Wednesday, May 18, 2022

Supreme Court Gives Reasons for Striking Out UDP Election Petition

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By Yankuba Jallow

Justices of the Supreme Court of The Gambia have given reasons for striking out the UDP election petition case. The court held that Rule 11 of the Election Petition Rules is not trivial technicalities, as opposed to the position of the petitioners (UDP).

“They are rules of law and are mandatory,” Justice M.M. Sey said, in her lead ruling.

She added: “What the Applicant (UDP) refers to as “technical side wind” is not only the law in this jurisdiction, but also consistent with the jurisprudence in this jurisdiction in determining election petitions timeously.”

Justice Sey said it is clear that UDP has not complied with the Rule 11.

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“That law (Rule 11) is equally clear about the fatal consequences of non-compliance,” she said.

She said it is hoped that future election petitions would be soundly grounded on the law and the established jurisprudence that prevails in thus jurisdiction.

Her ruling was in relation to the UDP ex-parte motion seeking an order from the court to grant leave to file an application for a review of the ruling of the Supreme Court delivered on the 28th December 2021. The ex-parte motion was brought pursuant to section 8 (1) of the Supreme Court Act and Rule 54 (c) and (d) of the amended Supreme Court Rules. The motion was supported by an affidavit of 26-paragraph deposed to by Alhagie S. Dabo and a statement of case filed on 10 Janaury 2022.

By virtue of Section 8 (1) of the Supreme Court Act, the court is empowered to “review any decision made or given by it on such grounds and subject to such condition as may be prescribed by the rules of court.”

Rule 54 provides that the court may review a decision made or given by it on grounds of exceptional circumstances which have resulted in miscarriage of justice. Also, the court may review its own decision on grounds of 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 or her at the time when the decision was given.

Justice Sey said the principles relating to review applications were clearly outlined by the Supreme Court in the case of Isatou Secka and Susan Badjie 2012 (judgment delivered on the 24 November 2017). In that case, Justice Hassan B. Jallow said “the review jurisdiction of the Supreme Court under Rule 54 (a) is reserved for exceptional situations and circumstances. An applicant for review must establish the occurrence of a fundamental error; not just any error. The error must be fundamental such as being per incursam a relevant statute or law or a binding precedent. It is not enough for an applicant to establish an error other than a fundamental one. A fundamental error is also not enough on its own to activate the review jurisdiction of this Court. It must further be established that the fundamental error has occasioned a miscarriage of justice. It does not suffice to merely criticise the judgment that is the subject of the application. Review is an exceptional measure; it is not meant to be a second appeal to the Supreme Court wherein the Judgement may be criticised on various grounds.”

Justice Sey relying on the case of the Bishop of Banjul and John Paul Njie said the essence of the requirement to seek leave to file an application for review is to enable the court to make a proper evaluation of the application to determine whether the applicant should proceed with filing an application for a review of the decision of the Court.  She said the Court, in so doing, will consider the prospect of satisfying the standard test in establishing “exceptional circumstance”.

“Leave sought cannot be based on emotion or plea for mercy. It is not designed to provide the applicant with an opportunity for a second appeal. The Court must manage its business prudently in the interest of serving justice,” she said.

In an attempt to establish the existence of “exceptional circumstances” in support of the application for leave to file a formal application for a review by the court of its 28 December 2021 ruling, UDP 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. 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. Rule 11 of the Election Petition Rules (a subsidiary provision) is therefore in clear conflict with Section 98(2) of its parent Act. The Court did not avert its mind to the consequence of such conflict. 

The second exceptional circumstance UDP raised was 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. This is limited to when the Petitioner fails to comply with section 98(2) referred to above, not otherwise. The Court did not consider whether the Petitioner having complied with section 98(2), the Petition can be struck out for non-compliance with Rule 11.

On the third exceptional circumstance, UDP said there was no application on any of the motions filed by the 1st Respondent 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 affording the Petitioner the opportunity to specifically address it on the issue before making a ruling. 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.

On the fourth ground, UDP said The cases cited to and relied upon by the Court no longer reflect progressive international human rights law on the interpretation of election petition rules.

On the fifth and final ground, UDP said the Court made a fundamental error when it stated that the petitioner cannot rely on service by the court.

UDP argued that Rule 11 of the Elections Petition Rules is inconsistent with Section 98 (2) of the Elections Act. In her ruling, Justice Sey dismissed this saying there is no inconsistency between Rule 11 and Section 98.

It is evident, however, that there is no conflict or inconsistency between Section 49 of the Constitution and Rule 11 of the Rules. The former creates a right for certain persons and political parties to challenge the results of an election to the office of President and timeframe of ten days within which to do so and identifies the Supreme Court as the Court of competent jurisdiction to determine the validity of such an election. Section 5 (c) of the Supreme Court Act and Part V of the Supreme Court Rules further regulate the manner in which this original and exclusive jurisdiction of the Supreme Court may be activated and exercised. The Elections Act and the Rules made thereunder provide in greater detail for the regulation of matters relating to the conduct of elections and challenges to the validity thereof.

Hence, the Elections Act, the Rules and the Supreme Court Rules together provide for such further details as are, for instance, contained in Rule 11 of the Rules. That is the nature of legislation.”

She said the Constitution is the foundation and framework legislation which sets out the broad principles of law and governance within which the State is to function. Much of the details is left to be regulated by Acts of the National Assembly and of subsidiary legislation enacted thereunder.

That is the arrangement in the matter of elections. The Court finds and holds that there is no conflict or inconsistency between Section 49 of the Constitution and Rule 11 of the Rules,” she asserted.

UDP also argued that Rule 11 of the Election Petition Rules (which is a subsidiary legislation) is in conflict with section 98 (2) and (3) of the Elections (which is a primary provision that deals with security for cost). UDP contended that an applicant in an election petition case cannot comply with both Rule 11 of the Election Petition Rules and Section 98 of the Elections Act, as a result, precedence should be given to Section 98 over Rule 11.

However, Justice Sey said by virtue of Section 98 (2) of the Elections Act a petitioner is legally obligated to give security for the payment of costs, charges and expenses to cover any liability that may arise in relation to a witness appearing on the petitioner’s behalf or to any respondent. She added this security must be given either at the time of presenting a petition or within three days after such presentation. She said by virtue 98 (3) empowers the Court to determine the amount of the security and the manner in which the security is to be given. She held that, the tenor of those provisions of section 98 of the Elections Act, are clear and unambiguous.

On the other hand, she said Rule 11 of the Elections Petition Rules deals with two fundamental issues of substantive procedure as part of the five elements outlined in the Ruling on the 28th December 2021. She held that the two fundamentals of Rule 11 are obligations of the petitioner to provide a notice of presentation of a petition and of the nature of proposed security by a copy of the petition; and to serve that notice on the Respondent within five days of the presentation of the petition..

She dismissed UDP’s argument that Rule 11 and Section 98 (2) and (3) cannot co-exist.

An Order made under Section 98 (20 and (3) substantively stands on its own and any failure to comply with the terms of such Order becomes fatal to any further processing of a petition that has been filed. Rule 11 of the Election Petition Rules deals with the issue of preparing a notice together with the required appendages and serving that notice on the Respondent,” she said.

She added: “This  is a fundamental procedural issue that formally makes the Respondent aware of the petition and what it entails to enable the Respondent to prepare for his or her defence.”

Justice Sey cited the case of Sheriff M. Dibba versus Dr Lamin Saho where it was mentioned by the then Chief Justice Ayoola that essentially what is to be served is the notice of presentation of the petition with the petition and the proposed security as appendages or attachments thereto. She further cited that judgment to say “the obligations set out in Rule 11 are cumulative; they are not disjunctive. That means each single obligation must be adhered to. A failure of compliance with any obligation will be fatal. The obligation is specifically placed on the petitioner alone to ensure that notice required under Rule 11 adheres to each single factor therein.”

The Judge said Rule 11 of the Election Petition Rules effectively represents the jurisprudence in this country. She disagreed with the UDP position that it was impossible to achieve both obligations provided in Section 98 (2) and (3) of the Elections Act and Rule 11.

Both provisions can be complied with,” she said.

She said once a petition is filed, the obligation arises for the petitioner to give security for costs, charges and expenses either at the time of presentation of the petition or within three-days thereafter (Section 98 (2) of the Elections Act). She added that the obligation further arises for the petitioner to prepare and serve the requisite notice under Rule 11 on the Respondent within five days of the presentation of the petition (excluding the day of presentation of the petition), not “after the fifth day of the filing of the petition” as contended by UDP.

She said it is clear that the tenor of section 98 (2) and (3) of the Elections Act is different from Rule 11 of the Elections Petitions Rules. She added that each of them stipulates timeframe for compliance.

“Consequently, it is the considered view of this Court that Rule 11 of the Election Petition Rules is neither in conflict nor inconsistent with section 98 (2) and (3) of the Elections Act. Based on this finding and the earlier finding that Rule 11 of the Election Petition Rules is not in conflict or inconsistent with section 49 of the Constitution coupled with the jurisprudence in this country on election petitions as outlined in the numerous cases cited in the Court’s Ruling  of 28th December 2021, this Court forms the view that the fundamental rights in sections 24 and 26 of the Constitution have not been abridged or violated in any way,” she said.

The Court held that UDP had joined issues both on the security for costs aspect and the service of the petition in their affidavits in-opposition deposed to by Oley Dibba Wadda and Maimuna Dibba Cham on the 22nd and 23rd December 2021 respectively.

In dismissing UDP’s argument on this issue, she said the UDP’s lawyer’s argument was misconceived and untenable.

She held that the UDP has not made out a prima facie  case for the court to grant leave to apply for a review of the Court’s ruling dated the 28th December 2021.

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