By Yankuba Jallow
Justice Aminata Saho-Ceesay of the Banjul High Court has on the 10th May 2021 awarded cost of ten thousand dalasis against Justice S.M. Jallow of the Bundung High Court in his case versus one Samsudeen Phatey.
Phatey sued Justice Jallow before the Banjul High Court for alleged violation of his right to fair hearing.
Lawyer Lamin K. Mboge for Justice Jsallow raised preliminary objection to the suit arguing that there was non-compliance of the originating summons with Order 26 Rule 4 of the amended High Court Rules. Lawyer Mboge submitted that it is mandatory under Order 26 Rule 4 for a summons to be sealed in the office of the registrar of the High Court, which Mr Phatey failed to do. Mr Mboge contended that the summons before the court was signed and sealed by Counsel Malick Jallow for Mr Phatey, rearguing that the rules make it mandatory for the Registrar of the High Court to sign and seal such summons.
Another objection raised by Lawyer Mboge was that under Order 27 Rule 1 of the amended High Court Rules, Mr Phatey’s claims cannot commence by way of originating summons as it is neither a deed nor a will or a written instrument.
Senior Counsel Mboge submitted that originating summonses are appropriately used to initiate actions dealing with questions of construction of instruments. He added that the declaration of the rights of the interested party is and should be concerning those issues. Mboge posited that Phatey’s claim for the declaration on the conduct of Justice Jallow does not arise under Order 27 Rule 1 of the high court amended rules. Lawyer Mboge urged the court to strike out the matter with cost for incompetence.
Lawyer Malick H.B. Jallow, the Counsel Mr Phatey said the Registrar of the High Court approved the Originating Summons by appending her signature on the stamp on the back of the originating summons. Jallow went ahead to argue that Phatey is seeking enforcement of his fundamental rights under section 37 of the 1997 Constitution. He submitted that the Constitution makes provision for any person who alleges that any provisions of section 18 to 33 or section 36 (5) has been, is being or is likely to be contravened concerning himself or herself by any person to apply to the high court for redress.
Senior Counsel Jallow argued that Mr Phatey alleged the contravention to his right to fair hearing as espoused in section 24 of the 1997 Constitution which falls squarely under the fundamental rights and freedoms contemplated in the 1997 Constitution. Lawyer Jallow, who also lectures criminal and constitutional law at the University of The Gambia, placed reliance on the case of IEC versus NADD arguing that an application for a redress of an alleged violation of a person’s fundamental rights can be brought employing any of the originating processes of a writ of summons, originating summons and originating motion.
Justice Aminata Saho-Ceesay in her ruling on whether the Originating Summons is liable to be struck out for non-compliance with the Rules of Civil Procedure of the High Court, said Lawyer Mboge’s objection lacked merit.
The Judge adjudged that Order 27 Rule 1 of the High Court Rules relied on by Lawyer Mboge provides that a person claiming to be interested under a deed, will, or other written instruments may apply by Originating Summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.
“It does not, in my view, limit the commencement of actions by Originating Summons in the High Court to those species of claims. An applicant, in my opinion, can employ an originating summons as a means of commencing an action where there is unlikely to be any substantial dispute as to the facts of the case,” Justice Saho-Ceesay said.
She said it is not oblivious that the Rules of the High Court as cited by Lawyer Mboge provides in mandatory language for an Originating Summons to be sealed in the office of the Registrar of the High Court.
“However, I am conscious that the law has long ago moved away from adherence to technicalities to the detriment of determining the fundamental issues in controversy between the parties,” she said.
She held that the attack on the impugned process for its non-compliance with the rules of the court will amount to nothing, but adherence to technicalities if condoned.
“The absence of the seal and signature of the Registrar on the impugned process, in my opinion, is a mere procedural irregularity. A court should never interpret its rule of procedure to cause injustice or unfairly deny a litigant to pursue his claim,” she said.
She relied on the cases of Alhaji Momodou Jobe versus Abdoulie Dandeh and The State versus Abdoulie Conteh saying the courts should not place reliance on technicalities to the detriment of determining the fundamental issues in the controversy between the parties.
“Let me again state, at the expense of repetition and for perspicuity, that the courts’ attitude is that technicalities that do not go to the root of the matter should not stand in the way of justice. A procedural irregularity should not vitiate a suit once it can be shown that no party suffered a miscarriage of justice,” she said.
She relied on the Court of Appeal case of IEC versus NADD where it was held that “It is settled in law that an application for redress in respect of an alleged violation of a person’s fundamental rights can be brought by means of any of the originating processes of writ summons, originating summons and originating motion.”
She dismissed the preliminary objection for lack of merit and awarded cost of D10,000 in favour of Mr Phatey.
