Hon. Ebrima Jaiteh of the High Court.
By Landing Ceesay
The High Court of the Gambia, presided over by Hon. Justice Ebrima Jaiteh, has dismissed the Gambia Revenue Authority’s (GRA) motion to become a party in Creed Energy’s ongoing lawsuit against Access Bank Gambia Limited.
The GRA had filed a motion seeking the court’s order to include them as a crucial party in the legal proceedings, arguing that they have a direct interest in the case and would be significantly affected by its outcome. The motion was supported by a 14-paragraph affidavit sworn to by Fafanding Cham, the Deputy Commissioner of the Large Taxpayers Unit of the GRA, on November 24, 2023.
Access Bank (the 1st Defendant) and Apogee FZC (the 2nd Defendant) strongly opposed the application. The 2nd Defendant submitted a 46-paragraph affidavit in opposition, sworn to by Aurimas Stteiblys YS, the Director of Apogee FZC. The affidavit included documents marked as “AS 1” to “AS 6.”
While the 1st Defendant (Access Bank) did not file an affidavit in opposition, they challenged the application based on legal grounds.
Hon. Justice Jaiteh, after carefully reviewing the motion paper, supporting affidavit, affidavit in opposition, and the arguments presented by both sides, concluded that the crucial issue at hand was whether it was appropriate to include the Gambia Revenue Authority as a plaintiff in the ongoing lawsuit. The judge determined that it was not, leading to the dismissal of the motion.
“I have carefully read the motion paper, its supporting affidavit, and the affidavit in opposition with its attachments and have listened very keenly to the respective submissions of counsel for and against the motion on notice. I believe for proper determination of this application, there is only one issue and that is whether it is proper to join the Gambia Revenue Authority as a Plaintiff in this suit?,” Hon. Justice Jaiteh said.
Justice Jaiteh emphasized that within this legal jurisdiction, the regulations governing the inclusion and exclusion of parties in a lawsuit are explicitly outlined in Order 3 Rule 5 of the Second Schedule of the High Court Rules.
Justice Jaiteh clarified that according to Order 3 and Rule 5, if, during the course of a suit’s hearing or prior to it, the Court observes that individuals with potential entitlements, claims, or interests in the subject matter of the suit have not been included, or those likely to be affected by the outcome have been omitted, the court has the authority to postpone the hearing to a later date, to be determined by the court. In such instances, the court may instruct that these individuals become either plaintiffs or defendants, depending on the circumstances.
“In such case, the court shall issue a notice to such persons, which shall be served in the manner provided by the rules for the service of a writ of summons, or in such other manner as the court thinks fit to direct; and on proof of the due service to such notice, the person to served, whether he or she appears or not, shall be bound by all proceedings in the cause.”
Justice Jaiteh emphasized that, according to the aforementioned provision, the court possesses the authority to include an individual whose presence is essential to effectively and comprehensively address and resolve all issues related to the case before it.
Justice Jaiteh underscored the well-established principle that joint Plaintiffs must share a common or joint interest in the subject matter of the legal action.
He clarified that joint Plaintiffs are prohibited from presenting conflicting claims, interests, or requests for relief.
Justice Jaiteh also highlighted the preference for joint Plaintiffs to retain the same legal representation. In cases where separate counsel is engaged, he urged the respective counsels to collaborate in order to pursue a unified objective.
Hon. Justice Jaiteh cited that the case of IGE v FARINDE (1994) 7 NWLR (pt 354)p. 42 at 70, in which the Supreme Court held that:”It is no doubt desirable the intending co-plaintiffs should make sure that no conflict of interest or any division of opinion between the original plaintiff and themselves is likely to arise, for co-plaintiffs will not be allowed to severe or take inconsistent steps and ought to be represented at the trial by the same solicitor or counsel.”
Justice Jaiteh emphasized that it is well-established that when a Plaintiff presents contradictory cases, the court has the authority to dismiss the application.
Furthermore, Justice Jaiteh pointed out that Apogee FZC’s Counsel cited the Supreme Court Practice of 1995, Volume 1, specifically on page 195 at paragraph 15/4/3. This section addresses the practical considerations regarding the joining of plaintiffs.
He said it provides that: the intending co-plaintiff should make sure that no conflict of interest, nor any division of opinion between themselves is likely to arise, for the co-plaintiff will not be allowed to serve or take inconsistent steps and must appear at the trial by the same solicitor and counsel (Re Mathews [1905] 2 Ch 460; Re Wright [1895] 2 Ch. 747.
“It is therefore trite that the application for joinder of co-plaintiff is generally not contentious or conflicting. In our instant case, the Applicant wants to be joined as a co-plaintiff in this suit, and in the supporting affidavit, it is averred in paragraphs 5, 6, and 7 as follows: That taxpayers, including the Plaintiff, are obligated under the Income and Value Added Tax Act 2012 (“VAT Act) to file quarterly returns and pay the self-assessed taxes for each trading quarter. However, the Plaintiff neither filed nor paid any taxes during the period May 2021 to November 2023.
“That aside from the obligation to file annual tax returns and pay the self-assessed taxes, the Plaintiff is also obligated under the IVAT Act to withhold taxes, on behalf of the Applicant, at the rate of 10% for a resident contractor of 15% for a non-resident contractor. That the Plaintiff refused and / or neglected to deduct the withholding tax payable under its contract with APOGEE FZC, a non-resident company and pursuant to section of 96 of the IVAT Act, the Commissioner General may recover the taxes from the person required to withhold the tax or the recipient of the payment.” Hon. Justice asserted.
Justice Jaiteh has asserted that based on the statements presented in the affidavit supporting the motion to include the GRA as a plaintiff in this case, it is evident that the GRA’s claim conflicts with that of the original plaintiff. Therefore, Justice Jaiteh has determined that the GRA cannot be permitted to join as a plaintiff in this suit, and this decision is considered a factual finding.
“It is not in dispute that the Commissioner General is mandated under the VAT Act to recover taxes from persons required to withhold tax and to pursue tax defaulters, however, must do so by following the due process as required under section 211 of the IVAT Act 2012 by giving a notice in writing to any person who owes money to the taxpayer to pay the amount specified in the notice,” Hon. Justice Jaiteh said.
Justice Jaiteh emphasized that given the circumstances and the conflicting nature of the plaintiff’s claim with that of the GRA, the GRA has the option to file a separate lawsuit. However, the court cannot permit the presentation of conflicting cases with Creed Energy Limited, as it goes against the established principles of joining co-plaintiffs.
“From the foregoing reasons, I have resolved the lone issue to the effect that it is not proper to join the Gambia Revenue Authority as a Plaintiff in this sit on the grounds of conflicting claims with the Plaintiff. Accordingly, the application for joinder as a plaintiff is refused and struck out,” Hon. Justice Jaiteh ruled.
Background of the case
Creed Energy Limited, established in 2021 under The Gambia’s Companies Act of 2013, is involved in various business activities, including energy consultancy, petroleum trading and retaining, allied activities, and general trading.
In their lawsuit against Access Bank Gambia Limited, Creed Energy Limited alleges that the bank transferred D339,963,424.01 of their funds to the account of Ultimate-Beige Logistics Gambia Company Limited. The plaintiff contends that this action by Access Bank has hindered the state’s ability to collect taxes owed by Creed Energy Limited for the importation and sale of Diesel in the country.
Moreover, Creed Energy Limited asserts that the Gambia Revenue Authority is currently conducting an investigation into their operations to determine the amount of tax payable for the mentioned Diesel transactions. According to Creed Energy Limited, Access Bank’s actions are perceived as contributing to the obstruction of the state in collecting the rightful taxes owed by the company.