IN THE SUPERIOR COURTS OF THE GAMBIA IN THE HIGH COURT OF THE GAMBIA MOMODOU SOWE………………………APPLICANT AND IGP…………………………………………………RESPONDENT Applicant is absent Mrs. S. Jahateh for the applicantThursday 4th December 2014 before Hon. Justice S. A. ABI The applicant has before the court and. <originating summons filed on 2nd July 2014.                      ••:••:;:.,:• • •          :_.. On  the  16th dy of July 2014  when  the  case  was  called  for  the very first time Mrs. S. Hahateh, the applicant’s counsel took objection  to the  appearance of  S.H\ Barkum, the  learned  Director of  Public Prosecutions’ (the  DPP) ::on  behalf  of the  respondents. Counsel for the applicant argued that this application is an originating summons, a miscellaneous application which is civil in nature dealing with fundamental •• rights.  She  referred  to Section  85  of  the  constitution which provides  or  control of prosecutions and  submitted  that  the powers: of the  DPP  are limited  to  criminal matters.  She  submitted finally that it is the  Director  of Civil Litigation  who  was  served  and who should appear in the matter. Responding to these arguments, S.H. Barkum ,  the  DPP,  submitted that applicant’s counsel was in one  breadth arguing that  DPP’s terms of reference were strictly criminal by virtue of S. 85 of the Constitution ,  and  in  another  breadth,  was  conceding  that the application was  miscellaneous, which  is neither civil nor criminal.  He submitted  that  applicant’s counsel did  not  provide any  authority which  tends to  suggest that the  DPP cannot appear for  the Attorney General or” other public officer  in  civil cases. He argued that S.85 of the constitution, by its wordings, is neither sole nor exclusive, that is, the functions of the DPP stipulated therein are open and in addition to other functions. He elaborated that the said section by its wordings does not confer only criminal jurisdiction on the DPP to the exclusion of all other powers. He referred to Section 13(4) of the State Proceedings.. Act, CAP 8:03 Volume  3 Laws of The  Gambia, and  submitted that the  DPP had legitimacy to appear and conduct cases on behalf of  the  Attorney General who  also  had  powers to…delegate=::i:any legal• practitioner  to represent him/her by virtue of section 13(1) of the same Act. He also referred to section 7 (1) of the courts Act CAP 6; 01 volume 2 laws of the Gambia which he submitted deals with Law Officers of public officers who may appear for the state. He concluded taht provided the DPP is a public officer and a law officer of the state, nothing can debar the DPP from appearing for and on behalf of the Attorney General or the IGP as in this case. Making reference to section 18 and the 1st Schedule of the Legal Practitioners act, he urged the court to discountenance the objection of learned applicant’s counsel. Replying:::•::on points of law Mrs. S.  Jahateh for     the  applicant submittd as submitted as follows; that in  reply  to  DPP’s  argument that his  power to  represent  the  Attorney General is  not restricted to  criminal al  cases by  S.85 of the constitution,  the court must be guided by the  ejusdem generis rule and aid of statutory interpretation .  She referred to the book  “The:: Gambia  Legal System”  by  Emmanuel  Akomaye Agim , particularly pages 123 and 125 at  paragraph 6.  She submitted that since the  list  in 8.85 of    the Constitution relates  to     criminal proceedings,  it  cannot therefore input a civil  power  or  jurisdiction which is  either not  listed in  the  general provision or  cannot even  be implied. In reply  to Section 13 of the  State Proceedings Act, she  submitted that the  section does  not  give any  public  officer open  and unfettered right to  appear in  civil proceedings for  or  against the State,  and  that  the appointment must be in  writing.  She submitted that the DPP cannot appear in this case  unless he has been  appointed in writing.  She submitted that the  position is the same  with  regards to Order VI Rule 7  of the  Courts Act where  the appointment must be  in  writing and must be  filed  in  court on  or before  appearance in  court, which  has not  been  done in this case. She  referred to  pages  225  to  228  of the  book  Gambia Legal System earlier cited , and  submitted that it defies logic and  the law to have  the position  of  Director  of  Civil  Litigation if the DPP claims to have jurisdiction over civil matters. She concluded that ther are regulations in place establishing officers and various departments of the AG;s Chambers, and these rules are deemed to be in tandem with the statutes in relation to law officers and public officers and state proceedings Act and should be read in line with the constitution. I ahve taken pains to reproduce virtually all the arguments almost verbatim because, contrary to the DPP’s reaction that the applicant’s objection is “flimsy”, I find it novel an weighty enough to warrant due attention. It is novel because search as I would I could not find any authority or judicial pronouncement bearing directly on the points raised in this objection. It is weighty to may mind because of the likely implications of the decision on this objection on the functions of the DPP qua law officer and public officer, vis a vis his powers under the constitution. More importantly, it is a known fact that in this jurisdiction, law officers from the Attorney General’s Chambers have not been brandishing written authorities before appearing for the Attorney General in matters in court. Therefore, the very profound implication of the success or otherwise of this objection on cases already decided cannot be over emphasized. Having highlighted the arguments, two major issues arise, whose resolution I believe will assist in determining this objection one way or another. These issues are: 1. Is this miscellaneous application a civil or criminal suit? 2. What  is  the  true  import  of Section  85  of the  Constitution vis a vis  Section 13(4)  of the  State  Proceedings Act; Section 18 and First  Schedule of the Legal Practitioners Act, and  First Schedule, Order  VI Rule 7,  Rules of the High Court? QUESTION 1 – Is this miscellaneous application a civil or criminal suit? In  the  instant case,  the  applicant, by original summons  seeks declarations to enforce  rights  provided for in Sections 1.9 •and  24 of the  Constitution and  for his  release  from.  custody. The applicant’s counsel argued that the application is civil in nature which is why it was served on the Director of Civil Litigation. The DPP on the other hand is contending that the application is neither civil nor criminal. Both counsels however agree that it is a miscellaneous application. The major distinctions between civil and criminal actions are in the nature and effect of each. A civil case involves the determination of the civil rights and obligations of persons, while a criminal case concerns the trial and determination of violations of penal laws or statutes. Whereas breach of civil obligations generally can be remedied in damages and/or declaratory and injunctive reliefs, (with the exception of the breach of civil obligation to obey court order known as civil contempt of court,), a breach of criminal law on the other hand attracts penal sanction or punishment. Miscellaneous applications on the other hand are a specie of civil cases only be their mode of commencement (which can either be by way of a motion, summons or petition.) Apart from this, there is not other known criteria for classifying them as either civil or criminal. T This  was the  basis  on which it was held  by The Court  of  Appeal in THE STATE  (N0.1) V. DARBOE (N0.1) (1997-2001) GR 771, @ 776, TO 777 PAR 1, that: These modes of approaching the court are essentially civil forms. Such applications (for bail) being neither strictly criminal nor civil are…… Miscellaneous applications on the other hand are a specie of civil cases only by their mode of commencement (which can either be by way of a motion, summons or petition). Apart from this, there is not other known criteria for classifying them as either civil or criminal. This  was the  basis  on which it was held  by The Court  of  Appeal in THE STATE  (N0.1) V. DARBOE (N0.1) (1997-2001) GR 771, @ 776, TO 777 PAR 1, that: These modes of approaching the court are essentially civil forms. Such applications (for bail) being neither strictly criminal nor civil are often categorised as miscellaneous applications.  …  In  Roget’s Thesaurus of English Words and  Phrases the  word  ”Miscellaneous” is  defined  as  ”nonuniformity,  variability, patchiness”. . ..  The very mode  of a bail application before  trial in a criminal  matter being  by civil  process, emphasises  the  point that  such application is  neither criminal  nor civil, hence  it is categorised as  miscellaneous….” Without going into the merits of the reliefs sought, I wish to state that the  circumstances leading to  this application are  an arrest and detention. This can be gleaned from several paragraphs of the affidavit in  support deposed to  by  Aminata •  Sowe. Accordingly,  I find  that the  tenor of this application, despite the wordings of the reliefs sought, is in  effect  an  application  bail for  r.elease  of the applicant from  custody.  I also  find and hold that the  applicant having commenced the  applic.tion by .. way of  a  miscellaneous originating summons is  properly before  the court.  However, relying on the authority of The State (No. 1 ) v. Darboe (No. 1) supra, I disagree with counsel for the applicant that it is a purely civil application. By extension, i agree with the learned DPP that the application is neither a civil nor a criminal suit and I answer Question 1 above accordingly. QUESTION 2- What is th true import of Section 85 of the Constitution vis a vis section 13(4) of the State Proceedings Act; Section 18 and First Schedule of the Legal Practitioners Act, and First Schedule, Order VI Rule 7, Courst Acts? This to me is the crux of the objection under consideration, and I shall proceed by a careful examination of the constitution and other statutes referred to. Section 85 of the Constitution of the Gambia 1997 provides as follows: “85. Control of Prosecutions The Director of Public Prosecutions shall have power in any case in which he or she considers it desirable to do so, and subject to the approval of the Attorney General; (a)To  initiate and  undertake  criminal proceedings  against  any person  before  any  court  for an  offence  against  t he  law  o f The Gambia (b)To take over and continue any criminal proceeding that has been instituted by any other person or authority; (c) To discontinue, at  any  stage  before  judgment • is  delivered , an y criminal  proceeding  instituted  or undertake by himself  or herself or any other person or authority: Provided that the director of Public  Prosecutions shall not- (i)    Take  over and  continue  any  private prosecution  without  the consent  of the private prosecutor and the court, or (ii)    Discontinue any private prosecution without the consent of the private prosecutor. (2) For the purposes of this section, any appeal from a determination in any criminal proceedings before any court, or any case stated or question of law reserved for the purpose of such proceedings to any other court, shall be deemed to be part of those proceedings; Provided that the power conferred on the Director of Public Prosecutions under this section may be exercised by him or her in person or by persons under his or her direction and control. (3) The powers conferred in the Director of Public Prosecutions under this section may be exercised by him or her in person or by persons under his or her direction and control. (4) In the exercise of his or her functions under this section, the Director of Public Prosecutions shall be subject to the direction or control of the Attorney-General. (5)In this  section, “private prosecution” means a  prosecution instituted by any person or authority other than- (a)The  Director of Public Prosecutions  or any  person  acting under his or her direction or control; (b)A  police  officer  in  the  exercise  of the  functions  of  his or  her office; or (c) An officer in the public service in the exercise of the functions of his or her office.” The applicant’s counsel has interpreted this Section of the Constitution as  completely restricting the  powers of the DPP to criminal matters only, that is to say, the DPP has  no  right  to appear in. civil cases on  behalf of the Attorney General  or any other public officer.  In response, the DPP has argued that the section is not  a closed or restrictive one, not having specifically provided that the  DPP shall not  exercise any  other. powers except those stated in the  section.                :::::.:: It has to be noted from the outset that it is the law that where the words of an Act of Parliament are clear, there is no room for applying any rule of interpretation which are merely presumptions in cases of ambiguity. See the case of TOMPSON HOLIDAYS LTD. V. BANNA BEACH HOTEL LTD (2002 – 2008) 2 GLR 340@ 351, per Agim JCA as he then was, citing and relying on the case of CROXFORD V. UNIVERSAL INSURANCE CO. LTD (1936) 2 KB 250 @ 281. But where there is ambiguity in the words of a statute, the first cardinal rule of statutory interpretation is the literal rule, which is that every word, unless used in a technical sense, ought to be given its ordinary or literal interpretation, as legislators are generally presumed to intend what they actually convey by the words they use. See the case of THOMPSON HOLIDAYS LTD. V. BANNA BEAACH FOTEL LTD supra, @ 349, per Agim JCA as he then was. See  also ATTORNEY  GENERAL  V.  PAP  C.O.  SECKA (2002-2008) 2 GLR 73@ 75 RATIO 8 AND @ 77 RATIO 22. Looking carefully at this Section 85, I do not find any ambiguity in the provisions therein. The meaning and purport is clearly stated right from  the  heading of the  section which states,  “Control of prosecutions”. While  the  heading of the  section cannot su bstitute the  main provisions in the  section, it however explains and clarifies the  rationale and objectives of the  section under consideration . See the     case     of JOBE (N0.1)  v.  ATTORNEY  GENERAL (N.O.l)    (1960-1993) GLR  191,    @ 196-197 RATIO 1.  See  also ATTORNEY GENERAL V.  PAP  C.O.  SECKA  (2002-2008) 2  GLR 173 @ 75 RATIO 9. It is my view that the rationale or objective of this section is that, the DPP shall have the power, to the exclusion of all others, to “control prosecutions” as specified in subsections (1) (a), (b) and (c). But do the words of the section also covey an intention that the DPP shall not represent the Attorney General in any matter other than criminal matters? There is no such proviso in the whole of this section, and I do not find the basis for any such deduction from the wordings of the section. I shall in the circumstance refuse to read in this provision words that are not there, for this is not within the interpretative jurisdiction of a court. See KANIFING MUNICIPAL COUNCIL V. INTERNATIONAL BANK FOR COMMERCE (20002-2008) 2 GLR 173 @ 176 RATION 14 I will therefore also refuse the invitation for a restrictive interpretation of that section ejusdem generis, as urged by the applicant’s counsel. This is because laws are supposed to be interpreted to, and courts are more readily inclined to giving to a law such an interpretation that will give it effect, rather than one that will restrict or diminish the effect of the law, unless of course the interpretation will lead to absurdity or miscarriage of justice. Coming back to  the  case at  hand, which  of  the  two  contending interpretations  will  more  likely  lead  to  an  absurdity  going by  a literal  interpretation of  this section? To  recap the arguments,  on one  contending side  is  the  invitation by  the applicant ‘s counsel to exclude the  other functions of the  DPP as a Law Officer  by virtue of Section 85 of the  Constitution. And on the other side is the DPP’s view that the  Section 85 gives him  exclusive power  over criminal prosecutions but does not  preclude him  from appearing in  civil or other  cases  representing  the  Attorney General  or  other  public officers. ‘ It is  my  view  that there being  no  express  provision limiting other functions of the  DPP in  Section 85,  and there being n o basis for a deduction of such limitation from  the  provisions,  it will do violence to  that provision and thus lead  to  an  absurdity to interpret it  as excluding the  DPP from  all other function except control  of prosecutions. This is more  so  because the  DPPP , a law officer, one of  whose functions is  to  appear for  the  Attorney General  (as  we shall  see  shortly  hereafter).  As  held:• earlier,  this case is  not  a criminal or civil case but  a miscellaneous application which has no CLEAR TYPOLOGY, AND SO, THE DPP CAN APPEAR FOR THE ATTORNEY GENERAL. I would have also come to the same conclusion and decision even if this were held to be a purely civil case for reasons that will be shown shortly hereafter.]]>

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