legal tussle between Slok Air Ltd. as 1st plaintiff and F.I. Bank The Gambia
Ltd. as the 2nd plaintiff against Hilium Grays Ltd. as 1st defendant and Lilium
Holdings as 2nd defendant continued on the 6th December, 2018 before Justice
Ebrima Jaiteh at the High Court in Banjul.
The two plaintiffs/applicants filed a motion before the said High Court staying all proceedings in respect of the respondents’ motion dated the 29th May, 2018 and filed 30th May, 2018 brought pursuant to Order 41 Rule 1 of Schedule 2 of the Rules of the High Court as amended rules , 2013 for an order setting aside the judgment of Justice Martin U. Okoi dated the 11th April, 2017 pending the hearing and determination of the plaintiffs’ appeal to the Court of Appeal of The Gambia against the ruling of the court delivered by Justice B.V. P. Mahoney on the 31st July, 2018.
The plaintiffs contended that by an application dated 29th May, 2018 and filed on the 30th May, 2018 and brought under the review jurisdiction of the High Court under Order 41 of Schedule 2 of the Rules of the High Court as amended by the High Court (Amendment) Rules 2013, the defendants prayed that leave be granted to them to bring an application to set aside or nullify the judgment of Justice Okoi dated the 11th April, 2017 on grounds that the court lacked jurisdiction to entertain the suit.
In moving the motion, Counsel for the applicants; C.E. Mene and Ida Drammeh submitted that it is an application by motion on notice dated the 10th October, 2018 and filed on the same day, adding that applications supported by a 16 paragraphs affidavit sworn by one Dauda Faye a legal assistant.
Lawyer Mene said exhibit DF1 is the ruling of the court by Justice B.V.P. Mahoney on the 31st July, 2018 and submitted that the ruling is the subject of a pending appeal before the Court of Appeal of The Gambia.
Lawyer Mene further said Exhibit DF2 is a certified true copy of the notice of Appeal against the decision exhibited as in DF1.
Lawyer Mene submitted that the plaintiffs are relying on all the paragraphs of the affidavits and the exhibits attached thereto in support of the application.
He submitted that review jurisdiction has time limit and that it is statutory, noting that the appeal raises the jurisdiction of the High Court.
Lawyer Mene submitted that the affidavit in opposition of the defendants has not disputed any facts deposed to in the affidavit in support.
He submitted that paragraph 6 of the affidavit in opposition, stating that paragraph 13 and 14 of the affidavit in support are misleading, untenable as it did not give any particulars as to how paragraphs 13 and 14 are misleading.
Lawyer Mene submitted that the application is not frivolous and that it is very necessary that the court does not engage in an exercise in futility.
He stated that the court is in discretion to stay the proceedings because there are situations which requires that the court in order to do justice has to stay proceedings pending appeal and to do otherwise will result in injustice or a violation of the rule of fair hearing.
He further stated that the court must balance the right of competing parties in arriving at a determination, citing the case of the State versus Carnergie Minerals Ltd. and another [2002-2008] at ratio 2 GLR at page 227 when Justice Agim, PCA, as he was then; stated on what a court should do in an application for stay of proceedings.
Lawyer Mene said the court is dealing with a situation where judgment has been delivered since the 11th April, 2017 and the same defendants have already filed an appeal against the said judgment and now the appeal is still pending at the Gambia Court of Appeal and after one year and one month they filed a judicial review.
Lawyer Mene submitted that where there is a statutory provision, inherent powers of the court does not apply.
He further submitted that there would be no injustice in staying the proceedings, noting that the principles to be considered for stay of proceedings are the same as in stay of execution.
Lawyer Mene argued that where the issue of jurisdiction is being raised, the court can grant a stay of proceedings or execution.
He, however, urged the court to the plaintiffs’ application.
The matter was adjourned to the 13th December, 2018 for the defendants’ counsel to respond.