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Defence opposes filing nature of  UDP petition 

Dec 28, 2021, 1:10 PM | Article By: Momodou Jawo

President-elect Barrow legal team headed by Sheriff Tambedou, has on Friday 24th of December, 2021 called on the Supreme Court of The Gambia to dismiss the electoral petition filed by the opposition United Democratic Party (UDP), citing the petitioner did not comply with the Election Act and the rules of filing an election petition.

Barrow’s legal team also argued that the 1st respondent has not been served with the petition, thus urging the court to dismiss the petition.

“The UDP petition was filed on the 14th December 2021, in pursuant of section 49 of the constitution which states that any political party which participates in an election may apply to the court for redress which was the 9th day after the results of the elections,” Tambedou argues.

According to him, the party amended the petition on the 15th December 2021, adding that the petitioner obtained a court order on the 16th December for the IEC a joinder.

Lawyer Tambedou further stated that Rule 12 of the Election Act, sub-rule 1, stated that every petition shall be served on the respondent and were service couldn’t be done on the respondent, the court may order for substituted service, claiming that there was no service on the 1st respondent which is the President. 

He further claimed: “Neither the petition nor the amended petition was served on the Respondent (The President Barrow).”

He said: “As it be my lord, the petition was filed on the 14th of December 2021 and we submitted that on the 9th day after the declaration of results. Now an amended petition was filed on the 15th of December which was on the 10 day after the declaration of results. Therefore, my lord sitting as a single judge in chambers made an order to join the IEC as a second respondent. This was done 16th of December which was on the 11th day after the declaration of results.”

Election petitions, Tambedou went on, are special and that they require strict observance of the timelines and their rules, adding: “This is why throughout the act and the law governing petition, there’s emphasis to observe those rules strictly and stringently. My lord all the jurisdiction in the Commonwealth and also in this jurisdiction my lord, it has been held time and time again that election petitions have to be observed strictly particularly the mandatory,” he said,

On the amended election petition, he said, neither the amended petition was served on the 1st respondent, saying that it was filed without hearing and determination on a motion on notice. “Let me point out straight away to my lord that this court presided over by my lord sitting as a single judge on the 16th of December made an order for joinder of the IEC. Therefore, I submit to my lord that that order is an order for joinder only and nothing more. It was not an order for the petition to be amended and there was no application for the petition to be amended.”

“My lord, since I started my arguments I have been giving you different timelines. The requirement is that the election petition must be filed within 10 days. The 14th December was the 9 day and the 15th December was the 10th day and now on the 16th December when my lord made the order for the joining of the 2nd respondent which is the IEC, the 10 days have already expired.

Ousainou Hussein Thomasi, the solicitor general who was presenting his arguments based on the point of law said: “Election petition by their nature are so special, thus issue on the electoral petition need to be adhered to especially on timeline,”

“The suit should be dismissed given the fact that public anticipation, public interest and peace, and stability of the country are all matters at stake,” he said.

For his part, lawyer Borry Touray of the UDP while responding to the arguments made by Sheriff Tambedou, said: “The motion brought by the lawyers for President Adama Barrow seeking dismissal of the suit lacks merit as he urges the court to dismiss it.”

“The announcement of the just concluded presidential election results took place on Sunday 5th December 2021. That was not a working day my lord thus it can’t be counted. Therefore, counting starts on Monday the 6th of December. My lord authorities for these arguments can be found under section 32 of the Interpretation Act.”

The petition, he said, was filed on the 14th of December which was on the 8th day and not the 9th day as suggested by Tambedou, adding that both the petition and the amended petition were all filed within the timeline.

Lawyer Kebba Sanyang of the IEC said they prefer to align their arguments with that of the 1st respondent on issues of irregularities in the petition filed by UDP.

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