The
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.
