By Nelson Manneh
Justice Sainabou Wadda-Cisse of the Banjul High Court Tuesday, 23rdJuly 2019, struck out the contempt case involving Yankuba Touray.
‘The failure to follow the procedure for the commencement of an action divests the court of jurisdiction and renders the suit incompetent,” the judge ruled.
She said: ‘In the instant case the particulars of the parties, in particular, the name, description and address of the person sought to be committed is not featured on the face of the referral process.’
“Clearly the High Court is required to hear the matter afresh and such hearing must be commenced in the manner prescribed by state or rules of court,” she said.
The high court judge in her ruling held that any matter before the High Court must be commenced by any of the originating processes prescribed by Statute or rules of court.
“Consequently, the referral letter is struck out,” he said.
It was the argument of Lawyer A. Sisoho, Counsel for Yankuba Touray that all originating processes filed at the High Court of The Gambia must comply with the Rules of the High Court as established by the Act of the National Assembly. He argued that the letter dated 1st July 2019 did not conform with any of the requirements as provided for by the Rules governing practice. In addition, Sisoho contended that under section 15 (2) of the TRRC Act, contempt charge is criminal and therefore, must comply with the Criminal Procedure Code (CPC) particularly sections 175A, 175B and 175C.
In his counter-argument, the Attorney-General, Abubacarr Baa Tambadou submitted that the referral by the TRRC to the High Court is not a proceeding commenced by the Attorney-General. He argued that section 15(2) makes no reference for the Attorney General to initiate criminal proceedings which clearly would have required an originating process pursuant to the CPC. He put forward that it was the intention of the legislator to dispense with this requirement under section 15(2).
The Attorney-General told the Court that the referral mechanism is intended to be an exception to the general rule of initiating criminal proceedings through an originating process and is not inconsistent with the CPC.
“In fact, it is an additional avenue of instituting criminal proceedings before the High Court and its application is clearly limited to the category of contempt offences at the TRRC,” the Attorney-General submitted.
The Attorney-General submitted that section 15(2) is therefore intended to allow the TRRC to relieve itself of the additional burden of contempt proceedings so that it can focus on its primary fact-finding inquiry rather than deal with the legal technicalities of contempt which should be reserved for the courts.
Justice Wadda-Cisse in her ruling said: ‘it is trite that a court of law cannot entertain an inference which runs contrary to the express provision of an Act of parliament.’
She ruled that the referral proceedings did not fall under any one of the forms of initiating civil and criminal proceedings.
“I am of the considered view that the referral process is founded on whether or not some provisions of the TRRC Act have been violated by the contemnor (Mr. Touray). With respect to the Learned Attorney General, I cannot accept an interpretation of section 15(2) of the TRRC Act that substantially limits the scope of the constitution and the powers of the court and contravenes the constitutional and statutory provision of the (right to fair hearing) audi alteram partem,”the judge said.
She said: ‘the principles of natural justice are enshrined in our Constitution. Permit me to say emphatically that when the citizens are vested with rights, a court of law must resist any attempt to deprive a citizen the enjoyment of that right conferred by law.