Supreme Court and to hear and determine his complaint. Counts 4 & 5 of the informant’s amended bill of information which sum up the informant’s contention state:
Count 4. “Informant respectfully informs Your Honors, that since your February 17, 2015 mandate directed to the NEC, neither has the NEC’s Acting Chairman, the designated Commissioner with oversight responsibility for River Gee County, nor a designated Magistrate/Hearing Officer implemented their legal duty imposed by law, to commence the hearing/investigation of the informant’s complaint pending before the NEC in accordance with law.”
Count 5. “Informant further says that it has been a practice hoary with age in this jurisdiction, that mandates emanating from our Supreme Court are usually read within seven (7) days upon receipt of the mandate from the Clerk of the Supreme Court; howbeit, the Board of Commissioners at the NEC have neglected to fulfill their legal duty imposed upon each of them by the Constitution of Liberia, to obey and implement the orders of this Court.”
Before delving into the claims and counter claims of the parties, it is important, for clarity, to provide the facts and circumstances surrounding this bill of information as follows:
In October, 2014, Special Senatorial Elections were conducted in Liberia. Some of the political parties and independent candidates that took part in the elections filed complaints of electoral irregularities against the NEC. While the complaints were still pending final determination, the NEC declared and certificated some winners in the Special Senatorial Elections. This prompted many dissatisfied contestants, including the informant, Jonathan Boycharles Sogbie, to file various petitions for the writ of prohibition with the Justice presiding in the Chambers of this Court. Informant Jonathan Boycharles Sogbie’s petition for the writ of prohibition prayed for the de- certification of Community B. Wesseh, who the NEC had declared and certificated as the winner in the Special Senatorial Election in River Gee County in which the informant was also a contestant. The matter eventually came up to this Court en banc. We consolidated the petitions for the
assign and investigate the informant’s complaint filed with the NEC. But when asked whether the portion of the mandate regarding the other parties to the consolidated petitions for prohibition was read and implemented, the counsel answered in the affirmative. We quote the relevant portion of the minutes of this Court at the hearing of the bill of information on Thursday, February 6, 2017, 14th Day’s Session. At that hearing, the following questions were posed to the counsel for the informant by this Bench:
“Ques: How many parties were involved in the prohibition case?
Ans: Six (6) parties were involved in the prohibition case, Your Honors.
Ques: If there is a situation of multiple parties and there is a ruling, would all the issues be the same?
Ans: No, Your Honors.
Ques: In respect of your client, what was the relief you sought?
Ans: The relief we sought was to prohibit the seating of the declared winner as senator.
Ques: Was there a matter involving your client pending before the NEC at the time the petition for prohibition was filed?
Ans: Yes Your Honors, the complaint filed by our client was still pending undecided in River Gee County.
Ques: Your contention now is that, the National Elections Commission has refused to read the mandate of the Supreme Court. What would have obtained, with respect to your client, if the mandate of the Supreme Court was read?
Ans: Our complaint would have been heard.
Ques: Do you know what happened with respect to the other parties to the consolidated prohibition proceedings, when the matter was decided by the Supreme Court?
present compliments on behalf of the National Elections Commission, and herein acknowledge receipt of your letter dated February 18, 2015, in which you claimed that your client, Mr. Jonathan Boye Charles Sogbie, of the Alliance for Peace and Democracy (APD), has an appeal pending before the Board of Commissioners.
Upon review of our records, the records show that Mr. Sogbie does not have an appeal pending before the Board of Commissioners of NEC.
Kind regards.
Truly yours,
Sarah Jegede- Toe (Cllr.) ACTING CHAIRMAN
To the above letter, the CEMAR Law Offices through Attorney Nimley, replied as follows:
“CEMAR LAW OFFICES Benson & Center Streets Intersection Bedell bldg, 1st Floor, Monrovia, Liberia Mobile: +231886464/886513547/886551415
February 26, 2015
Hon. Cllr. Jerome G. Korkayah Chairman National Elections Commission, R.,L. 9th. Street, Sinkor Tubman Boulevard Monrovia, Liberia
Dear Cllr. Korkayah:
Your communication RL/NEC/SMT/008/15 is herewith acknowledged and we use this medium to thank you for your timely response, however you may not be aware that your Hearing Officer, Hon. N. Welleh Valentine in Fish Town, River Gee County, responsible to investigate all elections irregularities and/or complaint filed in the Special Senatorial elections held on 20th December, 2014, refused to hear the complaint filed by our Client Mr. Jonathan Boye Charles Sogbie, as he claimed that said complaint was beyond his authority. See receipt of complaint by the said Hearing Officer for your ease of reference.
Accordingly, Petitioner proceeded to Monrovia and filed a complaint before your Honourable selves at the Commission, that he had a complaint pending before the Election Magistrates at Fish town, but again his complaint was baffled. Your letter as referenced above, in which you noted Petitioner has no appeal pending before the Commission, is far from reality as the complaint before Magistrates Valentine and Flomo is still pending and needs expeditious hearing. See election complaint receipts received from Fish Town, River Gee, for your ease of reference.
Consequently, as this is an election matter which is time bound, it is our prayer that you will without delay instruct your Election Magistrates at River Gee, N. Welleh Valentine and Messrs. Flomo, respectively, to expeditiously [and] consistent with law governing election matters hear the pending elections matter concerning the massive fraud alleged, massive vote rigging and your denial of his political party, the Alliance for Peace and Democracy the right to assign representatives to each of the 19 pooling centers, places where the rigging reportedly transpired. We solicit your kind cooperation in the premises consistent with law.
Regards.
Faithfully,
Attorney Anthony Toga NIMELY, II CASE MANAGEMENT DIRECTOR
Cc: FILE”
1o answer the question whether or not the NEC failed or refused to hear the informant’s complaint, we take recourse to the records. The records before us reveal that agents of the informant’s political party, APD, Hawkins Younge and McAthur Jarlajue filed a complaint with N. Welleh Valentine, the NEC’s Hearing Officer of Fish Town, River Gee County, on December 23, 2014, alleging ballot paper fraud such as false ballots in box, and other violations of the elections law and regulations during the time of the Special Senatorial Election in Fish Town, River Gee County. Hearing Officer Valentine dismissed the complaint on ground that the said complaint was filed 120 hours after the occurrence of the alleged election violations. He held that he did not have jurisdiction to hear complaints filed forty eight (48) hours after an offense or alleged violation has occurred and cited the NEC Polling and Counting Manual, page 23. We quote the ruling entered by the Hearing Officer:
“Republic of Liberia NATIONAL ELECTIONS COMMISSION (NEC) MONROVIA, LIBERIA
December 27, 2014
Case Title
Mr. Hawkins Younge & McArthur Jarlajue
APD Party Agents Complainants
VS.
National Elections Commission (NEC) Staff
Fish Town City, River Gee County. Defendant
Offenses Alleged
Ballot paper fraud, such as false ballot in box
Other violations of law or regulations.
Legal issue presented by the case:
Whether or not the county magisterial hearing officer has jurisdiction to hear and decide a case of allege[d] election offense against NEC local staff in the county if that complaint is filed 120hrs after the offense occurred and that local staff has completed the tally process and forwarded results of the election in the county to NEC Headquarters in Monrovia?
Holding/rule:
No. the magisterial hearing officer has jurisdiction to hear only complaints signed and filed with the magisterial officer within 48 hours after the offense or violation occurred, see NEC polling and counting manual page 23.
Disposition of Case:
The case is dismissed for late filling and is hereby so order.
Signed: Welleh Valentine
Magisterial Hearing Officer, Fish Town, River Gee County”
There is no doubt that the informant was aware of the decision of the Hearing Officer quoted above dismissing his complaint. We take this position based on the letter written to the Chairman of the NEC, Counsellor Jerome G. Kokoya on behalf of the informant by the Cemar Law Offices, by and through Attorney Anthony Toga Nimley, II. In that letter, the informant, through his counsel acknowledged that the Hearing Officer in Fish Town, River Gee County had received and passed on the complaint filed by the informant. What we cannot comprehend, however, is while the informant’s counsel recognizes in the first paragraph of his own letter written to the Chairman of the NEC that the Hearing Officer had dismissed his client’s complaint for lack of jurisdiction, he contends in the second paragraph of the very same letter that the matter was still pending before the Hearing Officer at Fish Town, River Gee County. So, instead of requesting that the Board of Commissioners of the NEC hears his client’s complaint on appeal, he requested the Chairman of the NEC to instruct the same Hearing Officer in River Gee County who had dismissed the complaint to hear the same complaint again.
Clearly, this request of the informant’s counsel is not tenable in the face of the December 27, 2014 ruling of the Hearing Officer quoted above. In our opinion, the complaint of the informant having been dismissed, the only remedy left to the informant was to appeal the ruling of the Hearing Officer to the Board of Commissioners of the NEC within the time prescribed by the guidelines and regulations of the NEC. The question we ask is, did the informant timely appeal the decision of the Hearing Officer of the NEC in Fish Town, River Gee County?
Article 8 (4) of the Guidelines and Regulations of the NEC on Challenges and Complaints Arising Before and During Elections (July12, 2011) provides:
“Determination of [a] Hearing Officer shall be appealed to the Board of Commissioners no later than 48 hours after determination.” [Emphasis supplied].
In the records before us, there is no showing that the informant or the party agents of his political party timely appealed the decision of the Hearing Officer dismissing the complaint within 48 hours as provided by the Guidelines and Regulations of the NEC on Challenges and Complaints Arising Before and During Elections. The decision of the Hearing Officer dismissing the complaint was rendered on December 27, 2014. The records show that the informant’s party agents filled in the appeal form provided by the NEC, but nowhere in the records do we see that they filed the said form with Hearing Officer Valentine’s office to constitute and form the basis of the informant’s appeal with the NEC’s Board of Commissioners. To the contrary we see that the agents of the informant’s political party elected to take the informant’s complaint to another hearing officer of the NEC for hearing.
We see in the records a letter dated December 30, 2014, and addressed to the Hearing Officer, National Elections Commission, Tubman Boulevard, Monrovia, Liberia and signed by Hawkins S. Younge and MacArthur Jalariue, the same party agents who filed the complaint of election irregularities before the Hearing Officer in Fish Town, River Gee County, on behalf of the informant. The letter