(gambia) ltd

More documents

Recommendations

Info

defendant and make such order as to costs in favour of any defendantappearing as seems fit provided that if the defendant shall admit the causeof action to the full amount claimed, the court may, if it thinks fit, givejudgment as if the plaintiff had appeared.ORDER 34 RULE 3 Provides as follows“Subject to the provision of rule 5 of Order LII of this schedule, if the plaintiffappears and the defendant does not appear or sufficiently excuse hisabsence, or neglects to answer when duly called, the Court may, uponproof of service of the summons, proceed to hear the cause and givejudgment on the evidence adduced by the plaintiff or may postpone thehearing of the cause and direct notice of such post ponement to be given tothe defendant.ORDER 34 RULE 4 Provides as follows“Where the defendant to a cause which has been struck out under rule 2 ofthis Order, has a counter claim, the Court may, on due proof of service onthe plaintiff of notice thereof, proceed to hear the counter-claim and giveJudgment on the evidence adduced by the defendant, or may postpone thehearing of the counter-claim and direct notice of such postponement to begiven to the plaintiff.”From the above definitions of order 34 rules 2, 3 and 4 of the High CourtRules Schedule 2 Laws of the Gambia, it is clear to me that cause meansthe main suit. I say so because, it is only when the main suit filed by theplaintiff is determined, that the court will then consider the counter-claimfiled by the defendant. It therefore accords with the definition that a“Cause” includes “any action, suit or other original proceeding between aplaintiff and a defendant and any criminal proceeding by the Crown”.10
Counsel for the Applicant Mrs. A.N. Bensouda however contended that thisCourt had ruled in the case of SUNDIATA TRADING CO LTD VsSTANDARD CHARTERED BANK LTD that an Applicant can either filemotion to relist a motion or file a fresh motion. I have looked at theauthority cited by Counsel for the Respondent Mrs. A.N. Bensouda. I wantto say with respect that Justice E. Agim - PCA (as he then was) did notconsider the issue whether a motion can be filed to relist a motion, in thatcase. The learned Justice was only making a passing comment thatcannot be termed as authority. Besides the position of the law is that in therealm of conflict between PRECEDENTS. AND STATUTE, STATUTE LAWprevails over any gloss on it. In PIONEER AGGREGATES LTD VsENVIRONMENT SECRETARY (1985) 1 ac 132, 141 LORD SCARMANexpress the general rule that “If the statute law covers a situation, it will beimpermissible exercise of the Judicial function to go beyond the statutoryprovision by applying such principle because they may appear to achieve afairer solution to the problem being considered. In this case, since theprovisions of Order 34 of Schedule 2 Cap 6:02 Laws of The Gambia coversthe procedure for relistment, it prevails over any case law cited by Counsel,mostly in the case, cited by Counsel for the Appellant/Applicant, the issueof whether a motion can be filed to relist a motion was not determined bythe learned President of the Court of Appeal (as he then was).In the circumstances therefore the rules expect the Court to re-list a causethat has been struck out and in this case, no cause has been struck out.The motion that was struck out does not in my mind constitute a causeaccording to the definition envisioned by the rule.) I therefore hold that it isimproper to file motion to re-list a motion. Even though I hold that it isimproper to file a motion to re-list a motion: let me now go further for theavoidance of doubt to resolve the issue that governs relistment. Counselfor the Respondent Mr. C.E Mene argued that relistment is not automaticand that the principle governing relistment is the same as applicable to anapplication to set aside a Default Judgment. He cited the case of N.N.S.CVs ESTABLISHMENT SIMA VADUZ (1990) 7 N WLR PT 164 P.526 Ration11 and 12, WILLIAMS Vs HOPE RISING VOLUNTARY FUND SOCIETY11
Page 1 and 2: IN THE GAMBIA COURT OF APPEALCIVIL
Page 3 and 4: proceedings; she further submitted
Page 5 and 6: Counsel further submitted that the
Page 7 and 8: submitted that this court or any ot
Page 9: same point in the ruling in the cas
Page 13 and 14: was not called until around 11.30 a
Page 15 and 16: his application. Mr. Abdul Aziz Ben
Page 17 and 18: In this instant case, the parties a

(gambia) ltd

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?