IN THE HIGH COURT OF THE GAMBIA

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Mr. K. Sanyang of Counsel for the Applicant on the said 12/1/2012 adopted his Written Brief. Mr. B.S. TOURAY, learned counsel for the Respondent said he would reply orally in order to save time. He did so. I will not first reproduce the submissions of both Counsel. Rather, I will refer to their submissions as they relate to the issues formulated. Meanwhile, let me give the background facts of this matter. The Appellant, Natoma Bojang, was defendant at the Court below (the Kombo North District Tribunal) at the suit of the Respondent Banjul Jatta, as Plaintiff. The subject matter of the suit is land. On 12/1/2011, the District Tribunal gave Judgment in favour of the Plaintiff (Respondent herein). On 24/1/2011, the Defendant at the Lower Court filed a Notice of Appeal in this Court. As the appeal could not take off owing to the absence of the Record of appeal, this Court, on 14/4/2011 struck out the appeal with cost. On 30/11/2011, the Applicant file this Motion on Notice praying for an Order to relist the Appeal struck out. Counsel formulated 2 issues for determination: 1. Whether this Honourable Court has jurisdiction (to) relist the suit herein. 2. Whether the Appellant is entitled to an amendment of her Notice of Appeal. On his part, the Respondent formulated 4 issues, namely: 1. Whether on the facts, the Appellant can relist this Appeal after the Judgment has been executed. 2. Whether the High Court can entertain and amend incompetent grounds of Appeal. 3. Whether the affidavit in support of the Motion is competent. 4. Whether the purported Amended Notice of Appeal does not amount to filing a new appeal. I have examined the two sets of issues formulated by the parties. I think issue 3 by the Respondent should be taken first because, if it is found that the affidavit in support of the Applicant’s Motion is incompetent, then the Motion itself cannot be heard and that will be the end of the matter. Mr. B.S. Touray of Counsel for the Respondent argued that the Affidavit in support of the Motion is seriously defective and incompetent which defect cannot be cured because the defect affected the jurat. Counsel pointed out that the Jurat states: 2
“Sworn at Banjul This 30 th day of November, 2011”; whereas, Counsel submits, it should state thus: “Sworn to at Banjul By the within-named Sulayman B. Sanyang” Mr. Sanyang did not respond to Mr. Touray’s objection. I have looked at Mr. Touray’s objection and would agree with him that the jurat as stated is defective in form. But I also noticed that the affidavit was sworn before a Commissioner for Oaths who signed it and affixed his stamp which carries the name of the Notary Public and Commissioner for Oaths as ABDOU CONTEH. Section 87 of the Evidence Act provides that: “The Court may permit an affidavit to be used, notwithstanding if it is defective in form according to these rules, if the court is satisfied that it has been sworn before a person duly authorized” The deponent of the said affidavit is Sulayman B. Sanyang; he signed as Deponent. I do not think that failure to state in the jurat the phrase “by the within-named Sulayman B. Sanyang” renders the affidavit incompetent. I quite agree that the omitted phrase is necessary. Its omission is a defect, but does not amount to incompetence. By virtue of S. 87, of the Evidence act, I will allow the use of the said affidavit as I am satisfied that it was sworn before an authorized person. In that regard, Respondents issue 3 is answered in the affirmative. I will take Applicant’s issue 2; “Whether the applicant is entitled to an amendment of her Notice of Appeal”. I will consider this issue along with Respondent’s issues 2 and 4 which touch on the subject of Amendment of Notice of appeal. On page 3 of his Written Brief, Applicant’s Counsel, rightly in my view, submitted that this court has the jurisdiction to relist a suit/appeal which has earlier been struck out. Counsel referred to Order 24 Rule 1 of the Rules of the High Court on amendments and Order 34 Rule 6 on Re-listing matters struck out. Although Mr. Touray did not respond to these, I must point out that the two Rules referred to by the Applicant cannot apply to the instant application. Those Rules govern proceedings in a matter before the High 3
Page 1: IN THE HIGH COURT OF THE GAMBIA HOL
Page 5 and 6: “If the decree is for land or oth
Page 7: The 2 nd Ground is similarly vague.

IN THE HIGH COURT OF THE GAMBIA

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