May 11, 2009, 6:47 AM
The DPP was making submission before Justice E.O. Dada of the Banjul High Court in replying to a stay of proceedings application pending a suit before the Supreme Court in the case involving lawyer Ousainou Darboe and nineteen others.
They are indicted on a seven-count charge of unlawful assembly, riot, and incitement of violence, riotously interfering with vehicles, holding a procession without a permit, and disobeying an order to disperse from an unlawful and conspiracy.
The accused persons on the amended charge sheet are Ousainou Darboe, Kemeseng Jammeh, Femi Peters, Lamin Dibba, Lamin Jatta, Yaya Bah, Babucarr Camara, Fakebba Colley, Ismaila Ceesay, Momodou Fatty, Dodou Ceesay, Samba Kinteh, Mamudou Manneh, Nfamara Kuyateh, Fanta Darboe, Lamin Njie, Jukuna Suso, Momodou L.K. Sanneh, Yaya Jammeh and Masanneh Lalo Jawla.
In his reply, DPP S.H. Barkun said: “It is our submission that from the inception of this case the attitude exhibited by the applicants was nothing, but delay tricks.”
At that juncture, senior counsel Bensouda raised an objection on the grounds that the DPP should limit himself to what was deposed to in the affidavit.
“We have been diligent and appearing whenever there is a sitting, so it is not for the DPP to remark on our attitude as counsel in this case. We are officers of the court and being officers of the court we have to be mindful of the language used. Nothing is personal, and we all have the interest of our clients at heart. So let the DPP stick to the affidavit he has deposed to,” said counsel Bensouda.
The DPP then stated that he said so because since the inception of the case the counsel for the applicants had kept on bringing the same application.
In his ruling on the objection raised by counsel Bensouda, the trial judge said he had taken the submission made by DPP that the attitude of the applicants exhibited nothing but delay tricks, so if counsel for applicants were offended by it, then the DPP was directed to reframe the language.
Submitting further the DPP said: “The applicants are standing trial on a seven-count charge and out of which the applicant are calling on the court to stay proceedings on the grounds that 4 out of the 7 counts are pending before the Supreme Court for determination.”
“Initially, an application of the same nature was brought before the court which was ruled upon on 26 May 2016 by the court. The ruling of the court did not go down with the applicants, as such they decided to approach the Supreme Court for directory and as such filed an application for stay of proceedings,” he said.
The DPP said: “My lord an application of this nature, the applicants have the duty to convince the court why the application should be granted.”
He, therefore, referred the court to section 142 of the Evidence Act and cited it, as it is the duty of the applicants to show why it should be granted such material before the court.
He added that he had gone through the affidavit in support of the motion, but there was nothing substantial before the court to grant the application.
He said the constitutional angle could be seen in section 127 of the constitution, adding that in this circumstance any application bothering on the said section is no application other than calling the court to stay proceedings or refer the matter to the Supreme Court.
“Therefore, the application made by the applicants on 5 May 2016 under section 127 and ruled upon by this court on 26May 2016, is not only an application for referral of counts to the Supreme Court, but it was an application for stay of proceedings,” he said.
The DPP further said: “My point here is that the ruling of this court on stay of proceedings, the court has its bite on this application already. The second angle on which referral can be made is when there is a substantial appeal of ruling on interlocutory application.”
“These are the only ways known to the law where the court could be invited to stay proceedings. The argument here is that is there any referral before the court? I have gone through the affidavit in support of the motion and the issue of referral has not been mentioned.”
The DPP further stated that the only paragraph that they could say had something to do with section 127 was paragraph 4 of the affidavit in support.
He said the outcome of the ruling on 26 May 2016, was that the referral order could not be made and the application was dismissed.
He said the substance was lacking in the affidavit in support, and the application must establish that the applicant was not intended to delay the proceedings.
He stated that the suit before the Supreme Court is an independent suit, which could be seen by the composition of the parties.
He said it was different and not in exertion of the same matter, and it could not be called an appeal and that the parties are different from the matter at hand.
“There is no arguable issue before the Supreme Court. There is no substantive issue and nothing exceptional to warrant stay of proceedings,” he said.
He, therefore, urged the court to refuse the application of stay of proceedings.
Replying on points of law senior counsel Bensouda said: “The DPP has misconceived the nature of the application previously made before the court on 5 May 2016, and the one currently before the court.”
“As regards to the present application, we never invoke section 127. We invoke the inherent jurisdiction of this court, and under the inherent jurisdiction there is no subsistence provision on an application for stay of proceedings pending the hearing of the suit before the Supreme Court.”
She said that any application made under the inherent jurisdiction of the court was made as a matter of law.
“We did invoke section 127 of the constitution when we made an application on 5 May 2016. We did seek referral under that section and this court refused it. In that application the issue of stay of proceedings did not arise and the paragraph DPP rely on did not even mention stay of proceedings,” she said.
She added that the importance of that ruling was that the court recognizes the original jurisdiction of the Supreme Court to determine the issue.
Counsel Bensouda further said that what is before the Supreme Court is not an appeal, and that there is no appeal pending.
She said the paragraphs in the affidavit in opposition do not contain any statement on facts, adding that it was an opinion not facts that granting the application would cause unnecessary delay and prolonged trial.
She said the parties in the suit are not different and the IGP, Director General of NIA and the Attorney General are all part of the state.
She, therefore, expressed wish that the application be granted.
The trial judge then adjourned the case until 8 June 2016, for ruling on whether or not to stay proceedings of the matter pending a suit before the Supreme Court.