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As Sumana lawyers seek interlocutory injunction…

Supreme Court to decide VP Foh fate

April 10, 2015 By Abu-Bakarr Sheriff, Alusine Sesay & Hawa Amara

AWAITING THE OUTCOME … Vice President Ambassador Victor B. Foh

AWAITING THE OUTCOME … Vice President Ambassador Victor B. Foh

The Supreme Court of Sierra Leone yesterday (9 April) listened to submissions and counter-submissions in respect of an interlocutory injunction motion filed by the legal team of sacked Vice President Alhaji Samuel Sam-Sumana, among a host of reliefs which seek to overturn the decision of President Ernest Bai Koroma to relieve his vice president and replace him with Ambassador Victor Bockarie Foh.

After painstakingly listening to both parties, Chief Justice Valisius Thomas told the crowded court that a ruling was reserved and that the two legal teams would be served notice as to the court’s ruling on their applications and submissions.

The acting Chief Justice sits together with a panel of five judges, including Justice Eku Roberts, Justice Vivian Solomon, Justice Nicholas Browne-Marke and Justice Patrick Hamilton.

The plaintiff applicant, Alhaji Sam-Sumana, was represented by James Blyden Jenkins-Johnston, Mohamed Pa Momoh Fofanah and Leon Jenkins-Johnston, while the 1st defendant, Attorney-General and Minister of Justice, Franklyn Bai Kargbo, was represented by Berthan Macauley Jr., Lahai Farma, Osman Kanu and Ernest Beoku-Betts. The 2nd defendant, Victor Bockarie Foh, was represented by Ajibola Manley-Spaine, Lansana Dumbuya, S.K. Koroma, R.A.D. Jones and R.A. Nylender.

Ajibola Manley-Spaine, lead defence counsel for the 2nd defendant, started off by informing the court that his client had not been personally served the originating motion by lawyers of the plaintiff for the mandatory two clear days prior to the commencement of the hearing, citing Supreme Court Rules 89, 90 and 92, respectively.

However, the acting Chief Justice produced an affidavit of evidence which indicated that a notice of motion was served on the 2nd defendant on Wednesday via a Police Officer, Abdul Conteh, attached to the Office of the Vice President.

But Manley-Spaine noted that his was a mere notice to the court and not an objection, thus giving the green light for the plaintiff’s lawyers to commence their application, which seeks that the court grants an interlocutory injunction to their client, effectively restraining Victor Bockarie Foh from acting as vice president pending the hearing and determination of the matter.

Jenkins-Johnston noted that their application to the court was supported by affidavits which are backed by exhibits, including the press release from the Office of the President which “purportedly” sacked the democratically elected vice president, using his “supreme executive authority” as stated in section 40(1) of the 1991 Constitution. He thus implored the court to determine the meaning of the phrase and to establish whether the constitution grants the president any such authority to relieve the vice president of his duties.

He underscored that a statement by Alhaji Sam-Sumana had instructed his lawyers to challenge his “unconstitutional and unlawful” sacking, as he was not appointed but elected together with the president, and can only be removed by way of sections 50 and 51 of the 1991 Constitution.

“We contend that what is not in the constitution cannot be imported therein,” the legal luminary posited.

He submitted that the matter was of serious constitutional importance and urged that the court should not condone unconstitutionality, such as the appointment and continuous stay in office by Victor Foh, adding that it would be just and convenient to place an injunction on him [Foh] and restrain him from acting as vice president.

“It is fit and proper that this court grants an interlocutory motion, restraining Victor Bockarie Foh to act as Vice President,” Jenkins-Johnston submitted, while relying on the landmark case of American Cynamid Co V Ethicon Ltd [1975], which states the test for granting the equitable relief of injunction.

He also urged the apex court to preserve the status quo ante because the president and his vice were duly elected in 2012, and that the latter was still a member of the ruling All Peoples Congress prior to his sacking on 17 March 2015, and even instant, albeit the release had stated otherwise, adding that the decision to expel him was not determined by a national delegates conference of the party, as the sacked vice president had appealed against the decision to expel him and was therefore still a member of the ruling party.

“The status quo ante would be prior to 17 March 2015 when Vice President Alhaji Sam-Sumana was in his office as Vice President, having being so elected on the same ticket with the President of Sierra Leone, Dr. Ernest Bai Koroma,” said Jenkins-Johnston.

He added that, “The complaint before this court deals with the violation of the constitution, that is why we are saying that the plaintiff is being deprived of his constitutional legal right to be the Vice President and should be granted an interlocutory injunction until the court determines the matter”.

He said it was public interest that the constitution should be respected and that the current vice president was occupying the office in absolute violation of the constitution.

Responding, defence counsel Berthan Macaulay Jr. submitted that the court has the inherent discretion to grant or deny an injunction, which ambit falls within Order 35 of the High Court Rules of Sierra Leone, and that it was incumbent on the court to weigh whether granting an injunction was “just and convenient”.

He argued that the 1991 Constitution of Sierra Leone does not entertain vacancy in the office of the Vice President and that the court should take cognizance of that in determining whether to grant an injunction or not, as the Vice President is the ‘Principal Assistant’ to the President and Chairman of the Police Council, inter alia his duties.

He urged the court to weigh the consequences of imposing an injunction on Mr. Foh to act as Vice President, which he said would cause irreparable damage to the nation considering his responsibilities, thus submitted that the application be dismissed.

He acknowledged the principles espoused in the American Cynamid case, but noted that it must not be used as a rule of court, quoting Lord Justice Pratt, a former judge of the Supreme Court of Sierra Leone.

He said the sole threshold met by lawyers for the plaintiff in their prayer for an interlocutory injunction was that there were serious issues in the trial, as their submission was bereft of other principles stated in the American Cynamid case, as the adequacy of damages to be paid by the party granted an injunction, in an event he fails in the substantive matter.

He urged the panel of five judges to dismiss the motion because it would create a vacancy in the office of the Vice President, as such can only be predicated on ‘special reasons’.

He also posited that in accordance with the de facto doctrine, actions of Ambassador Foh while performing the duties of Vice President could not be deemed illegal even if the court subsequently deems his appointment as “unconstitutional and unlawful”.

Also, counsel for Ambassador Foh, Manley-Spaine, contended that his client could not be restrained from performing his duties as vice president, pursuant to the State Proceeding Act of 2000 and case law.

But, plaintiff’s counsel Jenkins-Johnston rebutted that, “This is not a matter touching on and in respect of the state, rather it is constitutional”.

Meanwhile, the court room was jam-packed with journalists, lawyers and members of the public, although the atmosphere was relaxed as both sets of counsels engaged in legal banter to persuade the judges to rule in their clients’ favour.

However, Chief Sam-Sumana and Ambassador Foh were both absent in court although Attorney-General Frank Kargbo was in attendance.