RULING ON DEFENCE’S APPLICATION IN MODOU SOWE’S HABEAS CORPUS CASE

IN THE SUPERIOR COURTS OF THE GAMBIA
IN THE HIGH COURT OF THE GAMBIA
MOMODOU SOWE………………………APPLICANT
AND
IGP…………………………………………………RESPONDENT
Applicant is absent
Mrs. S. Jahateh for the applicantThursday 4th December 2014 before Hon. Justice S. A. ABI
The applicant has before the court and. <originating summons filed on
2nd July 2014.                      ••:••:;:.,:• • •          :_..

On  the  16th dy of July 2014  when  the  case  was  called  for  the
very first time Mrs. S. Hahateh, the applicant’s counsel took
objection  to the  appearance of  S.H\ Barkum, the  learned  Director
of  Public Prosecutions’ (the  DPP) ::on  behalf  of the  respondents.
Counsel for the applicant argued that this application is an
originating summons, a miscellaneous application which is civil in
nature dealing with fundamental •• rights.  She  referred  to
Section  85  of  the  constitution which provides  or  control of
prosecutions and  submitted  that  the powers: of the  DPP  are
limited  to  criminal matters.  She  submitted finally that it is
the  Director  of Civil Litigation  who  was  served  and who should
appear in the matter.
Responding to these arguments, S.H. Barkum ,  the  DPP,  submitted
that applicant’s counsel was in one  breadth arguing that  DPP’s terms
of reference were strictly criminal by virtue of S. 85 of the
Constitution ,  and  in  another  breadth,  was  conceding  that
the application was  miscellaneous, which  is neither civil nor
criminal.  He submitted  that  applicant’s counsel did  not  provide
any  authority which  tends to  suggest that the  DPP cannot appear
for  the Attorney General or” other public officer  in  civil cases.
He argued that S.85 of the constitution, by its wordings, is neither
sole nor exclusive, that is, the functions of the DPP stipulated
therein are open and in addition to other functions. He elaborated
that the said section by its wordings does not confer only criminal
jurisdiction on the DPP to the exclusion of all other powers.
He referred to Section 13(4) of the State Proceedings.. Act, CAP 8:03
Volume  3 Laws of The  Gambia, and  submitted that the  DPP had
legitimacy to appear and conduct cases on behalf of  the  Attorney
General who  also  had  powers to…delegate=::i:any legal•
practitioner  to represent him/her by virtue of section 13(1) of the
same Act.
He also referred to section 7 (1) of the courts Act CAP 6; 01 volume 2
laws of the Gambia which he submitted deals with Law Officers of
public officers who may appear for the state. He concluded taht
provided the DPP is a public officer and a law officer of the state,
nothing can debar the DPP from appearing for and on behalf of the
Attorney General or the IGP as in this case. Making reference to
section 18 and the 1st Schedule of the Legal Practitioners act, he
urged the court to discountenance the objection of learned applicant’s
counsel.
Replying:::•::on points of law Mrs. S.  Jahateh for     the  applicant
submittd as submitted as follows; that in  reply  to  DPP’s  argument
that his  power to  represent  the  Attorney General is  not
restricted to  criminal al  cases by  S.85 of the constitution,  the
court must be guided by the  ejusdem generis rule and aid of statutory
interpretation .  She referred to the book  “The:: Gambia  Legal
System”  by  Emmanuel  Akomaye Agim , particularly pages 123 and 125
at  paragraph 6.  She submitted that since the  list  in 8.85 of    the
Constitution relates  to     criminal proceedings,  it  cannot therefore
input a civil  power  or  jurisdiction which is  either not  listed
in  the  general provision or  cannot even  be implied.

In reply  to Section 13 of the  State Proceedings Act, she  submitted
that the  section does  not  give any  public  officer open  and
unfettered right to  appear in  civil proceedings for  or  against the
State,  and  that  the appointment must be in  writing.  She
submitted that the DPP cannot appear in this case  unless he has
been  appointed in writing.  She submitted that the  position is the
same  with  regards to Order VI Rule 7  of the  Courts Act where  the
appointment must be  in  writing and must be  filed  in  court on  or
before  appearance in  court, which  has not  been  done in this
case.
She  referred to  pages  225  to  228  of the  book  Gambia Legal
System earlier cited , and  submitted that it defies logic and  the
law to have  the position  of  Director  of  Civil  Litigation if the
DPP claims to have jurisdiction over civil matters. She concluded that
ther are regulations in place establishing officers and various
departments of the AG;s Chambers, and these rules are deemed to be in
tandem with the statutes in relation to law officers and public
officers and state proceedings Act and should be read in line with the
constitution.
I ahve taken pains to reproduce virtually all the arguments almost
verbatim because, contrary to the DPP’s reaction that the applicant’s
objection is “flimsy”, I find it novel an weighty enough to warrant
due attention. It is novel because search as I would I could not find
any authority or judicial pronouncement bearing directly on the points
raised in this objection. It is weighty to may mind because of the
likely implications of the decision on this objection on the functions
of the DPP qua law officer and public officer, vis a vis his powers
under the constitution. More importantly, it is a known fact that in
this jurisdiction, law officers from the Attorney General’s Chambers
have not been brandishing written authorities before appearing for the
Attorney General in matters in court. Therefore, the very profound
implication of the success or otherwise of this objection on cases
already decided cannot be over emphasized.
Having highlighted the arguments, two major issues arise, whose
resolution I believe will assist in determining this objection one way
or another. These issues are:
1. Is this miscellaneous application a civil or criminal suit?
2. What  is  the  true  import  of Section  85  of the  Constitution
vis a vis  Section 13(4)  of the  State  Proceedings Act; Section 18
and First  Schedule of the Legal Practitioners Act, and  First
Schedule, Order  VI Rule 7,  Rules of the High Court?
QUESTION 1 – Is this miscellaneous application a civil or criminal suit?
In  the  instant case,  the  applicant, by original summons  seeks
declarations to enforce  rights  provided for in Sections 1.9 •and  24
of the  Constitution and  for his  release  from.  custody. The
applicant’s counsel argued that the application is civil in nature
which is why it was served on the Director of Civil Litigation. The
DPP on the other hand is contending that the application is neither
civil nor criminal. Both counsels however agree that it is a
miscellaneous application.
The major distinctions between civil and criminal actions are in the
nature and effect of each. A civil case involves the determination of
the civil rights and obligations of persons, while a criminal case
concerns the trial and determination of violations of penal laws or
statutes. Whereas breach of civil obligations generally can be
remedied in damages and/or declaratory and injunctive reliefs, (with
the exception of the breach of civil obligation to obey court order
known as civil contempt of court,), a breach of criminal law on the
other hand attracts penal sanction or punishment.
Miscellaneous applications on the other hand are a specie of civil
cases only be their mode of commencement (which can either be by way
of a motion, summons or petition.) Apart from this, there is not other
known criteria for classifying them as either civil or criminal. T
This  was the  basis  on which it was held  by The Court  of  Appeal
in THE STATE  (N0.1) V. DARBOE (N0.1) (1997-2001) GR 771, @ 776, TO
777 PAR 1, that:
These modes of approaching the court are essentially civil forms. Such
applications (for bail) being neither strictly criminal nor civil
are……
Miscellaneous applications on the other hand are a specie of civil
cases only by their mode of commencement (which can either be by way
of a motion, summons or petition). Apart from this, there is not other
known criteria for classifying them as either civil or criminal.
This  was the  basis  on which it was held  by The Court  of  Appeal
in THE STATE  (N0.1) V. DARBOE (N0.1) (1997-2001) GR 771, @ 776, TO
777 PAR 1, that:
These modes of approaching the court are essentially civil forms. Such
applications (for bail) being neither strictly criminal nor civil are
often categorised as miscellaneous applications.  …  In  Roget’s
Thesaurus of English Words and  Phrases the  word  ”Miscellaneous”
is  defined  as  ”nonuniformity,  variability, patchiness”. . ..  The
very mode  of a bail application before  trial in a criminal  matter
being  by civil  process, emphasises  the  point that  such
application is  neither criminal  nor civil, hence  it is categorised
as  miscellaneous….”

Without going into the merits of the reliefs sought, I wish to state
that the  circumstances leading to  this application are  an
arrest and detention. This can be gleaned from several paragraphs of
the affidavit in  support deposed to  by  Aminata •  Sowe.
Accordingly,  I find  that the  tenor of this application, despite the
wordings of the reliefs sought, is in  effect  an  application  bail
for  r.elease  of the applicant from  custody.  I also  find and
hold that the  applicant having commenced the  applic.tion by .. way
of  a  miscellaneous originating summons is  properly before  the
court.  However, relying on the authority of The State (No. 1 ) v.
Darboe (No. 1) supra, I disagree with counsel for the applicant that
it is a purely civil application. By extension, i agree with the
learned DPP that the application is neither a civil nor a criminal
suit and I answer Question 1 above accordingly.
QUESTION 2- What is th true import of Section 85 of the Constitution
vis a vis section 13(4) of the State Proceedings Act; Section 18 and
First Schedule of the Legal Practitioners Act, and First Schedule,
Order VI Rule 7, Courst Acts?
This to me is the crux of the objection under consideration, and I
shall proceed by a careful examination of the constitution and other
statutes referred to.
Section 85 of the Constitution of the Gambia 1997 provides as follows:
“85. Control of Prosecutions
The Director of Public Prosecutions shall have power in any case in
which he or she considers it desirable to do so, and subject to the
approval of the Attorney General;
(a)To  initiate and  undertake  criminal proceedings  against  any
person  before  any  court  for an  offence  against  t he  law  o f
The Gambia
(b)To take over and continue any criminal proceeding that has been
instituted by any other person or authority;
(c) To discontinue, at  any  stage  before  judgment • is  delivered ,
an y criminal  proceeding  instituted  or undertake by himself  or
herself or any other person or authority:

Provided that the director of Public  Prosecutions shall not-
(i)    Take  over and  continue  any  private prosecution  without  the
consent  of the private prosecutor and the court, or
(ii)    Discontinue any private prosecution without the consent of the
private prosecutor.
(2) For the purposes of this section, any appeal from a determination
in any criminal proceedings before any court, or any case stated or
question of law reserved for the purpose of such proceedings to any
other court, shall be deemed to be part of those proceedings;
Provided that the power conferred on the Director of Public
Prosecutions under this section may be exercised by him or her in
person or by persons under his or her direction and control.
(3) The powers conferred in the Director of Public Prosecutions under
this section may be exercised by him or her in person or by persons
under his or her direction and control.

(4) In the exercise of his or her functions under this section, the
Director of Public Prosecutions shall be subject to the direction or
control of the Attorney-General.

(5)In this  section, “private prosecution” means a  prosecution
instituted by any person or authority other than-
(a)The  Director of Public Prosecutions  or any  person  acting under
his or her direction or control;

(b)A  police  officer  in  the  exercise  of the  functions  of  his
or  her office; or

(c) An officer in the public service in the exercise of the functions
of his or her office.”

The applicant’s counsel has interpreted this Section of the
Constitution as  completely restricting the  powers of the DPP to
criminal matters only, that is to say, the DPP has  no  right  to
appear in. civil cases on  behalf of the Attorney General  or any
other public officer.  In response, the DPP has argued that the
section is not  a closed or restrictive one, not having specifically
provided that the  DPP shall not  exercise any  other. powers except
those stated in the  section.                :::::.::
It has to be noted from the outset that it is the law that where the
words of an Act of Parliament are clear, there is no room for applying
any rule of interpretation which are merely presumptions in cases of
ambiguity. See the case of TOMPSON HOLIDAYS LTD. V. BANNA BEACH HOTEL
LTD (2002 – 2008) 2 GLR 340@ 351, per Agim JCA as he then was, citing
and relying on the case of CROXFORD V. UNIVERSAL INSURANCE CO. LTD
(1936) 2 KB 250 @ 281. But where there is ambiguity in the words of a
statute, the first cardinal rule of statutory interpretation is the
literal rule, which is that every word, unless used in a technical
sense, ought to be given its ordinary or literal interpretation, as
legislators are generally presumed to intend what they actually convey
by the words they use. See the case of THOMPSON HOLIDAYS LTD. V. BANNA
BEAACH FOTEL LTD supra, @ 349, per Agim JCA as he then was. See  also
ATTORNEY  GENERAL  V.  PAP  C.O.  SECKA (2002-2008) 2 GLR 73@ 75
RATIO 8 AND @ 77 RATIO 22.

Looking carefully at this Section 85, I do not find any ambiguity in
the provisions therein. The meaning and purport is clearly stated
right from  the  heading of the  section which states,  “Control
of prosecutions”. While  the  heading of the  section cannot su
bstitute the  main provisions in the  section, it however explains and
clarifies the  rationale and objectives of the  section under
consideration . See the     case     of JOBE (N0.1)  v.  ATTORNEY  GENERAL
(N.O.l)    (1960-1993) GLR  191,    @ 196-197 RATIO 1.  See  also ATTORNEY
GENERAL V.  PAP  C.O.  SECKA  (2002-2008) 2  GLR 173 @ 75 RATIO 9.
It is my view that the rationale or objective of this section is that,
the DPP shall have the power, to the exclusion of all others, to
“control prosecutions” as specified in subsections (1) (a), (b) and
(c). But do the words of the section also covey an intention that the
DPP shall not represent the Attorney General in any matter other than
criminal matters? There is no such proviso in the whole of this
section, and I do not find the basis for any such deduction from the
wordings of the section. I shall in the circumstance refuse to read in
this provision words that are not there, for this is not within the
interpretative jurisdiction of a court. See KANIFING MUNICIPAL COUNCIL
V. INTERNATIONAL BANK FOR COMMERCE (20002-2008) 2 GLR 173 @ 176 RATION
14
I will therefore also refuse the invitation for a restrictive
interpretation of that section ejusdem generis, as urged by the
applicant’s counsel. This is because laws are supposed to be
interpreted to, and courts are more readily inclined to giving to a
law such an interpretation that will give it effect, rather than one
that will restrict or diminish the effect of the law, unless of course
the interpretation will lead to absurdity or miscarriage of justice.
Coming back to  the  case at  hand, which  of  the  two  contending
interpretations  will  more  likely  lead  to  an  absurdity  going
by  a literal  interpretation of  this section? To  recap the
arguments,  on one  contending side  is  the  invitation by  the
applicant ‘s counsel to exclude the  other functions of the  DPP as a
Law Officer  by virtue of Section 85 of the  Constitution. And on the
other side is the DPP’s view that the  Section 85 gives him  exclusive
power  over criminal prosecutions but does not  preclude him  from
appearing in  civil or other  cases  representing  the  Attorney
General  or  other  public officers. ‘
It is  my  view  that there being  no  express  provision limiting
other functions of the  DPP in  Section 85,  and there being n o basis
for a deduction of such limitation from  the  provisions,  it will do
violence to  that provision and thus lead  to  an  absurdity to
interpret it  as excluding the  DPP from  all other function except
control  of prosecutions. This is more  so  because the  DPPP , a law
officer, one of  whose functions is  to  appear for  the  Attorney
General  (as  we shall  see  shortly  hereafter).  As  held:•
earlier,  this case is  not  a criminal or civil case but  a
miscellaneous application which has no CLEAR TYPOLOGY, AND SO, THE DPP
CAN APPEAR FOR THE ATTORNEY GENERAL.

I would have also come to the
same conclusion and decision even if this were held to be a purely
civil case for reasons that will be shown shortly hereafter.