March 26, 2018 By Patrick Jaiah Kamara
The High Court in Sierra Leone, presided over by Judge Abdul Rahaman Mansaray, has slammed an interim injunction on the presidential runoff slated for this Tuesday, pending the hearing and determination of the substantive matter today.
This dramatic, some legal analysts say, controversial move came following the action of lawyer and member of the ruling All Peoples Congress, Ibrahim Sorie Koroma, decision to bring an action against the National Electoral Commission, NEC’s Returning Officer and the Attorney General and Minister of Justice with regards issues relating to the conduct of the March 7 elections.
Though a lawyer, Koroma is represented by another lawyer, Lansana Dumbuya, himself a member of the ruling party. Dumbua had filed two motions before the court – an originating notice of motion and an ex-parte notice of motion seeking leave to short serve the originating notice of motion on the defendant.
But the trial judge had refused to grant leave to proceed by ex-parte notice of motion.
On Friday, one of the lawyers for the first and second defendants, B.E.T. Cummings, raised a preliminary objection that the High Court lacks jurisdiction to hear and determine the substantive matter, citing Section 45 of the 1991 constitution.
Ms. Cummings also argued that the method the plaintiff used to approach the court was wrong on the grounds that the latter should have come by petition instead of an originating notice of motion. She cited sections 105, 88 and 89 of the Public Elections Act of 2012.
She also argued that the High Court in its inherent jurisdiction does not have the mandate to extend the time for presidential election, which is one of the prayers of the plaintiff, adding that such would result to a blatant violation of the 1991 constitution if the reliefs are granted.
“The High Court lacks jurisdiction to hear the prayers prayed for on the face of the originating notice of motion. We humbly submit that this court strikes it out irrespective of the merit of the matter,’’ she submitted.
In response, Dumbuya argued that Section 105 cited by his colleague merely explains how nominations are done and that it has no bearing to the issues at hand.
“We are not questioning the result. What we have done is to bring to the court’s attention very serious irregularities that occur in the last election so that it would not only be accepted by key players but also to have absolute confidence in the electoral process,’’ he said.
He submitted that the court has jurisdiction to hear the matter, noting that “often in electoral cases defendants have asked the court to strike out petitions or other applications hiding behind technicalities. When an aggrieved litigant is thrown away from the court without looking into the merit of the case, this action will often shatter the confidence of the public on the judiciary system and negate both the rule of law and the consolidation of our democracy.”
In his ruling on Saturday, Justice Mansaray noted that the High Court has “inherent and unlimited jurisdiction” to hear and determine the originating notice of motion taking into account specific statute on the subject matter and also how the court has been approached on the issues of procedure.
He stated that the judiciary has come under attack for sacrificing merit on the altar of technicality, thus stating the so-called technicality is part of the laws of Sierra Leone which he said the court would uphold.
In addition, NEC lawyers – B.E.T. Cummings, D. Taylor and J.E. Kapuwa – made another application pursuant to Section 124 of the 1991 constitution for the court to refer the matter to the Supreme Court for interpretation of Section 45 of the 1991 constitution.
In response, the judge made the following orders: an interim injunction on the presidential election runoff slated for Tuesday, 27 March, and that lawyers for the first and second defendants file their questions for consideration to the Supreme Court on Monday, 26 March at 10a.m.
The matter will come up today at the High Court at 12 p.m.