June 7, 2021
By Audrey John
Based on the ruling delivered by the Honorable Justice Adrian Fischer, it is clear that the opposition All Peoples Congress (APC)Party is bound to hold an Emergency National Delegates Conference to endorse the draft Constitution without key party players whose candidacies are vehemently challenged in the Court of Law by a one Alfred Conteh a party member.
The ruling delivered on Friday 28th May 2021 at the High Court by the Honorable Justice Adrian Fisher on the basis of democratic principles refused the application the party legal luminaries for a stay of execution of the Ruling dated 19th April 2021, and for the Court to grant leave to the defendants to file an appeal for hearing at the Court of Appeals.
Additionally, the Judge imposed a fine of Thirty Million Leones on the applicants each in the sum of ten million Leones to be paid forthwith to the plaintiff Legal Counsel Lawyer J.M Jengo.
Justice Fisher in his ruling made it abundantly clear that the defendants: Dr. Ernest Bai Koroma (1st defendant) and the Party Secretary General (2nd defendant), are restrained from taking part only in the Emergency National Delegate Conference as delegates but they should continue their day to- day activities of the Party.
Giving a background to the fact, Justice Fischer said 1st, 2nd and 3rd defendants as a way of notices of motion filed a motion seeking a number of reliefs; the plaintiff by an Exparte Notice of Motion dated 26th February 2021 sought an interlocutory injunction restraining the 1st 2nd and 3rd defendants from holding any conference, convention or meeting in selecting or electing any delegates or candidates into the party’s executive for the day to day running of the All Peoples Congress Party which was granted on the 26th February 2021.
He said the injunction granted read thus that the defendants are restrained whether by themselves, servant, agents, workmen, officials, associates or house help of holding any conference, conventions, meetings, party rallies or from taking party or organizing any such conference meetings, rallies geared towards nominating selecting or electing any delegates or candidates into the Party Executive for the day to day running of the party activities.
The injunction is pending on the hearing and determining of the application or further order of the court and in opposing the defendant filed a notice of motion objecting the application on jurisdictional and other grounds and on the 10th of March the Court ruled on those grounds.
Additionally, the defendant filed other notice of motion raising a number of applications including securing of cost which was ruled upon on the 7th March 2021, other notices of motions were filed including the lack of capacity of the plaintiff to institute the action or in other words the plaintiff lacking locus standi to institute the action.
In respect to the 3rd Defendant, their notice of motion challenged the plaintiff notices of motion on a number of legal grounds and counsel for the 3rd Defendant in the alternative sought variation on the notice of motion on the following grounds; that the 3rd defendant wanted to and very desirous to adopt a new constitution.
It was pointed out that the election circle has already being kicked up leaving the 3rd defendant at disadvantage, secondly that the flag bearer should be elected at least two years prior to the election.
The injunction is putting them at a disadvantage, and that the 3rd defendants undertakes that if the injunction varies they will all go to convention to adopt the constitution and do nothing else also that NAC has the powers to carry out the functions of the executive and the review of the constitution had been completed and copies distributed and copy would be given to the plaintiff.
Lawyer Jengo for the plaintiff informed the court that the plaintiff has no issue with the variation sought as long as the issues raised are dealt with.
On the 19th April 2021 the Court gave a ruling varying the injunction granted on the 26th February 2021 and very specific on paragraph 54 – 66 as to the reasons why he considered it appropriate to vary the injunction granted pending the hearing and determination of the substantive matter following in particular the submissions made by counsel of the 3rd defendant Ady Macauley.
The Judge said, he also made it clear that there are very serious triable issues viz a viz the alleged illegal occupant of office by various officer holders in the party, whom the plaintiff had identified as occupying their offices illegally, owing to the fact, firstly they were never elected as required by the 1995 constitution and secondly, their respective mandates had expired, assuming they were properly elected and selected, and it was necessary to grant an injunction pending the hearing and determination of the substantive action.
He said, he considered it expedient to vary the injunction in the interest of democracy, and most importantly having regard to Section 35 (2) of the 1991Constitution, Act No 6 of 1991 which provides that the internal organization of a political party to conform to democratic principles, and it aims, objectives, purposes and programmes shall not contravene, or be inconsistence with any provisions of the constitution, citing paragraph 58 of his ruling.
The ruling which says “where a political party such as the 3rd defendant has indicated willingness to abide by democratic principles in the review and adoption of a new constitution which it is suggested is more democratic, this court is duty bound to ensure that assistance is given to the 3rd defendant to ensure it maintains the spirit and tenets of Section 35 (2) of the 1991 Constitution, by doing all it can within the law, to facilitate the process of compliance with democratic tenets”
He said based on paragraph 58, he exercises his inherent discretion to vary the injunction on the terms as contained in Paragraph 59, ‘in that regard, I am satisfied that this court should exercise its discretion to vary the injunction temporarily in order to assist the 3rd defendant to adopt its new democratic constitution, pending the hearing and determination of the substantive action on the legitimacy or otherwise of the organs challenged within the party.’
In varying the injunction, Justice Fisher said further that paragraph 61 and 62 if his earlier ruling is instructive as to the basis upon which the variation was granted.
He said all the three defendants have a common application in seeking leave to appeal and in seeking both interim stays of execution and a stay of execution pending appeal, though some wish to appeal the specific orders whilst others seek to appeal the entire orders.
For instance, the 1st defendant Dr. Ernest Bai Koroma on the 5th May 2021, the 1st defendant filed notice of motion praying for three orders; an interim stay of execution of the orders in the ruling of this Honorable Court in the Judgment dated 19th April 2021 pending and determination of this Application, that the court grants a stay of execution of the orders contained in the ruling dated 19th April 2021, pending and determination of the proposed interlocutory appeal to Appeal.
The Court granted leave to appeal to the 1st defendant/Applicant to appeal the ruling dated 19th April 2021, to the court of Appeal. This was supported by an affidavit sworn to by Adewale Showers, Barrister and Solicitor on the same date.
The 2nd defendant Alhaji Foday Osman Yansaneh by way of notice of motion filed and sworn to an affidavit dated 4th May 2021 praying for a stay of execution of specific orders appealed against in the ruling of 19th April 2021 and for leave to appeal same whiles the 3rd defendant in a notice of motion dated 4th May 2021 in an affidavit sworn to by Alhaji Foday Osman Yansaneh.
The APC Secretary General prayed for a stay of specific orders proposed to be appealed against in the ruling of 19th April 2021 and that the court orders a speedy trial of the substantive application.
Judicial power is never exercise for the purpose of giving effect to the will of the judge, he noted, but always for the purpose of giving effect to the will of the legislature, or in order words, the will of the law. “Judicial discretion is one of the important powers of the Judiciary where the Judge can take decisions in some matter without following any fixed rule or established law, the concept of discretionary power is an instance which shows the independence of the judiciary, judiciary discretion is the power of the judiciary to make some legal decisions according to their discretion”. He averred.
Dilating on the stay of execution, Justice Fisher quoted the learned Chief Justice Edwards’s ruling in the Shandong Steel VS Mustapha Joseph Kamara case, a supreme Court decision, distilling the well settled principles of the Court in dealing with stays of execution and the circumstances under which such stays are granted.
The judge stressed that it is in the discretion of the court to grant or refuse a stay and that such a stay will only be granted where the applicant can convince the court that special circumstances exist.
Recounting on the entirety of the Affidavit of A. Showers, the Judge said paragraph 12 of the affidavit deposed that the officers injuncted played a critical role in convening the emergency delegate conferences and the running of the 1st Defendant office as Chairman and leader of the 3rd defendant (APC),
“I must hastily point out that the injunction granted doesn’t deprived them to continue with their critical role in running the office of the 1st defendant neither does it prevent them from playing their critical roles in convening emergency national delegate conference, it simply prevent them from taking part by voting at the said conference, the words of the Order are clear, but let me reiterate it again, they are restrain from taking part as delegates in the emergency national delegates conference”. The judge said.
He also cited paragraph 13 and 14 which according to the Affidavit deposed hardship for the 1st defendant but details of the hardship were not deposed even in paragraph 16.
According to the Judge ‘they are free to continue their day to day activities,’ noting that, he disagrees with paragraph 17 of the affidavit.
He stated that restraining members whose status have been questioned in a Court of law should lead to dissentious in a democratic State.
The paragraph holds that the legitimacy of NAC members should not be questioned and when questioned in a court of law, the court ought not to act in fear of dissention, any democratic state is guided by the rule of law and any one intending to be dissentious should reflect deeply for the need of a democratic rule in our country.
Dilating on Paragraph 8, 9, 10 and 11 of the 2nd defendant Osman Foday Yansaneh’s affidavit, the Judge said leaves the question, whether in a situation where the 2nd defendant is unable to carry out his role as National Secretary General for reasons other than the injunction, for example ill health, those that means that the operations of the 3rd defendant should be in halt.
The 2nd defendant is not prevented from carrying out his duty as Secretary General, pending the determination of the case he is only restrained from taking part in the delegates conference as delegate pending hearing of the matter.
He also went through the 3rd defendant’s affidavit and clearly explained the basis why the affidavit has no merit and no weight but rather misconception and stated that the court is not bound to uphold a prayer simply because it was prayed for.
He concluded by refusing the Orders prayed for a stay of execution of the ruling of 19th April 2021 and the applications for leave to appeal to the Court of Appeals of the ruling dated 19th April 2021 and ordered a cost of the application summary assess of ten million Leones each burned by each application to be paid to the plaintiff.
It could be recalled that Alfred Peter Conteh against filed a motion against Dr. Ernest Bai Koroma, (1st defendant) Dr. Osman Yansaneh (2nd defendant) and the APC party (3rd defendant) at the High Court through his legal Counsel Lawyer J.M Jengo and the APC legal Team comprises Lawyer Africanus S. Sesay, Lawyer Ady Macauley, Lawyer Ibrahim Mansaray and others challenged the petition.
The Court orders for an emergency national delegates Conference and issues an injunction on the 19th April 2021 restraining key stakeholders of the party from voting as delegate in the emergency national delegates conference, and as a matter of procedures the lawyers on the 5th May 2021 filed in papers (Affidavits) praying for a stay of execution of the orders of 19th April 2021 and leave to appeal same at the Court of Appeals.