“ABUSE OF DISCRETION AT THE HIGH COURT IN BANJUL!”

By Gambian Outsider! 

On September 1st 2016, vacation judge, Orgar Edward Eneji of the High Court in Banjul denied Mrs. Sira Wally Ndow-Njai her second bail application. Mrs. Ndow-Njai’s lawyer is Ida Drammeh. Last week, Mrs. Ndow-Njai’s third bail application was dismissed. I neither know Mrs. Ndow-Njai nor lawyer Ida Drammeh. If I were to meet Mrs. Ndow-Njai at a gathering, I will not be able to tell who she is. Lawyer Drammeh I will be able to identify at a gathering because I have seen her before.

Let me begin with the judge’s ruling on the second bail application and then proceed to the denial of the third bail application. First, the judge never said what bail is or what is its purpose. The applicant, Mrs. Ndow-Njai cited ill-health and lack of substantive charges against her in her application. Ms. Drammeh argued that her client be granted bail pending trial and that her client was held in custody since her arrest. The state counsel objected to the bail application and argued that if granted bail Mrs. Ndow-Njai was “likely to interfere with the case as she is aware of the nature and seriousness of the charges against her.” The state council also argued that the investigation was ongoing and the accused may jump bail if the judge accepted her bail application. Recall that Mrs. Ndow-Njai was arrested and held in custody at least two months without officially being charged at all. So the prosecutor’s objection was insincere and untrue because during the course of three bail applications Mrs Ndow-Njai was not charged of committing any crime at all. In fact, Mrs. Ndow-Njai and eight others were indicted on September 29, 2016. If such things can happen to Mrs. Ndow-Njai, an educated, well connected, and financially stable person, how about those who have been arrested and who do not even know what is legal representation? Indict or indictment means to charge (a person) with a crime by formal legal process. The indictment is a written document and it has to meet certain rules to be valid. The first line of defense is to attack the indictment if it is defective. I am still trying to lay my hands on the indictment of Darboe and Co. No one ever published it, which has been beyond me. Gambians at home must make it a duty to have every indictment publish for the whole world to see. We cry about trumped up charges all the time. Well the only way to know if a charge or charges are trumped up is to look at the indictment.

The judge correctly said that granting bail was at the discretion of the court. The judge further said that it was left to the applicant to give substantive evidence on why bail should be granted, and if the applicant, Mrs. Ndow-Njai, failed to present substantive evidence then her request would not be granted. This is true. But the judge never said what evidence would be “substantive” in the proceeding. For example, what evidence must Mrs. Ndow-Njai have to produce to be considered “substantive evidence”? The other thing the judge never laid out was how evidence produced was to be weighed to determine whether it was substantive or not. In other words, what is the standard for weighing evidence? Without any guidelines, then it would be left to the judge to say what is or what is not substantive evidence. The facts stated in Mrs. Ndow-Njai’s bail application should decide whether the evidence she produced to support her request for bail is substantive evidence or not. Of course, if her evidence does not support the facts in her bail application then the evidence is not substantive at all. A judge is like a referee and referees operate based on the rules of whatever operation they are appointed to take part and not based on subjective standards. Fairness (“substantive” due process) requires that.

Instead of focusing on those things, the judge said, “the only difference in the first and second bail application was the number of paragraphs and that there was no change of circumstances to show that the accused should be granted bail. The judge went on to say that there was only one High Court in The Gambia despite the fact the court sits at diverse places in the country. This is indeed true. He then followed that up and made this baseless point of law: “That the High Court lacks the jurisdiction [power] to review its own decision and it cannot also sit on its own appeal cases.“ It is not true that a trial court (like The Gambia High Court) lacks the jurisdiction to review its own decision. But it is true that it cannot sit on in a proceeding that involved the appeal of a case or issue that it decided. Black’s Law Dictionary defines review: Consideration, inspection, or reexamination of a subject or thing. Appeal is defined as: A proceeding undertaken to have a decision reconsidered by a higher authority; esp., the submission of a lower court’s (a trial court, like the High Court) or agency’s decision to a higher court (like The Gambia Appeals Court or Court of Appeals, or even the Supreme Court of The Gambia for that matter) for review and possible reversal. As is clear, review does not necessarily involves a higher court but an appeal always does.

Another point the judge failed to distinguish was between a trial and a pre-trial litigation. A bail application before the actual trial starts falls under pre-trial litigation. That is the case here. When a trial has been completed, the loser cannot appeal to the same court that presided over the trial. That is not the case at this point of the case. The judge reasoned that because the High Court lacked jurisdiction to review its own decision, the only alternative for the applicant was to either appeal against the decision of the High Court or apply for judicial review of the decision and that duplication and repetition of the same application before the same court was an “abuse of the court process” and waste of time. What “abuse of process” is, the judge never said.

The judge made a blunder of epic proportions when he reasoned that the High Court could not review its own decision in a bail application hearing. If the judge in the first bail application made an error, then judge Ogar Edward Eneji, being the now presiding judge in the second bail hearing has authority to review and correct that error. Or if the second bail application was presided by the same judge in the first bail application, that judge could reverse his or her prior decision if sufficient and reliable evidence is presented to him or her. “Matter” that was not present in the first bail application may be presented in the second bail application as “new matter” to be considered then. For example, because of shock or jail conditions, Mrs. Ndow-Njai may have gotten sick or sicker. If she has gotten sicker that is a significant change of circumstances to be given great weight.

In the legal profession, lawyers deal with certain processes some of which are: “motion to reconsider” “motion to vacate” or “motion to set aside [cancel] the judgment”? These motions involved parties who has been affected by a trial court’s judgment or order [like The Gambia High Court] who may asked the same court to cancel the judgment or order that was made. To say that a trial judge does not have the authority to review a prior decision made by the same presiding judge or another judge in the same level of court is preposterous. In African Continent Bank v. Losada Nigeria Ltd & Anor (1995) 7 SCNJ 158, the court said that “ A court of law is competent to set aside its own judgment if the judgment obtained was a nullity. A similar principle is laid out in the following cases: Chime v. Ude (1996) 7 SCNJ 81; Kalu Mark & Anor v. Gabriel Eke (2004) 1 SCM 141; Okafor v. Attorney General of Anambra State (1999) 7 SCJN 192; Auto Import Export v. J.A.A. Adebayo & Ors. (2003) SCM 154; Dr. Adewunmi Adeyemi-Bero v. Lagos State Development Property Corporation & Anor (2012) 12 SC (Pt. 1) 98.

Here I have listed at least six cases each of which has clearly stated that a court of law has inherent power to set aside its own judgment or order. The question presented is not whether a judgment or order is a nullity but whether a trial court can set aside its own judgment or order. One very important point, a judgment or order on a single issue among a few in a case does not mean that case has been decided in its entirety. Such a decision is only on that single issue that may be prior to or during the actual trial. Bail application is only one issue among a few that may come up during the course a case. To make a judgment or decision on a “Motion to Suppress” in a case is not the end of the entire case. So, the question now is, where in the world did judge Eneji get the idea that a trial court cannot review its own judgment or order? This may only happen in The Gambia, but in Nigeria and the rest of the civilized world, this is not the case at all. While the judge charged the defense attorney with “abuse of process,” I will get into that later, the judge clearly “abuse his discretion.” Abuse of discretion is defined in Black’s Law Dictionary: “An adjudicator’s failure to exercise sound, reasonable, and legal decision-making.” Here the judge did not exercise sound decision-making because what he said, that the High Court could not review its own decision, is not based on any legal reasoning whatsoever, and hence he never cited a single legal authority to support it.

After the third bail application was filed and denied by judge Eneji, he charged the defense with “Abuse of Process.” Abuse of process is define in Black’s Law Dictionary: The improper and tortious use of a legitimately issued court process to obtain a result that is either unlawful or beyond the process’s scope. Is it unlawful for an attorney to seek bail for her client a second or a third time? No. Is a bail application for the third time beyond the process of applying for bail? No. What did lawyer Ida Drammeh did that amounted to abuse of process? As the court in R-Benkay Nigeria Limited v. Cadbury Nigeria Plc (2012) SC (Pt III) 169 put it: The concept of abuse of court process relying on numerous decided authorities is imprecise. It involved circumstances and situation of infinite variety and conditions. But a common feature of it is the improper use of judicial process by a party in litigation to interfere with due administration of justice. The circumstance which will give rise to abuse of court process include:

(a) Instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues on multiplicity of actions on the same matter between the same parties even where there exists a right to begin action.

(b) Instituting different actions between the same parties simultaneously in different courts, even though on different grounds.

(c) Where two similar processes are used in respect of the exercise of the same right for example, a cross-appeal and a Respondent’s notice.

(d) Where an application for adjournment is sought by a party to an action to bring an application to court for leave to raise issues of fact already decided by the lower court.

(e) Where there is no law supporting a court process or where it is premised on frivolity or recklessness.

(f) Where a party has adopted the system of forum-shopping in the enforcement of a conceived right.

(g) It is an abuse of court process for an Appellant to file an application at the trial court in respect of a matter, which is already subject of an earlier application by the Respondent at the Court of Appeal. When the Appellant’s application has the effect of overreaching the Respondent’s application.

(h) Where two actions are commenced, the second asking for a relief which may have been obtained in the first, the second action is prima facie vexacious and an abuse of court process.

Not a single one of the points listed in R.Benky Nigeria is applicable in Mrs. Ndow-Njai’s case. Not a single point listed in R-Benky Nigeria deals with pre-trial litigation as is the case in Mrs. Ndow-Njai’s case as of right now. There is no multiplicity of actions on the same subject matter against the same opponent as point (a) states. In fact, one might asked who is the opponent here? Different actions were not instituted simultaneously in different courts as point (b) states. Only one process (bail) is used in Mrs. Ndow-Njai’s bail application at the High Court, and there was no cross-appeal and a Respondent’s notice so far as it has been reported. Point (c) is inapplicable on its face in this matter. Points (d), (e), and (f) are also inapplicable. Point (g) appears to be applicable but it is not because there is no earlier application by Respondent (the state) at a Court of Appeal. Recall that we are concerned with pre-trial process and not an actual trial. And lastly, point (h) like points (d), (e), and (f) is inapplicable. So what is going on here? Where is the abuse of process judge Eneji is talking about? Upon what facts did the judge relied to have charged the defense attorney with abuse of court process? It appears that justice as observed in The Gambia is different as applied in the rest of the civilized world.

Mrs. Ndow-Njai’s constitutional right to be treated with fair process has been denied. Bail pending trial being a constitutional right is a civil right. See Section (4) of 1999 the Constitution [Nigeria]; see Ralph Uwazurike & Ors v. Attorney General of the Federation (2007) 2 SCNJ 369. The effect of granting bail is not to set the accused free for all times in the criminal process, but to release him [or her] from the custody of the law and to entrust him to appear at his [or her] trial at a specific time and place. Adamu Suleman & Anor v. Commissioner of Police, Plateau State (2008) 3 SCJN 1. The criteria for granting pre-trial bail or bail by trial court include: (i) likelihood of further charges being brought;[ she has not been charged yet]; (ii) the probability of guilt; [How is she guilty if she has not been charged of a crime]? (iii) detention for the protection of the accused [Mrs Ndow-Njai has not been a danger to herself]; (iv) the necessity to procure medical or social report pending a final disposal of the case. [She is being denied medical treatment]. See the above cited case Adamu Suleman.

If one carefully reads (i);(ii); (iii); and (iv), you will notice that the prosecutor never raised any of one them and I put in brackets a counter point to each of the requirements. What would have happened if the prosecutor raised at least one of the requirements for denying bail? Then the burden would be on the prosecutor to show by “clear and convincing evidence” that the issue he raised was actually supported by such evidence. Earlier, I mentioned that the judge never said what standard of proof was to be applied to weigh evidence to determine whether it was “substantive” or not. The three quantum or measure of proof are: “by preponderance of the evidence” “by clear and convincing evidence”; and “evidence beyond a reasonable doubt.” The lowest and which is most often used in civil trials is “by preponderance of the evidence.”: This standard has been defined as meaning that the fact finder [jury in countries that use the jury system or a judge in a bench trial as is the case in The Gambia] must be persuaded by the party to whom the burden on the issue has been allocated that the fact is more probably true than not true. And of course, the highest standard, “beyond a reasonable doubt” is used only in criminal trials. “Clear and convincing” proof is the one in the middle and it can be applied both in civil and in criminal cases. This standard requires the trier of fact to be persuaded that there is high probability that the fact in question exists. It is used in some civil cases, for example, in an oral contract to make a will or issues of fraud, often require proof by “clear and convincing evidence.” This middle standard is used in criminal cases mostly during pre-trial litigation and never in the actual trial. If “by preponderance of the evidence” is used in criminal cases, no prosecutor will ever fail to meet his or her burden. Because a bail application is a pre-trial proceeding and not an actual trial, “beyond a reasonable doubt” is never used at that stage of a proceeding. Often in The Gambia, whenever bail is applied for, the prosecutors usually object and the oft- cited reason is always either “the investigation is ongoing and the applicant may interfere with it” or “the applicant may jump bail.” The state’s objection is always sustained without showing any “clear and convincing evidence” that its claim is true.

Lawyer Ida Drammeh cited her client’s ill-health and lack of substantive charges as reasons to granted her client bail. In Sani Abacha v. The State (2002) 5 SCM 139, the Court said that “whatever the stage at which bail is sought by an accused person, ill-health of the accused is a consideration weighty enough to be reckoned as a special circumstance.” In the same case, the Court said that, “[e]veryone is entitled to be offered access to good medical care whether he is being tried for a crime or has been convicted or simply in detention. When in detention or custody, the responsibility of affording him [or her] access to proper medical facility rest with those in whose custody he [or she] is, invariably the Authorities. But it ought to be understood that the mere fact that a person in custody is ill does not entitle him to be released from custody or allowed on bail unless there are really compelling grounds for doing so.”

When lawyer Ida Drammeh presented to the court the issues of her client’s ill-health and lack of substantive charges as reasons to grant her bail, the state could have presented “clear and convincing” evidence that the applicant was in fact not telling the truth about her ill-health and that she has been charged. But this was not what happened. Instead, the prosecutor said that if Mrs. Ndow-Njai was granted bail, she would “interfere with an ongoing investigation.” The prosecutor’s objection did not refute the issue raised by the applicant’s bail application. Even if the prosecutor’s ridiculous argument is granted for the sake of an argument, is the state saying that the only way to prevent the applicant from interfering with an ongoing investigation is to keep her in jail? Is it impossible to granted the applicant bail with conditions like she could not discuss the case with anyone except with her lawyer. Or she could not call anyone or receive any calls from anyone except her lawyer. Or that the applicant could not have been put in house arrest to avoid interfering with an ongoing investigation if the state has been truly concerned with her interference with an ongoing investigation. Of all these avenues that could have been used, the state would rather have Mrs. Ndow-Njai in jail. To put someone in jail should be the last resort and not the first and only available choice when a person’s liberty hangs in the balance. In any legal controversy, the moving party (the person making the request for bail or some other request) always has to present reliable and convincing evidence why he or she should be granted his or her request. If the non-moving party (the person not making the request, here the state) objects, especially where a constitutional right is at issue, reliable evidence must also be presented as to why the moving party’s constitutional right should be denied. If Mrs. Ndow-Njai’s ill-health is true and that she has not been charged since her arrest, which is more than two months at the least, then the state must give compelling evidence why she should not be granted bail. So far, the state has completely failed to do just that.

Instead, judge Eneji ordered that prison officers give “adequate medical treatment” to the accused person while in custody at Mile 2 Prison. The judge also ordered that the prison officers keep the accused in a “well ventilated cell to enhance her health status,” and that she must be taken for “regular medical check up at Edward Francis Small Teaching Hospital.” Here, at least, the judge somehow acknowledged Mrs. Ndow-Njai’s ill-health. If he did not believe Mrs. Ndow-Njai was sick, then why were the orders issued? The other problematic points in the judge’s orders are: (1) How could prison officers administer “adequate medical treatment” to Mrs. Ndow-Njai if they are not trained medical practitioners? (2) How in the world did the judge knew that the prison cell of Mrs. Ndow-Njai might not have been properly ventilated? Should the prison cell not be properly ventilated in the first place? Did the judge visited the accused’s prison cell to find out whether her cell was properly ventilated or at least sent someone from the court’s staff to check out the condition of the cell? If the questions I have raised are too difficult to answer, then how about this one. After the judge’s orders were handed down at the close of the second bail hearing, has any step been taken to make sure that his orders have been implemented? Judge Eneji never bothered to ask during the third bail hearing whether his orders in the previous bail hearing have been implemented or not. Judge Eneji did not only abused his discretion but his orders were disingenuous. They were a charade.

I cited Nigerian case law because most of the legal practitioners in The Gambia cite Nigerian case law. Nigerian case law predominates The Gambian judiciary. One of the most disheartening things about the judiciary in The Gambia is that legal authorities from other countries are primary authority in The Gambia. This should not be the case. Legal authorities from other countries can be persuasive authority in The Gambia but they should not be primary authority. Gambian legal practitioners have done little or nothing to advance case law in The Gambia. They are more familiar with foreign case law, especially Nigerian case law, than their own case law. The development of Gambian case law would create authoritative precedents that are Gambia’s own and not borrowed authority from other countries. I am not saying that there are no Gambian case law. What I am saying is that case law in The Gambia has not developed to the point where legal practitioners are not dependent on foreign case law.

An issue, and a big one, with The Gambian Judiciary is that it does not seem to have a “Constitutional Jurisprudence,” or if it does it is not clear. In other words, what are the standards of review in constitutional issues that come before The Gambian Supreme Court? A constitutional jurisprudence of a judiciary should have clear standards to apply when a case that is not of “first impression” comes before it. A case of “first impression” is a case that deals with an issue that has never been decided by the highest court in a country or in a state. The fact of the matter is that there should always be some standard(s) derived from cases that have been decided during the course of many years. And those standard(s) should have lucid expression and scientific arrangement. They should be clear and certain and such as can be easily understood by those who have to obey them.

Ends