By Yankuba Jallow
The Supreme Court of the Gambia on Monday, 17 January affirmed their decision in striking out the UDP election petition case delivered on the 28 January 2021.
The Supreme Court on the 28th December 2021 struck out the UDP election petition case for failing to fulfill the mandatory requirements of Rule 11 of the Elections Petition Rules.
The opposition party were aggrieved with the decision of the court and decided to file a motion ex-parte requesting the court to allow them to make a formal application for a review of the decision.
Under the laws, the Supreme Court can review their own decision.
UDP wanted the highest court in the Gambia to reconsider their own decision.
UDP wanted to bring back their petition to give it life but the apex court held that they failed to adhere to the mandatory provisions of Rule 11.
UDP submitted that the court has inadvertently made fundamental errors in striking out the Petition on the grounds of non-adherence to Rule 11 of the Election Petition Rules. The court unanimously dismissed the UDP motion seeking to bring back the election petition.
The UDP Ex-parte motion was supported by an affidavit ofAlhajie A. Darboe sworn on the 10th January 2022.
The application for review was made pursuant to the provisions of section 8 of the Supreme Court Act and Rule 54 (c) and (d) of the Supreme Court (Amendment) Rules, 2015. Rule 54(1) provides that the Supreme Court may review any decision made or given by it on any the grounds of exceptional circumstances which have resulted in a miscarriage of justice. Also, the court may review its decision on the 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.
In support of their quest for a review of the case, UDP argued that 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. It was the submission of UDP that a petitioner cannot comply with both section 98(2) and Rule 11 of the Election Petition Rules. The reason given was that the section requires that security 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.
The party argued that Rule 11 of the Election Petition Rules (a subsidiary provision) is therefore in clear conflict with Section 98(2) of its parent Act, adding that the Court did not avert its mind to the consequence of such conflict.
However, the court dismissed the motion and affirmed their decision that Rule11 is mandatory, failure of which is fatal on the petition.
We will provide you with the detail reasoning of the Supreme Court on the matter in our subsequent editions.