Sierra Leone People"s Party & Two Others v Christiana Thorpe & Another (SC CIV APP 2 of 2011) [2012] SLSC 17 (25 May 2012)

+ S.C. CIV. APP. NO. 2/2011 IN THE SUPREME COURT OF SIERRA LEONE (CIVIL JURISDICTION) x FRIDAY 257 MAY, 2012

Coram

HON. JUSTICE S. BASII-TAQI - JSC HON. JUSTICE P.O. HAMILTON - JSC HON. JUSTICE M.E.T. THOMPSON - JSC BETWEEN:

The Sierra Leone Peoples Party

& 2 OTHERS —- APPELLANTS/APPLICANTS AND DR. CHRISTIANA THORPE

Chief Electoral Commissioner

& ANOTHER —- RESPONDENTS DR. BU-BUAKIE JABBIE FOR APPLICANTS MR. L. M. FARMAH FOR RESPONDENTS RULING DELIVERED ON 25TH MAY 2012 HON. JUSTICE TOLLA THOMPSON, JSC” My Lords, This is an application for an Order for leave for an enlargement of time within which to serve a copy of the Notice of Civil Appeal S.C. Civ. No. 22011 or each of the respondents herein

(2) Any or other relief or Orders this . Honourable Court may deem fit,

(3) Cost of this application to be cost in the course,

a

Facts

On the 2 May 2011 pursuant to Sec. 126 of the Constitution this pane! of Justices of the Supreme Court granted, leave for an enlargement of time ¥ within which to appeal to the Supreme Court from a decision of the Court of Appeal in the action entitled - The Sierra Leone Peoples Party and others Appellant vs. Dr. Christiana Thorpe, Chief Electoral Commissioner and others ~ Respondents. The Notice of Appeal was filed at the Supreme Court Registry on the 3" May 2011. The copy of the said Notice of Appeal was not served on the Fespondents. As a result of this lapse the applicants came to the Supreme Court on 17" November 2011 secking the Orders referred to above. ‘THE RULES The Supreme Court Rules which are pertinent to this application are rules 5(1) 35 (1) and

103. Rule 5(1) states: “All appeals from the Court of Appeal to the Supreme Court and any application to the Supreme Court shall be governed by the rules and any other rule relating thereto.” This rule merely means that all appeals from the Court of Appeal and application should fall within the four corners of the Supreme Court rule or any other rule akin to it. Rule 35 (1) states: “Every appellant shall within seven days after lodging his Notice of Appeal or within such time as the Supreme Court | ‘may order serve a copy thereof on the | respondent.............0++..0F on each | t respondent............and shall before service endorse such |

F copies with a certificate of the date of the lodgment of the Notice of Appeal.” Loosely put, the above rule operates in conjunction or almost simultaneously * with the filing of the Notice of Appeal. It is incumbent on the applicant to file and serve the Notice of Appeal on the respondent, In my opinion service of the Notice of Appeal is a matter of substance not of form, ‘There must be effective service before the appeal is heard, The above rule also specified the time within which to serve. Such time appears t0 me to be mandatory and obligatory ie. the existence of a compelling duty to serve the Notice of Appeal on the respondent within a Specific time frame. However in my view reasonable time after seven days time frame will suffice. What is reasonable will depend on the circumstances of the particular case. To this end the applicant has taken refuge from rule 103 of the Supreme Court rule applying for leave to comply with rule 35 (1 ) ive. serving copies of the Notice of Appeal on the respondent. Rule 103 states: “Non compliance on the part of an appellant within this rule or with any rule of practice for the time being in force shall not prevent the further prosecution of the appeal Cause or matter or reference éf the Supreme Court considers that such non compliance was not willful and that it isin the interest of justice that such non compliance be waived. The court may in such manner as it thinks fit direct the appellant or any party to an appeal cause or matter or reference to remedy such non compliance and there on the appeal shall proceed.” This rule in my view contains a rather complicated phraseology which can be - simplified and described as a rule of procedure which makes allowance for any lapse by an appellant and or applicant of the Supreme Court rules. It

~< enables the applicant to comply with the relevant provision of the rule; subject to any male fides on the part of the applicant. The application before us calls for the exercise of the court dis:retion, I xs ‘mean judicial discretion. There is no binding precedent for its exercise, and cach case must turn on its own fact and dealt with on its merit. The Judge or court must make orders, give decisions without being obligated to follow precedent or rule established by Statute. In my view the characteristics of such exercise is that it must be just, fair, equitable, and reasonable in the circumstances see Yahava Karisa v, Attorney General and M.K. Rodia No. 7 1994 H.B. P. 29, a Ugandan case On this point. The court will also do so if it exercises its discretion in the interest, of the proper administration of justice. However the applicant will —— not bencfit from the discretion of the court if the non compliance was willful, which will be discemed from the evidence presented, in support of the application, and the prevailing circumstances responsible for the lapse. ARGUMENT Dr. Jabbie learned counsel for the applicant submitted that by this application the applicant is seeking the discretionary power of the court since he has not complied with the seven days provision of the rule. He submitted further ‘hat the willfulness in rule 103 is incompatible with justice. To support his application he refers to Paragraph 3 - 7 of his affidavit in support of the application and submitted that the matters deposed to are beyond the contro! of the applicant. The engagement with the conference and the circumstances Were more or less forced on the applicant as far back as February to early November 2011. It makes it extremely difficult to comply with the process. * The factors only subsided in early November 2011. He refers to paragraph of

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