Lawyer Lamin K Mboge and Lawyer Ibrahima Jallow in a civil suit dated 11th day of March 2019 served a notice that their case against the Attorney General, Ya Kumba Jaiteh and 31 NAMs is fixed for mention on Wednesday the 13th day of March 2019 at 9.30 and signed by the Registrar of the Supreme Court of The Gambia.
Lawyer Aziz Bensouda and Bory S. Touray and other 2 lawyers volunteered to stand for the defendants.
Counsel Aziz Bensouda told the court that the defendants were served through the pigeon holes at the National Assembly and asserted that such service is illegal. He argued that civil processes should not be served at the National Assembly or executed at the National Assembly. He submitted that the service should be set aside and argued that there is no basis to serve at the National Assembly.
Lawyer Mboge on the other hand argued that the issue of service is linked to the issue of exparte application and the substantive matter before the court and said the issue of service would be regularised subsequently.
He further said the agenda they have today is to seek reliefs from the court to grant those reliefs.
Lawyer Bensouda however said they are applying for cost and it will be a substantial cost because he said the business of the Assembly has been grounded and or stopped and the time of the honourable members have been wasted.
Senior Counsel Bensouda however expressed wish to preserve the application of cost but would then pursue the application of cost subsequently.
Lawyer Ibrahima Jallow, the 2nd Plaintiff to the suit rose up to say that they have a right to be heard; that the writ has properly been addressed and no one has asked the defendants to come to court today.
Justice Hassan Jallow interjected and said the court is ready to hear the submission of the defendants.
Lawyer Aziz Bensouda then rose to make his submission and said he submits that the writ sought has nothing to do with defendants except for relief 3 which reads as thus: ‘A DECLARATION that the purported resolution of the National Assembly signed by the 2nd to 32nd Defendants on Monday the 25th day of February 2019 is procedurally defective, illegal, unconstitutional, fraudulent and therefore impermissible and contrary to public policy’.
He added that this is the only section of the writ that mentioned the defendants and therefore submitted that otherwise if the court desires, they would read all the reliefs which was granted. He then read all the reliefs one by one and argued that all the rest did not concern the defendants.
As for relief No.3, which he said is a particular resolution that was said to have been signed; he explained and argued that a resolution cannot be unconstitutional or unlawful because he said a resolution is not binding.
Lawyer Aziz Bensouda said the writ did not mention any section that was said to have violated the Constitution and does not state the rights infringed; that it is challenging an Act of the National Assembly; that a section has been violated or that it is inconsistent or in contravention of an Act of the National Assembly.
Counsel Bensouda said even if they should consider the said resolution as alleged, even if it is assumed that it is inconsistent with the constitution, it is not the business of the Plaintiffs.
He went on to quote section 113 of the constitution relating to immunity of the Parliamentarians as thus:
“There shall be freedom of speech and debate in the National Assembly and that freedom shall not be impeached or questioned in any court or place outside the National Assembly.”
He added that even if such law or resolution is unconstitutional but the proper course to bring an action to the Supreme Court is to make the Attorney General the defendant. He argued that our system does not allow all the 53 members to be at risk; that they should not fear to get into laws, motions, and resolutions etc.; that they are privileged to make those motions. So he said to subject the whole National Assembly to a law suit, personal liability and personal scrutiny of the business of the National Assembly, he submits that such a precedent violates sections 113 and 114 of the Constitution which he read again and said is what guarantees the freedom of speech at the National Assembly.
Mr Bensouda further submitted that should this matter be adjourned, 33 members will not attend the sitting of the National Assembly which he opined would be catastrophic to our democracy and asserted that the suit should be dismissed against the 2nd to 32nd defendants.
Bensouda said his 2nd ground of objection is relating to all the defendants excluding the Attorney General and render the reliefs incompetent. He cited Lamin K Darboe and the Attorney General which he said has imposed a vacuum and argued that all the reliefs do not challenge the action but seek to support the president’s action.
The lead counsel adduced that should the writ be allowed to stand, any citizen can come to court to seek relief that the president’s action is constitutional; that they do not seek to echo the action of the president and further asked, when will it end and described the suit as frivolous. He argued that if he/she is affected by the President’s action or other authority, he/she can seek relief.
Counsel Bensouda is of the opinion that the reliefs undermined the work of the National Assembly because 19 members were in court instead of working at the Assembly. He therefore urged the court to dismiss the writ with substantial cost for each plaintiff since the plaintiffs claimed to be lawyers. This evoked rapturous laughter.
LAWYER LAMIN K. MBOGE’S SUBMISSION
Lawyer Mboge on his part said the objection raised by the lead counsel is frivolous and is only intended to prevent the court from proceeding with the business of the day. He argued that the writ before the court is seeking an interpretation of the constitution of the Republic of the Gambia, 1997, and also the issue of exparte writ emanating from an interpretation of the Constitution, 1997 and the Plaintiffs are seeking for a relief .He argued that Relief 3 alone is sufficient to bring the action to court to determine the legality and constitutionality of the action of the 3rd to 32nd defendants.
Mboge then referred the court to section 5 (a) and (b) of the Constitution relating to enforcement thus:
“A person who alleges that-a) any Act of the National Assembly or anything done under the authority of the National Assembly, or b) any act or omission of any person or authority, is inconsistent with, or is in contravention of the provision of this constitution, may bring an action in a court of competent jurisdiction for a declaration to that effect.”
Mboge went on to say that their submission is that the objection is premature and cited section 127 which deals with exclusive original jurisdiction for interpretation other than the provision of a fundamental right.
So the writ before the court is valid because it emanates from the provisions of the Constitution relating to enforcement, he added. He then submitted that the Counsel’s objection lacks merit and should be dismissed by the honourable court.
He was asked by Chief Justice B. Jallow on what his take is on a law relating to the rights and privileges of NAMs, Mboge said the 1997 Constitution overrides all other rights; that any law which is inconsistent with this constitution is null and void and of no effect legally. So he said relief 3 is a constitutional issue and they are also seeking for an interpretation and not only enforcement. He further argued that not all decisions of the National Assembly should not be challenged in court and does not prevent this court from hearing the plaintiffs.
On the 2nd objection, Mboge said they are submitting that the objection did not state that the action does not violate the constitution. He said the Plaintiffs are seeking for enforcement by the Court of the President’s action.
He then cited section 76 of the Constitution relating to the powers of the president. He said the president has power to nominate and the power to revoke is enshrined in section 231 subsection (1) of the 1997 Constitution. He further submitted that the powers of the President cannot be invoked frivolously and if we are aggrieved we can bring the matter before this honourable court.
Lawyer Mboge said the relief is to seek the enforcement of the decision of the President and to show this court that the President has such powers.
On the last issue he said the originating writ is not the business of the Court today and added that the defendants have up to 21 days to file their objections to the Court.
He added that the exparte application does not ask the defendants to come to court but if they choose to come and observe the proceedings of the Court, then that is fine. He also said they would ask for a substantial cost and for the court to overrule the application of cost by the defendants.
LAWYER IBRAHIMA JALLOW’S SUBMISSION
Lawyer Ibrahima Jallow said he would adopt the argument of his learned friend and also added that the issues raised by Counsel Bensouda tantamount to declaring the whole constitution to be set aside in favour of the defendants. He said the provisions of the Constitution should not be ambiguous and the objection by the senior Counsel is unwarranted and vexatious and not expected of a learned counsel.
THE SUBMISSION OF THE REPRESENTATIVE FROM AG CHAMBERS
The AG Rep said they need to look at the writ and advise themselves and come back later.
REPLY FROM LAWYER BENSOUDA
Bensouda informed the court that privileges of the members of the National Assembly are in the Constitution in sections 113 and 114 of the 1997 Constitution, which he quoted Section 113 thus:
‘There shall be freedom of speech and debate in the National Assembly and that freedom shall not be impeached or questioned in any court or place outside the National Assembly’.
Section 114: ‘Without prejudice to the generality of section 113, no civil or criminal proceedings shall be instituted against a member of the National Assembly in any court or other place outside the National Assembly by reason of anything said by him or her in the National Assembly’.
Bensouda then said his second reply is that he wished to submit that the objection of the defendants is locus standi, jurisdiction and no reasonable course of action. He added that the 3rd objection is not meant for hearing today if that is the case and asked why is the Court hearing the case today?
After a recess of 15 minutes, the court resumed and Justice Jallow announced the adjournment of the case to tomorrow Wednesday March 14th 2018 for ruling.
Hon. Chief Justice Assan B. Jallow pronounced the ruling of the Court that the names of the 31 NAMs who are defendants in the case of Lamin K. Mboge and Ibrahim Jallow vs the Attorney General as 1st Defendant and Hon. Ya Kumba Jaiteh as 2nd defendant and 31 others, have been struck out.
He further said the reasons would be provided later and the Defendants are now free to leave if they so desire.
