By Alagie Sey
Justice Basiru V.P. Mahoney on Tuesday, 25 January dismissed the application by the Kanifing Municipal Council (KMC) seeking to suspend the proposed Commission of Inquiry set up by the Ministry of Lands and Regional Governments.
The KMC is challenging the legality of the Commission of Inquiry established by the Minister of Local Government to investigate allegations of corruption and malpractice at the Council and for connected matters.
KMC wanted the Court to suspend the proceedings of the Commission pending the hearing and determination of the case they had earlier instituted against the ministry. KMC, in its application for suspending proceedings of the Commission stated that it received a letter from the Minister of Lands in January 2022 informing it that the Ministry had established the Commission acting pursuant to the power under section 151 (1) (a) of the Local Government Act and that the Council believes that the setting up of the Commission is in excess of the powers contained in the said section hence the application for Certiorari to quash the establishment of the Commission.
KMC alleged that the Commission has not been established under due process of law. The lawyer for the Council submitted that the Council will be prejudiced if it will have to participate in proceedings that it is challenging the legitimacy of the Commission.
It is the position of the Council that there is no urgency in the Commission commencing its proceedings because the inspector whose investigation allegedly led to the establishment of the Commission finished their inspection sometime in August 2021 while the Commission was established in January 2022.
The respondents, on the other hand, in their affidavit in-opposition presented that the Minister acted within the powers conferred on him by section 151 subsection 2 paragraph (a) of the Local Government Act. They submitted that the application to suspend proceedings of the Commission was a mere attempt to delay the proceedings of the Commission.
Lawyer Binga D for the respondents submitted that an application for “Certiorari” is to quash a decision of a judicial body. He said such application for stay (suspension) does not apply in certiorari cases.
Binga further submitted that there was a presumption that the establishment of the Commission was done in line with the law unless proved otherwise as held in the case of Ya Kumba Jaiteh versus the Clerk of the National Assembly on the subject of presumption of regularity of official acts.
In his ruling, Justice Mahoney held that stay of proceedings is a valid application in a Certiorari matter where the circumstances demand. He said there is one issue brought out by Counsel Binga which affects the court’s discretion. That is the submission on presumption of regularity of official acts and the Supreme Court decision on the issue.
Justice Mahoney cited the Supreme Court decisions in Ya Kumba Jaiteh versus the Clerk of the National Assembly delivered on the 28 January 2020 and Gambia Participates versus the Clerk of the National Assembly as well as Section 17 subsection 2 of the State Proceedings Act that an interim injunction cannot be granted against the State.
The court held that the Minister exercised his powers under the Local Government Act, rightly or wrongly, and is presumed to be regular until determined otherwise in the main suit. “Going by the Supreme Court decisions in Ya Kumba Jaiteh versus the Clerk of the National Assembly and Gambia Participates versus the Clerk of the National Assembly, no court can restrain the performance of the power exercised by the State,” Justice Mahoney said.
He said in this case KMC wanted to restrain the performance of the official act of the Minister, which cannot be granted. He added that the court is bound by the Supreme Court decisions mentioned above.
“This court is bound by the decision of the Supreme Court and as the facts in the instant matter fall within the presumption of regularity of official acts for which the law prohibits the granting of an injunction to prevent the act being performed, the application for a stay of proceedings of the Commission of Inquiry pending the determination of the main suit cannot be granted and is dismissed,” the Judge held.
