Chief Justice of The Gambia, Emmanuel Fagbenle, has recused himself from
hearing the application filed by the APRC for an interlocutory injunction to
restrain himself from swear in Adama Barrow as president on 19 January 2017.
The Chief Justice made this declaration yesterday while presiding over the motion filed by the APRC before the Supreme Court of The Gambia.
The APRC counsel, lawyer Edward Gomez, has now requested the court that they should come back, latest on Wednesday 18 January 2017, so that the motion on notice could be heard in the interest of justice, peace and tranquility.
Meanwhile, Justice Fagbenle has announced in court that the prayers in the motion filed by the petitioner/applicant, as read out by the APRC counsel, seeks among others: An order restraining the Chief Justice, or any of his agents or anyone acting in judicial capacity from swearing in Adama Barrow on 19 January 2017;
An order restraining the President of the Republic of The Gambia, Government or their agents and servants from preparing, organising or partaking in any manner or form of swearing in or inauguration of Adama Barrow as president on 19 January 2017;
An order restraining the speaker, deputy speaker of National Assembly, their agents and servants from partaking in the swearing in or inauguration of Adama Barrow; an order restraining any organ of Government of The Gambia, domestic, regional or international bodies from swearing in, inaugurating or participating in any manner participate in the swearing in of Adama Barrow as President;
An order restraining Adama Barrow from presenting himself before the Chief Justice of The Gambia or any other person from swearing in or inaugurating him as president of The Gambia pending the determination of petitioners petitioned before the court.
The Chief Justice continued: “While it is crystal clear for the service of every originating process or judicial processes must be served on the advance party, before any court can properly take proceedings therein, application of the learned counsel for the substituted service of the motion of interlocutory injunction cannot be refused.
“Service is of crucial importance and service is important so that the rule of fair hearing can be observed. If it cannot be served personally then the application of respondent’s substituted service has meaning.
“Both respondents, in the interest of justice must, therefore, be served by any means that is feasible.
“Accordingly, this court would grant leave to the petitioner to serve the pending motion dated 12 January 2017 on the 1st, 2nd, and 3rd respondents or any other person that is affected by the prayer therein by advertising same in The Point newspaper, Foroyaa, Standard and Daily Observer newspapers, including GRTS.
“Proof of service of this publication shall be kept in the court’s file,” he added.
Justice Fagbenle further said in court on Monday that prayer number 1 and 5 on the motion of 12 January 2017 could be heard by a single judge as permitted by section 125 of the constitution of The Gambia to determine, grant or leave of a prayer.
“I myself is the subject of the prayer,” he added.
“In the interest of Justice, which must not only be done, but manifestly seen to be done, I must necessarily excuse myself from the case and allow any of (my brother) justices of the Supreme Court of The Gambia whenever any of them comes up to deal with, or the motion awaits the full panel of the Supreme Court duly constituted when the judges are here. I am the only one on the ground for now,” he said.
Justice Fagbenle said the motion has to await the arrival of the judges, for it to be heard.
“The adjournment on Wednesday 18 January 2017 will not serve any purpose, since I said I am the only one on the ground for now,” he declared.
The motion would, therefore, await the arrival/constitution of the court by justices coming from either Nigeria or Sierra Leone or as maybe benevolently provided by the ECOWAS or regional platform, whichever one is earlier.
“In view of the submission of learned counsel that time is of paramount essence to the determination of this case not only the motion itself but even the petition as well.
“While the Mediator General and regional leaders are working hard to assist The Gambia to resolve the current impasse, in an atmosphere of peace and tranquility, I take this opportunity to appeal to all religious leaders, civil leaders across the spectrum throughout the length and breadth of The Gambia to please work together to support the two platforms, that of ECOWAS and Mediator General to ensure peaceful resolution of the impasse for the peace and tranquility of The Gambia,” Chief Justice Fagbenle added.
He revealed that there are about 32 cases at hand, for consideration by the Supreme Court of The Gambia, and in view of the fact that the judges are not around, the registrar of the court would adjourned those cases to the next sessions of the Supreme Court, which will be either in May or November 2017 or any other earlier date, when they have judges to preside over the cases.
They are making efforts to get judges because they have a lot of cases at the Supreme Court, Justice Fagbenle added.
He said it was not correct for one to say that they have been looking for Judges because of petition as they have other cases to preside on.