IN THE HIGH COURT OF THE GAMBIA

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granted because he could not appear on time in Court on the day the matter was t come up in court because his wife was ill and had to be rushed to the Lamtoro hospital and therefore, instead of arriving in court for 9.30am he arrived in court at 10.00am. Counsel E. E Chime Esq. contended that he had been diligently taking steps to ensure that the appeal is heard on its merits but due to the constant transfer of judges, the shortcomings with the registry department and counsel for the respondent’s concern that certain documents were missing he could not make any progress with the appeal. Counsel for the appellants/applicants further urged the court to grant the prayers being sought. A.A. Bensouda Esq. in his reply also relied on the affidavit in opposition with the exhibits filed, submitted that the appellants/applicants have not shown any reason why the Court should exercise its discretion to relist the suit and to grant a stay of execution. Counsel A. A. Bensouda submitted that the application is an abuse of process, justice, equity and good conscience. Counsel A. A. Bensouda further submitted that the application is the same application that was made by the appellants/applicants three years and one day to date. That the respondent had suffered for five years without the case ever reaching substantive areas and the respondent had been denied the fruits of his judgment for five years. From the totality of the affidavit evidence adduced by both parties and the arguments of Counsels for and against the grant of this application, the following issues arise for determination; 1. Does this hon. court have jurisdiction to review its order for cost and to set it aside; and 2. Has cogent reason been given for this suit to be relisted and if so, 3. Is there any evidence provided to grant a stay execution ISSUE ONE: The appellants/applicants in their prayer two are asking this honourable court to review the cost awarded and to set it aside. Legal Notice No.7 of 2009 Courts Act (CAP: 6:01 High Court (amendment) Rules 2009, the new Order 3 (d) rule 1 which says I quote “ a judge may review a judgement given by him or her on the following grounds only (a) To correct a typographical error or omission; (b) To correct an inadvertent error in the use of words or figures; or (c) To set aside or nullify the judgment or decision for lack of jurisdiction, illegality or unconstitutionality which was unknown to the court during the trial”. In the light of foregoing, learned Counsel for the appellants/applicants have not provided any of the above stated reasons to warrant a review as prayed. I hold that this honourable does not have jurisdiction to grant this prayer. Prayer 2 of the Motion therefore fails. 2
ISSUE TWO: Schedule II order XXXIV rule 6 provides that “any cause struck out may by leave of the Court be replaced on the cause list on such terms as the court may seem fit”. It is indeed trite that it is the discretion of this court to decide whether or not to relist any matter that was struck out and such discretion must be exercised in good faith. In view of settled principle of law that a litigant should not be punished for the mistakes or inadvertence of his counsel, an application to relist a suit struck out ought to be granted if it is satisfactorily established that the decision to strike out was made out of genuine mistake or error of judgment. The court must be satisfied that the excuse is availing having regard to the facts and circumstances of the case. I have perused the entire case file and have examined all the affidavits in support of and against this application as well as the exhibits attached. What I find rather intriguing is that the counsel for the appellants/applications did not support the reason forwarded that he had to rush his wife to the Lamtoro Hospital. What I find more intriguing however is the fact that for the past five years, this case has a history of being struck out and relisted at the instance of the appellants/applicants. Each such application for relisting has almost the same reason to support the application namely either that: 1. On the application to relist dated the 13 th June 2007 but filed on the 19 th June 2007, Counsel E. E Chime was said to have been sick and that he was so seriously sick that he had to be rushed to the Lamotoro hospital; or that 2. On the second application to relist dated the 31 st October 2007 and filed on the 31 st October 2007,Counsel E. E. Chime’s car was said to have had a flat tyre and had to take a taxi to court or that 3. On the present application to relist, Counsel E. E. Chime’s wife said to have been seriously ill and had to be rushed to Lamtoro hospital. This is a case in which judgment in default had been granted since 7 th November 2005 and a notice of Appeal had been filed since November 2005 as well but to date no progress had been made. The appeal has not been heard yet the respondents had not been able to recover the fruits of its judgment. I am of opinion that the appellants/applicants are not interested in their appeal but merely want to frustrate the respondents from recovering the fruits of this judgment. As the well known maxim says, “Justice delayed is Justice denied”. There has to be an end to litigation and parties will not be allowed to trap or overreach the other. To borrow the words of Niki Tobi JSC “litigation is not the children’s game of hide and seek. It is not a game of smartness. It is not a game of artifice or cunning display of a smart conduct design to overreach or outsmart the adverse party. On the contrary, litigation is a decent, open and not deceitful process of making and defending claims in a court of law. The art and craft of even the most litigious person does not allow him to set a trap with a bait to lure the adverse party, as if he is a fish. That should be left to the fisherman or the keeper of an aquarium; not the courts” (emphasis mine). (see the case of H.R.H IGWE G. O. UMEANADU v ATTORNEY GENERAL OF ANAMBRA STATE & OTHER (NIGERIAN SUPREME COURT QUARTERLY LAW REPORTS, JUNE 2008 voL. 34 PART 2 @ page 7) 3
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IN THE HIGH COURT OF THE GAMBIA

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