gazetted three times . The names of the chiefdom coundllors were not gazetted" Thus, inadmissible evidence, to wit, evidence as to the contents of a document which had not been tendered , became the centre-point of the Respondent's case, and of the L TJ's Judgment . What , in my view the L TJ should have done, was to have insisted that Mr Margai tender the document in evidence, before he could ask questions relating to its contents of any witness . Admission of inadmissible evidence is a very strong ground for overturning a trial Court's Judgment , notwithstanding the presence of other cogent evidence .

10. To see how this wrongful admission of evidence influenced the eventual outcome of the trial, it was contended by the Respondent, and so found by the L TJ that the apparent failure to publish the names of the chiefdom councillors before the election , vitiated the whole process . At page 172 the L TJ says: "Now, Counsel for the Defendant has contended that the code of practice and the guidelines are not laws and are therefore not legally binding in their own right and dted authority to that effect . That may well be . .... The Government in its wisdom has formulated these codes of practices and guide//nes for the conduct of elections of Paramount Chiefs to standardize the procedure . If in the event these codes and gUidelines are not complied with rendering the elections suspect and unreliable, surely /t would be against public pol/cy for the court to disregard the breaches ." The paradoxical situa;tion the Court found itself in, was that in one breadth, it was saying that the non- ..... \~ l~ publication of the electors names in the Gazette , vitiated the whole y process ; and, in another breadth it was saying, non. compliance with the contents of a document which was unsigned and undated, and which had not been shown to have been published as Government Notice , was binding on the Court.

11. I shall now turn my attention to the matter of the Gazette publication. It is accepted by all sides that the Gazette containing the names of the electors is Gazette Number 4 of 21 January,2003 . But on page 36 of the publication, i. e. Page 236 of the Record, it could clearly be seen that th e revised list Government Notice No. 7, was signed by S S KOROMA District Officer, on 5 August,2002, many months before the elect ion. Sub-Section 3(1) of the Interpretation Act ,1971 provides that "Act" .... includes any Act, and any order, proclamation, order in c?uncil , rule, regulation or bye-law duly made under the authority of an Act , ...... or any other legislative enactment, applicable to and in force in Sierra Leone ." Sub-Section 3(2) of the Act provides that : " ... .Act ..... means an Act of Parliament and inc/udes ..... (b)orders, proclamations , regulations , and other instruments having legislative effect in Sierra Leone made in exercise of a power conferred by an adopted law. "

12. On the other hand, Sub-Section 4(1) of that Act describes " Government Notice" as "a public announcement of a non-legislative character made~ minister or a public officer in the gazette" It is not a Public Notice (tow , since Act No6 of 1999, a Statutory Instrument) which clearly has legislative force . As the list of electors was published as Government Notice No.7, it is clear that it had no legislative character . But the Code of Conduct and the Guidelines, are not, on the evidence , Government Notices . The most that can be said of th~s that they are merely Government Policy Statements of a completely non-legislative ch~racter .

13. Section 13 of the same Act prescribes how an Act comes into operation . It is deemed to come into operation upon the date of its publicat ion in the Gazette or upon such date as is provided in or under the Act , or in any other instrument. This provision is repeated in Sub-Section 106(3) of the Constitution of Sierra Leone,1991 save that there, it is not merely a deeming provision. It is categoric: "An Act signed by the President shall come into operation on the date of its publication in the Gazette or such other date as may be prescribed therein or in any other enactment ." Further, Sub-Section 13(2) of the Interpretation Act states t~at "every Act shall be deemed to come into operation immediately on the expiration of the day next preceding its commencement ." Both the Interpretation Act,1971 and the Constitution of Sierra Leone,1991 respectively, are silent on when a Government Notice takes effect , or comes into operation.

14. As to Judicial Notice, Section 6 of the Interpretation Act ,1971 makes it clear also, that" Every Act shall be deemed and taken to be a public Act and shall be judicially taken notice of as such unless the contrary be expressly provided by such Act." There is no mention of a Government Notice, which means, in Court proceedings, it has to be proved like any other piece of evidence. This may be the reason why, perhaps , Mr Margai tendered it in evidence as exhibit "B".

15. PHIPSON ON EVIDENCE 13th Edition explains the concept of Judicial Notice. At para 2-07 the Learned Editors state that : "Judicia/. Notice covers the provisions of the law, which is not a matter of evidence at all, and the acceptance of facts without admission or proof .... matters noticeable may include facts which are in issue or relevant to the issue, as well as the contents of documents and their methods of proof .. .. "Notice will be taken of local custom. Judicial Notice will also be taken of notorious facts . But for the principle to apply, the particular piece of evidence which is to be accorded Judicial Notice, must be tendered as such, and the Judge invited to accord it that privilege. The Judgment of the lower Court does not at any stage suggest that the Court considered that the matter of the Code of Custom and the Guidelines were matters which required the invocation of that principle .

16. When both exhibits "A" and "B" are put together, it would be seen that the list which Mr Koroma revised in August ,2002 is that which appears in the Gazette . Save for the addition in the Gazette of the names ,of members of the Luawa Chiefdom Committee, the number of Electors is 1927 in both documents . Both of them commence with "1. Ensa Sovula Kondorvoh, Regent Chief, Kailahun", and end with "1927 Fayia Sor ie, Koryama Town Chief." Notwithstanding this obvious fact , the L TJ held at at page 169 that "of great importance in my view is the complaint that the list of ch/efdom councillors used in the election was exh ibit "A " and not the list of councillors contained in the official gazett e .. .. the procedure relating to the compilation of chiefdom councillors list is to be found in paragraph 13 of the code of practice for chiefdom Administrations ... ". What the Respondent had cleverly succeeded in doing , was to f irst , tender in evidence , the so-called unauthor i s~d list , and then to give evidence that certain names which appeared in it, ought not to have been there , as they were not in the Gazette . And as the Gazette had not yet been tendered, he was hoping , which hope was fulfilled, that the Court would not look back, and attempt a comparison . All of the Chiefdom Councillors he mentions in pages 57 to 59 of the Record, were named in exhibit "B" as well . For example , when dealing with exhibit "A" the Respondent said at page 57:" There is a village called _ \ lJ 1 Majeima which is about two miles from Pote.hun from 732-756. From this ~ - ' list there are twenty five councillors. Maj!Jina has a small community of not more than sixty inhabitants . Therefore this village cannot have up to twenty five councillors. "On page 228 of the Record, i.e. page 28 of the Ga.zette , it is stated clearly that Nos.732-756 were Councillors of Majeima . As the Respondent at no time complained about the names list ed in the Gazette, where is the substance in his allegation that the, names had been tampered with in exhibit "A"? A noted Just ice of Appeal had once noted that the Court should not allow itself to be "bamboozled with an avalanche of evidence ." The Respondent clearly succeeded in doing this in the Court below. At the tail end of his evidence at page 62 , he slyly tendered in evidence , the Gazette as exhib it "B." Even under cross - examination, Counsel did not advert his mind to the dis ingenousness of Respondent's insinuations that something fishy had been done to t he List, as Counsel for the Appellant was more concerned with challeng ing him on the allegations of impersonation and the exercise of undue influence by the presence of persons in authority , such as the then Deputy Speaker , Mrs Lavalie.