P.C. Torto v P.C. M'Briwa, 1972-73 ALR S.L. 456

5 10 15 20 25 30 35 SECTION 49 THE AFRICAN LAW REPORTS PARAMOUNT CHIEF TORTO v. PARAMOUNT CHIEF M'BRIWA High Court (During, J.): April 10th, 1973 (E.P. No. 4/72) [ 1] Courts-jurisdiction-absence of jurisdiction-election petitions-consent of parties cannot give court jurisdiction if statutory procedure not complied with: Any person presenting an election petition must deliver a copy to a member of the Electoral Commission in accordance with the mandatory terms of the Electoral Provisions Act, 1962, s.59(2); delivery to an employee of the Commission is not sufficient compliance with the Act and is an irregularity which deprives the court of juris· diction to hear the petition and cannot be waived by consent of the parties (page 459, lines 23-27; page 460, lines 4-5). [ 2] Elections-Electoral Commission-procedure-delivery of petition­ petition must be delivered to Commissioner-employee of Commission no authority to accept delivery: See [1] above. [ 3] Elections-election petitions-procedure-delivery of petition to Electoral Commission-must be delivered to Commissioner-employee of Com­ mission no authority to accept delivery: See [1] above. [ 4] Statutes-interpretation-mandatory and directory enactments-Electoral Provisions Act, 1962, s.59(2) mandatory: See [1] above. The respondent to an election petition applied to have it set aside for irregularity. The petitioner's solicitor sent his messenger to the office of the Electoral Commission to deliver a copy of the petition as required by the Electoral Provisions Act, 1962, s.59(2). The messenger claimed that he gave it to a clerk in the office of the Electoral Commission and produced a receipt signed by that person, but the Electoral Commission alleged that it had no such person in its employment and denied receiving the petition. The respondent applied to have the petition set aside for irregularity contending that the terms of the Electoral Provisions Act, 1962, s.59(2) were mandatory and failure to comply with them deprived the court of jurisdiction to hear the petition. The petitioner contended that delivery to a person employed by the Electoral Commission complied with the statutory procedure. The election petition was struck out. Cases referred to: (1) Re Aylmer, ex p. Bischoffscheim (1888), 20 Q.B.D. 258; 4 T.L.R. 174. 40 (2) Tommy v. Moriba, High Court of Sierra Leone, Election Petition No. 3/72, 1972, unreported. 456 P.C. TORTO v. P.C. M'BRIWA, 1972-73 ALR S.L. 456 H.C. Legislation construed: Electoral Provisions Act, 1962 (No.14 of 1962), s.59(2): The relevant terms of this sub-section are set out at page 457, lines 33-34. Constitution of Sierra Leone, 1971 (No.6 of 1971) s.27: (1) The relevant terms of this sub-section are set out at page 457 lines 5 37-38. ' (2) The relevant terms of this sub-section are set out at page 457 lines 39-41. ' (3) The relevant terms of this sub-section are set out at page 458 lines 1-3. . ' C.N. Rogers-Wright and Timbo for the petitioner, 10 Smythe, Q.C. and Mrs. Awoonor-Renner for the respondent. DURING,J.: A summons was taken out by the respondent's solicitors, Smythe and Co., on January 16th, 1973 calling on all parties con­ cerned to attend the judge in chambers on January 19th, 1973 for 15 the hearing of an application on the part of the respondent that the election petition herein be struck out for want of compliance with the provisions of rr.l5 and 19 of the Election Petition Rules and of s.59(2) of the Electoral Provisions Act, 1962. I adjourned this matter to court for hearing on January 19th, 20 1973 and on that date disposed of two preliminary objections made by Mr. Rogers-Wright, first that the summons taken out was an abuse of the process of the court and, secondly that a previous order I made setting aside a judge's summons taken out by the respondent had not been filed; the order was in fact filed. 25 Mr. Smythe applied that the petition here be struck out for non-compliance with s.59(2) of the Electoral Provisions Act, 1962. He abandoned the complaints that the petitioner did not comply with the provisions ofrr.15 and 19 of the Election Petition Rules. I am satisfied, however, that the petitioner did in every 30 respect comply with rr.15 and 19 respectively of the Election Petition Rules. Section 59(2) of the Electoral Provisions Act, 1962 reads as follows: "Any person presenting such election petition shall forth- with deliver a copy of the same to the Electoral Commission." 35 Section 27(1), (2) and (3) of the Constitution of Sierra Leone, 1971 reads as follows: "(1) There shall be an Electoral Commission for Sierra Leone. ( 2) The members of the Electoral Commission shall be 40 a Chief Electoral Commissioner who shall be Chairman, and not less than two or more than four other members. 457 THE AFRICAN LAW REPORTS ( 3) The Members of the Electoral Commission shall be appointed by the President acting in accordance with the advice of the Prime Minister." In support of his application Mr. Smythe relied on the affidavit 5 of Roderick Peacock, the managing clerk of Smythe & Co., Solicitors, and also that of Emile Carr, Acting Chief Electoral Commissioner. I gran ted leave to Mr. Rogers-Wright to make use of the affidavit of Allie Kamara, his messenger, sworn on January lOth, 1973 and filed herein. By leave granted by me Mr. Carr gave 10 oral evidence on oath before me and as also did Mr. Kamara. In his affidavit sworn January 12th, 1973 and filed herein Mr. Carr swore inter alia: "(2) That up till January 11th, 1973 I have not received a copy of the election petition filed by Paramount Chief 15 Martin Ndapi Torto against Paramount Chief Sahr Songo M'briwa and mentioned herein. (3) That I have made extensive enquiries from all mem­ bers of the staff of the Electoral Commission including the receptionist whether they received a copy of the petition on 20 October lOth, 1972 or any time thereafter. ( 4) That I was informed by them and verily believe that they did not." In his oral evidence Mr. Carr said inter alia: "We had not nor have we a 'G. Johnson' employed to do out-door work." 25 Mr. Carr produced a pay sheet of people employed in the Electoral Office and stated that he did not see a name "G. Johnson'' entered therein. He also produced a register of incoming documents and stated that he did not see entry recording receipt of a copy of the petition in this matter. An opportunity was given 30 to Mr. Rogers-Wright to put questions to Mr. Carr. It was not suggested by Mr. Rogers-Wright that in fact there was or is em­ ployed a "G. Johnson." In answer to me Mr. Carr said that on October lOth, 1972 the following were members of the Electoral Commission: W.A. Dillsworth, Chairman; E.V. Carr, Commissioner 35 Western Area; K.S. Dugba, Commissioner Eastern Province; S.F. Koroma, Commissioner Eastern Province and T .M. Williams, Commissioner, Eastern Province and that on October lOth, 1972 Mr. Dillsworth and himself were available in the office in Free­ town. In answer to question put by Mr. Rogers-Wright he said he 40 did not agree that everyone who works in the office, including clerks, forms part of the Electoral Commission. 458 P.C. TOR TO v. P.C. M'BRIWA, 1972-73 ALR S.L. 456 H.C. In his affidavit sworn January lOth, 1972, Mr. Allie Kamara said inter alia: "(2) On October lOth, 1972 on instructions received from Mr. Rogers-Wright, agent for the petitioner, I served a copy of the election petition herein to the Electoral Commission 5 by delivering it to a clerk employed there. ( 3) That the clerk, a lady, acknowledged receipt of the document by signing the way book kept in an office for that purpose. (4) That the paper-writing hereunto annexed is a copy 10 of the page in the way book where the clerk acknowledges receipt of the said document." In the way book which he produced the name "G. Johnson" appears as the person who received and acknowledged receipt of the document as Mr. Allie Kamara stated in his affidavit. 15 In his evidence before me Mr. Kamara said inter alia: "When I went into the office I met a young lady in a room by my left hand side. I gave to her a way book, which I produce." In answer to Mr. Rogers-Wright he said that he delivered the paper-writing on his instructions. In answer to me he said inter alia: "I had not 20 known the lady who signed 'G. Johnson' before the date I took the petition to the office." In my opinion delivery of the petition should be made to a member of the Commission and even if authority is given by the Commission to accept delivery, which in my opinion the Com- 25 mission has no right to do, it would be necessary to establish that such authority was given. There is absolutely no evidence that a lady called "G. Johnson" had authority to receive a copy of an election petition on behalf of the Commission. The position would have been different if all that was required of the petitioner was 30 that he should leave a copy of the petition at the office of the Commission. I accept the evidence of Mr. Carr as true that on October lOth, 1972 or at any other time no one called "G. Johnson" was employed in the office of the Commission. I do not believe Mr. Allie Kamara when he said in his evidence and in the 3 5 affidavit he swore to that on October lOth, 1972 he delivered a copy of the petition herein to a lady called "G. Johnson" at the office of the Electoral Commission. Counsel on either side conceded that s.59(2) of the Electoral Provisions Act, 1962 must be strictly complied with. I do agree 40 that the section must be strictly complied with; acquiescence by 459 THE AFRICAN LAW REPORTS the parties could not give me jurisdiction to proceed to hem and determine the petition filed herein. Lord Esher in Re Aylmer, ex p. Bischoffscheim (1) (20 Q.B.D. at 262; 4 T.L.R. at 174) des. cribed as the rule that - "the consent of parties cannot give the 5 Court a jurisdiction which it does not otherwise possess." On the question of jurisdiction to hear and determine an election petition where there is non-compliance with the Election Petition Rules or the Electoral Provisions Act I repeat what I said in the case Tommy v. Moriba (2) in which Mr. Rogers-Wright was counsel. He success- 10 fully applied for and obtained an order striking out the election petition in that matter for non-compliance on the ground that the petition in that case had not been served on the respondent per­ sonally within the time provided for by the Election Petition Rules. 15 I hold that the petitioner herein has not complied with s.59(2) of the Electoral Provisions Act, 1962, which is mandatory and peremptory, and accordingly strike out the petition herein. I order that the petitioner herein should pay the respondent's costs which are to be taxed. 20 Petition struck out. 25 30 35 40 460