Binga D. of Civil Litigations at the Attorney General’s Chambers has craved the
indulgence of the Supreme Court of The Gambia to strike out the election
petition filed by the UDP candidate, Aussainou Jobarteh in the Kuntaur
Chairmanship election with substantive cost.
Lawyer Binga D. made this declaration whilst responding to the applicant counsel, Antouman A.B.Gaye’s submission.
It could be recalled that Aussainou Jobarteh, the UDP candidate in Kuntaur Administrative Area of Central River Region North, filed a petition against Saihou Jawara and Mustapha F.M. Jobe, the IEC Returning officer of the Area and the Attorney General at the Supreme Court challenging the election result of the 12th May, 2018 chairmanship election, urging the Apex Court to declare him the winner of the said election and not Saihou Jawara.
On Monday, during the last court sitting, the Supreme Court asked the Applicant counsel to address the court on jurisdiction and the matter was adjourned to yesterday for hearing.
During yesterday’s sitting, the lead counsel for the Applicant, lawyer A.A.B. Gaye gave reasons as to why the petition was filed at the Supreme Court and he informed the court that his junior, lawyer Lamin Darboe had informed him that he filed the petition at the High Court Registry, but he was told that all election petitions was filed at the Supreme Court.
Lawyer Gaye disclosed that the mistakes of the court officials should not be visited on the litigants, noting that this is one of the cases where litigants are at the mercy of the people.
He submitted that there are provisions for the transfer of cases from the Supreme Court to the subordinate courts.
He thus referred the court to Sections 58, 59, 60 and 62 of the Criminal Procedure Code and also to one Noah Jallow in a civil procedure in Nigeria at page 68, which deals with transfer of cases.
Lawyer Gaye cited a case where a case was struck out but after appeals the case reached the Supreme Court, the Supreme Court decided that the High Court should have transferred the matter.
Lawyer Gaye submitted that the Supreme Court has inherent powers to transfer the matter to the High Court and urged the Supreme Court to transfer this matter to another court in order to do substantial justice.
In reply, lawyer Babucarr Secka, counsel for the 1st defendant, Saihou Jawara submitted that jurisdiction of a court is conferred by statute; and he cited section 100 of the Election Act.
He argued that the said section gives the Supreme Court exclusive jurisdiction in terms of presidential and National Assembly elections.
He submitted that the petition was addressed to the Supreme Court and filed to the Supreme Court and that filling the Kuntaur Area Council chairmanship election before the Supreme Court has incurred an incurable defect.
Lawyer Secka argued that the Supreme Court lacks jurisdiction to entertain the Kuntaur election petition and that any decision taken by the Supreme Court goes to nullity.
He urged the Apex Court to strike out the matter since it doesn’t have jurisdiction to entertain this matter.
Lawyer Binga D. representing the Attorney General informed the court that he did not intend to over flood the issue of election petition and argued that where a court lacks jurisdiction any order made by the said court amounted to nullity.
Lawyer Binga D. pointed out that in the instant case, the Supreme Court lacks jurisdiction to entertain the matter, saying the Supreme Court is a court of finality of the land and he therefore urged the court to strike out the petition with substantial cost for abuse of court process.
In response, Lawyer Antouman A.B.Gaye submitted that the Supreme Court is not making any order, but merely transferring the matter to the appropriate court and he urged the court to examine the processes in the case especially the headings of the processes.