Posted by By Dawda Faye
Justice Sainabou Wadda-Cisse of the High Court in Banjul on 23July, 2019, struck out the contempt of court case against Yankuba Touray which was filed by the state. When the case was called, State Counsel M. Koita represented the Attorney General while Abdoulie Sissoho announced his representation for Yankuba Touray.
In her ruling, the presiding judge told the court that the TRRC, through its chairman, referred contempt proceedings under Section 15 (2) of the TRRC Act and Section106 ( C ) of the Criminal Code against Mr. Yankuba Touray. She said that the referral was via a letter dated 1 July, 2019, and attached was an affidavit in support of the referral and a pen drive as an exhibit.
She adduced that when the matter first came up before the court on 2 July, 2019, the court ordered the counsels to file written addresses on the propriety of the referral instrument, having regard to the fact that there was no originating process before the court on which the referral was premised. She added that the referral was rather an off-shoot of a case that originated from the proceedings of 26 June, 2019, of the TRRC.
She noted that the process of referral borne out of the facts before the court was novel in the jurisdiction, noting that in that regard it was imperative that the court gives dispassionate consideration to the issues raised. “Such dispassionate consideration remains the same and does not change according to the status or disposition of either the contemnor or the complainant involved, neither does it change according to the public perception in respect of the offence or the contemnor,” she told the court.
She went on to say that to resolve the issue of whether the suit filed vide a letter dated 1th day of July, 2019, by the TRRC was commenced under due process of law, they must first of all understand what constitutes contempt of court. She cited the authority of Oswald on Contempt of Court (3rd edition) to support her ruling.
She quoted Counsel Sissoho’s argument: “All originating processes filed at the High Court must comply with the Second Schedule, Rules of the High Court, particularly, ORDER II, ORDER XXVII and ORDER L, and the letter dated 1st day of July, 2019, did not conform with any of the requirements as provided by the Rules governing
practice as provided by law in The Gambia or in the commonwealth.”
Counsel Sissoho continued his argument, according to her: “Section 15 (2) of the said Act is a criminal offence and therefore any step to make a referral to the High Court, there must be full compliance with the Criminal Procedure Code, particularly Sections 175A, 175B and 175C.”
The Attorney General was also quoted by the presiding judge: “The referral by the TRRC to the High Court is not a proceeding commenced by the Attorney General. In fact, 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 said provisions of the CPC. It was the intention of the legislator to dispense with this requirement under Section 15 (2).”
Justice Wadda-Cisse stated that the clear and incontrovertible fact was that the jurisdiction of the court was being invoked by a referral process, adding that there are various methods of initiating civil proceedings before the High Court, and they are by writ of summons, by petition, by originating summons and by originating motion.
She further adduced that regarding the procedure for the commencement of criminal proceedings before the High Court, is the filing of information in the form of an indictment by virtue of Section 175C of the Criminal Procedure Code.
She noted that she was of the view that the referral process was found on whether or not some provisions of the TRRC Act have been violated by the contemnor. She further stated that with respect to the Learned Attorney General, she could not 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. She added that the principles of natural justice are enshrined in our constitution.
“It is apparent that the procedure by which the referral to the High Court could be made for ‘trial and punishment’ is not specified in the TRRC Act,” she declared.
She told the court that in the instant case there was no doubt that contempt proceeding falls within the competent jurisdiction of the court. However, she went on, it is the duty of the court to ensure that actions before it are commenced appropriately to clothe the court with jurisdiction. She noted that improper commencement of an action is not a mere irregularity but fundamental to the core. She said that the failure to follow the procedure for the commencement of an action divests the court of jurisdiction and renders the suit incompetent.