High Court Quashes District Tribunal’s Decision against Babylon Alkalo

By Kebba Jeffang and Alhagie F.S Sora

The Alkalo had applied to the court to review the judgment of the Kombo North District Tribunal for the purpose of quashing the records of proceedings and the judgment. The court held that there are errors apparent on the face of the records and that the applicant Alkalo was denied the right to fair hearing. The court therefore quashed the decision of the Kombo North District Tribunal.

The court presided over by Justice Kumba Sillah-Camara also awarded costs of D20, 000 to the applicant by the respondent.

The parties in the matter are Alkalo Lamin Jarju as applicant, and Abdou Kolley and the Attorney General as the 1stand 2nd respondents.

Lawyer Borry S. Touray was present for the applicant whilst Lawyer Bola Carrol appeared for the 1st respondent.

The application made through his counsel was brought under the enforcement of the court’s supervisory jurisdiction under section 23 of the Courts Act and section 133 of the Constitution.

Justice Sillah when passing the judgment said the applicant commenced the application by a motion on notice dated the 12th of February 2007. She said the application is supported by affidavits and a statement setting out the grounds upon which the relief is sought. She said this statement was however, amended and the grounds are set out as follows:

1. That the trial court failed to observe the principles of natural justice and violated the constitutionally guaranteed right of the applicant to fair hearing.

a. He refused to allow the defendant the right to cross examine some of the plaintiff’s witnesses.

b. When he interrupted the defendant’s cross examination of the plaintiff.

c. When he refused to allow the defendant to testify.

d. When he allowed a private discussion with a member of the plaintiff’s family.

e. When he openly gave advice to the plaintiff which formed the basis of his judgment.

2. That there was an error of law apparent on the face of the records in that, the trial court

a. He refused to allow the defendant the right to cross examine some of the plaintiff’s witnesses

b. When he interrupted the defendant’s cross examination of the plaintiff

c. When he refused to allow the defendant to testify

d. When he allowed a private discussion with a member of the plaintiff’s family

e. When he openly gave advice to the plaintiff which formed the basis of the judgment.

3. That the trial court adopted the wrong procedure when it:

a. He refused to allow the defendant the right to cross examine some of the plaintiff’s witnesses.

b. When he interrupted the defendant’s cross examination of the plaintiff

c. When he refused to allow the defendant to testify.

d. When he allowed a private discussion with a member of the plaintiff’s family.

e. When he openly gave advice to the plaintiff which formed the basis of his judgment.

4. That the District Tribunal does not have jurisdiction over the matter because the whole land has been adjudged by the High Court in the grant of letters of Administration as belonging to my father’s estate and such a grant has not been challenged or set aside at the time be known to me.

5. That the effect of the judgment of the Chief is to set aside the Letters of Administration which have been granted by the High Court and that only the High Court has power to do.

6. That even after the judgment the chief showed his manifest interest in support of the other side when he testified in a criminal case against me in the Brikama Magistrates’ Court which amply demonstrates the fact that he bore a malice and sense of avarice against me in support of the other side.

Justice Sillah added that the 1st Respondent in opposing this application also filed affidavits.

“The Applicant filed his address on the 14th of April 2011, and the 1strespondent filed his address on the 17th of May 2011. The 2nd respondent did not file their address. Thereafter, the applicant filed reply on points of law on the 1st of June 2011.”

According to the judge, Counsel for the applicant formulated the following four issues and Counsel for the respondent responded to these four issues:

1. Whether the Kombo North District Tribunal has jurisdiction to preside over the suit which would have the effect of setting aside the grant of letters of administration issued to the Applicant by the High Court on the same Suitland?

2. Whether the President of the District Tribunal has not manifested bias on the face of the record?

3. Whether there existed apparent errors of law on the face of the records?

4. Whether the Lower Court has adopted and followed proper procedure?

The judge then formulated the following issue: Whether an order of certiorari (review) can lie to quash the decision of the Kombo North District Tribunal?

She contended that the constitution confers on the High Court supervisory powers over lower courts and adjudicatory authorities pursuant to which it may issue prerogative orders which includes an order of review. She argued that the court can quash a decision of a court or Tribunal which acts without jurisdiction or in excess of it; or where such a Tribunal makes a decision which affects the rights of a citizen without observing the principles of natural justice.

After satisfying herself that the high court has power to quash the decision of a district tribunal, she now proceeded to look at whether there is error apparent on the face of the record. She noted that on 7 February 2007, PW1 testified and he was cross examined and re-examined; that PW2 one Yahya Jammeh also testified on the same date, but there was no cross examination. She then asked how a witness who was not cross examined be re-examined.

She said the same applied to PW3, one Karamo Manneh, who was not cross examined but re-examined.

She argued that Re-examination is to clear any ambiguities that arose during cross examination. She deduced that this is a clear indication that an error is apparent on the face of the records.

“Moreover, there is nothing in the records that shows that the applicant was absent at the time PW2 and PW3 gave evidence,” she argued. She pointed out that this fact is proof of the statement of the applicant Alkalo in paragraphs 9 and 10 of the re-sworn affidavit that the 1st respondent Abdou Colley was not permitted to cross examine PW2 and PW3.

Secondly, she held that there was a breach of natural justice as is apparent on the face of the records. She argued that since the applicant Alkalo was denied the opportunity to cross examine the witnesses, PW1 and PW2, he was denied fair hearing.

She maintained that natural justice demands that a party be allowed to put forward his/her case as best as he/she could and that the court hears any witnesses he/she may wish to call to establish his/her defence.

CONCLUSION

“I therefore, hold that the applicant was denied fair hearing. Based on the foregoing alone that is there are errors apparent on the face of the records and the applicant was denied the right to fair hearing, certiorari can lie to quash the decision of the Kombo North District Tribunal,” she held.

In conclusion she said that for the reasons mentioned above she would quash the proceedings and judgment of the Kombo North District Tribunal dated the 7th of February, 2007.