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.
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.