SUPREME COURT STRIKES OUT UDP ELECTION PETITION

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Awards Cost of D100,000 in Favour of President Barrow

By Yankuba Jallow

The Gambia Supreme Court on Tuesday morning dismissed the United Democratic Party’s (UDP) petition and ordered the party to pay President Adama Barrow one hundred thousand dalasis (D100,000) as cost.

The court found and held that the petitioners (UDP) failed to comply with Rule 11 of the Elections Petition Rules.

Rule 11 is titled “Time of Giving Notice” provides that “Notice of presentation of petition and the nature of the proposed security accompanied by a copy of the petition shall be served by the petitioner on the respondent within five days after the presentation, exclusively of the day of the prosecution.”

The court found and held that this provision of the elections petition rules is mandatory and failure to comply with it would result in fatality.

Chief Justice Hassan B. Jallow dismissed Lawyer Bory S. Touray’s argument that Rule 11 does not apply to petitions as it regards the office of the President. Justice Jallow also dismissed Lawyer Touray’s argument that section 49 of the Constitution and Rule 11 of the Elections Petition Rules contradict each other.  Justice Jallow stated that Rule 11 gives right to the respondent in election petition cases. He explained that the Constitution is the foundation and framework law while much of the legislation is done by the Acts of the National Assembly, which include the Elections Act and Elections Petition Rules.

“The court finds and holds that there is no conflict between Section 49 of the Constitution and Rule 11 of the Elections Petition Rule 11,” he said.

Chief Justice Jallow said it was the responsibility of the petitioners (UDP) to serve the Respondent (President Adama Barrow). Rule 11 cited above, according to the Chief Justice, is mandatory which obliges the petitioners (UDP) to file notice to the President within five days.

“Has the Petitioner complied with the requirement of Rule 11?” Justice Jallow asked.

“It is clear that the Petitioner has not served the notice of petition and security as required by Rule 11 to the 1st Respondent [President Adama Barrow],” Jallow answered.

He said UDP sought to rely on a letter obtained from the Registrar of Courts to argue that it was sufficient.

“This does not comply with what is required under Rule 11 of the [Elections Petition] Rules,” Jallow said.

Justice Jallow stressed that the notice as required by Rule 11 should be served within 5 days after filing the petition.

“It is clear that the Petitioners [UDP] have not filed the notice of petition and security,” he reiterated.

He added: “The Court fines and holds that the Petitioners have failed to comply with the requirements of Rule 11.”

He emphasized Rule 11 is mandatory and failure to comply with the provisions would render the petition fatal as he relied on several decided cases from both within the jurisdiction and beyond.

“This single obligation [referring to Rule 11] must be adhered to,” Jallow said.

He said the rationale of Rule 11 is to give the Respondent the chance to know about the petition and know what is at stake in order to prepare his response.

“Compliance to Rule 11 is mandatory and non-compliance is fatal,” Jallow said.

He maintained that respect for timeliness set for election petition is mandatory and failure to observe them is failure.

The court found and held that “Rule 11 is mandatory and non-compliance is fatal.”

He struck out the case and awarded cost of D100,000 against the UDP. The political party is asked to pay this amount to President Adama Barrow as cost.

Chief Justice Jallow said this amount of money (D1000) would be recovered from the sum of D300,000 that UDP deposited as security in the case. The remainder would be refunded to the party.

History of the case

UDP (the petitioners) were dissatisfied with the results as announced by the IEC and decided to file an election petition on the 14th December 2021. On the 15th December 2021, the party filed an amended petition.

The party sought several reliefs form

The petitioners went ahead to deposit D300,000 with the courts as security for payment of cost and other expenses. The deposit was cash deposit to the Registrar of the Courts.

On the 15th December the party applied for the joinder of the IEC in the suit as a Respondent. On the 16th December 2021, the Chief Justice, sitting as a lone judge, granted the oral application by the petitioner’s lawyers to join IEC in the suit.

On the 17th December 2021 was the first day of the public hearing of the petition. On this day, the court order for the Attorney General to be added in the suit.

On the 16th and 20th December the lawyers for President Adama Barrow filed two different motions both seeking to dismiss the petition. Both motions were supported by affidavit in-support sworn to by one Seedy Njie, the Spokesperson of the National People’s Party (NPP). These motions were opposed to by the Petitioners (UDP).

The Lawyers for President Adama Barrow filed a third motion seeking to dismiss the election petition case on the basis that the Petitioners failed to comply with the election petitions rules. The motion was supported by an affidavit in-support sworn to by the same Seedy Njie. This motion was also opposed to by the Petitioners and the opposition was supported by an affidavit in-opposition sworn to by one Maimuna Dibba.

Also, the lawyers for IEC filed a notice of preliminary objection that they were not properly added.

The Petitioners filed a motion on notice to add the National People’s Party, even though the motion was not moved.

Lawyers Bory S. Touray, Lamin S. Camara, Abdul Aziz Bensouda, Lamin L. Darboe and Fatou Ebrahim Darboe appeared for UDP – the petitioners.

Lawyers Ida Drammeh, Sheriff Marie Tambadou, S. Sillah, Y.H. Toggs and Paulin Bakurim represented President Adama Barrow.

Lawyers Kebba Sanyang, Malick H.B. Jallow and Fatou M. Jawo appeared for the Independent Electoral Commission (IEC).

The Solicitor General Hussein Thomasi, Director of Civil Litigation Binga D. and Deputy Director of Civil Litigation Kimbeng T. Tah represented the Attorney General.