Justice Ebrima Jaiteh of the High Court
By Landing Ceesay
The families of Acute Kidney Injury (AKI) victims have achieved a significant legal victory as Hon. Justice Ebrima Jaiteh of the High Court of The Gambia rejected the state’s attempt to exclude the 3rd Defendant, the Medicines Control Agency (MCA), the 4th Defendant, the Ministry of Health, and the 5th Defendant, the Attorney General, from their lawsuit.
On July 26, 2022, Acute Kidney Injury (AKI) cases began to surface among children in The Gambia. Investigations carried out in Ghana, France, and Switzerland revealed the presence of Diethylene glycol (DEG) and Ethylene glycol (EG) in medication samples, which led to the recall of several pediatric medicines. All the affected products were manufactured by Maiden Pharmaceutical Company and were swiftly withdrawn from the market.
The Ministry of Health in The Gambia confirmed that at least 70 children lost their lives after consuming cough syrup produced by the Indian-based Maiden Pharmaceutical Company.
In response to the tragedy, 27 families of the AKI victims have filed a lawsuit seeking justice. The legal action names multiple defendants: Maiden Pharmaceutical Company Limited (1st defendant), Atlantic Pharmaceutical Company Limited (2nd defendant), The Gambia’s Medicines Control Agency (3rd defendant), the Ministry of Health (4th defendant), and the Attorney General (5th defendant). These families are pursuing damages of 15 million dalasis for each affected child.
As the case was set for the beginning of pre-trial, Director of Civil Litigation on behalf of the State Counsel Binga filed an application seeking the court’s indulgence to exclude the Medicine Control Agency (MCA), Ministry of Health, and the Attorney General from the lawsuit.
Counsel Binga wants the court to make; An order to dismiss the suit against MCA, Ministry of Health, and the Attorney General on the grounds that: The 3rd, 4th and 5th Defendants are not liable to be sued in tort unless sovereign immunity has been waived and therefore the court lacks subject matter jurisdiction over the claim; That actions and omissions of the State and its officials in the exercise of discretionary functions, or in its role as a Regulator, are immune from civil liability:
Counsel Binga said the safety policies of the State are discretionary and regulatory in nature and are immune from civil liability; That the core policy decisions by the State are immune from tort liability in general and negligence in particular because they are fundamental constitutional and institutional roles vested in the executive and not subject to the judiciary’s private law oversight; That the separation of powers doctrine precludes the judiciary from adjudicating and/ or imposing liability on either the executive or legislative branches of government based on the performance of their core constitutional or institution mandates;
Counsel Binga sought that there is not waiver of Sovereign immunity in matters of activities involving the exercise of core constitutional and institutional roles or mandates by the State and Claims or disputes involving the adequacy, advisability or appropriateness of State policies are not justiciable and not capable of adjudication in civil litigation.
Counsel Binga said the Plaintiffs have failed to identify any applicable waiver of the State Sovereign immunity.
Counsel Binga’s motion on notice is supported by an affidavit of 9 paragraphs sworn to by one Yassin Senghore, a Clerk at the Attorney General’s Chambers & Ministry of Justice on the 7th of October 2024.
The Legal Representatives of the Families of the AKI Victims (Respondents) did not file an affidavit in opposition rather oppose the application on grounds of law.
In moving his application Counsel Binga for the State submitted that prayer 3 on the writ of summons cannot be granted pursuant to section 17 (2)&(4) of the State Proceedings Act, Cap. 8.03, Vol. 3, laws of The Gambia and also refers this court to the case of Yakumba Jaiteh vs the Clerk of the National Assembly & Ors.
Counsel Binga went on to further cite numerous legal provisions and case laws for the court’s determination.
In responding to the application on points of law, Senior Counsel Y. Senghore, the lawyer representing the Families of the AKI Victims refers the court to section 7 of the 1997 Constitution of The Gambia and submitted that it binds the court and also refers the court to the case of Yakumba Jaiteh (supra) at page 21.
It is the submission of Counsel Senghore that the court cannot grant an injunction; however, the court can make declaratory orders and determine any act. She further submitted that what the Plaintiffs/ Respondents are seeking is declaratory orders which are provided for under the State Proceedings Act without recourse to a fiat.
Counsel Senghore refers the court to sections 3, 4(1) (3), 10, and 17(2) (4) of the State Proceedings Act (supra) and strongly argues that the jurisdiction of the court has not been ousted.
Counsel Senghore argued that the Medicine Control Agency (MCA) is a corporate body that can sue and be sued and submitted that the MCA was established by the Medicines and Related Product Act, 2014.
Counsel Senghore argued that the issue of jurisdiction has not been pleaded and it therefore offends the rules of pleadings.
She further argued that the Common Law authorities cited by Counsel Binga are not binding on the court and section 211 of the 1997 Constitution is irrelevant to the issues before the court and urged the court to dismiss the application with cost.
In replying on points of law, Counsel Binga submitted that the motion is supported by facts and to plead the same is irrelevant and further submitted that the issue of jurisdiction can be raised at any time.
Hon. Justice Ebrima Jaiteh’s Ruling On the Application
In delivering his ruling, Hon. Justice Jaiteh stated that having heard the arguments of the Counsels, there are four issues for determination in the case.
These four issues are: Whether the MCA (3rd Defendant), the Ministry of Health (4th Defendant) and the Attorney General (5th Defendant) are not liable to be sued in tort unless sovereign immunity is waived?; Whether the actions and omissions of the State and its officials in the exercise of discretionary functions or in its roles as a Regulator are immune from civil liability?;Whether claims or disputes involving the adequacy, advisability, or appropriateness of State policies are justiciable and not capable of adjudication in civil litigation? And Whether the separation of powers doctrine preclude the judiciary from adjudicating and / or imposing liability on either the executive or legislative branches of government based on their performance of their core constitutional or institutional mandates and not subject to judiciary’s private law oversight.
Hon. Justice Jaiteh said the first, second and third issues are closely interrelated, and he will deal with them together. He said the 3rd, 4th and 5th Defendants are not liable to be sued in tort unless sovereign immunity is waived is the crux of this application.
The 3rd Defendant is the Medicine Control Agency (MCA), the 4th Defendant is the Ministry of Health, and the 5th Defendant is the Attorney General.
“It is important to state that the right to sue the state is provided under Part ii of the State Proceedings Act, Cap. 8:03, Volume 3, Laws of The Gambia 2009 and section 3 provides that: “A claim against the State may, subject to the provisions of his Act, be enforced as of right and without any fiat, by proceedings taken against the State for that purpose in accordance with the provisions of this Act.”
The Import of section 3 above is that a suit can be filed against the State subject to other provisions of the State Proceedings Act, which means that the application of section 3 is subjected to other provisions of the said Act,” Hon. Justice Jaiteh said.
Hon. Justice Jaiteh further stated that Section 4 of the State Proceedings Act (supra) deals with liability of the State in tort and it provides that: ” (1) subject to the provisions of this Act, the State shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject.
(a) In respect of torts committed by its servants or agents; (b) In respect of any breach of those duties which a person owes to his or her servants or agents at common law by reason of being their employer; and (c) In respect of any breach of the duties attaching at Common law to the ownership, occupation, possession or control of property.
Hon. Justice Jaiteh said Proceedings shall not lie against the State by virtue of paragraph (a) of subsection (1) of this section in respect of any act or omission of a servant or agent of the State, unless the act or omission would, apart from the provisions of this Act, have given rise to cause of action in tort against that servant or agent or his or her estate.”
Hon. Justice Jaiteh stressed that section 4(1) & (2) as cited above are unambiguous and the court is bound to interpret the clear provisions by giving the plain wordings their ordinary interpretation without more.
Hon. Justice Jaiteh said it is worthy to note that the purpose of interpretation of statutes is to discover the intention of the lawmakers, which is usually deducible from the language used. He said It is trite law that whenever the phrase “subject to” is used in a statute, the intention, purpose and legal effect is to make the provisions of the section inferior, dependent on or limited and restricted in application to the section to which they are made subject to.
Hon. Justice Jaiteh asserted that In other words, the provisions of the later section govern, control and prevail over the provision of the section made subject to it.
Hon. Justice Jaiteh further stated that the use of the phrase in a statute renders the provision of the subject section subservient, liable, subordinate and inferior to the provision of the other enactment. He cited the case of F. R. N. Versus Dariye (2011) 13 NWLR (Pt. 1265) p. 521.
“It therefore follows that the above cited statute is subservient and liable to other provisions of the State Proceedings Act. The State as a party is subject to all the liabilities in tort as if it were a private person of full age and capacity and this l shall hold as a fact. Subsection 2 of section 4(1) (a) clearly states that proceedings cannot be instituted against the State in respect of an act or omission, unless the act or omission have given rise to a cause of action in tort against that servant or agent or his or her estate.
What this means is that the State can only be sued if there is an act or omission which has given rise to a cause of action in tort. The question I ask is whether there is a cause of action against the State or its agents? I have carefully looked at the reliefs sought on the writ of summons and at relief two (2), the Plaintiffs are seeking a declaration from this court to the effect that the 3rd Defendant being the Medicine Control Agency failed in their statutory duties to regulate the efficacy, quality and safety of medicines and related products,” Hon. Justice Jaiteh stated.
Hon. Justice Jaiteh said the Medicine Control Agency failed to regulate the importation, manufacture, labelling, marketing or identification, storage, promotion, sale and distribution of medicines and related products.
Hon. Justice Jaiteh said for harmonious understanding of the status of the Medicines Control Agency, it is established under section 3(1) of the Medicines and Related Products Act, 2014 that the Agency is a statutory body corporate with perpetual succession and may sue and be sued in its corporate name.
“It therefore implies that the Medicines Control Agency can sue and be sued by any party and this I shall hold as a fact. The 4th Defendant is the Ministry of Health and by relief 3 on the Writ of Summons thus states that the Ministry of Health failed in their duties to establish a framework for the effective and efficient procurement, distribution, management and use of health sector goods, works and services,” he said.
Hon. Justice Jaiteh asserted that It is also alleged that the Ministry of Health failed in their duties to exercise oversight duties over the Medicines Control Agency in making sure that medicines and related products on the market are safe for public consumption.
He said It is further alleged that the Ministry of Health failed to exercise oversight duties over the Medicines Control Agency to regulate the skill, duty, and responsibility of medical practitioners who are licensed by the Medicines Control Agency to give medical treatment to the general public.
Hon. Justice Jaiteh ruled that the 5th Defendant is the Attorney General and all Civil Proceedings against the State shall be instituted against the Attorney General.
Hon. Justice Jaiteh said by these, reliefs 2 and 3 on the face of the writ of summons, there is sufficient cause of action against the State and its agents being the Medicine Control Agency and the Ministry of Health and the Attorney General is joined pursuant to section 13(2) of the State Proceedings Act.
Counsel Binga for the State submitted that the State cannot be sued unless sovereign immunity is waived.
“I have looked at the meaning of Sovereign Immunity and according to Black’s Law Dictionary, 11th Edition, by Bryan A. Garner (Editor in Chief) at page 899, defines Sovereign Immunity to mean “a government’s immunity from being sued in its own courts without its consent.” However, section 3 of the State Proceedings Act (supra) makes it a right to sue the State without fiat or consent of the State.
Therefore, to seek the consent of the State or Sovereign Immunity does not apply in this jurisdiction and is of no moment. It is as of right that any person who is aggrieved and has a claim against the State can sue the State without seeking the State’s consent to do so and can be enforced as of right,” Hon. Justice Jaiteh said.
Hon. Justice Jaiteh further ruled that Sovereign Immunity as argued and submitted by Counsel Binga for the State is immaterial and inapplicable in this jurisdiction.
“For the foregoing reasons, the Medicines Control Agency, the Ministry of Health and the Attorney General are liable to be sued in tort and no sovereign immunity is required in law. State policies are justiciable and capable of adjudication in civil litigation if they give rise to cause of action in tort against the servant or agent of the State. I therefore resolve this first, second and third issues in favour of the Respondents (Families of AKI Victims),” Hon. Justice Jaiteh ruled.
With regards to the 4th issue as to whether the separation of powers doctrine preclude the judiciary from adjudicating and/or imposing liability on either the executive or legislative branches of government based on the performance of their core constitutional or institutional mandates and not subject to the judiciary’s private law oversight.
Hon. Justice Jaiteh said it is important to state that the term judiciary in essence denotes the branch of the State, popularly known as the third arm of the State that is constitutionally responsible for interpreting the laws and administering justice. He cited Black’s Law Dictionary (supra).
Hon. Justice Jaiteh said it is also termed ‘judicature’, which denotes the act of judging or administering justice, by the application of the rule of law, through duly constituted courts. He cited Chapter VIlII, section 120 of the 1997 Constitution of The Gambia.
“The primary role of any court is to do justice. A court of law is enjoined to dish out justice to parties to any proceedings in consonance with the law. A court of law is not allowed to jettison or turn a blind eye to sacred prescriptions of legislation in the guise of doing justice, be it substantial justice. That would be akin to abdication of its sacred official duty.
That is why Tobi, JSC, in the case of DADA v. DOSUNMU (2006) 18 NWLR (Pt. 1010) 134 at 166, succinctly observed. “The role of the court is to apply the principle of substantial justice according to law. The principles cannot be applied outside the law or in contradiction of the law. A court of law will not be performing its role as an independent umpire if it bends backward to do justice to one of the parties, at the expense of the other party,” Hon. Justice Jaiteh said.
Hon. Justice Jaiteh said “Justice is a very expensive commodity in the judicial process should be evenly spread between the parties, where a rule of court has clearly and unambiguously provided for a particular act or situation, the court has a duty to enforce the act or situation…”
Hon. Justice Jaiteh said the court in execution of its core mandate adjudication is obligated to interpret and administer justice according to law.
“Where the executive or the legislature is a party to a proceeding, the Court is obligated to interpret and administer the law and is not precluded from imposing liability on the executive or legislative branches of government based on law, where that performance has given rise to a cause of action in tort. I therefore resolve the fourth issues in favour of the Respondents. For the foregoing reasons, the motion on notice dated and filed on the 7th of October 2024 by the 3rd, 4th and 5th Defendants lacks merit and is hereby dismissed. I make no order as to cost,” Hon. Justice Jaiteh ruled.