FactCheck: Who Owns the Former ACU-occupied Land Identified for a US$100 Million OIC Hotel?
By Yusef Taylor, @FlexDan_YT
The Gambia Government and a charitable organisation named Global HOMM (Hearts of Medical Mission) have been locked in a four-year legal dispute over a property in Bijilo previously occupied by the Anti-Crime Unit (ACU). The dispute has been the subject of three court rulings relating to the ownership of the property. In addition to this, two court rulings have been issued on the illegal arrest and detention of Global HOMM Employees.
Claim: More recently after the third court ruling was issued by the High Court on 20th June 2022, the Ministry of Justice (MoJ) issued a statement on 28th June 2022 stating that “the purported lease [for a property in Bijilo] was wrongfully issued under executive directive by former President Jammeh to an entity that we now know does not exist”.
The MoJ’s statement added “that Home of Medical Mission does not exist and as such any lease issued to it is null and void. As a result, the public is hereby informed that the purported lease in the name of Home of Medical Mission has been cancelled”.
Fact Check: Our investigations have unearthed a “Recommendation for Registration” letter issued by the Kanifing Municipal Council on 14th December 2006 and a stamped and sealed Certificate of Incorporation (numbered 53/2007) for Global HOMM issued by the Registrar of Companies on 14th February 2007.
Copies of the Certificate of Incorporation and the Recommendation of Registration letter can be seen below which proves that Global HOMM existed since early 2007.
Our enquiries indicate that the electronic registration system started in 2014 and that Certificate of Incorporations issued before this period are still valid. In the latest High Court Judgement issued on 20th June 2022 the ruling notes that the “Counsel for applicant contends that their search at the company’s registry indicates — that the respondent does not exist”.
Our investigations revealed that after the computerised system was introduced in 2014, previously issued Certificate of Incorporations were not migrated into the new system. Instead, the onus is on companies to contact the Registrar’s Office to be migrated. This explains why the MoJ has not seen Global HOMM’s registration in the system which was registered in 2007 before the electronic registration system was introduced.
Third Court Judgement
Two of the court rulings were issued by Justice F.A. Achibonga of the High Court. A week after the third ruling, the MoJ issued its counter statement on Global HOMM’s ownership of the property, dismissing the court ruling. The Appellant in the case numbered HC/314/20/MF/056/F1 is identified as Home of Medical Mission (Global HOMM) and the three respondents from the State are the Minister of Lands & Regional Government, Director for Lands and Surveys and the Attorney General.
According to the court ruling the MoJ filed an “application seeking to set aside the judgement of the court delivered on 29th June 2020 on the ground that” Global HOMM “lacked capacity to file the suit in the first place as it is not a juristic person”. The MoJ argued that they conducted a company search at the Company of Registrar which proves that “the company does not exist”.
In response to the application Judge Achibonga argued that “the court cannot entertain a process challenging the capacity of a party to sue after judgement has been entered for that party unless of course by way of review. It is therefore too late in the day for the applicant to seek to attack the judgement of 29th June 2020”. In summary the High Court ruled that the MoJ’s “application therefore fails and same is dismissed” at no cost. This means that the judgement issued on 29th June 2020 still prevails.
Second and First Judgement
The second judgement also issued by Justice F.A. Achibonga of the High Court on 29th June 2020 featured the same respondents and appellants. The judgement numbered HC/424/20/MF/956/F1 ruled that “the notice of acquisition and revocation of [Global HOMM’s] lease serial registration No, K12/07 in respect of property situated at Bijilo in the Kombo North District of West Coast Region of The Gambia by the Respondents is null and void”. This was in response to the Ministry of Lands letter of revocation served to Global HOMM.
The high court judgement reiterated that Global HOMM’s lease “remains valid and subsisting”. Furthermore, the court also ruled that the State’s plans to allocate the land to another investor “is null and void” and “set aside” all transactions entered into by the State and “any third parties in relation to the Applicant’s said property”.
Out of the three court rulings two of them ordered for the State to pay compensation to Global HOMM and for the Director for Lands and Surveys to accept Land Rent payments from Global HOMM. So far only Global HOMM has complied with the court’s order, meanwhile the State has refused to pay fines ordered by the Court.
Our investigations reveal that Global HOMM complied with the first court judgement on the ownership of the property issued by Magistrate Janneh Njie of Kanifing Magistrates Court on 12th September 2019 to pay Land Rent. This is evidenced by a receipt of D589,550 paid from an account named Global HOMM to an account named Lands Survey on 5th March 2020.
However, the State has refused to comply with court orders issued from 2019 to date. First the State refused to comply with the order issued by the Kanifing Magistrate Judge in the same ruling issued on 12th September 2019 to pay D50,000 to Global HOMM as general damages for trespass.
The State also refused to comply with an order from High Court Judge Achibonga to pay Global HOMM D500,000 on 29th June 2020. Two years later, Global HOMM have confirmed to our reporter that they have complied with the court’s order to pay Land Rent, however, the State has refused to comply with the court’s order to pay Global HOMM a total of D550,000 in fines.
Timeline of Events
Certificate of Incorporation Issued for Global HOMM (Hearts of Medical Mission) – 14th February 2007
Electronic Registration System for Company of Registrars introduced in 2014
First Judgement issued by Kanifing Magistrate Court in favour of Global HOMM – 12th September 2019 – Magistrate Janneh ruled that Global HOMM shall have ownership of the property and shall pay the Government Land Rent.
Director for Lands and Surveys accepts D589,550 as Land Rent from Global HOMM – 5th March 2020
Second Judgement issued by High Court in favour of Global HOMM – 29th June 2020 – Judge Achibonga cancelled the Ministry of Lands revocation of lease letter and reiterated Global HOMM Ownership of the Property and fined the government to pay Global HOMM D500,000.
Third Judgement issued by High Court in favour of Global HOMM – 20th June 2022 – Judge Achibonga again ruled against the MoJ’s application to set aside the second judgement because they did not exist. The challenge failed and the ruling means that the second judgement still holds.
Fact Check
Speaking to the Principal Magistrate of Brusubi Magistrate Court, Magistrate Muhammed Krubally, we asked him if a statement issued by the MoJ or a Gazette can usurp a court ruling to which he responded in the negative. Another Lawyer L.S Camara Esq told our reporter that a court judgement can only be overturned by the same court or higher. In their view the MoJ’s statement cannot take precedence over the High Court ruling.
When asked if the State’s actions are in keeping with the Law, Lawyer Camara explained that since the MoJ’s statement contradicts the High Court’s ruling then its actions are against the rule of law. He advised that even if the judgement is wrong it cannot be overruled by the MoJ’s statement.
According to Magistrate Krubally and Lawyer Camara the only way the State can overturn the ruling is to lodge an appeal in the Court of Appeal.
In the 2021 State of Human Rights Report issued by the Gambia’s National Human Rights Commission in the second quarter of 2022, it recommended that “the state and its agents should always give effect to court orders”. This recommendation is specific to “the arrest off Nenneh Freda Gomes, Gilbert Manga and Lamin Sey”. The Report went further to remind the state that “following reports of violation of the court order, the NHRC issued a statement requesting the state to respect the order and protect the rights of Ms. Gomez and Messrs. Manga and Sey”.
Given the three court judgements and the legal opinions from two Lawyers, the MoJ’s Statement announcing the cancellation of the lease of Global HOMM’s property in Bijilo is MISLEADING in that it contradicts a High Court Ruling.
While the MoJ’s argument that Global HOMM does not exist has been proven to be FALSE, this is evidenced by the Certificate of Incorporation issued by the Registrar of Companies.
This article was first published by FactCheckGambia.org in the link: https://factcheckgambia.org/fact-check-who-owns-the-former-acu-occupied-land-identified-for-a-us100-million-oic-hotel/
