Sunday, January 26, 2020

Will the UDP Election Petition be heard?


By Yankuba Jallow

The High Court is to rule on the election petition of Aussainou Jobarteh of the UDP for Chairperson of Kuntaur Area Council. Mr Jobarteh claims that he won the election and not Mr Saihou Jawara of GDC who was declared elected by the IEC.

The petition was first filed in the Supreme Court but it was struck out because of lack of jurisdiction. Subsequently Mr Jobarteh has filed his petition before the high court and it is now by the Chief Justice, Hassan Jallow. However, the petition may not even be heard because Lawyer MB Moses Richards, attorney for Saihou Jawara, objected to the hearing of the petition, claiming that because the petition was filed late the court is barred from hearing the petition. The Court will now rule on whether or not the petition will be heard.

Attorney for the respondent, Mr Richards submitted that the Elections Act provides for 30 days for an election petition to be filed. He argued that it is now over 3 months since the elections of Mayors and Chairpersons and this ousts the power the High Court to hear the application.

The petition was instituted by Aussainou Jobarteh, candidate for the United Democratic Party (UDP)  who narrowly lost to the GDC candidate in the chairperson election held on 12 May 2018.

“It is the duty of the Court to see that its jurisdiction as defined and limited by Statute is not exceeded; for however well the case is conducted, once it is realised that the court lacks the jurisdiction to hear the case, that case becomes futile,” Counsel Richard told the Court.

He argued that the High Court lacks the jurisdiction to hear the application sought by the petitioner.

“Jurisdiction is the life wire of the courts and it cannot be taken away even if the parties agreed to it. This court like any other court should not allow its jurisdiction to be made futile,” he argued.

He also argued that the provision of Section 98 of the Elections Act provides for 30 days limit and the court will lack the jurisdiction to hear any application brought thereafter.

Lawyer Antouman AB Gaye for the petitioners when moving the motion for the court to allow the case to be heard said the petitioner was misled by an official of the registry of the courts.

“The intention of filing this petition was at the High Court but the petitioner was misled by the registrar of the High Court who told him that the case is for the Supreme Court and not the High Court,” Lawyer Gaye said.

Lawyer Gaye argued that the mistake was that of the courts through its officials (registrar) and it is unreasonable to make the petitioner suffer for a mistake he hasn’t committed.

“It is for the public interest that the matter should be heard rather than not allowing it through mere technicalities. The blame squarely lies at the registry of the High Court. The Elections Act under Section 98 does not have the word ‘must’ meaning it is not mandatory for the case to be filed within 30 days. Looking at the circumstances of this petition case, I urge the court to resolve the matter in favour of the petitioner,” Lawyer Gaye submitted.

In his counter argument, Lawyer Richards said: a professional should not act like a layman. “They headed to the Supreme Court and they never closed their case at the Supreme Court and even went to the extent of arguing on the jurisdiction of the Supreme Court to hear the matter. They filed their processes at the Supreme Court and not the High Court. The public interest in this matter is for the matter to be struck out because you were given 30 days and you allowed it to slip over. Equity aids the vigilant and not the indolent. You were given 30 days and that has elapsed. The motion before the court is defective both in form and substance. The motion is statute barred. You cannot put something on nothing.”

He further argued that as per Section 98 of the Elections Act, after 30 days following the date of the announcement of the elections results, the High Court has no jurisdiction to extend or hear that matter.

“The Elections Act notwithstanding the word ‘may’ does not provide for the extension of time beyond 30 days. They are excessively out of time. No court will allow an application especially a petition that is 30 days out of time. Every court has jurisdiction and it will be unreasonable to extend the time of the petition. The Elections Act does not vest this court any power to hear the matter,” Richards told the Court.

The petitioner, Mr Aussainou Jobarteh was represented by Lawyers Antouman AB Gaye and Lamin L. Darboe. The first respondent, Mr Saihou Jawara was represented by Counsel Richards whilst the 4th Respondent, the State, was represented by State Counsel Binga D.

The Case was adjourned for ruling. The date will be communicated to the public whenever a date is fixed by the court.

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