Supreme Courtroom Strikes Out third to 32nd Defendants Names in Lawyer Lamin Okay. Mboge, Ibrahima Jallow VS Lawyer Common and 31 NAMs as Respondents
Lawyer Lamin Okay Mboge and Lawyer Ibrahima Jallow in a civil go well with dated 11th day of March 2019 served a discover that the above case is fastened for point out on Wednesday the 13th day of March 2019 at 9.30 and signed by the Registrar of the Supreme Courtroom of the Gambia.
Lawyer Aziz Bensouda and Bory S. Touray and different 2 legal professionals volunteered to face for the defendants.
Lead Counsel Aziz Bensouda advised the courtroom that the defendants are served by way of the pigeon holes on the Nationwide Meeting and asserted that Part 22 of the Structure, that such service is prohibited. He argued that civil processes shouldn’t be served on the Nationwide Meeting or executed on the Nationwide Meeting. He submitted that the service ought to be put aside and argued that there isn’t any foundation to serve on the Nationwide Meeting.
Lawyer Mboge however argued that the difficulty of service is linked to the difficulty of exparte software and the substantive matter earlier than the courtroom and stated the difficulty of service can be regularised subsequently.
He additional stated the agenda they’ve at the moment is to hunt reliefs from the courtroom to grant these reliefs.
Lawyer Bensouda nevertheless stated they’re making use of for value and will probably be a considerable value as a result of he stated the enterprise of the Meeting has been grounded and or stopped and the time of the honourable members have been wasted.
Senior Counsel Bensouda nevertheless expressed want to protect the appliance of value however would then pursue the appliance of value subsequently.
Lawyer Ibrahima Jallow, the 2nd Plaintiff to the go well with rose as much as say that they’ve a proper to be heard; that the writ has correctly been addressed and nobody has requested the defendants to return to courtroom immediately.
Justice Hassan Jallow interjected and stated the courtroom is able to hear the submission of the defendants.
Lawyer Aziz Bensouda then rose to make his submission and stated he submits that the writ sought has nothing to do with defendants apart from aid three which reads as thus: ‘A DECLARATION that the purported decision of the Nationwide Meeting signed by the 2nd to 32nd Defendants on Monday the 25th day of February 2019 is procedurally faulty, unlawful, unconstitutional, fraudulent and subsequently impermissible and opposite to public coverage.
He added that that is the one part of the writ that talked about the defendants and subsequently submitted that in any other case if the courtroom wishes they might learn all of the reliefs which was granted. He then learn all of the reliefs one after the other and argued that each one the remaining didn’t concern the defendants.
As for aid No.three, which he stated is a specific decision that was stated to have been signed; he defined and argued that a decision can’t be unconstitutional or illegal as a result of he stated a decision just isn’t binding.
Lawyer Aziz Bensouda stated the writ didn’t point out any part that was stated to have violated the Structure and doesn’t state the rights infringed; that it’s difficult an Act of the Nationwide Meeting; that part 1A has been violated or that it’s inconsistent or in contravention of an act of the Nationwide Meeting.
Lead Counsel Bensouda stated even when they need to contemplate the stated decision as alleged, even whether it is assumed that it’s inconsistent with the structure, it isn’t the enterprise of the Plaintiffs.
He went on to cite part 113 of the structure referring to immunity of the Parliamentarians as thus: ‘there shall be freedom of speech and debate within the Nationwide Meeting and that freedom shall not be impeached or questioned in any courtroom or place outdoors the Nationwide Meeting’. He added that even when such regulation or decision is unconstitutional however the correct course to deliver an motion to the Supreme Courtroom is to make the Lawyer Basic the defendant. He argued that our system doesn’t permit all of the 53 members to be in danger; that they need to not worry to get into legal guidelines, motions, and resolutions and so forth.; that they’re privileged to make these motions. So he stated to subordinate the entire Nationwide Meeting to a regulation go well with, private legal responsibility and private scrutiny of the enterprise of the Nationwide Meeting, he submits that such a precedent violates part 113 and 114 of the structure which he learn once more and stated is what ensures the liberty of speech on the Nationwide Meeting.
Mr Bensouda additional submits that ought to this matter be adjourned, 33 members won’t attend the sitting of the Nationwide Meeting which he opined can be catastrophic to our democracy and asserted that the go well with ought to be dismissed towards the 2nd and 32 defendants.
Bensouda stated his 2nd floor of objection is referring to all of the defendants excluding the Lawyer Basic and render the reliefs incompetent. He cited Lamin Okay Darboe and the Lawyer Basic which he stated has imposed a vacuum and argued that each one the reliefs don’t problem the motion however seeks to help the president’s motion.
The lead counsel adduced that ought to the writ be allowed to face , any citizen can come to courtroom to hunt aid that the president’s motion is constitutional; that they don’t search to echo the motion of the president and additional requested, when will it finish and described the go well with as frivolous. He argued that if he/she is affected by the President’s motion or different authority, he/she will sought aid.
Counsel Bensouda is of the opinion that the reliefs undermined the work of the Nationwide Meeting as a result of he stated 19 members are right here as an alternative of working on the Meeting. He subsequently urged the courtroom to dismiss the writ with substantial value for every plaintiff because the plaintiffs claimed to be legal professionals. This evoked rapturous laughter.
Lawyer Lamin Okay. Mboge’s Submission
Lawyer Mboge on his half stated the objection raised by the lead counsel is frivolous and is simply meant to stop the courtroom from continuing with the enterprise of the day. He argued that the writ earlier than the courtroom is in search of for an interpretation of the structure of the Republic of the Gambia, 1997, and in addition the difficulty of experte and writ emanating from an interpretation of the Structure, 1997 and the Plaintiffs are in search of for a aid . He argued that Aid three alone is enough to deliver the motion to courtroom to find out the legality and constitutionality of the motion of the third and 32nd defendants.
Mboge then referred the courtroom to part 5 a) and b) of the Structure referring to enforcement thus: An individual who alleges that-a) any Act of the Nationwide Meeting or something carried out beneath the authority of the Nationwide Meeting, or b) any act or omission of any individual or authority, is inconsistent with, or is in contravention of the supply of this structure, might deliver an motion in a courtroom of competent jurisdiction for a declaration to that impact;.
Mboge went on to say that their submission is that the objection is untimely and cited part 124 which offers with unique unique jurisdiction for interpretation aside from the supply of a elementary rights.
So the writ earlier than the courtroom is legitimate as a result of it emanates from the provisions of the Structure referring to enforcement. He then submits that the Counsel’s objection lacks benefit and ought to be dismissed by the honourable courtroom.
He was requested by Chief Justice B. Jallow on what his take is on part 22, Mboge stated the 1997 Structure overrides all different rights; that any regulation which is inconsistent with this structure is null and void and of no impact legally. So he stated aid three is a constitutional situation and they’re additionally in search of for an interpretation and never solely enforcement. He additional argued that not all selections of the Nationwide Meeting shouldn’t be challenged in courtroom and doesn’t forestall this courtroom from listening to the plaintiffs.
On the 2nd objection, Mboge stated they’re submitting that the objection didn’t state that the motion doesn’t violate the structure. He stated the Plaintiffs are in search of for enforcement by the Courtroom of the President’s motion.
He then cited part 76 of the Structure and stated the facility to appoint and subsection 1 the facility to revoke is enshrined in part 231 subsection 1 of the 1997 Structure; that the powers of the President can’t be invoked frivolously and if we’re aggrieved is to convey the matter earlier than this honourable courtroom.
Lawyer Mboge stated the aid is to hunt the enforcement of the President and to point out this courtroom that the President has such powers.
On the final situation he stated the originating writ is just not the enterprise of the Courtroom at present and added that the defendants have as much as 21 days to file their objections to the Courtroom.
He added that the exparte software doesn’t ask the defendants to return to courtroom but when they select to return and observe the proceedings of the Courtroom, then that’s fantastic. He additionally stated they might ask for a considerable value and for the courtroom to overrule the appliance of value by the defendants.
Lawyer Ibrahima Jallow’s Submission
Lawyer Ibrahima Jallow stated he would undertake the argument of his discovered pal and in addition added that the problems raised by Counsel Bensouda tantamount to declaring the entire structure to be put aside in favour of the defendants. He stated the provisions of the Structure shouldn’t be ambiguous and the objection by the senior Counsel is unwarranted and vexatious and never anticipated of a discovered counsel.
The Submission of the Consultant from AG Chambers
The AG Rep stated they want to take a look at the writ and advise themselves and are available again later.
Reply From Lawyer Bensouda
Bensouda knowledgeable the courtroom that privileges of the members of the Nationwide Meeting are within the Structure in part 113 and 114 of the 1997 Structure quoted Part 113 thus: ‘There shall be freedom of speech and debate within the Nationwide Meeting and that freedom shall not be impeached or questioned in any courtroom or place outdoors the Nationwide Meeting’.
Part 114: ‘With out prejudice to the generality of part 113, no civil or felony proceedings shall be instituted towards a member of the Nationwide Meeting in any courtroom or different place outdoors the Nationwide Meeting by cause of something stated by her or him within the Nationwide Meeting’.
Bensouda then stated his second reply is that he wished to submit that the objection of the defendants is locus standi, jurisdiction and no affordable plan of action. He added that the third objection is just not meant for listening to right now if that’s the case and requested why is the Courtroom listening to the case at present?
After a recess of 15 minutes, the courtroom resumed and Justice Jallow introduced the adjournment of the case to tomorrow Wednesday March 14th 2018 for ruling.
When the case was introduced on the 14th of March 2019, Lamin Okay. Mboge stood to say each Plaintiffs are current. Mr Binka D. N. Jallow is current for the Lawyer Basic, Mr. Bory S. Touray, Aziz A. Bensouda, Lamin L. Darbo, Sheriff Kumba Jobe and Jallow have been current for the 2nd and 32nd defendants.
Hon. Chief Justice Assan B. Jallow pronounced the ruling of the Courtroom that the case of Lamin Okay. Mboge and Ibrahim Jallow vs the Lawyer Basic as 1st Defendant and Hon. Ya Kumba Jaiteh as 2nd defendant and 31 others has been struck out.
He additional stated the explanations can be offered later and the Defendants at the moment are free to go away in the event that they so want.
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