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Monday, September 20, 2021

Court of Appeal’s ruling on M.A Kharafi & Sons Ltd vs AG, was made “per incuriam” (Latin: in error or ignorance of the law)

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The Gambia Court of Appeal panel composing of (1) Honourable Ms Justice Awa Bah, President of the Court of Appeal &my learned junior at the Gambia Bar, (2) Honourable Mr Justice Bassiru Mahoney, Judge of the C.O.A. &my learned junior and (3) Honourable Mr Justice Omar Njie, a Judge of the C.O.A. &my learned senior, recently gave a very mind-boggling 2020 ruling, in The M.A.Kharafi & Sons Ltd Vs. The Attorney General (A.G.),civil appeal number: G.C.A. 046/2019, and Honourable Mr. Justice Omar Njie, gave the lead Judgment, on 1st June, 2020.

There was no dissenting legal opinion or Judgment. It was therefore a unanimous Judgment, clearly exhibiting “conscensus ad idem” (Latin: a meeting or convergence of minds), among the aforesaid Gambian Honourable C.O.A. Judges, who collectively presided over the aforesaid civil case, although Honourable Mr Justice Omar Njie, was indeed “primus inter pares” (Latin: ie the first among equals), among the three aforesaid Honourable Gambian C.O.A. Judges.

Let me first of all put on record, my heartiest felicitations to both Honourable Ms Justice Awa Bah and Honourable Mr. Justice Edrissa M’bai, (who until recently were substantive Gambian Judges of The C.O.A.), until they were recently promoted on the official recommendation of the Judicial Service Commission (J.S.C.), as Honourable Gambian Judges of The Gambia Supreme Court, by His Excellency President Adama Barrow, the President of the Republic of The Gambia &the Commander-In-Chief Of The Gambia Armed Forces. Honourable Mr Justice Edrissa M’bai, is also my learned junior, at the Gambia Bar. The Gambia Supreme Court is now indeed our apex or apogee National Court, which for all intents and purposes, replaced Her Majesty Queen Elizabeth The 2nd’s Privy Council in London, which until 1997, when The Gambia Supreme Court was established by our 1997 Constitution, was then our National apex or apogee Court, offshore.

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The controversial C.O.A’s ruling
Although the aforesaid highly controversial ruling is being given different interpretations by different sections of our cherished national community, including sections of both the print and electronic media (including social media), nonetheless The Gambia Government, under the dynamic and visionary leadership, of His Excellency President Adama Barrow, has rightly clarified to the general public, and indeed the international community by extension, that The C.O.A. did not in any way, assert that The Janneh Commission’s recommendations cannot be enforced or implemented. Instead, The C.O.A., has willfully distanced itself, from a long established or perennial legal practice in this jurisdiction (ie our cherished Gambian Jurisdiction), when it alarmingly and unanimously held that: an additional legal step, needs to be taken by The Executive, in order to execute or implement some and not all, of the recommendations of a Commission of Inquiry, such as The Janneh Commission. This clearly means that, before some recommendations, that have been made by a Commission of Inquiry, can be legally implemented, The Executive, should mandatorily take additional Judicial steps/actions, in a competent Gambian court, for Judicial endorsement or approval.
The C.O.A. has not at all distinguished those recommendations of a Commission of Inquiry, which can be immediately implemented by The Executive, without taking additional Judicial steps/actions, in a competent Gambian court, from those recommendations of a Commission of Inquiry, which can only be officially implemented by The Executive, after taking additional Judicial steps/actions. As a senior Canadian-trained theologian, the appropriate theological quotation, that automatically comes surfacing to the landscape of my mind is: “To whom much is given, much is expected”, from the book of Luke, Chapter 12, Verse 48, The Holy Bible.

It is of paramount legal importance, to rightly highlight the fact that, The C.O.A. itself has duly accepted that the aforesaid ruling, was indeed novel or prototype (ie the first of its kind). William Shakespeare, in his masterpiece play/tragedy titled: – “Hamlet” in Act1, Scene3, authoritatively wrote: “To thine own self be true, and it must follow, as the night the day, thou canst not then be false, to any man.”

Section 204 of The Gambia’s 1997 Constitution, which is still in force, is titled: “Adverse Findings,” which is in relation to a Commission of Inquiry. Section 204(2) reads: “A person against whom any such adverse finding has been made, may appeal against such finding, to The Court of Appeal, as of right, as if the finding were a Judgment of The High Court, and on the hearing of the appeal, the report shall be treated, as if it were a Judgment.”
The aforesaid strange, novel and prototype ruling of The C.O.A., is diametrically opposed, to the sacrosanct and inviolable Section 204(2) of the aforesaid Constitution. Section 204(2), does not say anything about some official recommendations of a Commission of Inquiry to be taken to a competent Gambian court by The Executive, before they can be legally implemented. “Expressio unius est exclusio alterius” (Latin –ie when the law clearly mentions one thing, it excludes, what has not been mentioned).In other words, the adverse findings made against a person, who has appeared before a Commission of Inquiry (a fact-finding tribunal), can legally and constitutionally be appealed against, directly at The C.O.A., “ex debito justitia” (Latin:ie as of right). This bizarre ruling of The C.O.A. is also an alleged flagrant violation of the universally known and acceptable legal principle: “You cannot approbate, and then reprobate.”

Secondly, the aforesaid bizarre ruling of the C.O.A., seems to contradict the incontrovertible legal and constitutional view clearly projected by Section 204 (2) of the said Constitution (ie that both a Commission of Inquiry and The High Court,) always have concurrent jurisdiction. Let me emphasize on the word “always” here, because it is indeed “parliament’s intention”, that in all circumstances, (with no exception whatsoever), that a Commission of Inquiry, must always have concurrent jurisdiction with The High Court, in The Gambia. By creating exceptions to this incontrovertible legal principle, The C.O.A., has not only acted “ultra vires” (Latin: ie in excess of its official mandate), but it has also overtly and intentionally violated the Constitutional doctrine of “Separation of Powers.”

According to Google:” Separationof Powers, is a doctrine of Constitutional Law, under which the three branches of Government (Executive, Legislative and Judicial), are kept separate. This is also known as “the system of checks and balances”, because each branch is given powers, so as to check and balance the other branches.” The doctrine of “Separation of Powers”, was propounded by a famous French lawyer called Montesquieu. ”

Section 204 (3) of the aforesaid Constitution reads: “An appeal under this Section, shall be made within three months of the appellant being informed of the adverse finding, as provided by Subsection (1) or such later time, as The Court of Appeal, may allow.” It is very important to note that, the word “Appeal” has been deliberately used, not “Review” or “Revise.” Google authoritatively and inter alia defines “Appeal” thus: “Apply to a higher Court, for a reversal of the decision of a lower Court.” This clearly confirms, or lends legal credence, to what I have already explained earlier on. The appropriate equity maxim, that is related to the aforesaid Section 204 (3) is: “Equity aids the vigilant, but not the indolent.”

Landmark case of Honourable Mr Ousainu Darboe

In 2011, the APRC government of ex-President Yahya Jammeh, established a Commission of Inquiry into tax evasion and other corrupt practices in The Gambia. The official mandate of this Commission therefore, was not “extra territorial” (ie its mandate did not extend, to crimes allegedly committed outside The Gambia’s territorial integrity). The members of the said Commission were:

  • Ms Justice Mama Fatima Singhateh – Chairperson. Ms Singhateh, is my learned junior at The Gambia Bar.
  • Mr Momodou Sabally (an ex Honourable Secretary General & Head of The Civil Service, at the Office of the President), who replaced Mrs Musukebba Corr
  • Ms Mariama Njie, who replaced Ms Amie Jarra and
  • Mr John L.S. Gomez, from The Gambia Revenue Authority (GRA).

My learned friend and senior, Honourable Mr Ousainu Darboe, appeared before the said Commission, and its Report, made an adverse finding against him, for him to pay about D2,000,000 to The Gambia Government. Honourable Mr Ousainu Darboe rightly lodged an appeal against this decision of the said Commission, to The C.O.A. The said appeal was made on 15th June, 2012.By that time, I do not think Honourable Mr Justice Omar Njie, was a C.O.A Judge, he was then a junior counsel, at the law chambers of our learned senior, Mr Antouman A.B. Gaye. Honourable Mr Ousainu Darboe lost the appeal, because The C.O.A. upheld the decision of the said Commission.

Under the doctrine of “stare decisis” (Latin: ie let the decision stand, or the doctrine of “binding precedent”), all national courts in the hierarchy of courts are legally bound to follow their previous decisions in cases, that are identical to ones they have already decided. It is only the apex or apogee national courts (which in the case of The Gambia, is The Gambia Supreme Court), which has the Judicial mandate or authority, to depart from its previous decision. This is clearly confirmed, by Section 4 of The Supreme Court Act (1999), which is titled: “Jurisdiction of Supreme Court.” Section 4(3) authoritatively says: “The Supreme Court, may depart from a previous decision, when it appears to it, right to do so, and all other courts, shall be bound to follow the decisions of The Supreme Court, on a matter of law.”

After losing his appeal at The C.O.A., my learned senior Honourable Mr Ousainu Darboe, metaphorically climbed the legal ladder, and lodged a final appeal, at The Gambia Supreme Court, for it to overturn both: (1) the quasi-Judicial decision of the said Commission of Inquiry and (2) for it to overturn, the judicial decision of The C.O.A. I invite reference, to a very instructive and eye-catching article titled: “Supreme court upholds commission’s tax evasions findings against Lawyer Darboe,” published in the 29th January, 2020 publication, of The Voice Newspaper. The article inter alia said: “The Commission established by former President Yahya Jammeh, was said to have found, Mr Darboe liable of tax evasion amounting to one million, nine hundred and eighty-one thousand, two hundred and ninety-six Dalasis, (D1,981,296.52).”

Another important aspect of the doctrine of “Stare Decisis” or “binding precedent”, is that an inferior court in the hierarchy of national courts, is generally bound to follow the Judicial decision made in a similar case in the past, by its Judicial Superior. The only two exceptions, to this sacrosanct and inviolable Judicial rule are: (1) When the facts of the cases concerned, are radically different, and (2) When the previously decided cases, were made “Per Incuriam” (Latin:ie in error or ignorance of the law). It is axiomatic or it goes without saying, that the aforesaid bizarre and unprecedented ruling of the C.O.A, is clearly a flagrant violation, of this latter aspect of the doctrine of “Stare Decisis” or “binding precedent.” The “locus classicus” (Latin:ie best known) British case, which firmly established the aforesaid doctrine in English Law is: Young Vs Bristol Aeroplane Company (1944), which was ably and competently decided by The U.K. Court of Appeal.

Therefore, if the aforesaid bizarre, alarming and prototype ruling of the said C.O.A. is correct (and it is obviously notlegally and constitutionally correct), then Honourable Mr Ousainu Darboe, will not be legally obliged, to pay the aforesaid colossal sum of money, to The Gambia Government. Having due recognition of the fact that, Judgments of The Gambia Supreme Court, are generally “res judicata”(Latin:ie a matter which has been adjudicated upon by a competent court, and therefore may not be pursued further, by the same parties), the right way forward now, is for The Gambia Government to expeditiously file an appeal against the aforesaid bizarre ruling of The C.O.A., at The Gambia Supreme Court, The Gambia’s present apex or apogee court, and “ceteris paribus” (Latin:ie all things being equal), the aforesaid ruling of The C.O.A., will certainly be reversed or overruled, as sure as God Almighty created Adam and Eve. When the panel of The Gambia Supreme Court, is presiding over this matter, my good colleague and dear sister, Honourable Ms Justice Awa Bah, will not be eligible to sit in this panel, since she had already participated in this case, at The C.O.A. level. This will be in full compliance, with one of the cardinal principles of the doctrine of Natural Justice, that is “nemo judex in causa sua”(Latin: ie no person can be a judge, in his or her cause).


One inevitable outcome of this controversial C.O.A. ruling is that, The Gambia Government under the dynamic and visionary leadership of His Excellency President Adama Barrow, has rightly decided to immediately put a stop on the sale of the properties of our Ex-Gambian President, Yahya Jammeh, until this important and controversial matter, has been finally adjudicated upon, by the learned Justices of The Gambia Supreme Court, under the able Chairmanship of our Honourable Lord Chief Justice, Honourable Mr Justice Hassan B Jallow (CRG). I was very flabbergastedwhen I read in The Standard Newspaper publication, of Tuesday 9th June 2020, how my learned Junior at The Gambia Bar, and the spokesman of the UDP Mr Alimamy Fanding Taal, was wrongly saying, that the aforesaid decision of The Gambia Government was wrong. I am vociferously putting it to my learned junior Mr Taal “to give the devil its due”, our immediate past Gambian President, Yahya Jammeh, no matter what people may think about him, has not yet been convicted, by any competent Gambian court of law, therefore due legal and constitutional processes, must be diligently and meticulously followed to the letter, so that the disposal of his assets, as officially recommended by the much talked about Janneh Commission, will not be legally and constitutionally faulted, in the fullness of time. “Prevention is better than cure”, as the age-old and time–honored adage goes. I rest my case.

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