IN THE SUPERIOR COURTS OF THE GAMBIA IN THE HIGH COURT OF THE GAMBIA MOMODOU SOWE………………………APPLICANT AND IGP…………………………………………………RESPONDENT Applicant is absent Mrs. S. Jahateh for the applicantThursday 4th December 2014 before Hon. Justice S. A. ABI The applicant has before the court and. <originating summons filed on 2nd July 2014. ••:••:;:.,:• • • :_.. On the 16th dy of July 2014 when the case was called for the very first time Mrs. S. Hahateh, the applicant’s counsel took objection to the appearance of S.H\ Barkum, the learned Director of Public Prosecutions’ (the DPP) ::on behalf of the respondents. Counsel for the applicant argued that this application is an originating summons, a miscellaneous application which is civil in nature dealing with fundamental •• rights. She referred to Section 85 of the constitution which provides or control of prosecutions and submitted that the powers: of the DPP are limited to criminal matters. She submitted finally that it is the Director of Civil Litigation who was served and who should appear in the matter. Responding to these arguments, S.H. Barkum , the DPP, submitted that applicant’s counsel was in one breadth arguing that DPP’s terms of reference were strictly criminal by virtue of S. 85 of the Constitution , and in another breadth, was conceding that the application was miscellaneous, which is neither civil nor criminal. He submitted that applicant’s counsel did not provide any authority which tends to suggest that the DPP cannot appear for the Attorney General or” other public officer in civil cases. He argued that S.85 of the constitution, by its wordings, is neither sole nor exclusive, that is, the functions of the DPP stipulated therein are open and in addition to other functions. He elaborated that the said section by its wordings does not confer only criminal jurisdiction on the DPP to the exclusion of all other powers. He referred to Section 13(4) of the State Proceedings.. Act, CAP 8:03 Volume 3 Laws of The Gambia, and submitted that the DPP had legitimacy to appear and conduct cases on behalf of the Attorney General who also had powers to…delegate=::i:any legal• practitioner to represent him/her by virtue of section 13(1) of the same Act. He also referred to section 7 (1) of the courts Act CAP 6; 01 volume 2 laws of the Gambia which he submitted deals with Law Officers of public officers who may appear for the state. He concluded taht provided the DPP is a public officer and a law officer of the state, nothing can debar the DPP from appearing for and on behalf of the Attorney General or the IGP as in this case. Making reference to section 18 and the 1st Schedule of the Legal Practitioners act, he urged the court to discountenance the objection of learned applicant’s counsel. Replying:::•::on points of law Mrs. S. Jahateh for the applicant submittd as submitted as follows; that in reply to DPP’s argument that his power to represent the Attorney General is not restricted to criminal al cases by S.85 of the constitution, the court must be guided by the ejusdem generis rule and aid of statutory interpretation . She referred to the book “The:: Gambia Legal System” by Emmanuel Akomaye Agim , particularly pages 123 and 125 at paragraph 6. She submitted that since the list in 8.85 of the Constitution relates to criminal proceedings, it cannot therefore input a civil power or jurisdiction which is either not listed in the general provision or cannot even be implied. In reply to Section 13 of the State Proceedings Act, she submitted that the section does not give any public officer open and unfettered right to appear in civil proceedings for or against the State, and that the appointment must be in writing. She submitted that the DPP cannot appear in this case unless he has been appointed in writing. She submitted that the position is the same with regards to Order VI Rule 7 of the Courts Act where the appointment must be in writing and must be filed in court on or before appearance in court, which has not been done in this case. She referred to pages 225 to 228 of the book Gambia Legal System earlier cited , and submitted that it defies logic and the law to have the position of Director of Civil Litigation if the DPP claims to have jurisdiction over civil matters. She concluded that ther are regulations in place establishing officers and various departments of the AG;s Chambers, and these rules are deemed to be in tandem with the statutes in relation to law officers and public officers and state proceedings Act and should be read in line with the constitution. I ahve taken pains to reproduce virtually all the arguments almost verbatim because, contrary to the DPP’s reaction that the applicant’s objection is “flimsy”, I find it novel an weighty enough to warrant due attention. It is novel because search as I would I could not find any authority or judicial pronouncement bearing directly on the points raised in this objection. It is weighty to may mind because of the likely implications of the decision on this objection on the functions of the DPP qua law officer and public officer, vis a vis his powers under the constitution. More importantly, it is a known fact that in this jurisdiction, law officers from the Attorney General’s Chambers have not been brandishing written authorities before appearing for the Attorney General in matters in court. Therefore, the very profound implication of the success or otherwise of this objection on cases already decided cannot be over emphasized. Having highlighted the arguments, two major issues arise, whose resolution I believe will assist in determining this objection one way or another. These issues are: 1. Is this miscellaneous application a civil or criminal suit? 2. What is the true import of Section 85 of the Constitution vis a vis Section 13(4) of the State Proceedings Act; Section 18 and First Schedule of the Legal Practitioners Act, and First Schedule, Order VI Rule 7, Rules of the High Court? QUESTION 1 – Is this miscellaneous application a civil or criminal suit? In the instant case, the applicant, by original summons seeks declarations to enforce rights provided for in Sections 1.9 •and 24 of the Constitution and for his release from. custody. The applicant’s counsel argued that the application is civil in nature which is why it was served on the Director of Civil Litigation. The DPP on the other hand is contending that the application is neither civil nor criminal. Both counsels however agree that it is a miscellaneous application. The major distinctions between civil and criminal actions are in the nature and effect of each. A civil case involves the determination of the civil rights and obligations of persons, while a criminal case concerns the trial and determination of violations of penal laws or statutes. Whereas breach of civil obligations generally can be remedied in damages and/or declaratory and injunctive reliefs, (with the exception of the breach of civil obligation to obey court order known as civil contempt of court,), a breach of criminal law on the other hand attracts penal sanction or punishment. Miscellaneous applications on the other hand are a specie of civil cases only be their mode of commencement (which can either be by way of a motion, summons or petition.) Apart from this, there is not other known criteria for classifying them as either civil or criminal. T This was the basis on which it was held by The Court of Appeal in THE STATE (N0.1) V. DARBOE (N0.1) (1997-2001) GR 771, @ 776, TO 777 PAR 1, that: These modes of approaching the court are essentially civil forms. Such applications (for bail) being neither strictly criminal nor civil are…… Miscellaneous applications on the other hand are a specie of civil cases only by their mode of commencement (which can either be by way of a motion, summons or petition). Apart from this, there is not other known criteria for classifying them as either civil or criminal. This was the basis on which it was held by The Court of Appeal in THE STATE (N0.1) V. DARBOE (N0.1) (1997-2001) GR 771, @ 776, TO 777 PAR 1, that: These modes of approaching the court are essentially civil forms. Such applications (for bail) being neither strictly criminal nor civil are often categorised as miscellaneous applications. … In Roget’s Thesaurus of English Words and Phrases the word ”Miscellaneous” is defined as ”nonuniformity, variability, patchiness”. . .. The very mode of a bail application before trial in a criminal matter being by civil process, emphasises the point that such application is neither criminal nor civil, hence it is categorised as miscellaneous….” Without going into the merits of the reliefs sought, I wish to state that the circumstances leading to this application are an arrest and detention. This can be gleaned from several paragraphs of the affidavit in support deposed to by Aminata • Sowe. Accordingly, I find that the tenor of this application, despite the wordings of the reliefs sought, is in effect an application bail for r.elease of the applicant from custody. I also find and hold that the applicant having commenced the applic.tion by .. way of a miscellaneous originating summons is properly before the court. However, relying on the authority of The State (No. 1 ) v. Darboe (No. 1) supra, I disagree with counsel for the applicant that it is a purely civil application. By extension, i agree with the learned DPP that the application is neither a civil nor a criminal suit and I answer Question 1 above accordingly. QUESTION 2- What is th true import of Section 85 of the Constitution vis a vis section 13(4) of the State Proceedings Act; Section 18 and First Schedule of the Legal Practitioners Act, and First Schedule, Order VI Rule 7, Courst Acts? This to me is the crux of the objection under consideration, and I shall proceed by a careful examination of the constitution and other statutes referred to. Section 85 of the Constitution of the Gambia 1997 provides as follows: “85. Control of Prosecutions The Director of Public Prosecutions shall have power in any case in which he or she considers it desirable to do so, and subject to the approval of the Attorney General; (a)To initiate and undertake criminal proceedings against any person before any court for an offence against t he law o f The Gambia (b)To take over and continue any criminal proceeding that has been instituted by any other person or authority; (c) To discontinue, at any stage before judgment • is delivered , an y criminal proceeding instituted or undertake by himself or herself or any other person or authority: Provided that the director of Public Prosecutions shall not- (i) Take over and continue any private prosecution without the consent of the private prosecutor and the court, or (ii) Discontinue any private prosecution without the consent of the private prosecutor. (2) For the purposes of this section, any appeal from a determination in any criminal proceedings before any court, or any case stated or question of law reserved for the purpose of such proceedings to any other court, shall be deemed to be part of those proceedings; Provided that the power conferred on the Director of Public Prosecutions under this section may be exercised by him or her in person or by persons under his or her direction and control. (3) The powers conferred in the Director of Public Prosecutions under this section may be exercised by him or her in person or by persons under his or her direction and control. (4) In the exercise of his or her functions under this section, the Director of Public Prosecutions shall be subject to the direction or control of the Attorney-General. (5)In this section, “private prosecution” means a prosecution instituted by any person or authority other than- (a)The Director of Public Prosecutions or any person acting under his or her direction or control; (b)A police officer in the exercise of the functions of his or her office; or (c) An officer in the public service in the exercise of the functions of his or her office.” The applicant’s counsel has interpreted this Section of the Constitution as completely restricting the powers of the DPP to criminal matters only, that is to say, the DPP has no right to appear in. civil cases on behalf of the Attorney General or any other public officer. In response, the DPP has argued that the section is not a closed or restrictive one, not having specifically provided that the DPP shall not exercise any other. powers except those stated in the section. :::::.:: It has to be noted from the outset that it is the law that where the words of an Act of Parliament are clear, there is no room for applying any rule of interpretation which are merely presumptions in cases of ambiguity. See the case of TOMPSON HOLIDAYS LTD. V. BANNA BEACH HOTEL LTD (2002 – 2008) 2 GLR 340@ 351, per Agim JCA as he then was, citing and relying on the case of CROXFORD V. UNIVERSAL INSURANCE CO. LTD (1936) 2 KB 250 @ 281. But where there is ambiguity in the words of a statute, the first cardinal rule of statutory interpretation is the literal rule, which is that every word, unless used in a technical sense, ought to be given its ordinary or literal interpretation, as legislators are generally presumed to intend what they actually convey by the words they use. See the case of THOMPSON HOLIDAYS LTD. V. BANNA BEAACH FOTEL LTD supra, @ 349, per Agim JCA as he then was. See also ATTORNEY GENERAL V. PAP C.O. SECKA (2002-2008) 2 GLR 73@ 75 RATIO 8 AND @ 77 RATIO 22. Looking carefully at this Section 85, I do not find any ambiguity in the provisions therein. The meaning and purport is clearly stated right from the heading of the section which states, “Control of prosecutions”. While the heading of the section cannot su bstitute the main provisions in the section, it however explains and clarifies the rationale and objectives of the section under consideration . See the case of JOBE (N0.1) v. ATTORNEY GENERAL (N.O.l) (1960-1993) GLR 191, @ 196-197 RATIO 1. See also ATTORNEY GENERAL V. PAP C.O. SECKA (2002-2008) 2 GLR 173 @ 75 RATIO 9. It is my view that the rationale or objective of this section is that, the DPP shall have the power, to the exclusion of all others, to “control prosecutions” as specified in subsections (1) (a), (b) and (c). But do the words of the section also covey an intention that the DPP shall not represent the Attorney General in any matter other than criminal matters? There is no such proviso in the whole of this section, and I do not find the basis for any such deduction from the wordings of the section. I shall in the circumstance refuse to read in this provision words that are not there, for this is not within the interpretative jurisdiction of a court. See KANIFING MUNICIPAL COUNCIL V. INTERNATIONAL BANK FOR COMMERCE (20002-2008) 2 GLR 173 @ 176 RATION 14 I will therefore also refuse the invitation for a restrictive interpretation of that section ejusdem generis, as urged by the applicant’s counsel. This is because laws are supposed to be interpreted to, and courts are more readily inclined to giving to a law such an interpretation that will give it effect, rather than one that will restrict or diminish the effect of the law, unless of course the interpretation will lead to absurdity or miscarriage of justice. Coming back to the case at hand, which of the two contending interpretations will more likely lead to an absurdity going by a literal interpretation of this section? To recap the arguments, on one contending side is the invitation by the applicant ‘s counsel to exclude the other functions of the DPP as a Law Officer by virtue of Section 85 of the Constitution. And on the other side is the DPP’s view that the Section 85 gives him exclusive power over criminal prosecutions but does not preclude him from appearing in civil or other cases representing the Attorney General or other public officers. ‘ It is my view that there being no express provision limiting other functions of the DPP in Section 85, and there being n o basis for a deduction of such limitation from the provisions, it will do violence to that provision and thus lead to an absurdity to interpret it as excluding the DPP from all other function except control of prosecutions. This is more so because the DPPP , a law officer, one of whose functions is to appear for the Attorney General (as we shall see shortly hereafter). As held:• earlier, this case is not a criminal or civil case but a miscellaneous application which has no CLEAR TYPOLOGY, AND SO, THE DPP CAN APPEAR FOR THE ATTORNEY GENERAL. I would have also come to the same conclusion and decision even if this were held to be a purely civil case for reasons that will be shown shortly hereafter.]]>
