By Landing Ceesay
Hon. Justice F. A. Achibonga of the Gambia’s High Court has overturned a Magistrates’ Court decision granting bail to four individuals accused of drug trafficking and money laundering. The High Court has also asserted jurisdiction over the case, determining that the Magistrates’ Court does not have the authority to hear and determine money laundering charges.
On September 13, 2023, Paulo Djabi, Nadine Pereira, Mamadu Neto Djabi, and Secuna Jabi were charged with fifteen (15) counts of drug-related offenses and money laundering. The prosecution, led by Commissioner A. Ceesay of the Drug Law Enforcement Agency (DLEAG), requested the case’s transfer to the High Court, arguing that money laundering cases fall under the High Court’s jurisdiction.
Despite the prosecution’s request, Magistrate Omar Jabang of the Kanifing Magistrates’ Court granted bail to the accused persons on September 14, 2023. He also denied the transfer of the matter to the High Court, asserting that the Magistrates’ Court had the authority to hear money laundering charges.
DLEAG, however, re-arrested and detained the accused persons despite their bail granted by the Magistrates’ Court.
In response, the prosecution filed an appeal with the High Court, challenging the Magistrates’ Court’s decision on bail and jurisdiction. The High Court, in turn, granted an injunction ordering the detention of the accused persons pending the hearing and determination of the appeal.
Delivering his ruling on the appeal, Justice Achibonga found that the Magistrates’ Court erred in both its decision on the bail application and its assertion of jurisdiction. He emphasized that a court cannot extend its jurisdiction beyond what is granted by statute or law.
Justice Achibonga further explained that when a court’s jurisdiction is challenged, it is a question of the court’s competence rather than the rights of the parties. This distinction is important as it determines whether the court has the legal authority to hear the case.
In support of his ruling, Justice Achibonga cited the Ghana Court of Appeal case of Frimpong and Anor versus Rome 2013 58 GMJ 149, where the Court of Appeal of Ghana posited that court will have jurisdiction to entertain a case it is properly constituted as regards qualification of the Coram; the subject matter in dispute is within its jurisdiction and there is no feature of the case which prevents the court from exercising the jurisdiction; the suit came before the court initiated by due process of law upon fulfillment of any condition precedent to the exercise of jurisdiction.
“From the written briefs filed and oral submissions made by counsel for the appellant, it is obvious that the applicant is contending that either the trial magistrate court has no jurisdiction to determine the subject matter of the suit (as in the nature of the charges levelled against the respondents) or that there is a feature of the case which prevents the court from exercising its jurisdiction or both.
“The charge sheet per which the respondents were arraigned before the trial magistrate court, contains 15 counts and out of these 15 counts, counts 3, 8 to 15 are in respect of alleged acts of the respondents or at least some of them which are viewed by the appellant to be money laundering and therefore an offence under the Anti-Money Laundering and Combating of Terrorist Financing Act, 2012 (hereinafter referred to as “the Act’),” Hon. Justice Acibonga said.
He further stated that on the said counts, the respondents (accused persons) or at least some of them were charged under section 22(a) of the Act.
“Having had some of the counts levelled charges against the respondents or some of them under the Act, counsel for the appellant contends that by virtue of section 2(1) of the Act, court is defined as the High court and that being the case when it comes to offences under the Act, the High court is the only court with original jurisdiction to try them,” he said.
Hon. Justice Achibonga stated that when the issue of jurisdiction was raised before the trial magistrate at the Kanifing Magistrates’ Court, he held that the magistrate as then constituted had jurisdiction to hear and determine the suit.
Hon. Justice Achibonga asserted that In his ruling, the trial Magistrate conceded that the meaning of court as used in the Act is the High Court but quickly added that it was only so, anywhere court is mentioned in the Act and that any provision of the Act on a subject matter which is salient as to “court”, then any court with the requisite “jurisdictional wings can be flown with.”
Hon. Justice Achibonga said the Magistrate then made reference to sections 44 – 46, 50 – 52, and 54 – 60 of the Act and contends that those sections made reference to “the court” whilst section 22 under which the accused persons (respondents) are charged does not make such reference.
Hon. Justice Achibonga stated that the trial magistrate in his ruling said if it were the intention of the drafters of the Act that the High court shall try offences under the Act, they would have used clear and positive words to the effect just like section 9 of the Economic Crimes and Specified Offences Act.
He said the trial magistrate concluded that by its clear and literal meaning, both the High court and Magistrate court (principal magistrate) can assume jurisdiction to try offences under section 22 of the Act.
“Construction of statutes is key to giving effect to provisions of legislation and the approaches to/rules of construction/interpretation of statutes are crucial in achieving this. The current approach to construction of statutes is the purposive rule of interpretation which requires that statutes for that matter documents be interpreted in a manner so as to reflect the purpose for which the legislation or document was drafted,” he said.
Honorable Justice Achibonga emphasized that considering the statute’s context and its surroundings is crucial in its interpretation. He referenced the case of Attorney General v. Ernest Augustus (Prince of Hanover) [1957] AC 436 at 461 H.L., as stated by Lord Simmonds.
In the Ghana Supreme Court case of Professor Stephen Kwaku Asare v. The Attorney General, suit no. J1/6/2011, delivered on 22nd May 2012, Honorable Justice Atuguba, JSC, highlighted the purposive approach to construction, emphasizing its significance in interpretation.
“The purposive approach to interpretation takes account of the words in the Act according to their ordinary meaning as well as the context in which the words are used. Reliance is not placed solely on the linguistic context, but consideration is given to the subject matter, scope, the purpose and, to some extent, the background. Thus with the Purposive Approach to the interpretation of legislation there is no concentration on language to the exclusion of the context. The aim, ultimately, is one of synthesis.”
Honorable Justice Achibonga emphasized the importance of interpreting the provisions of the Act in a manner that considers its context, scope, and the purpose for which it was enacted. To achieve this, he advocated for a comprehensive reading of the entire Act, with due consideration given to the interconnections that shed light on various provisions.
Justice Achibonga highlighted that, according to Section 2(1) of the Act, the term “court” is explicitly defined as the High Court. Therefore, any reference to a court in the Act should be understood to mean the High Court. He clarified that this definition is unequivocal, and its purpose is to stipulate that any action or procedure mandated by the Act requiring a court’s involvement must take place in the court defined in the Act as the court of first instance.
In essence, Justice Achibonga asserted that, given the Act’s definition designating the High Court as the court, any proceedings or actions falling under the Act must exclusively occur in the High Court and no other court as the court of first instance.
“I therefore do not agree with the trial magistrate that “court’ as defined in the Act simply means anywhere “court” is used in a provision of the Act, it means the High but where a provision does not make reference to “court” then any court with the requisite jurisdiction can hear the matter. Let us however interrogate the interpretation placed on section 22 of the Act and determine whether on a true and proper interpretation of section 22 of the Act, the magistrate court and for that matter any court of law other than the High Court has the original jurisdiction to try offences as per section 22 of the Act?.
“As already stated, the respondents or at least some of them have been charged under section 22(a) of the Act. Section 22 of the Act provides that; A person who is involved in money laundering commits an offence and is liable in the case of An individual, including a director, employee or agent of a reporting entity, to imprisonment for a term of not less than 10 years; or A body corporate a fine of not less than ten million dalasis or an order for the revocation of the licence of the corporate body or both,” Hon. Justice Achibonga stated.
In addressing the matter, Hon. Justice Achibonga emphasized that the absence of the term “court” in section 22, as noted by the trial magistrate, should not thwart the legislative intent. He pointed out that section 22 serves as the pivotal provision establishing the offense of money laundering. Consequently, it would be reasonable to expect that this section does not explicitly prescribe the court for trial, especially if other provisions within the Act clearly designate the jurisdiction of the court.
Hon. Justice Achibonga underscored the importance of interpreting statutes comprehensively, asserting that a holistic reading is essential to discern the drafter’s intention. He emphasized that understanding Section 22 necessitates examining it in conjunction with other relevant provisions of the Act, such as sections 2, 24, and 88.
Referring to Section 2 of the Act, Hon. Justice Achibonga clarified that the term “court” specifically refers to the High Court. Additionally, he highlighted Section 24, titled “post conviction powers of the court,” where subsection 24(1) empowers the court, following the conviction of a corporate entity, to issue an order for the revocation of its license.
“Headings are useful tools in aid of interpretation and a heading/subheading of a provision or even the statute itself could be a summary of the intent behind the said provision or statute. See the case of R (Westminster City Council v. National Asylum Support Services (2002] UKHL 38 and Fisher v. Raven [1964] Ac 210, HL.
“In section 24(1) of the Act, the drafters intend to vest the court that hears and determines a charge brought pursuant to section 22 with additional powers that can be exercised after conviction, other than the sentence prescribed thereto. There is no dispute that “court” as used in the heading of section 24 is the High court as per section 2 of the Act,” he said.
Justice Achibonga explained that the combined effect of sections 22 and 24(1) is that the court referred to in section 24 with post-conviction powers is the court that has jurisdiction to convict for offenses brought under section 22, which is the High Court.
Justice Achibonga acknowledged that section 24(1) specifically addresses convictions under section 22(b) and not 22(a), which is the section under which the respondents have been charged.
However, Justice Achibonga found it unreasonable to argue that in cases where an offense creates multiple sets of offenses based on the persons or entities involved, the magistrate court, as in this case, would have jurisdiction to try one set of offenses but not the other.
“In my view, it is clear that by virtue of section 2 and 24 of the Act, the High court is the only court with original jurisdiction to try offences pursuant to section 22 of the Act. Section 88(4) puts the matter to rest. It provides as follows; (4) The Court may, in addition to any other penalty, ban any person convicted of an offence under this Act from providing the service, pursing the business or profession which provided the opportunity for the commission of the offence, permanently or for a minimum period of five years,” he said.
Justice Achibonga explained that according to section 2 of the Act, the term “court” in section 88(4) refers specifically to the High Court. Section 88(4) empowers the court, in addition to imposing penalties, to utilize the authority outlined in section 88(4) and impose a prohibition for offenses under the Act.
Furthermore, Justice Achibonga emphasized that an offense under the Act encompasses any violation specified in the Act, including those outlined in section 22. He clarified that since this authority is supplementary to the jurisdiction of the court to adjudicate offenses under the Act, and considering that the referred court is the High Court, only the High Court possesses the original jurisdiction to handle offenses under the Act.
Justice Achibonga acknowledged that the magistrate court may have jurisdiction over certain offenses, as indicated in the charge sheet. However, he maintained the view that when a court is presented with a case wherein it has jurisdiction over some claims or charges but lacks jurisdiction over others, it is not permissible for the court to sever the claims or charges. In such situations, the court cannot selectively try what falls under its jurisdiction while disregarding those aspects beyond its jurisdiction.
“A court does not determine what laims or charges should be brought before it or abandoned. That is the right of the parties. In such situations, the proper thing to do is to decline jurisdiction, so the case can be transferred or presented before a court that has jurisdiction to try all the claims and or charges in the suit.
“For the above reasons, hold that it is the High court to the exclusion of all other courts that has original jurisdiction to try offences under the Anti-Money Laundering and Combating of Terrorist Act, 2012. The trial Magistrate therefore erred in assuming a jurisdiction he did not have to hear the case in the first place,” Hon. Justice Achibonga ruled.
On the issue of whether the Magistrates’ Court has the jurisdiction to grant bail to the accused persons, Hon. Justice Achibonga said the Magistrate Court cannot grant a bail in the case it does not have jurisdiction.
“Having held that the trial magistrate lacked jurisdiction to try the case, the issue that arises for determination is whether or not a court that has no jurisdiction to hear a case, can nonetheless grant bail in that case. A court only grants bail in a case after it assumes jurisdiction over the case. I do not therefore see how a court that has no jurisdiction over a case can purport to grant bail in that case,” he said.
Hon. Justice Achibonga questioned the authority of a court to grant bail if it lacks original, appellate, or supervisory jurisdiction over the case.
He emphasized that the power to grant bail is inextricably linked to the court’s jurisdiction to hear the case for which bail is sought.
Hon. Justice Achibonga further explained that under Gambian law, a court’s jurisdiction can only be characterized as original, appellate, supervisory, or review, depending on its level.
“It is in the exercise of any of these jurisdictions that a court can entertain a bail application and exercise its discretion in either granting or refusing bail. I therefore hold that a court that has no jurisdiction to hear a case, can not assume jurisdiction to grant bail in that case. The trial magistrate therefore erred in granting bail to the respondents when he had no jurisdiction to hear the case in which he granted them bail,” Hon. Justice Achibonga ruled.
In addressing the question of whether the principal magistrate acted within the scope of his legal authority in granting bail to the accused persons/respondents, Hon. Justice Achibonga determined that the trial magistrate lacks the authority to hear the case or grant bail.
Justice Achibonga further stated that since the trial magistrate lacks jurisdiction, issue 3 has become irrelevant and its adjudication would merely constitute an unnecessary academic exercise, which he declines to engage in.
“For the above reasons, I find the appeal meritorious and same is hereby allowed. The Ruling of the Kanifing magistrate court assuming jurisdiction to hear the case and thereby granting/admitting the respondents to bail on 14th September, 2023 is hereby set aside,” Hon. Justice Achibonga ruled.