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KMC’s Motion On Notice For Stay of Proceedings Of “Inquiry” Dismissed

Mayor Talib Ahmed Bensouda & Minister Musa Drammeh

By Landing Ceesay

The High Court of the Gambia’s Justice B. V. Mahoney on Tuesday dismissed the Kanifing Municipal Council’s motion on notice for a stay of the proceedings of the Commission of Inquiry established by the Minister of Local Government Hon. Musa Drammeh.

Justice Mahoney said the Applicant (KMC) in their motion for a stay of proceedings of the Commission stated receiving a letter from the 1st respondent (Minister of Local Government) in January 2022 informing it that the Ministry had established the Commission acting under the powers under Section 151 (1) (a) of the Local Government Act and that the Applicant (KMC) believes that the setting up of the Commission is in excess of the powers contained in the said section, hence the application for Certiorari to quash the establishment of the Commission.

He added the respondents on the other hand in their Affidavit in opposition aver that the (1st) respondent acted within the powers conferred on him by section 151  (2) (a) of the Local Government Act and that the application for stay of proceedings is a mere attempt to delay the proceedings of the Commission.

He continued that the applicant (KMC) alleged that the Commission has not been established under due process of law, that the application raised issues of law that touch on the legality and competence of the Commission and that if the proceedings of the Commission are not stayed, the applicant (KMC) will be prejudiced.

Justice Mahoney said there are established guidelines on the exercise of discretion in an application for stay of proceedings.

“It must be noted that these principles are not exhaustive, but mere guidelines for the court to exercise its discretion,” he said.

Justice Mahoney of the High Court said whether the 1st respondent (Minister Drammeh) exercised his powers under the Local Government Act, rightly or wrongly and is presumed to be regular, until determined otherwise in the main suit.

“The Commission of Inquiry was established and gazetted. Going by the Supreme Court decisions in Ya Kumba Jaiteh Vs. Clerk of the National Assembly supra, and Gambia Participates Vs. the Clerk of the National Assembly supra, no Court can restrain the performance of the power of exercise by the State. It is noteworthy that in the instant matter, although the application is for a stay of proceedings of the Commission, its effect is to restrain the performance of the official act of the 1st respondent  (Minister Drammeh) which, going by the above mentioned Supreme Court decisions, cannot be granted. This Court is bound by the decision.

“Having said this, this Court (High Court) is bound by the decision of the Supreme Court and as the facts in the instant matter fall within the presumption of regularity of official acts, for which the law prohibits the granting of an injunction to prevent the act being performed, the application for a stay of proceedings of the Commission of Inquiry pending the determination of the main suit cannot be granted and is dismissed,” the High Court judge ruled on Tuesday.

Justice Mahoney adjourned the hearing of the main suit to 31st January 2022 at 2 pm, which is the certiorari against the respondents (Minister Drammeh- 1st respondent, and the Attorney General- 2nd respondent) to quash the establishment by the 1st respondent of the Commission of Inquiry into allegations of fraud and malpractice at the Kanifing Municipal Council and for connected matters.

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