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Tuesday, March 5, 2024

The Honourable Ya Kumba Jaiteh and the imperative of executive adherence to legality Part 2

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By Lamin J Darbo

In its highly celebrated decision in American Cyanamid Co. Ltd v Ethicon Ltd (1975) 1 AER 504, the widely considered primer on interlocutory injunctions, the United Kingdom House of Lords, as it then was, stated that in considering an application for an injunction, regard should be had to the following:
1. Legal right
2. Substantial issue to be tried
3. Balance of convenience
4. Irreparable damage or injury
5. Existence of alternative remedy
6. Conduct of the parties
That Jaiteh has a legal right in retaining her status as a NAM is clearly uncontested.
On that basis alone, there is compellingly a substantial issue to be tried.
As to the balance of convenience, Lord Diplock, in American Cyanamid Co. Ltd v Ethicon Ltd (1975) 1 AER 504, supra, at 507, states:
… when an application for an interlocutory injunction to restrain a defendant from
doing acts alleged to be in violation of the plaintiff’s legal right is made upon contested
facts, the decision whether or not to grant an interlocutory injunction has to be taken at
a time when ex hypothesi the existence of the right or the violation of it, or both, is uncertain
and will remain uncertain until final judgment is given in the action. It was to mitigate
the risk of injustice to the plaintiff during the period before that uncertainty could be resolved
that the practice arose of granting him relief by way of interlocutory injunction; but since the
middle of the nineteenth century this has been made subject to his undertaking to pay
damages to the defendant for any loss sustained by reason of the injunction if it should be held
at the trial that the plaintiff had not been entitled to restrain the defendant from doing
what he was threatening to do. The object of the interlocutory injunction is to protect the
plaintiff against injury by violation of his right for which he could not be adequately
compensated in damages recoverable in the action if the uncertainty were resolved in his
favour at the trial; but the plaintiff’s need for such protection must be weighed against
the corresponding need of the defendant to be protected against injury resulting from his having
been prevented from exercising his own legal rights for which he could not be adequately
compensated under the plaintiff’s undertaking in damages if the uncertainty were resolved
in the defendant’s favour at the trial. The Court must weigh one need against another and
determine where” the balance of “convenience” lies.

The Supreme Court settled for a Judicial Directive by reaching a conclusion without offering a scintilla of reasoning in support of that result.
On the “…presumption of regularity of all official acts …” it has no relevance to this case.
On whether non-lawyers can competently comment on this matter, I merely state that a Barrister-at-Law designation is not a dispenser of super wisdom or of any wisdom at all. Gambia’s public intellectuals must engage with the public space and help dissect the great issues of the day for the benefit of larger society. I urge them to emulate the likes of Anthony Lewis, legal columnist for the New York Times, “… an American public intellectual and journalist” who covered the United States Supreme Court for his paper. “Early in Lewis’ career as a legal journalist, Supreme Court Justice Felix Frankfurter told an editor of The New York Times: “I can’t believe what this young man achieved. There are not two justices of this court who have such a grasp of these cases”. Eulogizing Lewis, the Dean of Columbia University’s School of Journalism said: “At a liberal moment in American history, he was one of the defining liberal voices”.I therefore urge our Nieman Fellow, and our Country Representative of the Westminster Foundation for Democracy, among others, to plough on and empower their people.
In his anger, the President wronged Jaiteh and the country he leads. On one of these moonlit nights, I urge him to take a lone walk along the serene grounds amidst the beautiful flowers and trees of the national house he calls home. I urge him to reflect on the rise and fall of the previous tenants-in-chief of that house, to come to terms with his mortality, and the transiency of his office. Let him survey the majesty of the presidency and reflect on the purpose for which he was sent to Number 1 Marina. The monuments we will remember and celebrate him for are not going to be the physical structures he left behind but the unseen symmetric beauty of governance under law.
The President was wrong to purportedly fire Jaiteh, and the Supreme Court was wrong to restrain her while refusing her application to restrain her replacement and others from violating her accrued legal rights under colour of law.
The end.

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LJ Darbo, a former member of the bench, is a distinguished barrister and solicitor and an erudite social, political and legal commentator.

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