By Bruce Asemota
Justice Basirou V.P.Mahoney has dismissed application for a stay of the proceedings of the Commission of Inquiry established by the Minister of Lands, Regional Government and Religious Affairs.
The Commission was established to investigate allegations of fraud and malpractice at the Kanifing Municipal Council and for connected matters.
Justice Mahoney in his ruling yesterday disclosed that the court cannot stay the proceedings of the said Commission.
He further stated that the Minister of Lands may have exercised his powers under the Local Government Act, rightly or wrongly, and it is presumed to be regular until it is determined in the main suit.
He further stated that both counsel for the parties referred the court to section 151 of the Local Government Act on the power of the Minister to establish a Commission of Inquiry.
Justice Mahoney asserted that there is controversy in the interpretation of the section which is the subject matter of the dispute.
He said the Applicant alleges that the Commission has not been established under due process of the law, that the application for stay of proceedings raises issues of law that touched on the legality and competence of the Commission and that if the proceedings of the Commission are not stayed, the Applicant will be prejudiced in that it will have to participate in the proceedings that it is challenging the legitimacy of.
Justice Mahoney disclosed that there are established guidelines on the exercise of discretion in application for stay of proceedings.
He revealed that the guiding principles in the exercise of the discretion as to whether or not to grant an application for stay of proceedings include that there must be competent appeal; that the pending appeal must be arguable; that the application must establish special and exceptional circumstances to warrant a grant of the application amongst others.
Justice Mahoney cited two recent decision of the Supreme Court cases, Ya Kumba Jaiteh versus Clerk of the National Assembly; and Gambia Participates versus The Clerk of the National Assembly and pointed out that going by the Supreme Court decision, no court can restrain the performance of power exercised by the state.
Justice Mahoney said although the application is for a stay of proceedings of the Commission, its effect is to restrain the performance of the official act of the Minister of Local Government which going by the above-mentioned Supreme Court decisions, a stay of proceedings in the instant case cannot be granted and so the application for a stay of proceedings of the Commission is dismissed.
The hearing of the substantive suit was adjourned to the 31st January, 2022.
