Case Notes

Case Notes on important judgments.

CASE NOTE

Modou Ceesay v Attorney General & Others

Supreme Court of The Gambia | Civil Suit No. 002/2025
Judgment delivered: 7 July 2026

Security of Tenure of the Auditor General, Constitutional Resignation and the Discretionary Nature of Public Law Remedies

The Supreme Court's decision in Modou Ceesay v Attorney General & Others is an important constitutional judgment concerning the security of tenure of the Auditor General, the constitutional requirements governing resignation from public office, and the remedies available where the holder of a constitutionally protected office is unlawfully removed.

The judgment arose from the removal of Modou Ceesay from the office of Auditor General in September 2025 following an offer of appointment to him as Minister of Trade, Industry, Regional Integration and Employment. The Court found that although Mr Ceesay had verbally accepted the ministerial offer before subsequently changing his mind, the acceptance was not legally effective because the offer required written acceptance. It further held that Mr Ceesay had not resigned as Auditor General and had not otherwise lawfully vacated that office.

The Court consequently held that his forceful removal from the National Audit Office by members of the Police violated section 158 of the Constitution and was null, void and of no legal effect. The Court nevertheless declined to reinstate him, instead ordering payment of his salary and allowances for the remainder of his constitutional term, together with gratuity and pension entitlements and D4 million in vindicatory damages.

1. Background

Mr Modou Ceesay had been appointed Auditor General by the President and had accepted that appointment in November 2022. On 10 September 2025, he attended a meeting with the President at State House during which the President offered him the position of Minister of Trade, Industry, Regional Integration and Employment.

A second meeting took place later that day. The circumstances surrounding those meetings became central to the proceedings.

Mr Ceesay maintained that he had not accepted the ministerial appointment and that, after considering the offer, he had informed the President that he wished to decline it. The Defendants' case was that he had initially accepted the appointment but subsequently changed his mind.

The evidence before the Court included the ministerial appointment documents, correspondence between the parties, evidence from officials at State House and Mr Ceesay's own testimony. The Court ultimately found, on the balance of probabilities, that Mr Ceesay had verbally accepted the offer before changing his mind several hours later.

The significance of that finding, however, did not end the matter. The Court had to determine whether a verbal acceptance of the ministerial appointment had the legal consequence of terminating Mr Ceesay's tenure as Auditor General.

2. The Constitutional Questions

Following an earlier ruling concerning the Court's jurisdiction, the constitutional questions ultimately before the Supreme Court were principally:

1. whether the conduct of the Attorney General and/or Inspector General of Police amounted to a violation of sections 158, 159, 160 and 169 of the Constitution; and

2. if a constitutional violation was established, what orders or directions the Court should make to give effect to its declaration.

The proceedings therefore engaged two distinct questions.

(1)   whether Mr Ceesay remained Auditor General at the time he was removed.

(2)   what remedy was appropriate once the Court concluded that his removal had been unconstitutional.

3. Acceptance of the Ministerial Appointment

A significant aspect of the judgment is the distinction drawn between factual acceptance and legally effective acceptance.

The Court found that the evidence established that Mr Ceesay had verbally accepted the President's offer and subsequently changed his mind. However, the written offer expressly required the proposed appointee to acknowledge the letter in writing and indicate whether he accepted the appointment on the stipulated terms.

There was no such written acceptance.

The Court therefore concluded that, although there had been a verbal acceptance on the facts, the contractual or legal requirement for written acceptance had not been satisfied. The acceptance was consequently legally non-binding.

This distinction is important. The Court did not reject the Defendants' factual case that Mr Ceesay had initially indicated acceptance. Rather, it held that the legal consequence contended for by the Defendants did not follow from that factual finding.

In other words, a factual acceptance was not, in the circumstances, a legally effective acceptance.

4. Resignation from the Office of Auditor General

The Court then considered whether Mr Ceesay's conduct nevertheless amounted to relinquishment of his office as Auditor General.

Section 158(4) of the Constitution provides for the circumstances in which the holder of the office of Auditor General vacates office. Section 158(5) provides that an Auditor General may be removed only for inability to perform the functions of the office, misbehaviour or incompetence.

The Court also relied upon section 228(1) of the Constitution, which provides that a person appointed to an office established by or under the Constitution may resign by writing under his or her hand addressed to the appointing authority. Since the Auditor General is appointed by the President under section 158(2), the Court held that a constitutional resignation had to be made in writing to the President.

Mr Ceesay had not done so.

Indeed, the evidence showed that after the meetings at State House he returned to the National Audit Office, subsequently wrote declining the ministerial appointment and continued to assert that he remained Auditor General.

The Court therefore held that he had not resigned and had not vacated the office by abandonment.

The legal consequence was fundamental: the Court regarded Mr Ceesay as continuing to hold the office when the Police subsequently removed him.

5. The Police Removal and Section 158 of the Constitution

Having determined that Mr Ceesay remained Auditor General, the Court considered the events of 15 September 2025.

The Court accepted the evidence that Police personnel entered the National Audit Office, instructed Mr Ceesay to leave his office and escorted him from the premises. The Inspector General of Police did not give evidence in the proceedings. The Court found, on the evidence before it, that Mr Ceesay had been forcibly evicted from the National Audit Office by Police personnel acting on the instructions of the Inspector General of Police.

The Court then applied section 158 of the Constitution.

It held that the constitutional provisions governing the Auditor General did not permit removal in the manner that had occurred. In particular, section 158(5) restricts removal to specified grounds, namely inability to perform the functions of the office, misbehaviour or incompetence.

The Court therefore concluded that the forceful removal of Mr Ceesay violated section 158 of the Constitution.

This is arguably the central constitutional holding of the case: where the Constitution protects the tenure of a public office, the executive cannot circumvent the constitutional conditions for removal by treating the office as having been vacated when the constitutional requirements for resignation or removal have not been satisfied.

6. The Remedy: Why Was There No Reinstatement?

The most interesting aspect of the judgment from a public-law perspective is perhaps the remedy.

Having declared the removal unconstitutional, the Court considered whether Mr Ceesay should be reinstated.

The Court acknowledged that reinstatement would ordinarily be the natural consequence where a holder of a constitutionally protected office has been unlawfully removed. It nevertheless emphasised that public-law remedies are discretionary and that the appropriate remedy depends upon the particular circumstances of each case.

The Court referred to McLaughlin v Governor of the Cayman Islands [2007] UKPC 50, in which the Privy Council considered the consequences of unlawful removal from public office and the discretionary nature of public-law remedies.

The Court also considered the particular circumstances before it, including the fact that Cherno Amadou Sowe had already been performing the functions of Auditor General for more than nine months and the evidence concerning the relationship between Mr Ceesay and the Executive.

The Court concluded that reinstatement would not be conducive to sound public administration and would not be in the public interest.

The decision therefore illustrates an important distinction between establishing that an act is unconstitutional and determining the remedy that should follow from that finding.

A declaration of unlawfulness does not necessarily mean that every remedy sought, or potentially available, must follow automatically.

7. Compensation and Vindicatory Damages

Instead of reinstatement, the Court ordered that Mr Ceesay receive the financial benefits attached to the office as though he had served out his constitutionally stipulated term.

The Court relied upon section 15(1) of the National Audit Office Act 2015, which provides for the salary, allowances, gratuity and pension applicable to the Auditor General. It also noted that section 16(1) limits the term of office to a period not exceeding nine years.

The Court consequently ordered payment of:

• outstanding salary and allowances from 15 September 2025 to the date of judgment, with interest at 10% per annum;

• salary and allowances from the date of judgment until the end of the nine-year term or the statutory retirement age, whichever occurred earlier;

• gratuity and pension entitlements; and

• D4 million in vindicatory damages.

The Court drew a distinction between ordinary compensation and vindicatory damages.

Relying upon Privy Council authorities, including Attorney General of Trinidad and Tobago v JM [2022] UKPC 54, the Court explained that compensatory payments may not always adequately vindicate a constitutional right. It held that the circumstances of the Police removal justified an additional award and fixed that award at D4 million.

8. The Orders of the Court

The Court ultimately declared that the actions of the Police officers in entering the National Audit Office and forcibly removing Mr Ceesay from his position as Auditor General violated section 158 of the Constitution and were therefore null, void and of no legal effect.

However, the Court expressly declined to reinstate Mr Ceesay and permitted Mr Cherno Amadou Sowe to continue holding the office.

The Attorney General was ordered to ensure payment of Mr Ceesay's outstanding and future salary and allowances, together with his gratuity and pension entitlements. The Attorney General and Inspector General of Police were additionally ordered to pay D4 million in vindicatory damages.

There was no order as to costs.

9. Legal Significance

Several aspects of Ceesay are likely to be of continuing significance in Gambian constitutional and administrative law.

First, constitutional offices enjoy constitutionally defined protection

The judgment reinforces the principle that holders of constitutionally established offices cannot be removed through administrative convenience or informal executive action where the Constitution prescribes the circumstances in which tenure may be terminated.

Secondly, constitutional requirements concerning resignation matter

The Court's treatment of section 228 is particularly significant. The existence of an intention to leave office, or conduct which might suggest that intention, is not necessarily sufficient where the Constitution prescribes a particular form for resignation.

Thirdly, the judgment illustrates the importance of procedural compliance

The ministerial offer itself required written acceptance. The Court's conclusion demonstrates that where a legal instrument prescribes a particular method by which an appointment is to be accepted, the distinction between informal conduct and legally effective acceptance can become decisive.

Fourthly, constitutional unlawfulness and remedy are separate questions

The Court's refusal to order reinstatement demonstrates that establishing a constitutional violation does not necessarily determine the appropriate remedy. The Court retained a discretion to fashion relief having regard to the circumstances of the case, public administration and the public interest.

Finally, vindicatory damages have a constitutional dimension

The award of D4 million demonstrates the Court's recognition that financial compensation may not always be sufficient to vindicate a constitutional violation. The judgment adopts the Privy Council's approach that an additional award may serve to emphasise the importance of the constitutional right and the gravity of its violation.

10. Conclusion

Modou Ceesay v Attorney General & Others provides an important contribution to the developing jurisprudence of constitutional accountability in The Gambia.

The decision affirms the importance of constitutional limits on executive power while simultaneously demonstrating the flexibility available to the Supreme Court in determining appropriate remedies. The Court's approach recognises that the protection of constitutional office does not operate in isolation from the practical requirements of public administration.

Perhaps the most significant feature of the judgment is therefore the combination of two propositions: the removal of a constitutionally protected office-holder may be declared unlawful, while the Court may nevertheless decline to restore the individual to office where the circumstances make another remedy more appropriate.

The judgment will be of particular interest to public office-holders, government institutions, constitutional lawyers and practitioners concerned with administrative law, public accountability and the relationship between constitutional safeguards and executive power.

Editorial Note

This Case Note is published for legal information and academic discussion. It is intended to provide an objective summary and analysis of the judgment and does not purport to reproduce the parties' complete cases or the entirety of the Court's reasoning. The judgment remains the authoritative source for the Court's findings and orders.

Primary Source

[Judgment in Modou Ceesay v Attorney General & Others, S.C. Civil Suit No. 002/2025, delivered 7 July 2026.]

Editorial Disclosure: One of the members of the Supreme Court who participated in this decision, Hon. Justice E.F. M'Bai, JSC, is the elder brother of the Principal of Fana Fana Chambers. This Case Note is accordingly presented as an objective summary and analysis of the judgment and does not represent the views of any member of the Court.