January 20, 2020
By Regina Pratt
Justice Komba Kamanda has ordered Lawyer Wara Serry-Kamal, defence council for the main opposition All Peoples Congress to pay four million Leones to plaintiff’s council, Hindolo M. Gevao.
The APC is battling with the National Reformation Movement, a faction within the party, which had sought an injunction to stop the National Delegates Conference which should have held I Port Loko earlier this month.
The court order was made last Friday (January 17, 2020) when counsel for the plaintiffs, Lawyer H.M. Gevao made a preliminary objection that the application that is before the court dated 14-1-2020 ‘expressly states’ that the affidavit was sworn to on the 14th January 2019.
Lawyer Gevao submitted that the affidavit must be credible and that all information contained in it must be honestly and sincerely put.
He added that if the affidavit of the defence council is sworn to on 14th January 2019, then there was no case before the court, hence no affidavit would be sworn to in 2019 for a case in 2020.
He referred the court to Order 31 Rule (1) and 31 (9) of the High Court Rule.
“I submit that the date is fatal and that it cannot be used. It is a defective affidavit. It is not clear when it was sworn to. It is like it took one year before it was signed on the 14th January 2020. It must be thrown out of court with cost attached,” he submitted.
In her reply, lawyer Serry-Kamal told the judge that the change in the date was a typographical error, as humans are not always perfect, thus noting that the error didn’t disfigure the merit of the case.
“Counsel has not indicated to the court what adversity the date has caused to his clients”, she said, citing Order 31 Rules 9 to allow the motion to proceed.
On the second bite, Lawyer Gevao noted that the date the affidavit was sworn to and commissioned were different, thus submitting that it cannot be taken as mere mistakes.
In his ruling, Justice Kamanda said the issue before the court was an objection raised by plaintiffs’ counsel, Lawyer H. M. Gevao and that the date is a year old.
He cautioned solicitors to always double check their papers before filing as a simple error would be used at their disadvantage.
However, he struck out the motion and ordered the defendant’s counsel to pay four million Leones cost to plaintiff’s counsel.
Lawyer Wara Serry-Kamal however objected to an originating notice of motion that plaintiff’s counsel had filed on 15th January, stating that the entire motion was defective and irregular in its entirety.
She argued that the High Court lacks jurisdiction for the said order as the plaintiff used Section 35 (2) of the 1991 constitution.
He noted that on the face of the ‘purported’ originating notice of motion, the plaintiff avers that the application is made pursuant to Section 35 (2) of the 1991 constitution and they also invoked the High Court Rules to determine a series of actions which violated the said Section 35(2) of the 1991 constitution.
“Section 124 (1) of the 1991 constitution is quite clear that it is the Supreme Court that has the jurisdiction in the interpretation of matters”, she said noting that the High Court has powers to stop proceedings and refer the matter to the Supreme Court-the only court that determines constitutional matters.
The matter was adjourned to Friday January 25, 2020 for lawyer Gevao to reply.
Meanwhile, whilst granting the injunction earlier this month, the NRM lawyer took an undertaking to pay Le6bn should they loss the case.