Hon Fatoumata Njie, Hon. Samba Jallow and Hon. Kebba K Barrow
By Landing Ceesay
Hon. Justice A. Jallow- Sey of the High Court of the Gambia has overturned her Interim decision restraining the Clerk of the National Assembly from removing Hon. Fatoumatta Njai, Hon. Kebba K. Barrow, and Hon. Samba Jallow from the ECOWAS Parliament.
On 2nd of April 2024, Hon. Justice Jallow-Sey granted an ex parte motion filed by Hon. Fatoumatta Njai, Hon. Kebba K. Barrow, and Hon. Samba Jallow.
The motion seeks an order to restrain the Clerk of the National Assembly from removing them from their positions in the ECOWAS Parliament.
On the 5th of April 2024, Hon. Justice Jallow-Sey overturned that decision and dismissed the motion.
“I have read with great interest the motion paper, its supporting affidavit and the attachments, and I have also carefully read the affidavit in opposition. I believe for proper determination of this application, there is only one issue, and that is whether this court have the authority/power to grant an interlocutory injunction against the State,” Hon. Justice Jallow-Sey stated while delivering her ruling on the application.
Hon. Justice Jallow-Sey stated that Sections 17(2) and (4) of the State Proceedings Act (Cap 8:03, Act No. 12 of 1957) clearly provides that no injunction or order for specific performance can be granted by the court against the State or any officer of the State.
The High Court Judge cited numerous cases of the the Supreme Court of The Gambia including , the United Democratic Party (No. 1) & others Vs. Attorney General (SCCS No.3/2000), Ya Kumba Jaiteh vs. the Clerk of the National
Assembly & others (SCCS No. 001/2019, and Gambia Participates Centre for Research and Policy Developments vs. Clerk of the National Assembly & others (SCCS No. 002/2020.
Hon. Justice Jallow- Sey asserted that the Supreme Court in those cases clearly enunciated the principle that an interlocutory injunction cannot be granted against the State.
“The Supreme Court held that no injunction or order for specific performance will be granted by the Court against the State in any proceedings against it. The court further held that the granting of an injunction against the State would run counter to the well-established legal principle captured in the maxim Omnia praesumuntur rite esse acta i.e. everything is presumed to be rightly and duly performed until the contrary is shown.
“There is thus a presumption of the regularity of official acts. It is, of course, a rebuttable presumption. But that is to be determined in the main suit. That presumption of regularity is the basis upon which the law will refrain from restraining public officers in the exercise of their statutory powers. It is good law and good sense. Public officers are called upon regularly to exercise statutory powers for the public good,” Hon. Justice Jallow-Sey stated.
She further stated that It may well be that sometimes such powers are exercised erroneously or beyond the limits set by the law.
Hon. Justice Jallow-Sey, however, asserted that appropriate remedies exist to curb or control such excesses.
Hon. Justice Jallow-Sey also stated that restraining orders against the state are not among them, and for good reason.
The presiding Judge cited that public administration must be allowed to continue and not be fettered by such orders. She said that is in the public interest.
“The Court had also, in the occasion of UDP & ors vs. AG Supra, in a ruling by Hon. Justice H.B. Jallow JSC, as he then was, sitting as a single Judge of the Supreme Court in dismissing the application in its entirety, stated that an injunction cannot be granted against the State. That neither the statutory law nor the principles of common law would support such application.
“Upon considering the applicable laws relating to the issue before the court, which is The effect of granting the application Section 17 of the State Proceedings Act, Cap 8: 03, Volume 3, Revised Laws of The Gambia 2009, and the decisions of the Supreme Court, this court has no authority to grant an interlocutory order against the State,” Hon. Justice Jallow-Sey stated.
As a High Court Judge, Hon. Justice Jallow-Sey said bound by the Supreme Court decisions as outlined above.
“Therefore, in this particular application, I shall follow the land mark decisions of the Supreme as discussed Supra. From the foregoing reasons, I hereby dismiss this application in its entirety and set aside the interim order granted to the Applicants on the 2nd April 2024. There will be no order as to costs,” Hon. Justice Jallow-Sey ruled.