Court Dismisses Attorney General's Attempt to Remove MCA's Name in AKI Case (66 babies death of paracetamol syrup)
By Kexx News
The Attorney General attempted to remove the name of the Medicine Control Agency (MCA) in the suit file by 19 families of victims of Acute Kidney Infection, but Justice Ebrima Jaiteh of the Banjul High Court dismissed the application, saying MCA could be sued.
He said the application lacked merit and he dismissed it. The 19 Families of Acute Kidney Injury (AKI) Victims filed a lawsuit against Maiden Pharmaceutical, Atlantic Pharmaceuticals Company, Medicines Control Agency, Ministry of Health and Attorney General seeking justice for the tragic demise of their children caused by cough syrup manufactured by the Maiden Pharmaceutical Company.
By a motion dated and filed on 7 October 2024, the Attorney General on behalf of the MCA, Ministry of Health and his behalf (referred to in this article as Applicants) through State Counsel Binga D, the Director of Civil Litigation at the Attorney General’s Chambers asked the court to pass an order dismissing the suit against MCA.
It is the submission of Binga D (applicants) that they 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. Also, he argued that actions and omissions of the State and its officials in the exercise of discretionary functions, or its role as a regulator, are immune from civil liability. The safety policies of the State are discretionary regulatory and are immune from civil liability;
Binga said 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.
He added 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 mandates; of their core constitutional institution matters.
It is his case that there is no waiver of sovereign immunity in matters of activities involving the exercise of core constitutional and institutional roles or mandates by the State, and the claims or disputes involving the State policies are not justiciable and not capable of adjudication in civil litigation. He concluded that the victims’ families have failed to identify any applicable waiver of the state sovereign immunity.
In moving his application, Binga D Counsel for the Applicants submitted that prayer 3 on the writ of summons cannot be granted pursuant to sections 17 (2)&(4) of the State Proceedings Act and also referred the court to the case of Yakumba Jaiteh versus the Clerk of the National Assembly and Others.
Counsel Binga further referred the court to case law authorities from the Common Law Jurisdiction of England without providing the said authorities to the Court. It is his submission that the actions of the Applicant as a statutory body are not open to civil action and further argued that the actions of the Respondents against the Applicants and its agencies do not grant the families the right to sue the State as the State is not liable in tort.
In responding to the application on points of law, Senior Counsel Yassin Senghore for the families referred the court to section 7 of the 1997 Constitution of The Gambia and submitted that it binds this court and also refers this court to the case of Yakumba Jaiteh at page 21.
She stated that the court cannot grant an injunction against the State; however, the court can make declaratory orders and determine any act.
Counsel Yassin Senghore further submitted that what the families are seeking are declaratory orders, which are provided for under the State Proceedings Act without recourse to a fiat. Counsel Yassin Senghore refers this court to sections 3, 4(1) (3), 10, and 17(2) (4) of the State Proceedings Act. She argued that the court has the power to hear the case.
She argued that the Medicine Control Agency is a corporate body that can sue and be sued and was established by the Medicines and Related Product Act of 2014.
Counsel Yassin Senghore further argued that the Common Law authorities cited are not binding on this court and section 211 of the 1997 Constitution is irrelevant to the issues before the court. She urged the court to dismiss the case.
In his ruling, Justice Jaiteh said it is important to state that the right to sue the state is provided under Part Il of the State Proceedings Act, which provides “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. Section 4 of the State Proceedings Act (supra) deals with the liability of the State in tort.
“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 I shall hold as a fact,” Justice Jaiteh said.
Justice Jaiteh said the MCA was established under section 3(1) of the Medicines and Related Products Act of 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,” Jaiteh said.
Justice Jaiteh said the requirement of seeking 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,” he said.
“Consequently, Sovereign Immunity as argued and submitted by Binga D. Of Learned Counsel is immaterial and inapplicable in this jurisdiction,” he added.
He held that 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 justifiable 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,” he said.
On the issue of whether 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 institutional mandates and not subject to the judiciary’s private law oversight.
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 added that 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,” he said.
He said the court, in execution of its core mandate of 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 liability on the executive or legislative branches of government based on the law where that performance has given rise to a cause of action in tort,” he said.
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