By Kemeseng Sanneh (KEXX)
Justice Ebrima Jaiteh of the Banjul High Court on Wednesday, 5 July issued an order freezing Aisa Fatty’s bank accounts. He made this order in a civil case involving Fatty and Senegalese business tycoon, Abdoulaye Thiam. Justice Jaiteh also ordered the Inspector General Police to keep the two vehicles supposedly owned by Aisha that Thiam is claiming ownership.
Jaiteh’s ruling came through an application filed by Thiam’s lawyer, Lamin Ceesay through a motion dated 18 May 2023. The request to freeze her accounts was opposed by Aisha’s lawyer, Lamin S. Camara. Thiam in his application asked for the accounts of Aisha to be frozen and the two vehicles to remain in the custody of the Police pending the hearing and determination of the case. The two vehicles are Mercedes Benz GLE 63 Brabus with registration number BJL 4222 W and Mercedes Benz GLE 53 with registration number BJL 0999 W. Thiam’s motion was supported by a 37-paragraph affidavit.
The motion was challenged by Lawyer Lamin S Camara, who asked the court not to grant the request. Justice Jaiteh held that he was inclined to grant the application saying it has merit.
“The application is hereby granted as prayed. Accordingly, it is hereby ordered as follows:
It is hereby ordered that the vehicles Mercedes Benz GLE 63 BRABUS with registration number BJL 0999 W remain in the custody of the 2nd Defendant pending the hearing and determination of the suit herein; and It is hereby ordered that the accounts in the name of 1st Defendant bearing account numbers: 6240000554 and 6240030832 with Ecobank Gambia Limited and all other Commercial Banks in The Gambia are hereby attached pending the hearing and determination of the suit.
Justice Jaiteh in his ruling said Thiam’s Lawyer failed and refused to formulate issues in his brief of argument, which according to him can render the application incompetent. He cited the case of NIWA VS SHELL [2008] 34 NSCOR on page 622, it was held that “Failure to formulate issues in a brief is sufficient by itself to render the brief incompetent and arguments canvassed therein would therefore be of no consequence.”
“The brief becomes irredeemably bad” Jaiteh emphasized.
He said such briefs are defective in nature and courts of law frowned upon briefs that have no issues. So why granting it? Justice Jaiteh said he won’t rely on technicality to decide on the application.
“It certainly gives the impression of indecisiveness. Yet, even in its defective form, the said brief would be considered because to do so would place greater importance on technical justice more than substantial justice” Jaiteh said.
Jaiteh recognised that Aisha’s Lawyer formulated two issues for determination, which were “Whether the application of the Plaintiffs applicant has met the requisite legal conditions for granting the application? And “Whether the court has the power to grant the prayers sought. The Respondent’s counsel argued these two issues in detail and urged this Court to resolve same in the favour of the Respondent (Aisha Fatty).”
On whether the court has the power to grant the request, Justice Jaiteh cited Order 12 Rule 1 of the Second Schedule of the High Court Rules which provides “In any suit in which it is shown to the satisfaction of the Court that any property which is in dispute in the suit is in danger of being wasted, damaged, or alienated by any party to the suit, it shall be lawful for the Court to issue an injunction to such party, commanding him or her to refrain from doing the particular act complained of or to give such other order for the purpose of staying and preventing him or her from wasting, damaging or alienating the property, as to the Court may seem proper, and in all cases in which it may appear to the Court to be necessary for the preservation …of any property which is in dispute in a suit…”
He held that the high court has the inherent power to issue an interim/interlocutory injunction to protect or preserve the status quo pending the determination of the substantive suit.
Justice Jaiteh said paragraphs 12, 16, 20 and 23 of the Affidavit and paragraph 9 of the affidavit in reply by Thiam raise serious triable issues affecting his rights. He added that it requires consideration of the balance of convenience.
“In considering the balance of convenience, it is important to emphasise that this case involves both parties laying claim to the monies and vehicles in question,” Jaiteh said.
He added: “Their respective legal and equitable rights are in issue and I consider this a serious and triable issue, although, we cannot go into the merits of the substantive case at this stage. The law is trite that a Court should not deal with any aspect of a substantive matter at the hearing of an application for interlocutory reliefs, such as this.”
He maintained that this proposition has been judicially settled by a plethora of authorities across various jurisdictions of the Common Law tradition, including The Gambia.
He pointed out that Thiam in his affidavit of statement said it will be in the interest of justice to order that the aforesaid accounts be attached as well as all other accounts in the name of the Aisha Fatty with all commercial banks in The Gambia pending the hearing and determination of the suit herein, otherwise she will dissipate the monies therein in anticipation of judgment against her.
“It is my view that if the status quo is not maintained, there are no alternative remedies available to the Applicant. Therefore, the balance of convenience is in favour of the Applicant (Thiam),” Jaiteh said.
He added that: “Based on the circumstances of this case, I am therefore inclined to hold that there is merit in this application to warrant this Honourable Court to grant the reliefs sought. The application is hereby granted as prayed.”
He made the following orders: It is hereby ordered that the vehicles vehicle Benz GLE 63 BRABUS with registration number BJL 0999 W remain in the custody of the 2nd Defendant pending the hearing and determination of the suit herein; and It is hereby ordered that the accounts in the name of 1st Defendant bearing account numbers: 6240000554 and 6240030832 with Ecobank Gambia Limited and all other Commercial Banks in The Gambia are hereby attached pending the hearing and determination of the suit,”.
