The highest court in Sierra Leone has dismissed an appeal by the losing candidate in an election for chieftaincy. The appeal was, however, based on provisions that only came into legal operation after the disputed election. Not just that, the provisions were also never shown to any witness nor, until they were attached as annexures in counsel’s final written address, were they even available to the court itself. The supreme court found that the grounds for appeal were so weak that, if leave to appeal had had to be obtained, it would never have been granted in this case. In fact, it was a good example of why there should not be an automatic right of appeal to the apex court, said the judges.
Sierra Leone’s supreme court has set its face against a candidate who failed to be elected as a paramount chief in 2003. In the process of finding against P C Mohamed Kailondo Banya, the five judges who heard his appeal apologised for the role that the judiciary might have played in the almost unheard-of delays in finalising the issue.
The court said it was ‘extremely regrettable’ that a matter filed in May 2011 should only have been heard ‘at the tail end of 2020’.
‘It is rightly often said that justice delayed is justice denied. The election took place in 2003. Each of the parties deserves to know the fate of their case so they can move on. It is manifestly unfair for a case to take almost 10 years before it is heard. For that part which the judiciary played in this delay, this court offers its apology.’
The case itself concerned the elections to the Luawa chiefdom in the Eastern Province of Sierra Leone. Banya lost the elections to Lamin Vonjo Ngobeh who was later declared as the paramount chief of the Luawa chiefdom and formally recognised as such by the President of Sierra Leone.
Banya challenged the election results in the high court, and in 2013 the court declared the polls null and void. Ngobeh then appealed. Having won (by a majority) in the court of appeal, Ngobeh was reinstated.
Dissatisfied, Banya tried again, this time via an appeal to the supreme court.
The five supreme court justices found against the argument that the high court’s judgment should have been allowed to stand because the judge hearing the initial matter had the advantage of seeing witnesses directly herself. This was not a case where seeing and hearing evidence herself gave the trial judge an advantage, said the supreme court.
They also had to consider the claim that the election was tainted because the councillors standing as candidates had not been listed in the government gazette before the elections as required by law.
The justice found that this requirement only became law after the elections, and was not required at the time the elections in dispute were held.
The unsuccessful candidate based part of his complaint on certain guidelines and a code that he said had not been adhered to. The supreme court found, however, that these documents had no legal status ‘capable of giving rise to the sanctions for non-compliance’ sought by the Banya.
But should these documents even have been taken into consideration by any court involved in this case? ‘They are unsigned and undated,’ the judges stressed. They were first mentioned in court during cross-examination of a witness but were not shown to him or tendered in evidence through any other witness. ‘In fact, until counsel attached them as annexures to his final written address, the court had not had sight of either.’
It was clearly an error for the trial court to have considered them: ‘Where a document is not tendered in evidence and is therefore not before the court, the court has no business considering that which is not properly before it.’
The outcome is interesting, but not for the specific answers made by the court to the grounds of appeal or to its reasoning in deciding the matter. Rather, it is because the apex court felt the grounds of appeal were so weak that the appeal would never have been allowed to proceed to the supreme court if the appellant had had first to seek leave to appeal. In fact, the matter was held up as an example of why there should not be an automatic right of appeal to the supreme court on any issue.
‘The delay notwithstanding, this appeal is wholly without merit. The grounds raised had been more than adequately dealt with by the majority decision in the court of appeal. If there was any appeal which makes the case for rescinding the automatic right of appeal to the supreme court on any issue, we need look no further than this case.
‘If the appellant had had to seek leave to appeal, he would certainly not have been able to demonstrate that there is an arguable point of law that merits the attention of the supreme court.
‘It beggars belief that this court is being asked to decide a matter, at the heart of which is the legal status of unsigned and undated documents which were not even tendered in evidence.
And then, underlining the hopelessness of the case, the court added: ‘I thank both counsel … for not seeking an oral hearing of this appeal.’