Sabally v Inspector General of Police and Others (2002) (GaSC 2001) Supreme Court, civil ref no 2/2001, 5 December 2001

Sabally v Inspector General of Police and Others (2002) (GaSC 2001)

Supreme Court, civil ref no 2/2001, 5 December 2001

Judges: Jallow JSC, Wali JSC, Ogwuegbu JSC, Amua-Sekyi JSC and Akamba Ag JSC

Subject Matter: Fair trial and retroactive legislation

Summary of Decision: The Court held that access to an independent and impartial court for the determination of one's rights and obligations is a fundamental human right which also lies at the heart of enforcing other rights. And where a party has exercised the right and instituted legal proceedings, he has a vested right to continue such proceedings. Any retroactive legislative measure purporting to nullify his right to do so would be in contravention of the prohibition against retroactive deprivation of vested rights as provided for by section 100(2)(c) of the Constitution of the Gambia, 1997.

Procedure: Parties do not reformulate issues in a referral case in terms of 127(2) of the Constitution. In such a case the issues for determination of the Supreme Court are to be formulated by the referring court in accordance with rule 61(2) of the Rules of Supreme Court (RSC). They are bound by the issues as stated by the High Court. What is required of such parties is to file in accordance with rule 61(3) RSC a statement of their respective cases on the question or matter formulated by the referring court.

Interpretation of a fundamental right: A vested, accrued or acquired right as a right that is certain, complete, in existence and has matured and as one not subject to a condition precedent.

Sabally v Inspector General of Police and Others (2002) (GaSC 2001) Supreme Court, civil ref no 2/2001, 5 December 2001

Judges: Jallow JSC, Wali JSC, Ogwuegbu JSC, Amua-Sekyi JSC and Akamba Ag JSC

Subject Matter: Fair trial and retroactive legislation

Summary of Decision: The Court held that access to an independent and impartial court for the determination of one's rights and obligations is a fundamental human right which also lies at the heart of enforcing other rights. And where a party has exercised the right and instituted legal proceedings, he has a vested right to continue such proceedings. Any retroactive legislative measure purporting to nullify his right to do so would be in contravention of the prohibition against retroactive deprivation of vested rights as provided for by section 100(2)(c) of the Constitution of the Gambia, 1997.

Procedure: Parties do not reformulate issues in a referral case in terms of 127(2) of the Constitution. In such a case the issues for determination of the Supreme Court are to be formulated by the referring court in accordance with rule 61(2) of the Rules of Supreme Court (RSC). They are bound by the issues as stated by the High Court. What is required of such parties is to file in accordance with rule 61(3) RSC a statement of their respective cases on the question or matter formulated by the referring court.

Interpretation of a fundamental right: A vested, accrued or acquired right as a right that is certain, complete, in existence and has matured and as one not subject to a condition precedent.

[1.] This is a constitutional reference stated by Kabalata J of the High Court on 2 July 2001 for the Supreme Court in the exercise of its original jurisdiction under section 127(1)(b) and (2) of the Constitution. The Court is requested to determine whether the Indemnity (Amendment) Act 5 of 2001 was made in excess of the powers conferred by the Constitution or any other law upon the National Assembly or any other person or authority'.

[2.] The relevant facts of the case are as follows: On 12 June 2000 the plaintiff issued a writ of summons in the High Court seeking inter alia damages from the defendants for assault and injuries allegedly occasioned to him by state security personnel. The defendants denied the claim. It is however common ground between the parties that the plaintiff's claim arises from the events of 10 April 2000 when there were public disturbances in some parts of The Gambia. The trial commenced before Kabalata J on 1 March 2001 with the plaintiff being subjected to examination in chief as well as to cross-examination by the counsel for the defendants.

[3.] Meanwhile, an Act to Amend the Indemnity Act and for matters connected therewith' was enacted by the National Assembly and assented to by the President of the Republic on 2 May 2001. Section 1 of the amending Act (Act 5 of 2001) provides that the Act shall be deemed to have come into force on 1 January 2000'.

[4.] Act 5 of 2001 indemnifies public officers and state agents against all claims in respect of actions undertaken during any period of public emergency, public disturbance or riotous situation. The jurisdiction of the regular courts is ousted in favour of a Claims Commission to be established to receive and hear claims and make recommendations to the President for compensation etc to deserving claimants. Hence the reference to this Court by the High Court following a motion by the defendants to strike out the civil suit on the ground that by virtue of the amending Act, the plaintiff has no cause of action against them.

[5.] Counsel for both parties addressed the Court. Counsel for the plaintiff submits that Act 5 of 2001 retroactively purports to take away a vested right of the plaintiff to pursue his pending civil action in contravention of section 100(2)(c) of the Constitution. Accordingly she contends that the amendment is unconstitutional and in excess of the powers of the legislative authority. Counsel for the defendants submits that the amendment is valid and constitutional and within the competence of the legislative authority. The deprivation of a vested right, he argued, is justified by the public interest pursuant to section 17(2) of the Constitution.

[6.] Accordingly in addition to the question posed by the High Court, counsel for the defendants formulated a second one for determination of this Court in the following terms: whether any acquired rights under chapter 4 of the Constitution of The Gambia 1997 is subject to public interest?'

[7.] Counsel for the plaintiff, quite properly in our view, has objected to the inclusion of this new issue by the defendants. These proceedings are not instituted in the Supreme Court in the context of its original jurisdiction whereby the parties would have been free to formulate either an agreed list of issues or separate lists of issues in the absence of agreement. The current proceedings fall within the referral jurisdiction of the Court pursuant to section 127(2) of the Constitution. In such a case the issue or matter for determination of the Supreme Court is to be formulated by the referring court in accordance both with the provisions aforesaid as well as in accordance with rule 61(2) of the RSC. Under rule 61(1) a reference to the court is required to be by way of case stated and such statement by the referring court is required by rule 61(2)(c) to contain inter alia the matter or question for determination by the court'. Once the referral has been made in accordance with the Constitution and the RSC with the question or matter identified, the parties in the court below are not entitled, at the hearing of the reference, to reformulate the issues whether by addition or in any other manner. They are bound by the issue as stated by the High Court. What is required of such parties is to file in accordance with rule 61(3) RSC a statement of their respective cases on the question or matter formulated by the referring court. Accordingly we hold that the additional question or issue raised by the counsel for the defendants is not properly before us and cannot for these reasons be entertained by this Court.

[8.] What remains to be determined by the Court is whether in enacting Act 5 of 2001 the legislative authority exceeded the powers conferred upon it by the Constitution by purporting to retroactively deprive the plaintiff of the vested right of continuing to pursue the legal proceedings instituted by him and pending in the High Court at the time the amendment was enacted. Does the amendment take away or impair a vested right of the plaintiff to pursue the legal proceedings instituted by him?

[9.] This Court recently had occasion in the case of Alhaji Sait Boye v Alhaji Falai Baldeh and 3 others (civil suit 1/2001) to define a vested, accrued or acquired right as a secured or settled right, as a right that is certain, complete, in existence and has matured and as one not subject to a condition precedent. The Court continues to be guided by that decision.

[10.] Access to an independent and impartial court for the determination of one's rights and obligations is acknowledged as a fundamental human right which also lies at the heart of enforcing other rights. Where, as in the instant case, a party has exercised the right and instituted legal proceedings, he has a vested right to continue such proceedings. Any retroactive legislative measure purporting to nullify his right to do so would be in contravention of the prohibition against retroactive deprivation of vested rights as provided for by section 100(2)(c) of the Constitution.

[11.] The African Commission on Human and Peoples' Rights, in its decision of 15 November 1999 in communication 145/95 brought by the Constitutional Rights Project, the Civil Liberties Organisation and Media Rights Agenda against Nigeria [Constitutional Rights Project and Others v Nigeria (2000) AHRLR 227 (ACHPR 1999)] in respect of measures taken against certain newspapers, had occasion to address the issue of legislative nullification of pending judicial proceedings.

[12.] In finding the measures to be in violation of article 7(1)(a) of the Banjul Charter on Human and Peoples' Rights guaranteeing the right of access to the courts, the Commission declared [at para 33] that:

A civil case in process is itself an asset, one into which the litigants invest resources in the hope of an eventual finding in their favour. The risk of losing the case is one that every litigant accepts, but the risk of having the suit abruptly nullified will seriously discourage litigation, with serious consequences for the protection of individual rights. Citizens who cannot have recourse to the courts of their country are highly vulnerable to violations of their rights. The nullification of the suits in progress thus constitutes a violation of article 7(1)(a).

[13.] Although the Commission was there concerned not with the constitutionality of the measures complained of but their compatibility with the legal obligations undertaken by Nigeria under the Charter, an instrument to which The Gambia incidentally is also a state party, the principles laid down are pertinent and relevant to the instant case.

[14.] The Court accordingly holds that the application of Act 5 of 2001 to terminate the legal proceedings instituted by the plaintiff and pending at the time of the enactment constitutes a contravention of section 100(2)(c) of the Constitution and exceeds the competence of the legislative authority to the extent that the plaintiff would be deprived retroactively of his vested right to continue such proceedings.

[15.] Accordingly the Court hereby directs the High Court to dismiss the motion filed by the defendant on 14 May 2001 and to proceed, notwithstanding the provisions of Act 5 of 2001, with the hearing of the case of Ousman Sabally v The Inspector General of Police and 3 Others (civil suit 115/2000).