Over 150 Cases Pending in Justice Jaiteh’s High Court as AKI Pre Trial Proceeds

Bereaved Parents of AKI Children (c) Yusef Taylor

By Yusef Taylor, @FlexDan_YT

Justice Ebrima Jaiteh of the high court demonstrated significant patience today as he gave the Defense Counsel for the State over ten minutes to collect supporting documents to present his arguments to dismiss the Acute Kidney Injury (AKI) case on 8th October 2024.

After the Defense Counsel for the State which included the Ministry of Health, Medicines Control Agency (MCA) and the Attorney General’s Office returned, Justice Jaiteh almost gifted Defense Counsel Binga with an adjournment to allow him more time to present his argument. However, Justice Jaiteh quickly decided for the pre-trial to proceed and heard arguments and counter arguments from the Defense and the Plaintiffs to dismiss the case.

It all started back in July 2023 when the Gambia Bar Association, Female Lawyers Association, Farage and Andrews Law Chambers and Yassin Senghore filed a pro-bono law suit against the Gambia Government and two Pharmaceutical Companies on behalf of some 19 bereaved parents which later increased to 27. This was after a Presidential Investigation Report concluded that tainted medicines manufactured by Maiden Pharmaceuticals in India, and imported and distributed by Atlantic Pharmaceuticals in The Gambia, caused the death of over 72 children back in August to December 2022.

The first pretrial hearing started with Counsel Yassin Senghore for the Plaintiffs informing Justice Jaiteh that one Alhagie Bojang, the parent for Aminatta Bojang was missing from the list. This was eventually rectified with Alhagie Bojang responding in the affirmative to register his presence. It was then confirmed that all parties of the case have been duly served, this includes Maiden Pharmaceuticals in India, Atlantic Pharmaceuticals in The Gambia and the three aforementioned parties of the State.

After the formality of confirming attendance, Counsel Binga Dinshiya for the State informed Justice Jaiteh that a motion had been filed to dismiss the case against the three parties of the State. Counsels for the Plaintiffs confirmed they had not been served with the motion and were provided a copy for inspection during the hearing. After the Defense raised the motion to dismiss the case, Counsel Senghore boldly decided to continue, noting that the grounds she observed are based purely on grounds of law.

This seemed to catch Defense Counsel Binga by surprise as he informed Justice Jaiteh that his documents to support his arguments for his motion were in his office. In response Justice Jaiteh ordered Counsel Binga to collect his document within ten minutes. Justice Jaiteh revealed that he had over 150 cases lodged in his court as he insisted for the case to proceed. The hearing took a brief break of over 10 minutes and proceeded.

Plaintiffs waiting for Defense to collect documents (c) Yusef Taylor

The hearing resumed with Defense Counsel Binga presenting his arguments to support his motion. He argued that the case should be dismissed because; the three defendants are not liable to be sued, the state is immune from tort, separation of powers, no waiver of sovereign immunity and at some point highlighting a case law from 1886 amongst others.

At one point Justice Jaiteh spotted that an attachment was referenced in paragraph 7 of the Defense’s motion, but no attachment had been provided. Counsel Binga eventually acknowledged this after rummaging through his motion but nothing was mentioned about rectifying this.

Continuing his arguments, Counsel Binga appeared to be wandering into the substance of the case, to which Justice Jaiteh highlighted order 23-14-14, which restricted the pre-trial hearing from discussing the substance of the case.

Additionally, Counsel Binga argued that the prayers being sought by the plaintiffs against the three defendants cannot be granted pursuant to the State Proceedings Act 17(2) and 4 which is emphasized by the Ya Kumba Jaiteh ruling against the State. Section 4 focuses on Liability of the State and section 17(2) highlights the Nature of Relief which mentions that the court shall not grant an injunction or make an order for specific performance and then provides an alternative.

Without the Ya Kumba Jaiteh ruling in his possession, Counsel Binga attempted to paraphrase the ruling to support his argument. Justice Jaiteh tried to talk him out of paraphrasing least “you add your own bread and butter” in it. More exchanges continued with Counsel Senghore arguing for the hearing to proceed. Noting that the bereaved parents are people without the means to continue travelling to court.

This line of argument appeared to resonate with Justice Jaiteh who reminded Counsel Binga that he took more than 10 minutes to collect his materials and that the hearing would continue for another hour at least. With support from his busy colleagues sharing documents with him, Counsel Binga argued that the Plaintiffs prayers against the state should be dismissed.

But Counsel Binga was not satisfied and insisted that he was not provided sufficient time to buttress his arguments for his motion. This prompted Justice Jaiteh to ask if he was not prepared for his arguments and that Counsel Senghore will respond to his arguments. To which Counsel Binga surprisingly responded, “No she will not respond!”.

Counsel Binga then cited Gilbert and Another vs Trinity of 1886 [sic] at the High Court, brandishing a document and offering to provide copies to the Judge and the Plaintiffs. He then cited Section 211 of the 1997 Constitution which covers Directive Principles of State Policy.

Counsel Senghore then took the floor to argue that the Defense’s motion had no basis in law, citing section 7 of the 1997 Constitution which outlines the relevant laws of The Gambia. She argued that the Ya Kumba Jaiteh ruling proves that the State can be sued and that only an injunction was denied against the Clerk of the National Assembly.

She argued that the state can be prosecuted just like a private citizen and based on the breach of liability duty. Counsel Senghore for the Plaintiffs dismissed the 1886 case cited by the Defense as inapplicable to The Gambia. Insisting that the relevant laws are stated in section 7 of the 1997 Constitution.

In her submission she noted that “you cannot have an immunity in a vacuum that is not stated in law”. She argued that the Defense use of Sovereign Immunity was not applicable to this case and that section 211 of the 1997 Constitution was a policy statement which cannot supersede the law.

Counsel Senghore made reference to section 3 (2) of the Medicines and Related Products Act 2014 which establishes the Medicines Control Agency who are a party to the case. This provision states that “the Agency shall be a body corporate with perpetual succession and may sue and be sued in its corporate name”.

Counsel Binga then proceeded with his counter arguments insisting that his motion is backed with facts, and that Justice Jaiteh accepting the Medicines and Related Products Act 2014 from Counsel Senghore was unacceptable.

Eventually, as Counsel Binga proceeded Counsel Senghore interjected to argue that he was making new arguments which was not permitted. Eventually Counsel Binga argued that the prayers on damages cannot be heard by the court. To this Justice Jaiteh responded, “you are not comfortable with that prayer. That is the heavyweight.”

Towards the end of the hearing, Counsel Farage for the Plaintiffs highlighted that a letter was sent to the Defense to discuss the admissible documents for trial proper, however, Counsel Binga was on holiday. After some deliberations with Justice Jaiteh he decided that the documents would be presented and arguments would be heard for their dismissal which Counsel Binga wanted to object to but was left with no choice by Justice Jaiteh.

Eventually the case was adjourned to 15th of October 2024 when Justice Jaiteh will make a ruling on the Defense’s motion to dismiss the case.

Watch an exclusive interview with the Chair of the AKI Victims 66 Plus in the link above.