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toubab1020
12306 Posts |
 Posted - 08 Sep 2011 : 20:55:43
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The Daily News again, just found this:
http://dailynews.gm/africa/gambia/article/gmc-response-to-libyan-asset-freeze
Friday, May 13, 2011
On the 6th May 2011, the High Court of The Gambia presided over by Justice Awa Bah, ordered the seizure of Libyan owned assets in The Gambia “until the United Nations recognized a new Government in Libya.” It was issued on the strength of an ex parte application.
The record shows that Justice Awa Bah made what amounts to a final judgment in violation of the principles of natural justice, and in particular audi alteram partem. Any good judge would know that an ex parte application cannot dispose of the final interests of the parties to a suit.
An ex parte application in law cannot survive alone without a base suit. The Order of seizure even if it may be in interlocutory form, if its effect determines the rights of the parties, it is a final judgment. A judge cannot do such a thing under Gambian law.
There is precedent galore including decisions of the highest court of the land, the Supreme Court of The Gambia that such an Order as issued by Justice Awa Bah is legally untenable, and cannot stand. Lack of knowledge or appreciation of the difference between an interim order and an interlocutory order is one of the essential factors that created this irregular “Order” or what we consider to be in effect a nebulous “judgment”.
The legal procedure adopted by the Attorney General´s Chambers in Court cannot entitle The Gambia Government either in municipal or international law to obtain an Order to freeze the so-called Libyan assets in The Gambia. The President should not act pursuant to such an anomaly. It would be an international disgrace for him to act via such a fraudulent process.
Our position is that ex parte applications and orders, like the one issued in the Libyan asset freeze case, are undoubtedly anomalies in our administration of justice. But for the Rules of Court, such applications would have been nullities. That to prevent the misuse of ex parte applications as sanctioned by case law, is that such applications are to be resorted to only in case of extreme emergency, where the interest of justice requires that the courts should intervene immediately without notice to the party affected.
This implies that the urgent situation must be such that it would be improper or even imprudent to give notice of the application to the other party. In practice, its validity is severely limited to about a week or at worst pending the hearing of a motion on notice. Justice Awa Bah´s decision to render the validity of an ex parte Order indefinite is not supported by any law of the land, either statutory or precedent. It is not lawful. We challenge the State to prove us wrong in law, and the entire Ministry of Justice would not be able to do that.
GMC will not fault the right of the APRC Government to conduct its foreign policy as it deems fit. The regime cannot equally fault our right to question its judgement in its conduct of international relations.
The United Nations has not yet withdrawn recognition of the existing Libyan Government as the Order implies. There was no power vacuum in Libya at the date of the Order, as is the case to date.
There was no evidence or other imputation to the contrary placed before the Court. That means that there already exists a Government in Libya recognized by the United Nations, at the time of the Order and now.
Let me be clear that we do not hold brief for Libya. We simply insist that the actions of the APRC regime should not encumber The Gambian State, and must be based on the rule of law, sound policy and good judgment.
The asset seizure was obtained through judicial fraud with the sole purpose of legitimising, as usual, relentless executive excesses.
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The APRC regime should have stuck to its original notion of recognition of the western sponsored Benghazi rebel movement, and pursuant to that, seize exclusively former Libyan government owned assets as an act of State, without resorting to obtaining by judicial fraud. This taints its whole motive, renders bare APRC regime´s lack of seriousness, and casts its credibility into doubt as an honest, reliable partner in international relations.
It is time for transformational change. It is time to restore credibility. Long Live The Gambia!!
Dated the 11th May 2011.
Author: Mai Ahmad Fatty, GMC Party Leader
Source: GMC
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"Simple is good" & I strongly dislike politics. You cannot defend the indefensible.
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Edited by - toubab1020 on 08 Sep 2011 20:57:46 |
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