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T O P I C    R E V I E W
Momodou Posted - 13 Dec 2021 : 16:35:03
Gambia opposition files legal challenge to election result
Reuters: December 13, 2021
By Pap Saine


BANJUL, Dec 13 (Reuters) - The runner-up in Gambia's election, Ousainou Darboe, has launched a legal challenge to President Adama Barrow's victory, his party said on Monday

Barrow won the Dec. 4 poll with 53% of the vote, well ahead of Darboe who got about 28%. The election was the first in 27 years without despotic former president Yahya Jammeh and was seen as a test of the tiny West African nation's fragile democracy.

The day after the poll, Darboe and two other candidates said they did not accept the results because the vote count took longer than expected, and because of alleged problems at polling stations.

They have yet to provide any evidence of wrongdoing.

"After our executive meeting on Friday with our lawyers we have decided to file a petition today at the Supreme Court," Almamy Taal, spokesman for Darboe's United Democratic party (UDP), told the press.

Taal did not set out the grounds of the complaint...

read more at: https://www.reuters.com/world/africa/gambia-opposition-files-legal-challenge-election-result-2021-12-13
15   L A T E S T    R E P L I E S    (Newest First)
Momodou Posted - 17 Jan 2022 : 16:10:13
Breaking News

The Supreme Court dismissed the application of the UDP for the court to review its earlier ruling on 28th December and allow the court to hear their election petition against Adama Barrow, independent electoral commission, and Ministry of Justice. Today at 13:00 the court preside over the application and dismissed the application maintaining its earlier position

It could be recalled that the UDP filed a motion dated the 10th January 2022 seeking review of the Supreme Court decision against them after the court on the 28th December 2021 struck out their 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 a notice of petition and the proposed security.

Am sorry that I couldn't bring you the full ruling of the court because I got the information at 13:45, while I was in the National Assembly when the court was almost done with the ruling but I managed to rush to the court and gather this information, but the Clark of the court promise me to share ruling with me tomorrow.

Hopefully tomorrow I will share the ruling of the court on the basis it dismissed the application of the UDP for the review of its decision.

Source: Kexx Sanneh
toubab1020 Posted - 14 Jan 2022 : 17:10:24
The words, Ad infinitum,may spring into your mind in relation to this posting

RELATED:https://thepoint.gm/africa/gambia/headlines/udp-counsel-urges-sc-to-allow-ruling-to-be-reviewed

(Definition here if you are not a legal eagle: https://en.wikipedia.org/wiki/Ad_infinitum}

==========

https://foroyaa.net/lawyers-for-udp-fault-supreme-court-for-striking-out-their-election-petition/
==========


By Yankuba Jallow on January 14, 2022

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:

(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.
Momodou Posted - 13 Jan 2022 : 15:09:55
UDP REVIEW APPLICATION

The Standard: JANUARY 13, 2022

https://standard.gm/gambia-news/udp-review-application/


INTRODUCTION

1. By a Motion Ex-parte dated and filed on 10th day of .January, 2022 the Petitioner/Applicant is seeking leave of this Court to make an application for review of this Court’s Ruling dated the 28th of December, 2021, and for such further or other orders as to this Honourable court may seem just.

The motion is supported by the affidavit of ALHAGIE S. DARBO sworn on the 10th of January, 2022. We rely on the said affidavit.

FACTS

2. The facts as contained in the affidavit in support of the motion are that the Applicant 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.

3. The Petitioner also filed a motion ex-parte on the same day pursuant to section 98(2) and (3) of the Elections Act and Rule 9 of the Election Petition Rules praying the Court:


(a) To fix the amount that the Petitioner shall give as security for the payment of all costs, charges and expenses;

(b) In what manner such security shall be given; and

(c) For such further and other orders as this Honourable Court may deem fit to make.”

4. On the 16th of December, 2021 (second day after presentation of the petition) the Petitioner moved its motion for security and the Court ordered that: (a) the Petitioner/Applicant shall provide security in the sum of D300,000.00 for the payment of all costs, charges and expenses relating to this suit; (b) the security shall be in the form of cash deposit with the Master/Registrar or payment into a Bank; and (c) the Petitioner/Applicant shall comply with the order not later than close of business on Tuesday the 21st of December 2021 and shall file proof of such compliance with the Court.

5. Pursuant to the Order of the Court aforesaid, the Petitioner deposited the sum of D300, 000 into the account of the Master held at Bloom Bank Ltd on the 17th of December, 2021 (third day of presentation of the petition). The Petitioner/Applicant filed the notice of compliance with the Order of the Court on the 21st of December, 2021.

6. Meanwhile, the Petition itself had been served on the 1st Respondent on the 15th of December, 2021. On the same day, the Petitioner applied to join the Independent Electoral Commission as 2nd Respondent and the application was granted on the 16th of December, 2021. The 2nd Respondent was accordingly served with the Amended Petition (adding its name) and notice of mention of the case on the 17th December, 2021.

7. The 1st Respondent entered conditional appearance on the 16th of December and a conditional answer to the petition on the 20th of December 2021. The 1st Respondent 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 and which resulted in the striking out of the petition, prayed for the following:

“(1) The Petition of the Petitioner be dismissed for non-compliance with the requirement to give notice to the 1st Respondent of the nature of the security provided within five days after the presentation of the petition in accordance with the requirements of Rule 11 of the Election Petition Rules:

(2) That such non-compliance is fatal to the proceedings;

(3) For such further or other orders as to this Court shall seem fit.”

8. After hearing viva voce arguments on the motion, The Court found and held that the Petitioner/Applicant failed to comply with the requirements of Rule 11 in that it did not serve the 1st Respondent a “notice of the presentation of the petition and of the nature of the proposed security accompanied by a copy of the petition.”

BASIS OF THIS APPLICATION

9. 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:

(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.

10. The grounds or conditions that would have to be established to warrant leave of the Court are not provided for in the Rules. However, this Hon. Court in a number of cases outlined the principles rules that govern an application seeking leave to apply for a review of its decisions. In the case of Bishop of Banjul v. Njie SC Civ. App No. 10/2016 (delivered on 30th July, 2019), this Court held as follows:

“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. In so doing, the Court will consider the prospect of satisfying the standard test in establishing “exceptional circumstances”. ….. The affidavit supporting an application for leave must therefore elicit merit to warrant leave to proceed to the next stage – the filing of an application for review of the decision of the Court.”

It is submitted therefore that the sufficiency of the grounds for leave to be granted lies in whether if leave is granted, the Applicant has any “prospect of satisfying the standard test in establishing “exceptional circumstances”.

11. This Court has in a series of cases determined what amounts to exceptional circumstances that would lead to a miscarriage of justice. In the case of COLONEL LAMIN BO BADJIE AND 6 OTHERS V THE STATE (CRIM APPEAL NO: 1-7/2011) (unreported) where this Court per Dotse JSC referring to Rule 54(a) of the Supreme Court Rules stated that:

“From the above provisions, it does mean that, for exceptional circumstances to be proven to exist, which (a fortiori) will mean the test for review has been met, the following has to be met:

1. Establish “exceptional circumstances” before any assessment of whether there is a miscarriage of justice.

2. Exceptional circumstances in the context used means fundamental error.

3. If there is miscarriage of justice, a fortiori, “exceptional circumstances” are present to warrant review.

4. Finally, if miscarriage of justice is established but this is not the consequence of the existence of “exceptional circumstances” then the conditions for review have not been met.

12.In STANDARD CHARTERED BANK vs AZIZ SARR Civil Appeal No. 1/2008, this Court held:

“The Gambia review jurisdiction should only be deployed to reverse a decision of the Supreme Court if there is a fundamental error committed by it which has caused a miscarriage of justice… it is not enough for an Applicant to establish an error other than a fundamental one”

In UDP & 2 OTHERS AND ATTORNEY GENERAL & 1 OTHER supra the Court said:

‘It is a jurisdiction which is to be exercised where the applicant succeeds in persuading the Court that there has been some fundamental or basic error which the Court inadvertently committed in the course of delivering its judgment and which error has resulted in a miscarriage of justice.” Per Dr. Date-Bah JSC page 19.

THE EXCEPTIONAL CIRCUMSTANCES IN THIS CASE

12. It is our submission 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. As stated in the affidavit in support of this motion the Applicant intends to rely on the following grounds as the basis upon which such an exceptional circumstance exists:

(a) 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.

(b) 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.

(c) 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.

(d) 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.

(e) The Court made a fundamental error when it stated that the petitioner cannot rely on service by the court.

13. We will now address the Court on each of these grounds to demonstrate the existence of exceptional circumstance/fundamental or basic errors which occasioned a miscarriage of justice.

The conflict between section 98(2) of the Elections Act and Rule 11 of the Election Petition Rules.

14. The hierarchy of statutory laws which apply to election petitions are the Constitution, the Election Act, and the Supreme Court Rules read together with the Elections Petition Rules. It is submitted that the foregoing laws have to be read together but with due regard to their order of precedence in the event of conflict.

15. However, the Court in considering the third motion filed by the 1st Respondent did not avert its mind at all to the provisions of section 98(2) of the Elections Act which is the primary provision that deals with security for cost. It is our submission that had the Court taken account of section 98(2) and the applicable principles on construction of statutory provisions, the Court would have arrived at a different conclusion.
toubab1020 Posted - 12 Jan 2022 : 13:35:02


==========
https://standard.gm/gambia-news/udp-files-for-review-of-ruling-on-election-petition/

==========

January 11, 2022

The ink use again by the UDP was not yet dry on my previous post when the courts of the Gambia were use again by the UDP was not yet dry when the UDP had need of their services again.


The opposition United Democratic Party yesterday filed an application to the Supreme Court for a review of its decision to strike out an election petition brought by the party against president-elect Adama Barrow and the IEC on grounds of technicality.

The UDP’s application for a review is in accordance with section 8 of the Supreme Court Act Cap and Rule 54(c) and (d) of the Supreme Court (Amendment) Rules, 2015 which provides that:

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

The UDP’s fresh application for a review outlined that there is prima facie case for the court to revisit its ruling of the 28th of December, 2021 in the interest of ensuring that its election petition is “heard and disposed of on its merits and not by some technical side wind that has deprived the Petitioner and its constituents of their rights to a fair hearing.

“We therefore urge this august Court to hold that the Petitioner’s Application discloses sufficient grounds to warrant the leave of the Court to bring a substantive application for review.

We move the Court in terms of the Motion Ex Parte and submit that the prayers ought to be granted in the interest of fair hearing in order to avert a gross miscarriage of justice,” the UDP lawyers prayed in their application. Legal sources told The Standard that once the application is admitted, the Supreme Court will now convene a panel of 7 judges to sit over it.


toubab1020 Posted - 12 Jan 2022 : 13:07:50
Re the above posting,it is refresshing to note the comments expressed by ANM Ousainu Darboe Secretary General & Party Leader of the UDP the sentiments expressed therin do no preclude the UDP from making a legal challange on anything that they may wish to do.
Momodou Posted - 12 Jan 2022 : 12:01:45
UDP expresses full confidence in Supreme Court
The Point: Jan 11, 2022

https://thepoint.gm/africa/gambia/headlines/udp-expresses-full-confidence-in-supreme-court

Press release: It has been brought to the attention of the UDP’s National Executive Committee that certain individuals claiming to be members of the UDP are making derogatory and reprehensible comments about the judges of the Supreme Court.

No genuine member of the UDP will engage in such impertinent behaviour directed at the leaders of the highest court of our nation.

The UDP condemns in the strongest possible terms any person casting aspersions on the character and integrity of the judges of the Courts of The Gambia. Even where the UDP disagrees with a decision of the Supreme Court, the Party has always respectfully pointed out the error of the Court in its interpretation of the law.

All genuine members of the Party must know that the UDP’s commitment to the rule of law and its respect for the courts is unequivocal and holds the Supreme Court in the highest esteem.


Therefore, on behalf of the National Executive Committee and indeed the entire membership of the UDP, I wish to again express our full confidence in the impartiality, independence and competence of the Judiciary of the Gambia. UDP will continue to seek justice according to law from the hallowed halls of the Supreme Court of The Gambia. Again I call on all UDP members to be civil in their discussions and desist from making disparaging comments or personal attacks on the character of any of our compatriots, more so make any attempt to impugn the character and reputation of a universally respected and eminent jurist of Africa, His Lordship, the Hon. Chief Justice of the Gambia.

Finally I urge all Gambians to respect the judges and the decisions they make; and to be courteous to lawfully constituted authorities and engage them with decorum and the respect they deserve.

God Bless the Gambia, our Homeland
ANM Ousainu Darboe
Secretary General & Party Leader
Momodou Posted - 07 Jan 2022 : 09:41:37
Kandeh reacts to rejection of UDP petition
The Standard: JANUARY 6, 2022

By Alagie Manneh


https://standard.gm/kandeh-reacts-to-rejection-of-udp-petition/

The leader of the opposition Gambia Democratic Congress, Mamma Kandeh has reacted to the Supreme Court’s rejection of the election petition filed by fellow opposition United Democratic Party.

Dissatisfied with the election results, the UDP filed a petition at the courts, however, the Supreme court struck out the case, stating that the party failed to comply with rule 11 of the Elections Petition Rules.


But Kandeh disagreed, arguing that what actually transpired was a disregard of the rule of law.

“The 2021 election has been held, [but] laws have been damaged, and they say that we should empower them in damaging those laws,” Kandeh said at a political event.

What Gambians need to know, he said, “is that they have been denied their rights. Some 800,000 people voted – unprecedented. It never happened before. More than half of all those voters said they disagree [with the results], but no one wants to listen to them. They brought Rule 11 and said that the UDP lawyers did not give notice to Adama Barrow that he has been petitioned. But it was the Supreme Court itself that said the UDP must pay D300,000 and they paid that and Adama Barrow’s lawyers wrote complaining that Adama Barrow must never be taken to court because he is a sitting president. Now, if Adama Barrow wasn’t aware, or noticed, how did his lawyers know about it and even went to the courthouse? Again, UDP took their papers on a Tuesday, and on Thursday they were called to the courthouse, but lawyers came from Adama Barrow to the courthouse and claimed they were not aware of the case. They claimed that the petition filed by the UDP fell out of the ten-day period given for challenging the election results. That’s why I said that it’s only five sons of The Gambia who conspired to deny more than 400,000 citizens of this country their right. The technicality is a process, a process on how to go about the case, but the case itself was never heard. More than 2,000 pages of documents were brought forward by the UDP, detailing [electoral fraud],” Kandeh told his audience.
toubab1020 Posted - 01 Jan 2022 : 16:04:16

Ousainu Darboe is obviously not on the route to a negociated settlement of his greavences and is content to let the legal professionals carry on .


==========
https://standard.gm/udp-claims-it-filed-over-2000-pages-of-evidence-that-election-was-stolen/

==========

By Talibeh Hydara on December 31, 2021

Following a general appreciative message from party leader Ousainu Darboe on Wednesday, the United Democratic Party has expressed disappointment in the Supreme Court’s decision to strike out its petition.

The apex court Tuesday struck out the party’s petition, citing its failure to observe Rule 11 of the Elections Petition Rules.

In a strongly-worded statement, UDP claimed it had done better than what Rule 11 required and the Supreme Court was wrong to strike out their petition on “trivial technicality”.

“In fact, the UDP had conducted its case above and beyond the requirements of Rule 11 in that: the Petition was served within 48 hours of filing and the respondent had already commenced participating in the matter; UDP had applied for costs to be ordered. Indeed costs of D300,000 was ordered and paid immediately within the five-day period. Therefore, a notice of proposed cost was overtaken by events.

Notice of the costs was given to the respondent by the Master of the High Court and further re-issued a second time by UDP to the respondent. All these steps were upheld by the court. Surprisingly, the Supreme Court decided to dismiss the entire petition on a trivial point of technicality. It is even more disappointing that the Supreme Court chose to strike out the petition when striking out was not a remedy provided for by statute,” a statement from the party’s secretariat said.

There was a general feeling that it would be tough for the UDP to provide concrete evidence in challenging the validity of the election results.

However, according to the party, by 24th December, the UDP had filed 30 witness statements and over 2,000 pages of “overwhelming evidence” that the election was stolen by the incumbent Adama Barrow.

“…the United Democratic Party had on the 24th of December filed 30 witness statements and over 2,000 pages of overwhelming evidence that established beyond any reasonable doubt that:

a. The conduct of the election was fraught with corrupt conduct and vote buying;

b. Thousands of voters were added to the voter list after close of registration;

c. Thousands of foreigners obtained voters cards in The Gambia illegally;

The conduct of the vote counting was full of irregularities that made the result of the election null and void,” the party alleged.

The party vowed to present their evidence to the Gambian people despite the Supreme Court ruling, claiming the UDP didn’t lose the petition but “driven from the seat of judgment by being barred from presenting evidence.”

“While we respect the decision of the Supreme Court as the apex judicial authority, we express our unreserved disappointment that the will of the Gambian people is once again suppressed. We will explore all legal options and ensure that the evidence gathered is presented to The Gambian people,” it added.

The party also urged supporters to be law-abiding “while pursuing their legitimate constitutional rights of recruiting more people into the membership of the party.”
toubab1020 Posted - 30 Dec 2021 : 13:48:25

==========

https://foroyaa.net/what-is-the-verdict-of-the-supreme-court-on-the-election-petition/
==========

December 29, 2021 Burning Issues QUESTION OF THE DAY.

The battle on the election petition filed by the UDP was mainly a technical battle between the NPP and UDP. The court initially made an arrangement with counsels to clear the technicalities with speed so that they can get to the substance and come to a decision within 30 days. Instead, the court became entangled with withdrawal of motions and addition of motions without getting to substance. Costs were imposed for delays but the technicalities continued.

Finally the court decided that the technicalities were fatal thus bringing an abrupt end to the case.

In simple terms the first motion was withdrawn and was no longer an issue before the court.

On the issue whether Adama Barrow was served with the election petition within ten days in accordance with the constitution, the court ruled that the UDP did so. The court also ruled that the IEC can be a party to the suit.

However, on the third motion the court ruled that the UDP failed to comply with rule 11. In other words, after the presentation of the petition they failed to give notice to Adama Barrow of both the presentation of the petition and the nature of the proposed security within five days. Such notice should be accompanied by a copy of the petition itself. Without this complete package within five days the petition will be fatal.

The court held that UDP failed to do this and the case is therefore fatal.
Momodou Posted - 29 Dec 2021 : 22:13:22
UNITED DEMOCRATIC PARTY STATEMENT ON THE DECISION OF THE SUPREME COURT OF THE GAMBIA TO DISMISS THE PETITION OF THE UNITED DEMOCRATIC PARTY CHALLENGING THE DECEMBER 4TH 2021 PRESIDENTIAL ELECTIONS


On the 28th of December 2021 the Supreme Court, sitting with a panel of 5 Justices, delivered a ruling on two applications that had been filed on behalf of President Elect Adama Barrow.

The first application sought to dismiss the petition on the following grounds:
That the petition was filed late;
That the petition was improperly amended;
That the IEC was improperly joined to the case; and
That President Elect Adama Barrow was not properly served.

The Supreme Court dismissed the first application as lacking merit and agreed with the UDP’s arguments.

The second application claimed (Under Rule 11 of Election Rules) that UDP had not served a notice of presentation of the petition as well as a notice of proposed cost on President Elect Adama Barrow within five days after presentation of the petition and therefore the petition should be struck out.
In fact the UDP had conducted its case above and beyond the requirements of Rule 11 in that:

The Petition was served within 48 hours of filing and the Respondent had already commenced participating in the matter;

UDP had applied for costs to be ordered. Indeed costs of GMD 300,000 was ordered and paid immediately within the five day period. Therefore a notice of proposed cost was overtaken by events.

Notice of the costs was given to the Respondent by the Master of the High Court and further re-issued a second time by UDP to the Respondent.

All these steps were upheld by the Court.
Surprisingly the Supreme Court decided to dismiss the entire Petition on a trivial point of technicality

It is even more disappointing that the Supreme Court chose to strike out the petition when striking out was not a remedy provided for by statute.

Further, the United Democratic Party had on the 24th of December filed 30 witness statements and over two thousand pages of overwhelming evidence that established beyond any reasonable doubt that:

a. The conduct of the election was fraught with corrupt conduct and vote buying;

b. Thousands of voters were added to the voter list after close of registration;

c. Thousands of foreigners obtained voters cards in The Gambia illegally;

The conduct of the vote counting was full of irregularities that made the result of the election null and void.

Over the past three weeks the United Democratic Party has carried out diligent investigation and placed evidence before the Supreme Court to demonstrate how the elections were stolen from The Gambian people.

While we respect the decision of the Supreme Court as the apex judicial authority, we express our unreserved disappointment that the will of the Gambian people is once again suppressed.

We will explore all legal options and ensure that the evidence gathered is presented to The Gambian people.

Our legal team have over the past few weeks, worked tirelessly – (burning the midnight oil) to ensure that we prosecute our petition by presenting evidence in its support.

The United Democratic Party takes this opportunity to salute these great men and women of the Law for their principled stand that justice should not be sacrificed on the altar of technicalities.

The UDP therefore wishes to assure all its supporters and every Gambian, including the Respondent, that it has not LOST the Petition. UDP was driven from the seat of judgment by being barred from presenting evidence in support of its case.

Despite the striking out of the Petition by the Supreme Court, the leadership of UDP calls on all its members to continue to be law abiding while pursuing their legitimate constitutional rights of recruiting more people into the membership of the party.

LONG LIVE THE GAMBIA
LONG LIVE DEMOCRACY
LONG LIVE JUSTICE, PEACE AND PROGRESS
LONG LIVE U.D.P
Momodou Posted - 28 Dec 2021 : 20:47:24
UDP VS ADAMA BARROW, IEC AND MINISTRY OF JUSTICE SESSION FOUR (4) OF THE CASE.
By Kexx Sanneh

Supreme Court Dismissed President Barrow’s Lawyers’ Motion 2 in Entirety and equally dismissed the UDP petition and ordered the party to pay President Adama Barrow one hundred thousand dalasis (D100,000) as cost.

The Supreme Court today on Tuesday, 28 December dismissed motion 2 brought by President Adama Barrow’s lawyers seeking to dismiss the UDP election petition filed against president Adama Barrow.

It was argued by Lawyer Sheriff Marie Tambadou that there was no personal service on the President. Tambadou argued that Barrow was not served as required by Rule 12. He argued that the petitioners (UDP) never applied for substituted service on the President. He submitted that the process was a nullity.

Lawyer Tambadou raised an issue that the Independent Electoral Commission was not properly added in the suit. Tambadou said the order for the joinder of IEC was done outside the 10 days. He submitted that election petition rules should be interpreted strictly adding to compliance with the rules is fatal to the petition relying on some decided cases.

He said the failure to effect personal service, the way the UDP amended their petition and the way IEC was joint in the suit all resulted in a fatality of the proceedings. Consequently, he urged the court to dismiss the petition.

Lawyer Kebba Sanyang for IEC associated himself with the submissions of Lawyer Tambadou.

Hussein Thomas, the Solicitor General said it is in the public interest that the court is required to interpret election petition rules strictly. He relied on several case laws to urge the court to dismiss the suit.

Lawyer Bory S. Touray in his counter argument said the motion should be dismissed for lack of merit. He argued that the petition and the amended petition were both filed within time. On whether the petitioners sought the court leave for filing an amended petition, Lawyer Touray said they made an oral application to the court which was granted.

In reply on points of law, Lawyer Tambadou said there is no waiver to the rule requiring personal service.

Chief Justice Hassan B. Jallow delivering the ruling on motion 2 said election petition rules should be interpreted strictly. He cited some decided cases including the Gambia Supreme Court case of Joseph Henry Joof and IEC.

He found and held that the petitioners (UDP) filed their petition and amended the petition within time. He dismissed Tambadou’s argument that IEC was added wrongly in the suit. He mentioned that IEC is the proper party in the suit adding cases like this, IEC should be added.

On the complaint of ex-parte arguments, he said that is a non-issue as he dismissed Tambadou’s arguments on that line.

On the issue of personal service, Justice Jallow said Rule 12 requires personal service and in this case, it is not possible, it provides for subsisted service. He said the petition was served on the President by the court’s process server through Alagie Ceesay, Chief Protocol Officer at State House.

The chief justice went ahead to say ordinarily, personal service should be done on the Respondent. He said, however, under the special circumstance of this case, the Respondent is the President and service was done on his Chief of Protocol, who is a senior government official. The Court found and held that President Adama Barrow was duly served.

The Supreme court dismissed motion 2 for lack of merit.

MOTION 3:

On motion 3 Lawyer Tambedou filed a motion claiming that the UDP did not go by the dictates of rule 11 of election petition rule "UDP) failed to comply with Rule 11 of the Elections Petition Rules".

Rule 11 reads: “Time of Giving Notice” provides that “Notice of presentation of the 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.”

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

Chief Justice Hassan B. Jallow dismissed Lawyer Bory S. Touray’s argument that Rule 11 does not apply to the petition 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 are conflicting. Justice Jallow stated that Rule 11 gives rights to the respondent in election petition cases.

He explained that the Constitution is the foundation and framework of law while must of the legislations is done by the Acts of the National Assembly, which include the Elections Act and Elections Petition Rules.

“The court fine and hold 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 a 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 finds 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 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 petitions is mandatory and failure to observe them is a failure.

The court found and held that “Rule 11 is mandatory and non-compliance is fatal.”
He struck out the case and awarded a cost of D100,000 against the UDP. The political party is asked to pay this amount to President Adama Barrow as a 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.

The history or reason of the petition before the court.

The UDP brought the petition urging the Supreme Court to determine that the election of President Adama Barrow was invalid because of corrupt practices. UDP wants the apex court to hold that President Adama Barrow was not duly elected and his election was otherwise invalid.

UDP also wants the court to determine that the votes cast in favour of President Adama Barrow in all regions as void because of his corrupt and illegal practices.

They want the highest court to determine that the election was invalid because of non-compliance with the electoral laws, widespread irregularities and improprieties which affected the results in favour of President Adama Barrow.

Finally, the party wants the Supreme Court to determine that the elections was invalid by the non-compliance with the Constitution and all applicable election laws.
Momodou Posted - 28 Dec 2021 : 16:17:38
“United Democratic Party has never left anything wrong in this country to go unchallenged. We have directed the jurisprudence of this country, we’ve directed how the constitution of this country should work. We have not lost anything because the petition was not dismissed based on merit but a mere technicality. We should be proud of ourselves for what we have done and will continue to do for Country“. - ANM Ousainou Darboe
toubab1020 Posted - 28 Dec 2021 : 14:53:39
SNIPPET:

"..ordered the UDP to pay a sum of 100,000 to Adama Barrow as cost. "


Bet that will cause some ripples in the UDP camp

quote:
Originally posted by Momodou

The Supreme Court dismissed the UDP election petition for not following rule 11 of the election petition rule (notice and Security) and also ordered the UDP to pay a sum of 100,000 to Adama Barrow as cost.

11. Time for giving notice
Notice of the presentation of a petition and of 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 presentation.


Momodou Posted - 28 Dec 2021 : 12:56:33
The Supreme Court dismissed the UDP election petition for not following rule 11 of the election petition rule (notice and Security) and also ordered the UDP to pay a sum of 100,000 to Adama Barrow as cost.

11. Time for giving notice
Notice of the presentation of a petition and of 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 presentation.
Momodou Posted - 22 Dec 2021 : 12:15:33
Adama Barrow’s Lawyers Withdraw First Motion Seeking Dismissal of UDP’s Election Petition
Foroyaa: December 21, 2021

By Yankuba Jallow

https://foroyaa.net/adama-barrows-lawyers-withdraw-first-motion-seeking-dismissal-of-udps-election-petition/

Lawyers for President Adama Barrow on Tuesday, 21st December 2021 withdrew their first motion seeking dismissal of the United Democratic Party (UDP) election petition case in which the head of state was made a party.

Contrary to the reports circulating on social media, the cost awarded in favour of UDP was as a result of the delay. However, President Barrow’s team of lawyers will on Friday proceed to move their second motion seeking dismissal of the case based on constitutional ground; that a sitting President has constitutional immunity from civil and criminal proceedings.

WHAT HAPPENED IN COURT?

The case began at around 10:47 am on Tuesday before a panel of judges of the Supreme Court in the persons of Justices Hassan B. Jallow, Cherno Sulayman Jallow, Mam Yasin Sey, Awa Bah and Edrissa Fafa M’bai.


Lawyers Bory S. Touray, Lamin S. Camara, Lamin L. Darboe, Abdul Aziz Bensouda and Fatou Darboe represented UDP. Lawyers Sheriff Marie Tambadou, Christopher E. Mene and Pauline Bakurim represented President-elect, Adama Barrow. Lawyers Kebba Sanyang, Malick H.B. Jallow and Fatou M. Jawo represented the Independent Electoral Commission (IEC). Lawyers Hussein Thomasi (the Solicitor General and Legal Secretary), Binga D. (the Director of Civil Litigation) and Kimbeng T. Tah (Senior State Counsel) represented the Attorney General.

In an overcrowded courtroom, the case was called for the lawyers for President-elect, Adama Barrow to move their motion, but Lawyer Sheriff Marie Tambadou informed the court that he wants to consolidate his two motions – Motion 1 and Motion 2.

Upon hearing this application, Lawyer Bory S. Touray for the United Democratic Party objected, saying the court was convened to hear Motion 1 adding Motion 2 is scheduled for Friday. Lawyer Touray insisted that the court should follow its roadmap as agreed at the “Status Conference” held on Monday at the Chief Justice’s Chambers.

Lawyer Tambadou for President Barrow re-argued saying the two motions are the same and the arguments for both should be made at once. Upon hearing the application by Counsel Tambadou and the objection by Barrister Touray, Hassan B. Jallow, Chief Justice said the court will hear Motion 1 today and will hear Motion 2 on Friday as agreed in their meeting.

This is when Lawyer Tambadou rose up and applied to withdraw Motion 1. Tambadou said both motions are the same, but Motion 2 is more elaborate.

Lawyer Tambadou told the court that they have filed a motion dated the 20thDecember 2021, which goes to challenge the competence of the UDP petition. He added that they filed another motion on Tuesday morning to consolidate the two motions.

Lawyer Bory S. Touray said he was served with the newest motion (seeking to consolidate the two motions) in court on Tuesday morning.

“We did not have time to look at it,” he said.

Lawyers Kebba Sanyang for IEC and Husein Thomasi for the Attorney General both indicated that they were served with the new motion seeking to consolidate the two motions.

Lawyer Bory S. Touray rose up and reminded the court of their agreement during the “Status Conference” held at the Office of the Chief Justice. He said the case was scheduled for the court to hear Motion 1 adding he is objecting to the request for the consolidation of the two motions. Lawyer Sheriff Tambadou said having regarding to the two motions, both touch on the petition and the amended petition as well as the jurisdiction of the court to hear the case. He submitted that the motion for the consolidation of the two motions be acepted.

Chief Justice Hassan B. Jallow said the court will hear Motion 1 first and then Motion 2 on Friday.

Upon hearing this, Lawyer Tambadou applied for Motion 1 to be struck out. Lawyer Touray for UDP still objected saying it was a delay tactic by the Lawyers for the President. He said the withdrawal amounts to holding the court at a ransom. Touray applied for the application to withdraw the motions to be dismissed.

Chief Justice Jallow accepted the withdrawal and struck out Motion 1. However, he ordered that the President should pay cost of D10, 000 for the delay. Motion 2 will be heard on Friday at 9:30 am.

In another development in this suit, the Court set-aside December 28 to hear the UDP petition and ordered that UDP will have 5 days to argue their case, President-elect, Adama Barrow will have further 5 days to argue his case, IEC will be accorded 2 days to argue their case while the Attorney General will have only one day to present his case.

Justice Jallow ordered that all parties in the case should file and serve their lists of witnesses, witness statements and other particulars on or before the 24th December 2021.

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