High Court

High Court

HIGH COURT

The High Court is established by S.131(1) of the 1997 Constitution of the Gambia. Prior to the 1997 constitution, it was known as the Supreme Court. it was first by the Gambia by the British Colonial administration as such Supreme Court. After independence, its establishment continued to be provided for in the constitutions including the 1970 Republican constitution.

 

COMPOSITION OF THE HIGH COURT

S.131(1) of the 1997 constitution provides that the High Court shall consist of –

 

  1. The Chief Justice
  2. Not less than seven other Justices of the High Court
  3. Any Judge of a Superior court whom the Chief Justice may, by writing request to sit as a Judge of the High Court.

 

CONSTITUTION OF THE HIGH COURT

S.131(2) of the Constitution provide that the High Court shall be duly constituted by a single judge. S.3(2) of the Courts Act Cap 6:01 Vol.II Laws of The Gambia 1990 provide that all proceedings before the High Court shall be heard and determined by a Single Judge who shall have all jurisdiction and powers of that Court. it is implicit in the provisions of S.24(9) of the Constitution which provides that a person charged with a criminal offence in the High Court shall have the right to elect to be tried by jury, that the High Court is also constituted by a Jury. This implication was highlighted in the case of State V Darboe[1] where the accused persons during arraignment elected to be tried by Jury. The court considered that the constitution of the High Court prescribed by S.131(2) of the constitution does not include jury and that in practice it has not been provided and held that the exercise of the right under S.24(9) had the effect of stultifying the criminal proceedings and foisting a fait accompli on the court. the court discountenanced the election and ordered that the accuseds be tried by the High Court constituted by a single judge.[2]

 

It is noteworthy that at the time this matter arose and was decided, Counsel to the parties in the case and the Court did not address their mind to the fact that the Constitution of the Republic of The Gambia 1997 (Amendment)(No.2) Act 2 had deleted the said S.24(9) of the Constitution so that a person charged with criminal offence in the High Court no longer had the right to elect trial by a Jury. This appeared to have finally removed any vestige of Jury as part of the Gambia High Court.[3]

 

OBSERVATIONS ON THE COMPOSITION AND CONSTITUTION OF THE HIGH COURT

The Composition of the High Court as provided for in S.131(10 of the constitution presents the following challenges –

 

(1) It creates a conflict between the role of the Chief Justice as a Judge of the Supreme Court and his role as a Judge of the High Court. By virtue of S.125(1)(a) and 125(3) of the Constitution, the Chief Justice is a Judge of the Supreme Court and presides at sittings of that court. in this capacity he hears appeals from the decisions of the Court of Appeal on appeals from the decisions of the High Court by virtue of Ss.126(10 and S.28 of the Constitution. In his capacity as a Judge of the High Court he can hear and determine all Civil and Criminal proceedings as provided in S.132 and 133 of the Constitution. The challenge here, and which has occurred in some situations, is where he deals with a case as a Judge of the High Court, if the case is the subject of a further appeal to the Supreme Court, he certainly cannot participate in the hearing of such a case at the Supreme Court.

 

Furthermore, the fact that it is the Chief Justice that gave the decision that is the subject of the further appeal to the Supreme Court may influence his colleagues in the Supreme Court in their determination of such an appeal. Although this may appear to be a remote probability, it is advisable that it should not be ignored. This is more so as it is the Chief Justice that convenes and constitutes the panel of the Supreme Court that hears each case. This situation will render vulnerable and therefore suspect the independence of the panel of the Supreme Court dealing with a case decided at the High Court by the Chief Justice.

 

There is no doubt that there can be situations where the Chief Justice is a former Judge of the High Court and matters decided by him as such High Court Judge reach the Supreme Court by means of further appeals. The challenge here is not a permanent one as it can only last with the subsistence of such cases. Once such cases are disposed off the challenge ceases to exist. S.131(1) creates a challenge that will remain permanent until it is amended to exclude the Chief Justice from being part of the High Court.

 

(2)There is also the challenge of when and how the Chief Justice can request a Supreme Court or Court of Appeal Judge to sit as a Judge of the High Court under S.131(1)(c) of the constitution. In a situation where the High Court has enough Judges to hear a case, can such a request be justified. Such a request, when there are enough judges of the Court to hear a matter can create the suspicion that a Judge is being selected to hear a particular case to secure a particular result. This issue arose in the case of Muhammadou Sissoho v Inspector General of Police.[4]

 

(3)The Chief Justice is saddled with the responsibility of directly administering the High Courts and administering the entire Judiciary of the Gambia. this is no doubt a very difficult task and does not allow for full concentration on the direct supervision and administration of the High courts.

 

The Court structure of the High Court is larger than any of the other Superior Courts like the Supreme Court and the Court of Appeal. There are many divisions of the Court, with some sitting in Brikama and Basse. The body of staff is large and the activities and responsibilities are varied and enormous. The present practice of leaving the direct supervision of the High Court structure to the Master of the High court has proven unworkable. The Master is a subordinate officer to a High Court Judge and so cannot supervise the Judge. The role of the Master in practice is reduced to that of providing administrative support to and supervision of the Court registries and other departments. The fact that the Master has the additional responsibility of supervising the large and wide Magistrate Court structure makes his or her job of supervising the High Court more difficult. The High Court and Magistrates Courts are the most important courts in the Gambia in terms of assess to Justice. Considering their scale of activities, responsibilities, large structure and personnel, it will be in the interest of effective and efficient administration of justice to have amend the constitution to provide for a Judge as the head of the High Court as is the case with the Supreme Court and the Court of Appeal. The better practice is to have a separate head for each tier of court with all being answerable to the Chief Justice. This will allow for a more direct and effective administration and supervision of the courts and allow the Chief Justice enough time and room to deal with the general administration of the country’s Judiciary and matters of Judicial Policy. There may be no need to go through the process of amendment of the constitution as a means of having a separate head for the High Court. By virtue of the general power vested in the Chief Justice to administer and supervise the courts, he can appoint a Judge to head the direct administration and supervision of the High Court.

 

S.131(1)(a) of the Constitution which makes the Chief Justice part of the High Court is a hangover of the court regime in the Gambia where the High Court was the apex court in the Country. Inspite of the developments that resulted in the existence of the Court of Appeal and the Supreme Court as Courts superior to the High Court, the successive constitutions after independence have continued to make the Chief Justice part of the High Court. the reasoning or notion underlying such a provision is not clear. The mischief it is meant to prevent is not clear. In the context of the Judicial heirachy and the application of the rule of judicial precedent it is clearly absurd and will yield difficulties.

 

JURISDICTION

  1. UNLIMITED SUBJECT MATTER JURISDICTION

Apart from matters in respect of which original jurisdiction is vested in the Supreme Court by S.127 of the 1997 Constitution, S.132 of the said Constitution vest in the high court original jurisdiction –

  1. To hear and determine all civil and criminal proceedings.
  2. To interpret and enforce the fundamental rights and freedoms provided in Ss.18 – 33 and S.36(5) therein.

 

S.132(1)(b) also provided that in the exercise of such jurisdiction, the court shall have all such power and authority as may be conferred by the constitution or any other law.

 

The implication of the provisions of S.132(1)(a) of the Constitution is that –

  1. The original jurisdiction of the High Court over any subject matter cannot be ousted by any law except as otherwise allowed by the Constitution. So that any such ouster or exclusion, will violate S.132(1)(a) and shall, by virtue of the supremacy of the Constitution over other laws provided for in S.4 therein, be void.
  2. Where any law expressly vests original jurisdiction over any subject matter on any other court, the court will have concurrent original jurisdiction with that other court.

 

In addition to the jurisdiction and powers vested on it by the constitution, S3(1) of the Courts Act Cap 6:01 Vol.II Laws of the Gambia 1990 provides that it shall have all the jurisdiction, powers and authorities which were vested in or capable of being exercised by Her Majesty’s High Court of Justice in England immediately before the 18th February 1965. I do not think that this provision is still relevant today in the light of Ss.7, 120, 132(1)(a) and (b) of the 1997 Constitution. The High Court in England is not one of the Courts of the Gambia as prescribed in Chapter VIII of the 1997 Constitution. The English Acts prescribing its jurisdiction are not part of the laws of the Gambia as prescribed in S.7 of the constitution. English Acts cannot apply in the Gambia for the purpose of determining the jurisdiction of the High Court of the Gambia. the original jurisdiction vested in the High Court by S.132(1)(a) of the 1997 Constitution is all embracing and leaves no room for any gap that may require to be filled by reference to the scope of jurisdiction, the High Court in England had as at 18th February 1965. S.3(10 of the Courts Act was made by legal Notice No.9 of 1965 in the wake of independence to provide for the transition of the Gambia from Colonial Status to Independence. It was meant to provide for a situation where gaps in the jurisdiction of the High Court as it then was can be filled by reference to the jurisdiction of Her Majesty’s High Court of Justice in England. Between 18th February 1965 and now is a long period in 1970, Gambia enacted a Republican Constitution and became a republic thereby consolidating its sovereignty. The 1997 Constitution has followed the line of the 1970 Constitution with more far reading provisions in strengthening the sovereignty of the Gambia. in the light of these constitutional provisions, there is need to repeal S.3(1) of the Courts Act and all such similar provisions.

 

TERRITORIAL ORIGINAL JURISDICTION

By virtue of S.132(1)(a) of the Constitution, the High Court ahs the jurisdiction over any matter arising in any part of the Gambia. So the original jurisdiction of the High Court to hear and determined all matters as provided in the above provision of the constitution extends to all parts of the Gambia.

 

By virtue of S.131(3) of the Constitution, the High Court may sit at such places in the Gambia as the Chief Justice may determine and he or she may establish permanent divisions of the Court to sit at various places throughout the Gambia and appoint judges of the court to any such division.

 

The establishment of divisions of the High Court to sit at various places in the Gambia is for administrative convenience and does not affect or limit the original jurisdiction of the High Court sitting any where to hear and determine civil and criminal proceedings arising from any part of the Gambia. The unlimited original jurisdiction of the High Court as provided for in S.132(1)(a) cannot by restricted in any manner by the Chief Justice in the exercise of the powers vested on him by Ss.121(1) and 131(3) of the Constitution. Those powers must be exercised by him subject to the provisions of the Constitution.[5]

 

APPELLATE JURISDICTION

S.132(2) of the Constitution provides that the High Court shall have such jurisdiction in appeals from courts subordinate to it (other than the Cadi Court) as may be prescribed by an Act of the National Assembly. The High Court of the Gambia has the jurisdiction to hear appeals from the following lower courts –

 

(a) DISTRICT TRIBUNALS

A right of appeal from the decision of a District Tribunal to the High Court is created by S.26 of the District Tribunals Act which provided that any party who feels himself aggrieved by any judgment, or decision of a District Tribunal whether given in the exercise of its civil or criminal jurisdiction, or of a commissioner (now Governor) in the exercise of his reversionary powers ordering the re-trial of a case before a District Tribunal, may appeal there from to the High Court in all respects in the same manner as if such appeal were an appeal from a Magistrates Court to the High Court in a civil or criminal matter respectively.

 

(b) MOHAMMEDAN COURT

Ss.9(1) and 10(1) of the Mohammedan Law Recognition Act Cap 6:04 Vol.II Laws of the Gambia 1990 provide that subject to such restrictions as may be prescribed, appeal shall lie from any decision of the Mohammedan Court of Banjul or that of Kombo Saint Mary to the High Court. for the purpose of hearing the appeal Ss.9)2) and 10(20 of the said Act provide that the High Court shall be constituted by the Chief Justice and a Tamsir or person learned in the Mohammedan Law, who will sit as assessor to the Chief Justice for advisory purposes only.

 

(c). MAGISTRATE COURT

(i). Appeals in Criminal Cases:

S.271 and 272 of the Criminal Procedure Code Cap 12:01 Vol.III Laws of the Gambia 1990 as amended by the Criminal Procedure Code (Amendment) Act of 2002 (CPC) provide for an appeal from any decision of the Magistrate Court in a Criminal case to the High Court. Ss.277 to 282 of the CPC vest the High Court with the jurisdiction to hear and determine the appeal.

 

(ii). Appeals in Civil Cases:

S.26 of the Subordinate Courts (Civil Proceedings) Act Cap 8:02 Vol.II provide for appeal by any party to a case to the High Court and vests the High Court with the jurisdiction to hear and determine such appeals.

 

(d) Children’s Court:

S.232(a) of the Children’s Act provide that an appeal shall lie, in a case involving the trial of a child, from the Children’s Court to the High Court.

 

(e) Industrial Tribunal

S.43(1) of the Labour Act provide that any party who is aggrieved by an award, order or determination of the Tribunal may appeal to the High Court.

 

(f) Election Revising Court

S.29(1) of Decree No.78 provide that any person –

  1. Whose claim to have his name inserted in a register of voters has been disallowed;
  2. Who had made any objection to any person as not being entitled to have his name inserted in a register of voters;
  3. Whose name has been expunged from a register of voters; or
  4. Whose claim to have his name expunged from any list of deletions has been disallowed,

And who is dissatisfied with a decision of a revising court on any point of law material to the result of the case, may, in person, by a legal practitioner or by some other person on his behalf, give to the revising court within two days after the decision was given, a notice in writing of his desire to appeal to the Court.

 

SUPERVISORY JURISDICTION

S.133 of the Constitution provides that the High Court shall have supervisory jurisdiction over all Lower Courts and adjudicatory authorities in the Gambia, and, in the exercise of its supervisory jurisdiction shall have power to issue directions, orders or writs, including writs of habeas corpus, orders of certiorari, mandamus and prohibition as it may consider appropriate for the purposes of enforcing its supervisory powers.

Lower Courts and adjudicatory tribunals include the Magistrates Court, the Cadi Courts, District Tribunals and quasi-judicial bodies like administrative panels of inquiry and disciplinary committees. S.120(1) of the Constitution clearly distinguishes between Superior Courts and Lower Courts. It states that “the court of the Gambia are –:

(a) the Supreme Court

(b) the Court of Appeal Court,

(c) the High Court and the Special Criminal Court

(d) the Magistrates Court, the Cadi Court, District Tribunals and such lower courts and tribunals as may be established by an Act of the National Assembly.

 

It has been held that a Commission of Inquiry instituted by the President pursuant to Ss.200 and 201 of the Constitution is not a Lower Court or adjudicatory authority for the reason inter alia that appeals lie from its findings to the Court of Appeal by virtue of S.204(2) and (3) of the Constitution. It is therefore not subject to the supervisory jurisdiction of the High Court.[6] The Cadi Appeals Panel and Courts Martial are not listed in S.120(1) as superior or lower courts. In practice they are treated as being of co-ordinate status with the High court. This is understandable because the Cadi Appeals Panel is a final court of appeal in appeals from the cadi court , appeals lie from the decisions of the court martial the court of appeal. In A-G V Pap Cheyasin Secka the Court of Appeal expressed obiter that a Court martial is of co-ordinate status with the High Court.

 

SPECIAL CRIMINAL COURT

The Special Criminal Court is listed in S.120(1)(a)(III) as one of the Superior Courts of the Gambia.

ESTABLISHMENT AND COMPOSITION

It is established by S.134(10 of the 1997 constitution which provides that there shall be a special Criminal Court which shall be constituted by a panel consisting of a Chairman and not less than two other panel members.

JURISDICTION

S.135 of the Constitution provides that the Court shall have jurisdiction to hear and determine all criminal offences relating to theft, misappropriation and other similar offences in which public funds and public property are affected.

There is noting in the said S.135 of the Constitution rendering this jurisdiction exclusive. As it is and in the light of the provisions of S.132(1)(a0 of the Constitution the High court has concurrent jurisdiction with the special Criminal Court over the matters listed in S.135.

OPERATION OF COURT

This court is yet to be set up. Since its establishment by the constitution, it has not been operational. It only exists in the constitution for now.

ELECTION RIVISING COURT

S.24 of the Election Decree No.78 1996 provides for the holding of a Revising Court after the publication of the list of voters by the Independent Electoral Commission before the holding of an election. The Revising Court is to hear appeals and objections concerning the list of voters.

 

S.24 provides that –

  1. As soon as may be practicable after the lists mentioned in section 19 are published, the Chief Justice shall, on the advice of the Commission, appoint a Magistrate of the First Class.
  1. To hold a court )hereinafter called a “revising court”);
  2. To hear and decide appeals and objections.
  1. A revising court shall be held in each Administrative Area in which notices of appeals and objections have been received and the Chief Justice may, for this purpose, appoint different Magistrates for each Administrative Area.
  2. A magistrate appointed under this section shall
  1. Hold his revising court and give his decision on appeals and objections within sixty days from appeals and objections are lodged in the revising court;
  2. Give not less than five clear days’ notice of the time and place of holding of his court; and
  3. Hold his revising court in public.

 

ADDITIONAL POWERS OF REVISING COURT

S.26 of Decree No.78 provide that –

A revising Court shall have the following powers in addition to any other powers given to it under this Decree.

  1. To expunge from the lists of voters the name of every person who is proved to be dead;
  2. To correct any apparent errors or mistakes;
  3. On the written application of a voter, to change the original name or address of such voter to an altered name or address; and
  4. To reinstate the name of any person in a list of voters struck out by mistake or to insert therein the name of any person inadvertently omitted from the list.”

 

APPEARANCE OF PARTIES BEFORE COURT

S.25(1) of Decree No.78 provide that –

“At any sitting of a revising court, any person appearing to the court to be interested in or affected by the subject matter before the court may appear and be heard by himself, by a legal practitioner or by any other person duly authorized by him in writing in that behalf.”

PRACTICE AND PROCEDURE IN REVISING COURT

S.27 of Decree No.78 provide that –

“In all proceedings in a revising court, the law and rules of evidence to be complied with shall be the same as in civil cases before a Magistrate Court, and the practice and procedure shall, as nearly as may be, conform to the practice and procedure on the hearing of such cases.”