By Yankuba Jallow
Continuation from Issue No. 200.
Fadi Mazegi and Mohamed Bazzi have filed an appeal at the Gambia Court of Appeal in which they held that ‘Janneh’ Commission’s Interim Orders are unconstitutional and regard them bias.
The matter will be coming up at the Court of Appeal on the 6th of November 2017 at 10 am and the matter may be preseented by Victoria Andrews of Farage Andrews Law Practice on behalf of the Appellant. In the notice of motion, the Appellants held that the issuing of Interim Orders restraining them from and further freezing any and all of their assets based on witness testimony, was unconstitutional, illegal and completely flawed and without any legal basis. They added that the Commission made a freezing order against the Appellants without informing them of the said Orders at any time and merely publishing the same in several national newspapers.
In this civil matter, the first Respondent is the Commission of Inquiry into the financial activities of public bodies, enterprises and dealings with the former president Yahya A.J.J Jammeh and connected matters and the second Respondent is the Attorney General of the Gambia, whilst Mr. Fadi Mazegi and Mohammed Bazzi are the Appellants.
The Appellants seek the granting of an interlocutory injunction on all their grounds of appeal, to restrain the Respondents from acting on the said two interim orders dated 13th October 2017 or taking any action against the Appellants that would prejudice the status quo pending the determination of the Appeal filed to the Court Appeal of the Gambia.
On the notice of appeal, both parties (Appellants) claim that the Commission has acted in excess of its jurisdiction when it purported to issue two Orders both issued on 13 October 2017 stated to be Interim Orders which orders were ultra vires, null and void. They maintain that the Constitution that does not give power to the Commission of Inquiry to issue interim orders restraining the Appellants witness to the Commission from dealing with any and all of the Appellants’ assets in and out of the Gambia. They also maintain that the Constitution does not empower the Commission of Inquiry to issue interim orders by way of injunction, restraining the Appellants from acting in the manner of the order. On the final point, they submit that the Commission of Inquiry does not have a cross jurisdictional power to freeze the Appellants’ business assets or other assets outside of the Gambia.
DETAILS OF THE SIX NOTICES OF APPEAL
On the notice of appeal, both parties (Appellants) claim that the Commission has acted in excess of its jurisdiction when it purported to issue two Orders, both issued on 13 of October 2017, stated to be Interim Orders which orders were ultra vires, null and void. They maintain that the Constitution does not give power to the Commission of Inquiry to issue interim orders restraining the Appellant from dealing with any and all of the Appellants’ assets in and out of the Gambia based on the Appellants’ testimonies. They also maintain that the Constitution does not empower them to issue interim orders by way of injunction restraining the Appellants from acting in the manner of the order. They also maintain that the Commission of Inquiry does not have gross jurisdictional powers to freeze the Appellant’s business or other assets outside of the Gambia.
On the second point of the notice of appeal, they maintain that the Commission erred in law and enacted in a manner which was contrary to the provisions of the Constitution and the Commission of Inquiry Act 30:01, under which it was established. On the particulars of notice, they are claiming that there was no power under the Commission of Inquiry Act Cap 30:01, authorising the Commission to issue interim orders by way of injunction to prevent the Appellants from dealing with any and all of his assets in and outside of the Gambia. They also claim relying on the same legal authorities that the Commission of Inquiry to issue interim freezing to restrain the Appellants who was at all material times only a witness before the Commission freezing his assets in and outside the Gambia; that the terms and reference of the Commission did not empower it to issue the Interim Orders issued on the 13th October, 2017. Finally both claim that the Commission is just a fact finding investigation Commission of Inquiry with a mandate to make recommendations only after taking witnesses.
On the third notice of claim, they claim that the Commission has failed to appreciate the distinction between the powers, rights and privileges of a judge of the high Court at a trial in respect of making Interim Orders and the jurisdiction of the High Court to make orders under Section 132 of the Constitution. They held that the powers conferred in Section 202 (2) of the Constitution was limited to the Commission making interim Orders related to the taking of evidence and the hearing of witnesses only. Also, they claim that there was no power given to the Commission to make orders under the Public Assets and Properties (Recovery) Act Cap 29:01, which called for the establishment of a separate and specific Commission pursuant to that Act’s Section 3.
They further claim that The Commission of Inquiry was established under the Constitution and the Commission of Inquiry Act Cap 30:01 and not under the Public Assets and Properties (Recovery) Act Cap 29:01. They finally claim that the Commission purported to exercise powers only exercisable under the Public Assets and Properties (Recovery) Act Cap 29:01, thereby ignoring the Commission under which it was established.
On the fourth notice of claim, the Appellants claim that the Commission erred in law when it purported to make interim findings and issue orders against them when they were only witnesses to the Commission and have never been declared to be “persons whose conduct is the subject of inquiry” under the Commission of Inquiry Act Cap 30:01. They claim that they were summoned by a witness summons pursuant to the Section 205 of the Constitution and Sections 10 and 13 of the Commission of Inquiry Act Cap 30:01 by law, afforded all the privileges and immunities as a witness. They added that the Commission was required but failed to adhere to the Salmon principles applicable in matters of Commission of enquires by failing to make known to the Appellants that they were to answer allegations made against them. They held that the Appellants were entitled to be informed of their rights under Section 14 of the Commission of Inquiry Act cap 30:01, if the Commission determined that ‘‘they were persons whose conduct was subject to inquiry” under the said Act, before any order could properly be made against them.
On the fifth notice of appeal, they held that the Commission has failed in its duty to ‘make a full and impartial investigation’ and to act in good faith and in an unbiased manner in accordance with the principles of fair hearing guaranteed under the Constitution or to accord them the opportunity to be heard before orders were made against them.
On the particulars of the notice, they held that the Commission has acted in bad faith and / was biased in its dealings with the Appellants and that the Commission’s Interim Orders were based on the testimony of unnamed witnesses without giving the Appellants the opportunity to be heard on the issue. In addition, they held that the Commission has breached the rules of natural justice and fair hearing in making the Orders without notifying them of the Evidence on which it was based or offering them an opportunity to respond to same.
On the final notice of appeal, the Appellants held that the Commission acted unconstitutionally and contrary to the provisions enshrined in Section 24 of the Constitution which safeguard protection of the law and fair hearing when it purported to issue the Interim Orders based on interim findings and when it labelled the Appellants as “ close associates of the former President Yahya Jammeh’’ before making its determination as to who were the close associates of the former president and based on unknown witnesses who identified them.
