No judge has right to review judgment passed by another - Justice Jaiteh

Tuesday, May 14, 2019

Justice Ebrima Jaiteh of the High Court in Banjul has declared that a High Court Judge cannot review a judgment delivered by another judge.

Justice Jaiteh made this declaration yesterday in a ruling in the matter between Alieu Garba and Fatou Jaiteh and two others, where an application was filed before his court to set aside the judgment of Justice B.V.P. Mahoney delivered in this suit on the 26th July 2018 and an order to set aside the said judgment as being void, as if leave has been sought and obtained.

Justice Jaiteh explained that the Power of Review is governed by Order 41 Rule 1 of the High Court which provides that a judge may review a judgment or decision given by him or her and that the statutory provision in Order 41 Rule 1 as amended giving the judge power to review a judgment or decision by setting aside same is subject to the same judge who gave the decision or judgment.

Justice Jaiteh further explained that this rule is well expounded by Justice G.B.S. Janneh, J.C.A. as he then was in The Gambia Court of Appeal case in MERIDIEN BIAO GMBH (In liquidation) vs Muhammed H. Kebbeh, Civil Appeal no 8/2008 on the 14th November, 2002 and was later applied in another Gambia Court of Appeal case between ABDALLAH SALAM TRADING As SALAM TRADING Centre vs SHREEPAL JAIN.

Justice Jaiteh disclosed that in that case, Justice G.B.S. Janneh in his erudite judgment opined that a judge cannot review a decision given by another High Court Judge and at pages 14 and 15 of the said judgment, it states as follows that:

“The judgment was delivered by Justice O.H. Aghali, C.J. as judge of the High Court. Ihekire J. as judge of the High Court being of the same standing and possessed of the same jurisdictional authority could not have rightly reviewed the judgment.”

“It is trite law that the judgment or decision of a judge cannot be reviewed by another judge. There is a good reason for this principle. The judge who made the decision is allowed to review his own decision for obvious reasons but to allow another judge to do so would contradict and probably make nonsense of our appellate system,” he said.

Justice Jaiteh asserted that the above authority is binding on his court as it clearly states that the power of review given by Order 41 Rule 1 of the High Court (Amendment) Rules, 2013 is a power confined to the judge who gave the decision.

Justice Jaiteh stated that the case of Yaya Touray, deceased as cited by counsel for the applicants was set aside by the same judge who gave the judgment and that is the late Justice Buba Jawo of blessed memory and is distinguishable to the present case, where judge is invited to review and set aside a decision of another judge of coordinate jurisdiction.

Justice Ebrima Jaiteh, therefore, indicated that pursuant to Order 41 Rule 1 of the High Court (Amendment) Rules, 2013, he does not have the statutory power to review and set aside the judgment of Justice B.V.P. Mahoney delivered on the 26th day of July 2018.

Justice Jaiteh subsequently dismissed the motion on notice filed on the 30th August 2018 and awarded cost of D25, 000.00 in favour of the respondent.      
Author: Bruce Asemota