Salvage v. Kolleh et all (2022)

Mr. Melvin K. Salvage, Representative Candidate of Electoral District NumberTwo (#2) of the 2021 By-Election of Upper BongCounty/ Coalition ofDemocratic Change (CDC) of the City of Gbarnga, Bong County…APPELLANT Versus Mr. James M. Kolleh of the People’s Unification Party (PUP), National Chairman et al, all National Executive Committee members all of the ) People UnificationParty of the Republic of Liberia APPELLEE

APPEAL

ELECTIONS VIOLENCE, FRAUD & IRREGULARITIES

HEARD: January 24, 2022. DECIDED: February 2, 2022.

MR. CHIEF JUSTICE FRANCIS S. KORKPOR, SR.

CHIEF JUSTICE KORKPOR DELIVERED THE OPINION OF THE COURT

On November 16, 2021, the National Elections Commission (NEC) conducted a by-election in Electoral District #2, Bong County, Liberia, in which twelve (12) persons vied to become a member of the House of Representatives. At the close of the polls, the votes were counted in the presence of agents for the parties, recorded and the records signed by the representatives of the parties and copies thereof placarded on the wall for publicviewing. When the results from all the polling places were tallied in the office of the Election Magistrates in Gbarnga, Bong County, candidate James M. Kolleh of the People’s Unification Party (PUP) came first with the total votes of 4,283, while candidate Melvin K. Savage of the Coalition for Democratic Change (CDC) came second with the total votes of3,882.

On November 17, 2021, Kollie Flomo, who said he was a poll watcher for the CDC, filed a complaint with the Election Magistrates of Bong County alleging election violence, fraud and irregularities at the Yeanawoun Precint, polling places 1 & 2. The next day, that is to say on November 18, 2021, candidate Melvin K. Salvage of the CDC (appellant) through his counsel, Attorney John Alvin Blackie, filed a complaint essentially recounting what Kollie Flomo had stated in his complaint. On November 22, 2021, the appellant filed an amended complaint alleging election violence, fraud and irregularities and prayed the NEC to nullify the results of the election conducted in Yeanawoun and Garwuquelleh and order a rerun. For the purpose of this opinion, we quote the appellant’s amended complaint as follows:

“Melvin K. Salvage Candidate

Coalition for Democratic Change (CDC) Gbarnga City, Bong County

Republic of Liberia November 19, 2021

Mr. Daniel Newland Presiding Magistrate

National Elections Commission Gbarnga City, Bong County Republic ofLiberia

Dear Mr. Newland:

Re: Amended Letter of Complaint

Kindly accept my sentiments of the highest esteem and best wishes to the National Elections Commission’s (NEC) family. Pursuant to the records of this investigation and in keeping with law, kindly accept this amended letter of complaint; thus, replacing my earlier complaint filed on November 18, 2021.

Thus, I bring to your attention that Candidate Mr. James M. Kolleh, who is alsocurrently occupying a post of Compliance Officer at the Ministry of Finance and Development Planning (MFDP), wantonly contested in the just ended 2021 By-Elections of Electoral District Number Two (#2), Bong County, Liberia contrary to laws of Liberia. I state herewith for the records that Candidate Kolleh’s participation and documented influence are contrary to the Code of Conduct of 2014 and Constitution of Liberia; while his success-acquired by fraud and intrinsic influence characterized a rigged election; contrary to the Amended Elections Law.

The Final Registration Rolls (FRR) of Electoral District Number Two (#2) was interfered with and altered to fraudulently enable strange persons to participate and cast their votes, contrary to laws;
Voters of Electoral District Number Five (#5) were trucked to cast their votes andthey did cast their votes in the 2021 By-Elections of Electoral District Number Two (#2), contrary to the Amended Elections Law of Liberia;
Clear evidence of votes stuffing into Voting Precinct Code #06128 (YenidwounPublic School), after the CDC’S Poll Watcher in person of Kollie Flomo was brutalized and thrown out of the said precinct in violation of the Amended ElectionsLaws of Liberia;
Poll Watcher Kollie Flomo was prevented from casting his vote in the particularvoting precinct, for which he was molested and harassed
Candidate James M. Kolleh of the People’s Unification Party, misrepresented material facts as shown on his application form and deceived the National Elections Commission to enable him to participate in these elections, contrary to the laws amongst
Candidate Kolleh being an employee of government used his official authority or influence and interfere[d] with the elections in a way that affected the result in his interest, contrary to the Code of Conduct of Liberia. No officer or employee in the Executive Branch of Government, or any agency or department thereof, shall take any active part in political management or in political campaigns; otherwise, he shall be immediately removed from the position or office held by Thisprovision of the Code of Conduct is in harmony with Article 90(a) of the 1986 Constitution of Liberia.

Furthermore, this complaint is being filed with your good offices with proof of documentary evidence to the effect that Candidate Kolleh and Party officials of PUPwere seen across in Electoral District Number Five (#5), Upper Bong County notoriously canvassing for voters to rig these elections as shown from the result of these elections, contrary to the provisions of the Amended Election Laws of Liberia.

Hence, said scintilla of evidence is to lodge a formal complaint, which has indicatedthat Candidate Kolleh specifically, and along with some Members of PUP collectively were in gross violation of our election laws and provisions of the 1986 Constitution ofLiberia.

I submit that the actions on the part of Candidate Kolleh is not only unlawful but same grossly violate my constitutional rights. The said illegal acts complained of were meted against me without any justification, contrary to law.

In view of the foregoing, I hereby respectfully request that an investigation beconducted into this matter by the NEC to ensure that my rights are not trampled uponwith impunity and that I be given the necessary and appropriate relief provided by law under such circumstances.

Attached hereto are documentary evidence in substantiation of my allegationscontained herein also give due notice that sworn affidavits will [be] filed with the said investigation in keeping with law.

Kind regards.

Sincerely yours,

Melvin K. Salvage Candidate”

After conducting full investigation, the Election Magistrates assigned to Bong County, on December 23, 2021, denied and dismissed the appellant’s complaint. The appellant noted exception to the ruling of the Magistrates and announced an appeal to the Board of Commissioners of the NEC. We should note that this is the second time that this matterwent up to the Board of Commissioners of the NEC for review during the course. The first time was during the early stage of hearing before the Election Magistrates in Bong County. At that time, the appellant requested continuance on grounds that his witnesses were not available and that he had requested for a subpoena deuces tecum for the production of the Final Registration Rolls (FFR) which had not been produced. The Election Magistrates ofBong County denied his request for continuance and ordered the matter proceeded with. When the appellant indicated that he could not proceed with the hearing, the Magistrates assigned the case for final ruling, whereupon the appellant fled to the Board of Commissioners of the NEC on summary proceedings. The Board of Commissioners of the NEC reversed the decision of theMagistrates and ordered that the appellant be given time to produce his witnesses. The matter was subsequently heard, and a ruling entered dismissing the appellant’s complaint,from which ruling he appealed to the Board of Commissioners of the NEC.

On the appellant’s second appearance before the Board of Commissioners of the NEC on regular appeal, the Board, after reviewing the records and listening to arguments from the counsels representing the parties, denied and dismissed the complaint. The Board determined that the appellant did not provide proof of his complaint to warrant a rerun of the by-election conducted in District #2, Bong County. From the ruling of the Board of Commissioners denying and dismissing his complaint, the appellant has come to this Court seeking judicial review with an eleven-count bill of exceptions which essentially alleged thatthe Board of Commissioners of the NEC erred when it confirmed the ruling of the Election Magistrates of Bong County.

The lone question we ask, the answer to which is determinative of this case is – did theappellant establish proof of his allegations of election violence, fraud and irregularities, and if yes, is the proof sufficient to warrant setting aside the results of the by-election conducted in District #2, Bong County on November 16, 2021?

The Elections Law grants a candidate who participates in an election the right to file acomplaint with the NEC challenging the validity of the election. However, the challenger is required to demonstrate how the issues complained of resulted in his/her defeat. [Section 6.1 of the Elections Law].This provision of the Elections law is in harmony with Section 25.5, 1LCL Revised, Civil Procedure Law which places the burden on he who alleges a factto prove. In line with this, the Supreme Court has consistently held in election cases that he who challenges an election result must overcome a strong presumption in favor of thevalidity of the election process and result. In other words, in elections, the presumption is thatthe official conducting the process is legitimate, he acted properly, the process is free, fairand transparent and the result is credible. So, one who says that the election process is not fair and/or the result is not credible has the burden to establish his cause. [Sando D. Johnson v. NEC, Opinion of the Supreme Court, decided December 2005]. Also, in the case: Brumskine et al v NEC, Opinion of the Supreme Court, December 21, 2017, we held that what is required is not merely a demonstration that there was fraud or irregularities at a few polling centers, but rather that there was fraud and/or irregularities committed at an enormous number of polling places such that a conclusion could be drawn that absent such fraud or irregularities, the results of the election would have been different.

Applying the quoted statutory and decisional laws to the facts and circumstances of the instant case, let us see if indeed there were election violence, fraud and irregularities committed as alleged by the appellant in this case and such acts necessitate the setting aside of the result of the election conducted in District #2, Bong County.

In an attempt to prove his case, the appellant produced a total of eleven witnesses – seven regular witnesses, two subpoenaed witnesses and two rebuttal witnesses. The regular witnesses were, Melvin K. Salvage, Amos T. Mulbah, Michael Togba, Remember Allen, Kollie Flomo, Emmanuel Massaley and John Vah. The subpoenaed witnesses were, James Wallace, Director of Training and Procedure of the NEC and Jappah Nah, Deputy Director for Field Coordination, NEC. The two rebuttal witnesses for the appellant were Amos T. Mulbah and Emmanuel Massaley.

The testimony of Melvin Salvage, the appellant himself, basically recounted what he stated in his letter of complaint quoted hereinabove; he relied largely on what he was told by his poll watchers and supporters.

Four of the appellant’s witnesses, Amos T. Mulbah, Michael Togba, Remember Allen and Emmanuel Massaley testified that they were recruited from the FDA Community in Monrovia and transported to Bong County to vote for James M. Kollie (appellee); that the appellee promised to pay each of them US$30.00 and give them scholarships; and thatthey voted in the by-election in District #2, Bong County, even though they were not registered there to vote.

The subpoenaed witness from NEC, James Wallace, Director of Training and Procedure testified that it is not possible for any person who did not register and whose name is not onthe FRR to vote in an election as alleged by the appellant. He explained that the limited exception applies only to NEC’s polling staff, LNP officers and drivers of international observers who are allowed to vote provided they are registered voters in the constituency where the election is being conducted.

Jappah Nah, Deputy Director for Field Coordination, testified that the Records of Counts are used to capture votes obtained by individual candidates and the Gender Tracing Form is used to identify the number of females to males in the voting process. The appellee, for his part, produced three witnesses: The appellee himself(James Kolleh),Peter Teweh, and Fatu Togba, the Presiding Officer of the NEC.Taking the witness stand the appellee denied the allegations that he transported people toBong County to vote in the by-election in District #2 and that he promised to pay them US$30 each and give them scholarships. Peter Tweh, the second witness for the appellee said he was not involved and knows nothing about the alleged beating of Poll Watcher Kollie Flomo. He also testified that he did not see any incident of fraud or irregularities during the by-election in District #2, BongCounty. Witness Fatu Togba testified that she was assigned at the Yeanawoun Public School Precinct with code #06128, polling place #2. She said that Kollie Flomo who alleged that he was beaten and denied the right to vote lied because he voted at polling place #1 wherehe had voting right and that the FRR would show that he indeed voted there.

Having reviewed the entire records of this case, we hold that the appellant did not proveelection violence, fraud and irregularities to warrant setting aside the result of the by-election conducted in District #2, Bong County on November 16, 2021. As we see it, the words of the appellant in this case are as good as those of the appellee. The appellant was therefore required to carry the burden of providing proof of his allegations made in his complaint by preponderance of the evidence, but in our opinion, he failed to do so. Preponderance of the evidence is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition; evidence which as a whole show that the facts sought to be proved is more probable than not.”

In the case: FDA v. Walters et all, 34LLR 777 (1988), this Court held that “it is evidence alone which enables courts, tribunals, or administrative forums to pronounce with certainty on the matter in dispute; and that no matter how logical a complaint is, it cannot be taken as proof in the absence of evidentiary presentation.” Moreover, “in all averments of fraud or mistake, the circumstances constituting the fraud or mistake shall be stated withparticularity…”[ LAMCO J.V. Operating Co. v Azzam et, 31 LLR 649, (22 December1983].

Lest we forget, the appellant’s complaint specifically alleges election violence, fraud and irregularities. On election violence, he claimed that his Poll Watcher, Kollie Flomo, was beaten and prevented from voting. We should note that an assault on a person is a criminal offense cognizable before the Ministry of Justice. In the case: Boto Kanneh v. NEC, decided March 24, 2021, this Court held that an election violence of this magnitudemust be reported to the Ministry of Justice. But when asked during hearing before us as to whether the alleged beating of Kollie Flomo was reported to the Liberia National Police the Counsel for the appellant said that the matter was never reported to the Police. In the face of the denial by the appellee, how do we take it that the appellant’s poll watcher was assaulted, and even if he was indeed assaulted, what proof is there that the act was committed by or on the order of the appellee.

Concerning fraud, the appellant claimed that a) the FRR of Electoral District #2 wasfraudulently interfered with and altered to enable strange persons to participate and casttheir votes; b) voters of Electoral District #5 were trucked to cast their votes and they did cast their votes in Electoral District #2, Bong County in favor of the appellee; and c) that there was evidence of votesstuffing in Precinct Code #06128, Yeanadwoun Public School. But we do not see any proof of these allegations in the records before us. To the contrary, the appellant’s own subpoenaed witness, James Wallace, Director of Training and Procedure at the NEC, testified that it is not possible for any person who did not register and whose name is not onthe FRR to vote in an election as alleged by the appellant. He explained that the limited exception applies only to NEC’s polling staff, LNP officers and drivers of international observers who are allowed to vote provided they are registered voters in the constituency where the election is being conducted. This testimony runs contrary to the appellant’s claim that the FRR of Electoral District #2 was interfered with and altered to enable strange persons to participate and cast their votes. And Jappah Nah, Deputy Director for FieldCoordination, another witness who was subpoenaed by the appellant, testified that theRecords of Counts are used to capture votes obtained by individual candidates and the Gender Tracing Form is used to identify the number of females to males in the voting process. He said nothing concerning election fraud. So, in the case before us, the requirement of fraud was never met by the appellant; what the appellant did was to make mere allegations of fraud based on presumption and deductions. But fraud cannot be presumed; fraud must be particularly proved. [Intrusco Corporation v. Osseily, 32 LLR 558 (1985)]. Mere allegations of a claim, even if contained in an affidavit, do not constitute proof, but must be supported by evidence so as to warrant the trier of facts accepting it as true and enable the tribunal to pronounce with certainty concerning the matter in dispute. We are therefore in full agreement with the Board of Commissioners of the NEC that the appellant did not produce any cogent evidence of fraud.

Regarding irregularities, the appellant alleged that his Poll Watcher, Kollie Flomo, wasprevented from voting. This would indeed amount to an irregularity if this were proven. But the appellee’s witness, Fatu Togba testified that this is not true, and that Kollie Flomo votedat polling place #1 where he had voting right. Our inspection of the records before us shows, at page 15 of the FRR for Yeanawoun, Precinct (code #06128), polling place #1, that Flomo, Kollie K. (age 25 at the time of registration) voted. The voter ID number (724697227) supplied by Flomo, Kollie in the polling place complaint form submitted by him checks out the FRR as having voted. So, in the face of available records, the claim that the appellant’s Poll Watcher, Kollie Flomo did not vote cannot be true.

The appellant complained that the appellee misrepresented material facts as shown on his application form and deceived the National Elections Commission to enable him to participate in the election and that the appellee, being an employee of Government, used his official authority or influence and interfered with the elections in a way that affected the result in his interest, contrary to the Code of Conduct of Liberia which provides that no officer or employee in the Executive Branch of Government, or any agency or department thereof, shall take any active part in political management or in political campaigns…To this contention we say that these allegations regarding the appellee’s alleged violation of the Code of Conduct are pre- election issues which ought to have been raised by the appellant long before the conduct of the by-election in District #2, Bong County. The appellant cannot now raise them after the conduct of the election. Because, as we have said, the law presumes that election results are valid and the process is free and fair, it is not merely enough for a complaint to allege that irregularity orfraud occurred. The burden remains on the complainant to establish that fraud andirregularities indeed occurred and that but for such acts, the results of the election would have been different. In the instant case the results show that the appellee obtained 4,283votes, while the appellant obtained 3,882 votes, a difference of 401 votes. The appellant alleged that more people were transported to vote for the appellee in the by-election butnamed just four of such persons. In law, fraud cannot be presumed or extrapolated; it must be especially established. In this case, the question is – assuming that the four persons the appellant named as having voted for the appellee indeed voted for the said appellee, andthe said four persons’ names were deducted from the total votes obtained by the appellee, will this change the result of the by-election conducted in District #2, Bong County? The answer is no!

Based on what we have said above, we see no reason to disturb the findings of the Election Magistrates in Bong County which was confirmed by the NEC Board of Commissioners.

WHEREFORE, the appellant’s appeal is denied and dismissed. The ruling of the Board of Commissioners of the NEC which confirmed the findings of the Election Magistrates in Bong County is affirmed. Accordingly, the declaration of James M. Kolleh as the winner of the by- election conducted on November 16, 2021, in Electoral District #2, Bong County, is hereby affirmed. The Clerk of this Court is ordered to send a mandate to the NEC to resumejurisdiction over this case and give effect to the Judgment growing out of this Opinion. IT is so ordered.

Counsellor Jonathan T. Massaquoi appeared for the appellant. Counsellors Albert S. Sims & Luther Yorfee appeared for the appellee.

Counsellor M. Wilkins Wright appeared for the National Election Commission (NEC).

Appeal denied.

Because the law presumes that election results are valid, it is not merely enough for acomplaint to allege that irregularity or fraud occurred. The burden remains on the complaint to establish that one or more election irregularities or fraud occurred and that same affected enough votes to change or make uncertain the result of the election. Here,Magistrates having concluded that appellant did not meet the burden of proof and that hefailed to establish the allegations subject of the investigation, we hold that the Magistrates did not err.

As to the four voter cards which Appellant by its own allegations, said that same were fake and issued at a photo studio called Black Baboon, the Magistrates found that said voter cards are not genuine and cannot be found in the NEC system. Further, the NEC hasabsolutely no records of these individuals having voted in that election. Additionally, although they said their names were written on a piece of sheet, all of the documentssubpoenaed by Appellant to not show that these individuals voted as alleged.

to enable the Magistrates render in his favor. We further note that Appellant did not prove that there was an improper or illegal attempt either to add or reduce the proper vote of anycandidate. Accordingly, we hold that the Magistrates did not err.

appellant witness Flomo Kollie’s testified that he was prevented from going into polling place #2 to relieve his co-poll watcher. Appellee witness Fatu Togba informed the investigation that she was assigned at the Yeanawoun Public School Precinct (code #06128) polling place #2. The witness further explained that Flomo Kollie who complainedthat he was beaten and denied voting, did vote in polling place #1 where he has voting right.Although appellant did not produce Mr. Flomo voting card, this Board notes that page 15 of the used Final Registration Roll for Yeanawoun Precinct (code #06128), polling place #1 which was subpoenaed by the appellant, shows that a Flomo Kollie K. (age 25 at the timeof registration) voted. The voter ID number

(724697227) supplied by Flomo Kollie in the polling place complaint form submitted by him checks out the FRR as having voted.

The Board further notes that the record shows that the result from polling place #2,recorded on the Record of the Count, was signed by Nelson Pawel Nelson, the poll watcher for CDC. Moreover, the record shows that the Records of the Count from the 6 polling places in the Yeanawoun and Garwuquelleh Precincts were signed by severalpersons, including appellant’s agents. Hence, we hold that the Magistrates did not err.

Because, as we have said, the law presumes that election results are valid and the process is free and fair, it is not merely enough for a complaint to allege that irregularity or fraud occurred. The burden remains on the complainant to establish that one or more election irregularities or fraud occurred and that same affected enough votes to change or make uncertain the result of the election. The result of the election, subject of these proceedings, show that the appellee obtained 4,283 votes, while the appellant 3,882, adifference of 401 votes. The appellant alleged that more people were transported to vote forthe appellee in the by-election but named just four of such persons. In law, fraud cannot be presumed or extrapolated; it must be especially established. In this case, assuming that the four persons the appellant named as having voted for the appellee indeed voted for the said appellee and the said four persons names deducted from the total votes obtained by the appellee, will this change the result of the by-election conducted in District #2, Bong County? The answer is no!

Based on what we have said above, we see no reason to disturb the findings of the Election Magistrates in Bong County which was confirmed by the NEC Board of Commissioners.

Appeal denied.

that was subpoenaed by the Appellant proved that Kollie Flomo, age 25 at time of registration with voter ID card number 724697227 checks out in the FRR as having voted.The four ID cards submitted by the Appellant were fake as same were not found in the NEC System.

In the instant case, the requirement of fraud was never met by the Appellant, but rather what Appellant did during these proceedings was to make allegations of fraud based onpresumption and deductions. Mere allegations of a claim, even if contained in an affidavit, do not constitute proof, but must be supported by evidence so as to warrant the trier offact accepting it as true

and enable the tribunal to pronounce with certainty concerning the matter in dispute. Appellant did not produce any cogent credible evidence of irregularity or fraud to enable the Magistrates render in his favor. We further note that Appellant did not prove that there was an improper or illegal attempt either to add or reduce the proper vote of any candidate. Accordingly, we hold that the Magistrates did not err.

appellant witness Flomo Kollie’s testified that he was prevented from going into polling place #2 to relieve his co-poll watcher. Appellee witness Fatu Togba informed the investigation that she was assigned at the Yeanawoun Public School Precinct (code #06128) polling place #2. The witness further explained that Flomo Kollie who complainedthat he was beaten and denied voting, did vote in polling place #1 where he has voting right.Although appellant did not produce Mr. Flomo voting card, this Board notes that page 15 of the used Final Registration Roll for Yeanawoun Precinct (code #06128), polling place #1 which was subpoenaed by the appellant, shows that a Flomo Kollie K. (age 25 at the time of registration) voted. The voter ID number (724697227) supplied by Flomo Kollie in the polling place complaint form submitted by him checks out the FRR as having voted.

After reviewing the record, we further conclude that there is no merit to any of the remaining issues Appellant presents in this appeal. Accordingly, we affirm the Magistrates’ disposition of those issues without further discussion.

WHEREFORE AND VIEW OF THE FOREGOING, Appellant’s appeal is hereby denied and dismissed. The Magistrates’ final ruling is affirmed, and this Board’s declaration of Mr. James

Kolleh as winner of the November 16, 2021 in Electoral District #2, Bong County is hereby confirmed and affirmed. The Certification Committee is hereby directed to notify Mr. Kolleh of the date and time of his certification.

*“Any political party or candidate who has justifiable reasons to believe that the elections were not impartially conducted and not in keeping with the Elections Law, which resulted inhis defeat or the defeat of a candidate shall have the right to file a complaint with the Commission……” (emphasize added).

* We review the record as a whole to determine whether the Magistrates’ final ruling issupported by the evidence and adheres to applicable legal standards. The Magistrates’finding of facts and question of witness credibility are the province of the Magistrates, who had the opportunity to observe the witnesses’ demeanors and judge their credibility and same will not be set aside unless shown to be clearly erroneous. Upon consideration of the bill of exceptions, arguments of the parties, the record in this case and law controlling, this Board says and holds as follow:

Appellant’s allegation that the final registration rolls for the Yeanawoun and Garwuquelleh Precincts tampered with; that unregistered persons

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Salvage v. Kolleh et all (2022)

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