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toubab1020
12306 Posts |
 Posted - 19 Oct 2018 : 23:35:14
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Friday, October 19, 2018
The High Court in Banjul presided over by Justice Ebrima Jaiteh has rejected application to summon the secretary to the Commission of Inquiry to provide documents on the proceedings related MGI, The managing director of Gamtel, Babucarr Sanyang and the managing director of Mobilcell Blue Ocean Wireless Company limited, Balla Jasseh before the court.
Justice Jaiteh made this ruling on Wednesday, 17th of October, 2018, in the matter between Africell Gambia Limited and MGI Telecoms Limited.
In its ruling the presiding Judge disclosed that by a motion of notice dated and filed on the 5th day of June 2018, the applicant (Africell) through its counsel prays for the following orders:
a) That the Secretary of the Commission of Inquiry into the Financial Activities of the Public Bodies, Enterprise and Officers provide the proceedings related to:
I. MGI
II. The Managing Director of Gamtel, Baboucarr Sanyang and
III. The Managing Director of Mobicell Blue Ocean wireless Company limited Balla Jassey who gave evidence before the Commission with respect to the MGI agreement with the Government which was the subject of investigation by the Commission of Inquiry into the Financial Activities of the Public Bodies, Enterprise, and Officers before the said commission, as regards their dealings with the former President Yahya A.J.J Jammeh and connected matters;
b) That the said Secretary of the Commission of Inquiry be summoned to produce before the Court all documents issued and referred to by the Plaintiff herein and relevant to the Defendant;
c) That a summons be issued to the Secretary to the Commission of Inquiry into the Financial Activities of Public Bodies, Enterprises and officers as regards the dealings of the said persons and company with for President Yahya A.J.J Jammeh and connected matters and to produce the proceedings relating to the said persons and their officials and associates.
According to the presiding judge, the motion was supported by a 13-paragraph affidavit deposed and sworn to by one Mustapha Fofana of Latrikunda German on the 5th day of June 2018 but the respondent’s counsel was opposed to the application and filed a 13-paragraph affidavit in opposition sworn and deposed to by Sophie Boissey, a personal assistant at the Chambers of Hawa Sissay-Sabally on the 7th day of June 2018 respectively.
Justice Jaiteh said in their brief of argument the respondent’s Counsel formulated three (3) issues for determination and after considering all the arguments raised in the respective briefs he believed that the issues for determination in the application were the issues raised by defendant / respondent’s counsel.
He stated that the ruling of the court made on the 26th day of April 2018 was to allow the plaintiff to adduce evidence on matters that arose since the institution of the action and for the parties to amend their statements of claim and defence and plead facts.
He further stated that the ruling of the 26th April 2018 was made pursuant to Order 36, Rule 1 and Order 24 Rule 1, of the Second Schedule to the High Court Rules.
He also stated that the application was seeking for various court orders, which are contrary to the orders made on the 26th of April 2018.
He posited that a refusal to grant this application would nullify the ruling made on the 26th April 2018, as the decision of the court was to allow the plaintiff to adduce evidence and amend their statement of claim and this court did not order the Commission of Inquiry to make evidence available to the plaintiff.
He held that no two cases are exactly similar, and even if they are, the court cannot be bound by a previous decision to exercise its discretion either way because that would be putting an end to discretion.
He pointed out that no discretion in one case can be a precedent to another and cited the case of Dokubo Asari versus FRN (2007) Vol 152 LRCN at 122 held 3.
He declared that a refusal to grant the application would nullify the ruling made in this case on the 26th of April 2018 and he accordingly resolved the first issue in favour of the respondent.
With regard to whether Order 23 Rule 14 (7), (8) and (9) to the High Court (Amendment) Rules 2013, is applicable in the said case, the presiding judge cited Order 23 Rule 14 (7), (8) and (9) and stated that these sub-rules cited above were made in clear and unambiguous terms that the court may summons a witness to give oral evidence as in respect of “sub-rule 7” or make written statement as in respect of “sub-rule 8” or to be cross-examined or otherwise as in respect of “sub-rule 9”.
Justice Jaiteh revealed that the fundamental phrase in these sub-rules was to summon a witness and not otherwise, adding that the application before the court is to summons the Secretary of the Commission of Inquiry into the Financial Activities of Public Bodies … to produce the proceedings and documents tendered in respect of certain individuals.
He stated that the Secretary to Commission is not to be called as a witness to give oral evidence, or make a statement or to be cross-examined as stipulated by the sub-rules cited above.
Justice Jaiteh said that Order 23 Rule 14 sub-rules (7), (8) and (9) are not applicable to this application and accordingly resolve the second issue in favour of the respondent.
The presiding judge noted that by virtue of Section 200, 202, 204 and 206 of the 1997 Constitution, the Commission of Inquiry established under Section 200 of the 1997 Constitution is a judicial Commission of Inquiry with investigative and adjudicatory authority power and functions.
He explained that the effect of Section 202 of the 1997 Constitution is that the Commission of Inquiry during the conduct of its proceedings shall be of co-ordinate status with the High Court at trial.
He further noted that since the Commission of Inquiry has all the powers, rights and privileges of a judge of the High Court at trial, and the High Court is listed by Section 120(1)(a) as a Superior Court, the Commission of Inquiry is of co-ordinate and concurrent jurisdiction to the High Court.
He explained that the High Court of The Gambia and the Commission of Inquiry are creatures of the Constitution of the Republic. Section 204 (2) of the 1997 Gambian Constitution equates the findings of Commission of Inquiry with the judgment of a High Court on appeal.
Justice Jaiteh pointed out that it is clear from the expressed provisions that the Constitution limits the scope of the supervisory jurisdiction it vests in the High Court to only ‘lower courts and adjudicatory authorities” in The Gambia.
He further pointed out the Commission of Inquiry does not fall under the supervisory jurisdiction of the High Court to warrant this Court to make orders sought by the applicant herein.
He stated that since the Commission of Inquiry is of co-ordinate and concurrent jurisdiction to this Court (High Court); this Court does not have the power / jurisdiction to order the Secretary to a sitting Commission of Inquiry to provide the documents and proceedings before it.
The application was accordingly refused.
Author: Bruce Asemota
http://thepoint.gm/africa/gambia/article/court-rejects-application-to-summon-commission-of-inquirys-secretary
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High Court refused Gamtel & Mobilcell application.
