Thursday, January 20, 2022

Lawyers for UDP Fault Supreme Court for Striking Out their Election Petition

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By Yankuba Jallow

The Petitioners’ (UDP) motion was dated the 10th January 2022 seeking a review of the Supreme Court decision against them. The apex court on the 28th December 2021 struck out the UDP election petition case brought against Adama Barrow (President), the Independent Electoral Commission (IEC) and the Attorney General. The court held that the Petitioners failed to comply with the requirements of Rule 11 of the Elections Petition Rules by not filing notice of petition and proposed security.

Aggrieved by the decision of the court, UDP now wants the court to allow it to make a formal application for a review of the ruling against them.

This application is made pursuant to the provisions of section 8 of the Supreme Court Act Cap 6:05 and Rule 54(c) and (d) of the Supreme Court (Amendment) Rules, 2015. Rule 54(1) provides as follows:

“The Court may review any decision made or given by it on any of the following grounds:

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(a)      Exceptional circumstances which have resulted in a miscarriage of justice;

(b)     Discovery of new and important matter or evidence which after the exercise of due diligence was not within the Applicant’s knowledge or could not be produced by him at the time when the decision was given;

(c)      In addition to paragraphs (a) and (b) above, all applications for review shall be subject to the leave of the court first had and obtained;

(d)     The application for leave shall be made ex parte not later than 15 days of the decision sought to be reviewed;”

“We submit that the instant application was made within the required timeframe,” Lawyer Touray said.

In The Gambia, the Supreme Court is the highest court and no other court is above it in terms of the hierarchy of the courts. Decisions of the Supreme Court cannot be appealed before any other court. However, the laws give the court power to review its own decision. The applicants for review must show there was miscarriage of justice as a consequence of the decision and also, the applicant must show the special circumstances to warrant the review.

Lawyer Bory S. Touray for UDP submitted that the 28th December ruling was anchored on Rule 11 of the Election Petition Rules. He argued that the court failed to avert its mind to section 98 of the Elections Act.

Lawyer Touray submitted that section 98 is the entire Elections Act that deals with security in petition case. He relied on Section 11 (c) of the Interpretation Act and submitted that the Election Petition Rules are subsidiary legislation which cannot take precedence over the parent Act (Elections Act).

He cited the UDP case against the Attorney General in 2008 in which the court allowed the Act to prevail over the subsidiary legislation.

He said the Court did not avert its mind to section 98(2) of the Elections Act which requires the Petitioner to give security for costs on the day of filing the petition or within three days thereafter.

“A petitioner cannot comply with both section 98(2) and Rule 11 of the Election Petition Rules,” Touray said.

He said Section 98 requires that security to be given within 3 days or such further period fixed by the court, while the rule requires the Petitioner to give notice of the nature of the proposed security within 5 days of the presentation of the petition.

“Rule 11 of the Election Petition Rules (a subsidiary provision) is therefore in clear conflict with Section 98 (2) of its parent Act (Elections Act). The Court did not avert its mind to the consequence of such conflict,” he said. 

He submitted that the Court did not also avert its mind to section 98(3) which provides for the only instance in which further proceedings would be barred in respect of security for cost. He said this is limited to when the Petitioner fails to comply with section 98 (2) referred to above, not otherwise. 

He submitted that there was no application on any of the motions filed by the 1st Respondent (Adama Barrow) to dismiss the suit for failure to serve notice of the petition on the Respondents.

“The Court made a fundamental error in proceeding suo moto to strike out the Petition on an issue not founded on any prayer before it and without allowing the Petitioner to specifically address it on the issue before making a ruling,” he said.

The motion stated: “The foregoing fundamental errors resulted in a miscarriage of justice as it deprived the Petitioner of its constitutional right, conferred by section 49, to challenge the elections, even though the Petitioner had already filed its evidence as ordered by the court. It thereby also deprived the Petitioner of its fundamental rights to a fair hearing and by extension the political rights of its supporters conferred by sections 24 and 26 of the Constitution respectively.”

He said assuming the Petitioners did not comply with the order to make the deposit, the only rational decision for the court to do was to stay the proceedings of the case until the orders are complied with and not to strike out the case.

Lawyer Touray said the court’s failure to comply with section 98 subsection (3) is a special circumstance because it occasioned miscarriage of justice.  He added that it is without doubt that the Respondent (Adama Barrow) did not ask for the case to be struck out.

He argued that the court failed to accord them the opportunity to address it on the single isolated issue on the failure to comply with Rule 11.

He urged the court, in the interest of justice, to allow them to make application for review of the case.

Facts of the Case

The facts as contained in the affidavit in support of the motion are that the Applicant (UDP) filed a petition on the 14th of December, 2021 pursuant to sections 49 and 127 of the Constitution and provisions of the Elections Act seeking to invalidate the election of Adama Barrow, the 1st Respondent, by reason of, inter alia, corrupt practices, widespread irregularities and illegal practices.

UDP deposited D300,000 at the Bloom Bank as security for the case.

The 1st Respondent (Adama Barrow) filed two motions on 16th December and 20th December 2021, respectively seeking to strike out the Petition. Both motions were subsequently dismissed. The third motion dated the 21st December, 2021 resulted in the striking out of the petition.

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