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Saturday, October 24, 2020

National law reports and doctrine of binding precedent

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– Madam Chairperson and Mistress Of Ceremony, Mrs. Janet Sallah – Njie,
– My Lord Chief Justice, Honourable Mr. Justice Hassan B. Jallow (C.R.G.),
– Honourable Speaker Of The National Assembly, Mrs Mariam Jack-Denton,
– His Excellency Mr. Atilla Lajos, The E.U. Ambassador To The Gambia,
– Honourable Ms. Justice Awa Bah, Chairperson Of National Council For Law Reporting, (N.C.L.R.),
– Mr. Cherno Marenah, Solicitor General & Legal Secretary, ably representing the Honourable Attorney General & Minister Of Justice, (Hon. Alhaji Aboubacar M. Tambadou),

 

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– Honourable Judges of the Superior Courts, Magistrates and Cadis,
– The President and Members of The Gambia Bar Association (G.B.A),
– Honourable Mr. Fafa E. Mbai (C.R.G.), The Customary Law Expert of The E.U. Project,
– Mrs. Vicky Andrews, The Editor of The Supreme Court Law Reports,
– Project Manager of The E.U. Project, Ms Joslen
– Distinguished ladies and gentlemen, all other protocols respectfully observed.

 

As the incumbent Chairman of The Gambia Law Reform Commission ( T.G.L.R.C.), by virtue of this fact, I am also a Statutory Member of The National Council For Law Reporting (N.C.L.R.). This is a Statutory body which has been established by The N.C.L.R. Act, and its key Official mandate is to collect Judgments, Rulings etc, from Superior Gambian Courts, (The Gambia Supreme Court, The Gambia Court Of Appeal and The High Court), and bring together those that it considers “publishable”, and publish The Gambia Law Reports, which are very important tools of trade, for members of The Gambia Legal Fraternity. I have been reliably informed and I verily believe, that in other jurisdictions/Countries, under their Laws, apart from their Law Reporting Councils, other individuals or Corporate entities, can also be authorized by the aforesaid Councils, to privately engage in the business of publishing Law Reports. The Federal Republic Of Nigeria, is a case in point, concerning this matter. But in the case of The Republic Of The Gambia, The N.C.L.R. has the exclusive jurisdiction or mandate, for the publication of any type of Law Report, to the exclusion of all others.

 

The N.C.L.R under The N.C.L.R. Act, clearly does not have the authority, to ask any other person or agent, to carry out the responsibility of publishing National Law Reports, this will be tantamount to allegedly violating, the famous Latin maxim:- “delegatus non potest delegare” (a delegated power, cannot be sub- delegated).
Let me first of all, express our mammoth gratitude to His Excellency Mr Atilla Lajos, The E.U. Ambassador to The Gambia, for The E.U. funded “Access To Justice And Legal Education Project”, for The Gambia, which has indeed assisted us tremendously with the publication of our different National Law Reports, by providing the necessary funds in Euros, for the aforesaid publications, by the “N.C.L.R., The Gambia Law Reform Commission (T.G.L.R.C) etc. Today we are Officially going to launch the following Law Reports/Publications:- (1) Select Superior Courts Judgments On Customary Law And Procedure 1964-2014, (2) Customary Laws & Usages OF The Gambia, (3) Land Tenure, Dispute Resolution & Customary Law, (4) The Status Of Customary Law In The Regions Of The Gambia and (5) Shariah Jurisprudence In The Gambia — With Comments By Fafa Edrissa M’bai.

 

 

There are three types of history namely:- written history, oral tradition and archaeology or artifacts. Empirical evidence in academia, confirms beyond all reasonable doubt, that written history, is the best way of protecting our National heritage, for posterity or for generations yet unborn. The Chinese have a famous proverb:-“the palest ink, is stronger than the strongest memory” . This means that, what has been written or recorded even with a pencil, is stronger than the memory of a Rocket Scientist or the memory of a triple Professor’s brain.

 

I am particularly interested in the publications /reports, which have been published by The Gambia Law Reform Commission (T.G.L.R.C.), of which I am the present Chairman, namely:- (1) Customary Laws & Usages Of The Gambia and (2) Land Tenure, Dispute Resolution and Customary Law. The raw materials for these two publications, emanated from reports of research studies conducted by T.G.L.R.C. on :- “ The Customary Laws And Usages Of The Gambia”, in 1988 and 1991 respectively and the joint research between T.G.L.R.C. and The Land Tenure Centre of The University Of Wisconsin, Madison, U.S.A. on :- “ Land Tenure, Dispute Resolution And Customary Law”. Mr. Fafa Edrissa M’bai, the Customary Law expert of the aforesaid E. U. Project, ambiguously alluded to this established fact under ACKNOWLEDGEMENTS, of the two aforesaid Law Publications of T.G.L.R.C. “Select Superior Court Judgments On Customary Law And Procedure, 1964 to 2014”, was published by The N.C.L.R., now under the able Chairpersonship of Honourable Ms Awa Bah, a Judge of The Gambia Court Of Appeal.

 

The other present members of T.G.L.R.C. are as follows :-
· Honourable Mr. Justice Raymond Cladius Sock (O.R.G.), a Justice Emeritus Of The Gambia Supreme Court and The Director General Of The Gambia Law School – The Deputy Chairman Of T.G.L.R.C.,
· Mr. Gaye Sowe, The Executive Director Of Institute For Human Rights And Development In Africa (I.H.R.D.A.) – Member Of T.G.L.R.C.

 

· Mrs. Binta Jammeh – Sidebeh ( M.R.G.), The Executive Director Of The Women’s Bureau- Member Of T.G.L.R.C. and
· Mr. Amadou Samba, Managing Director Of Gacem Company Ltd – Member Of T.G.L.R.C.
The present Members of The N.C.L.R. are as follows:-
· Honourable Ms Justice Awa Bah (Court Of Appeal Judge) – The Chairperson.
· Honourable Mrs Justice Kumba Sillah – Camara ( High Court Judge) – Vice Chairperson
· Dr. Henry D.R. Carrol (M.R.G.), The Chairman Of The Gambia Law Reform Commission, The Statutory Member.

 

· Mr. Sydney Rilley, The Gambia Bar Association’s Member.
· Mrs Rachael Mendy, The President Of The Gambia Bar Association – Member
· Mr. Buba Jawo – Honourable Master Of The High Court
· Mr. Abubacarr Siddique Kabbah – Ministry Of Justice – Member
· Mr. Benjamin Cox – Member
· Mr. Sarjo Sama – Administrative Assistant Of N.C.L.R.

 

Customary Law is indeed part and parcel of Gambian Laws, as evidenced by Section 7 (E) of The Gambia’s 1997 Constitution. Section 32 of the aforesaid Constitution, also guarantees “the right to culture”. Before any custom, can be admissible evidence in any Court of competent jurisdiction, that custom as a legal condition precedent, must first of all pass the so called “Repugnancy Test”, which is provided for in 2 Gambian Acts or Statues namely:- The Evidence Act and The Law Of England (Application) Act No.16 of 1953, amended by Act No. 11 of 1957, Act No. 2 of 1964 etc, which is otherwise known as “The Reception Statute”. The “ Repugnancy Test” asserts that, before any custom can be accepted as admissible evidence in any Court, that custom must not be repugnant or contrary to Natural Justice, Equity, good conscience etc.

 

The famous and erudite Afro American Scholar, the late Mr. Marcus Garvey, is on historical record as having once said, and I quote:- “a people without the knowledge of their past history, culture and origin, is like a tree without roots”. In Land Law, before a person (Vendor) is legally qualified to sell a piece of land ( which he /she /it claims to own), to a prospective Purchaser/Buyer, he/she/it, must have evidence of “a good root of title” (it must be proven to the satisfaction of the prospective Purchaser/Buyer, that his/her/its title or ownership of the land in question, can be traced back to its original or former owners, in chronological order, for a reasonable period of time). In Equity And Trust (a compulsory law subject/module for the L.L.B. Degree), there exists, what is known as :- “ The Doctrine Of Tracing”.

 

In English Legal System, there exists a loucus classicus ( Latin:- best known ) Case known as YOUNG Vs BRISTOL AEROPLANE CO. LTD (1944). This was an English Court Case, that established that The Court Of Appeal is bound to follow its own decisions and those of Courts of co-ordinate jurisdiction, except in the following cases:-
1. The Court is entitled and bound to decide which of two previous conflicting decisions of its own it will follow;
2. The Court is bound to refuse to follow a decision of its own which cannot stand with a decision of The House of Lords;
3. The Court is not bound to follow a decision of its own, if the decision was given per incuriam (Latin :- in error or ignorance of the law), eg , where a statute or a rule having statutory effect which would have affected the decision, was not brought to the attention of the earlier Court.

 

The aforesaid locus classicus Case – Young Vs Bristol Aeroplane Co. Ltd (1944), firmly and for the first time in The U.K.’s Legal History, established the doctrine of Binding Precedent or Stare Decisis ( Latin:- let the decision stand). This legal doctrine asserts that- if a Judge or a Magistrate is adjudicating over a present Case, whose facts are very similar to a previous Case, which had already been decided, by a Superior Court in the hierarchy of National Courts, then that particular Judge or Magistrate in the present Case, is legally bound to follow the previous Judicial decision. He /she may only be legally allowed not to follow it, if the facts of the present Case, are radically different from the facts of the previously decided Case, or if the previously decided Case, was decided per incuriam (Latin :- in error or ignorance of the law). It is axiomatic or it goes without saying, that the aforesaid Law Reports/Law Publications, which have been published Mutatis Mutandis (Latin:- with the necessary changes or amendments), will indeed go a long way in assisting The Gambia’s Judiciary, in practising the Legal doctrine of Binding Precedent or Stare Decisis.

 

The U.K. has a Bicameral Legislature/Parliament, (two – House Parliament) namely;-The House Of Commons (The Lower House) and The House Of Lords (The Upper House). The House Of Lords used to have, both a Legislative function and a Judicial function. The Legislative function, is exhibited, when Bills emanating from The House Of Commons, are being dealt with. While the Judicial function, was exhibited, when The Law Lords (Superior Judges) in Her Majesty’s Privy Council, were in session. Her Majesty’s Privy Council, used to be the highest Constitutional Court Of Appeal, for most Commonwealth Countries at that time (including The Gambia), before they got their National Supreme Courts.

 

Today Her Majesty’s Privy Council, is now a thing of the past, because it has been repealed and replaced by The U.K Supreme Court. In the light of the aforesaid, the present day House Of Lords, only has a legislative function, it no longer has its traditional or historical Judicial function, because of the aforesaid Judicial metamorphosis. But “ The Lords Spiritual” ( The Archbishop Of Canterbury and other Senior British Bishops) and “ The Lords Temporal” (the peers of the realm, including Barons, Baronesses and other Nobles) are still Honourable Members Of The House Of Lords. Some years ago, during The Gambia’s First Republic, when His Excellency Sir Dawda Kairaba Jawara (K.C.M.G, G.M.R.G.), was the First President Of The Gambia, Mr. Fafa Edrissa M’ bai, the then Honourable Attorney General & Minister Of Justice, (for the first time), accompanied by Mr. Hassan B. Jallow, the then Learned Solicitor General & Legal Secretary, at The Attorney General’s Chambers & Ministry Of Justice, (now the Honourable Lord Chief Justice Of The Gambia), had cause to travel Officially to The U.K. in 1984, to ably represent the then Gambia Government, at a Case in Her Majesty’s Privy Council entitled :-

 

ATTORNEY GENERAL OF THE GAMBIA Vs MOMODOU JOBE (1984) A.C. 689. Mr. Jobe was an employee of the then :- The Gambia Commercial & Development Bank, the precursor Government Institution of the present day, Assets Management And Recovery Corporation. (A.M.R.C.). Distinguished Ladies and Gentlemen, here ends my laconic speech, and I thank you all for your undivided attention. May God Bless you all.

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