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Sunday, April 14, 2024

Letters :Did the Supreme Court misapply the presumption of regularity?

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Dear editor,

I respect the Decision but strongly believe it was not a good one.
One of the grounds on which the Supreme Court disposed of the application for interim injunction against the Speaker and Foday Gassama filed by Kumba Jaiteh is the presumption of regularity of all official acts. The court, in its ruling delivered yesterday refused the application “on the basis of the legal principle favouring the presumption of the regularity of all official acts” (see Para.7 of the Ruling). This appears to be an erroneous exposition of the principle contain in s.156 of the Evidence Act of The Gambia.

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Section 156(1) states, among other presumptions, that “when any judicial or official act is shown to have been done in a substantially regular manner it is presumed that formal requisites for the validity were complied with”. It pertains to the manner of performance of public or judicial acts which are questioned/challenged on the basis that there was non-compliance to the fulfillment of their formal requisite requirements. Certainly, that was not the issue canvassed by Kumba Jaiteh before the highest court. She did not challenged the manner in which the president exercised the power of revocation as well as whether the president failed to exercise the said power without fulfilling the requisite requirements. Thus, we are left in awe as to why the eminent judges had to rely on a principle not cater under the laws of The Gambia, worst of all failed to cite the law they relied on?
There are four categories of presumption of regularity and of deeds to complete title cater in s.156 (1)-(4):
1. When any judicial or official act is shown to have been done in a substantially regular manner it is presumed that formal requisites for its validity were complied with.
2. When it is shown that a person acted in a public capacity it is presumed that he or she had been duly appointed and was entitled so to act.

3. When a person in possession of a property is shown to be entitled to the beneficial ownership of it, there is a presumption that every instrument has been executed which it was the legal duty of his or her trustees to execute in order to perfect his or her title.
4. When a minute is produced purporting to be signed by the chairperson of a company incorporated under the Companies Act, and purporting to be a records of proceedings at a meeting of the company, or of its directors, it is presumed, until the contrary is shown, that the meeting was duly held and convened and that all proceedings have been duly had, and that all appointments of directors, managers and liquidators are valid.

The foregoing are presumptions on performance of formal requirements of public and judicial acts, action of a person in a public capacity, perfection through instrument to confer beneficial ownership on a trustee and a signed minute of a meeting of a company. Therefore, there is no “presumption of regularity of all public acts”. A presumption is not a conclusive or definitive proof that something is true, and is rebuttal with facts.
Presumption of regularity is presumed on the regularity of an action already taken and not future act. The principle is germane to the disposal of the main suit than becoming a ground of refusal for pending acts. Thus, the future swearing of Mr Gassama on Monday or thereafter cannot benefit from any presumption of regularity as it has not yet be performed. Or, did the judges determine the outcome of the substantive suit?
Time will tell.

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Madi Jobarteh

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