GAMBIA LAW SCHOOL

CIVIL PROCEDURE
COURSE OUTLINE
INTRODUCTION
WHAT IS CIVIL PROCEDURE
Civil Procedure refers to the methods and practices in the conduct of
pre-trial, trial and determination of Civil Cases. It is simply the practice
and procedure of the Courts in Civil Cases.

WHAT IS A CIVIL CASE

A Civil Case is one involving the determination of the civil rights and
obligations of persons.

DISTINCTION BETWEEN CIVIL, CRIMINAL AND MISCELLANEOUS

CASES
While a civil case involves the determination of the civil rights and
obligations of persons, a criminal case concerns the trial and
determination of violations of penal or statutes. With the exception of
the breach of civil obligation to obey Court orders (civil contempt) breach
of civil obligations generally can be clarified in damages, declaratory and
injunctive reliefs. A breach of criminal law attracts penal sanction or
punishment.

For the purpose of case management, Judicial administrators have

developed other category of cases, namely miscellaneous cases. This
classification is not based on any clear cut identifying character from
experience, the only reason I can deduce is that such cases are so
categorised as miscellaneous because they are commenced by petition,
originating motions or summons and deal with pre-trial bail, matrimonial
causes, winding up of companies, etc.

Some judicial administrators include interlocutory application dealing

with issues arising in pending civil or criminal cases in the group of
miscellaneous cases. This particular practice has been severely
criticised and is therefore not prevalent because fit generates many case
members and files in one case and therefore creates confusion in the
management of a case and the difficulty of ascertaining and assessing
the exact record of the proceedings in a case.
Miscellaneous cases are a specie of civil cases in that they involve the
determination of the civil rights and obligations of persons. The Gambia
Court of Appeal in State v Darboe described them as quasi-civil in civil
nature. This case concerned an appeal against the decision of the High
Court granting pre-trial bail. The Court had to determine if the appeal is
criminal or civil. The court held that it is miscellaneous and quasi-civil in
nature and not a criminal appeal.

The distinction between civil and criminal cases has legal implications. It
determines what substantive and procedural principles should apply in
the treatment of a case. Substantive and procedural principles apply to
civil cases and basically different from those applicable in criminal
proceedings. For example
Under Order IV Rules 5 - 7 of the Rules of the High Court only
criminal cases can be heard by the High Court during legal
vacation. Civil cased can only be heard with leave of Court first
had and obtained upon it satisfaction by an affidavit urgency that
there is an urgent need to hear such case during vacation to avoid
irreparable injury.
The standard of proof in a civil case is on a balance of probabilities or
preponderance of evidence. But the standard of proof of a criminal
case is beyond reasonable doubt. See SS.143 and 144(1)
Evidence Act. As a result, the factual basis of the judgment in a
civil case is against the weight of evidence and in a criminal case
against the evidence.

CIVIL PROCEDURE AS ADJECTIVAL OR SUBSTANTIVE LAW

Substantives law consists of substantive principles of law like company
law, tort law, criminal law, family law, jurisprudence, etc. Adjective law
consist of rules of procedure of Court. These include rules of civil and
criminal procedure and evidence. It is however arguable if evidence law
is strictly procedural. It appears to exhibit features of substantive and
procedural law. The issue of the relevancy of evidence is an issue of
substantive law. But the issue of how relevant evidence is to be
admitted is one of procedure. Even the rules of practice and procedure
can also exhibit features of substantive law. As a way of getting things
done, it is procedural, but as a normative process it is substantive law.

The sources of Civil procedure in The Gambia

District Tribunal s Act Cap.6:03 Vol.2 Laws of The Gambia
2009.
District Tribunals Rules, Cap 6:03 vol.2 Laws of The Gambia
2009
Cadi Court rules 2010
Cadi Court (Banjul) Rules made pursuant to the Sharia Law
Recognition Act, Cap 6:04 Vol.2 Laws of The Gambia 2009
Cadi Appeals Panel Rules 2010
Subordinate Courts Civil proceedings Act Cap 8:02
Subordinate Court Civil Proceedings Rules Cap 8:02
Courts Act, Cap 6:01 Vol.2 Laws of The Gambia 2009
Rules of the High Court, Cap 6:01 Vol.2 Laws of The Gambia
2009
Rules of The High Court (Amendment) Rules 2009
Court of Appeal of The Gambia Act Cap 6:02 Vol.2 Laws of The
Gambia 2009
Court of Appeal of The Gambia Rules Cap 6:02 Vol.2 Laws of
The Gambia 2009
Supreme Court Act Cap 6:05 Vol.2 Laws of The Gambia 2009
Supreme Court Rules Cap 6:05 Vol.2 Laws of The Gambia
2009
The 1997 constitution of The Republic of The Gambia Vol.1
Laws of The Gambia 2009
Evidence Act Cap 6:06 Vol.2 Laws of The Gambia 2009
The Law of England (Application) Act Cap 5:01 Laws of The
Gambia 2009
Limitation Act Cap 8:01 Vol.III Laws of The Gambia 2009
State proceedings Act Cap 8:03 Laws of The Gambia 2009
Sheriffs and Civil Process Act Cap 9:01 Vol.3 Laws of The
Gambia 2009
Foreign Judgments Reciprocal Enforcement Act Cap 8:06 Vol.3
Laws of The Gambia 2009
 Reciprocal enforcement of Judgments Act Cap 8:05 Laws of
The Gambia 2009
Probates Act Cap 14:01 laws of The Gambia 2009
Intestate Estates Act Cap 14:02 Laws of The Gambia 2009.
Wills Act Cap 14:06 Laws of The Gambia 2009
Practice Directions
Case law on matters of Civil Procedure
Received English Law
English County Court Rules 1936
Rules made pursuant S.99 of the United Kingdom Supreme
Court of Judicature (consolidation) Act 1925
Rules made pursuant to S.10 of the United Kingdom
Administration of Justice (Miscellaneous Provisions) act
1938.
OTHER STATUTES - Eg.: Labour Act, Cap 16:01 Laws of The Gambia
2009, Companies Act Cap 94:01 Laws of The Gambia 2009, Childrens
Act Cap 45:01 Laws of The Gambia 2009, The matrimonial Causes Act
Cap 43:01 Laws of The Gambia 2009.
THE IMPORTANCE OF RULES OF PROCEDURE
This is clearly stated by the Supreme Court in Alhaji Momodou Jobe v
Alhaji Abdoulie Dandeh Njie in SC Civil Appeal No.2/2009 in its ruling
delivered on 29th June 2010 as follows -
"Generally, Rules of Courts constitute effective mechanisms
for judicial accountability. They ensure the integrity of processes
and the proper administration of justice. The certainty and
regularity of procedure assures transparency and the judicial
and judicious exercise of discretion. The Court has a duty to
follow these rules to avoid capriciousness and provide
assurance of the transparency of proceedings and due process
and above all preserve public confidence in the process.
However the Court is not bound to follow the rules like a robot.
In appropriate cases where it is glaring that injustice will result
from a strict application of the rules, the Court can depart from
the rules to do substantial justice. However, the circumstances
in which the Court decides to do so must be cogent and
 compelling. The decision to do so must be well reasoned and
the reasoning process must be shown clearly in the record of
the Court. The rules of procedure of a Court remain the only
veritable means of assessing the performance of the Court and
its staff at all stages of a case. It is a quality assurance
mechanism. Without the rules it will be difficult to hold judicial
officers and court staff accountable for their decisions, actions
or omissions. A court without rules is a kangaroo court, a
slippery slope and a treacherous environment riddled with grave
uncertainty. This is also the situation, where even though rules
exist, but the court refuses to follow them. It is therefore
important that the Supreme Court Rules are strictly complied
with and not treated with levity by parties to cases before this
Court. It is only this Court that can permit a departure from its
rules. A party cannot choose not to comply with the Rules of
this Court."
EFFECT OF BREACH OF RULES OF PROCEDURE.
Breach of Rules of procedure constitute an irregularity that can
vitiate or not vitiate a process. The general Judicial attitude is
that such irregularity should not be allowed to vitiate a process
unless where it has resulted in a miscarriage of justice or where
the breach if ignored will cause miscarriage of justice to the
adverse party. Where the irregularity will not prejudice the
adverse party it will be regarded as merely technical in nature
and not fundamental.
Where it will prejudice the other party, it will be regarded as
fundamental and will cause a nullity of the process. Example of
such nullifying irregularities include -
Breach of the rule as to notice to the other party. This will result
in a violation of the adverse party's right to fair hearing where
proceedings go on without notice to him or her.
Breach of rule as filing of an action is appeal within a certain
period. Anything done out of such period without leave of
Court is incompetent.
Breach of the rule as to pleadings.
WHEN TO OBJECT TO A BREACH OF THE RULES
An objection to non-compliance with the rules must be raised at
the first reasonable opportunity after becoming aware of the
 rules but before taking any fresh steps before the objection. A
party who has taken fresh steps after becoming aware of an
irregularity is precluded from challenging such irregularity
unless where the irregularity has caused him injustice. In
Antoine Banna vs Ocean View (2002-2008)1 GLR 98 the GCA
held 2 that -
"A party who consents to a wrong procedure cannot be heard
to complain subsequently of the procedure. Such a party will
be taken as having waived his right to complain about the
procedural irregularity unless he can show injustice resulting
from such irregular procedure. The appellant cannot on
appeal resile from a procedure he himself had adopted at the
trial stage.

Conteh 92002-2008)1 GLR 142 the GCA adopted the quoted

statement of the legendary Oputa, JSC in Bello v Agoyo State
(1995)5 NWLR 828 thus -

In state v Abdoulie "The picture of law and its technical rules

triumphant, and Justice prostrate may no doubt have its
judicial admorer. But the spirit of Justice does not reside in
forms and formalities, nor in technicalities, nor is the triumph
of the administration of justice to be found in successfully
picking ones way between the pitfalls of technicalities. Law
and all its technical rules are to be but a handmaid of justice,
and legal in flexibility (which may unbecoming of law) may it
strictly followed, only serve to render justice grotesque or
even lead to outright injustice. The Court will not ensure that
mere from or fiction of law introduced for the sake of justice
should work a wrong, contrary to the real truth and substance
of the case before it.

1. WHICH COURTS HAVE JURISDICTION TO ENTERTAIN

CIVIL CASES
District Tribunals
Cadi Courts
Magistrates Courts
Industrial Tribunals
Children Court
High Court
Election Revising Court
Court of Appeal
Supreme Court.

2. SUBJECT MATTER JURISDICTION

(a) Customary Law matters
(b) Islamic Personal Law matters
(c)All Civil cases
(d) Enforcement of Fundamental rights
(e) Judicial review
(f) Interpretation and enforcement of the provisions of the
constitution
(g) Questions concerning alleged violations of the Constitution
(h) Pre-election matters
(J) Election to offices in the Local Government
(k) Election to the Office of president or membership of the
National Assembly.
(l) The question whether the production of any official document or
the disclosure of its content is prejudicial to the security of the
State or injurious to public interest.
(m) private employment matters
(n) Child rights issues
(o) Appeals
3. VENUE
(a) District Tribunals
 (b) Cadi Courts
(c) Magisterial dist4ricts
(d) Judicial Divisions of the High Court
(f) Effect of commencing a suit in the wrong venue
(a) District Tribunals
(b) Cadi Courts
(c) Magisterial Districts
(d) Judicial Divisions

C. PARTIES TO A CIVIL SUIT

1. TYPES OF PARTIES
Plaintiff
Petitioner
Applicant
Defendant
Respondent
2. Legal Capacity to be a party
Natural and Juristic persons
Non-corporate statutory bodies
Firms or partnerships
Trade unions
Incorporated non-statutory bodies, associations, clubs, members etc
Government
Locus standi

3. Representative parties
Plaintiff
 Defendant
Requirements to be a representative party
Representative actions
Representation of a Community or part thereof
Representation of infants and persons of weak or unsound mind and
insane persons.
Next friend or guardian ad litems
Attorney.

4. Non-Joinder and Misjoinder of parties

Joinder of Plaintiffs
Joinder of Defendants
5. Alteration of parties
6. Third party proceedings
D. CAUSES OF ACTION
Meaning
When it accrues
Cause of action distinguished from right of action
Limitation of action and cause of action

E. FORMS OF COMMENCEMENT OF ACTIONS

F. INTERLOCUTORY APPLICATIONS
G. PLEADINGS
H. UNDEFENDED LIST ACTIONS
L. PROCEEDINGS UNDER THE RULES OF THE HIGH COURT
(AMENDMENT) RULES 2010
M. JUDGMENT
N. ENFORCEMENT OF JUDGMENT
O. APPEALS
P. JUDICIAL REVIEW
Q. MATRIMONIAL CAUSES
R. ELECTION PETITION
S. WINDING UP PETITIONS
T. PROBATE PRACTICE

ORIGINATING PROCESSES
HIGH COURT
FORM AND COMMENCEMENT OF ACTION
Civil proceedings in the High Court can be commenced by any of the
following originating processes

Writ of summons
Originating summons
Originating motion
Petition

The writ of summons is the most commonly used of all these processes.
This is encouraged by Order 1 Rule 1 Schedule 2 of HCR which states
that "every suit shall be commenced by a writ of summons. Other
processes are resorted to where the Rules or a Statute prescribe one or
more of them as a mode of starting certain type of actions. Where the
use of a particular process is specified for commencing certain type of
actions, that process must be used. The particular procedure prescribed
for commencing an action must be followed.

EFFECT OF FAILURE TO USE THE PRESCRIBED ORIGINATING

PROCESS TO COMMENCE AN ACTION
Judicial opinion here is divided as follows -
It vitiates the process and nullifies any proceedings founded on it. It
will rob the court of jurisdiction to entertain the matter as the same
will be considered not to have been initiated in accordance with the
due process of law. This was the view held by Roche Ag. JCA (in
her dissenting opinion) in I.E.C. v NADD (2002 - 2008)1 GLR 254
at 289 - 307. The action here was commenced by a process titled
"Summons" supported by an affidavit. The Learned Justice of
Appeal held that it should have been commenced by writ of
 summons or originating summons as prescribed by the Rules.
See the Nigerian cases of Kosoap v Kofo Trading Co (1996)2
SCNJ 325 at 334 and Lahan v A-G (West) (1963)1 All NLR 219
at 224.
The dominating and popular view that is now regarded as
authoritative is that it will not vitiate the process and proceedings
and will be treated as a mere irregularity. This was the majority
decision in I.E.C. v NADD (supra) at 268 - 269. See also Re Sir
Lindsay Parkiston & Co Ltd v Trusts Deed (1965)1 All ER 609.
Where proceedings which should have been commenced by writ
of summons is rather commenced by originating summons, some
courts have treated the originating summons as if it were a writ of
summons and the affidavit in support of the originating summon as
a statement of claim. In Re Deadman (1971)2 All ER 101 it was
held that if in the course of proceedings commenced by originating
summons, evidence of fraud emerges, it will not be necessary to
start a fresh action, rather the existing proceedings should
continue as if begun by writ of summons.

In Saho v IGP & Ors (1997-2001)36 the GCA held that a Court of
equity would not allow an action to be dismissed merely because
of defect in the form in which it was presented, equity would be
satisfied, if having regard to its substance, the action could sustain
a remedy ordinarily obtainable in the Courts.

WHERE NO PARTICULAR MODE OF COMMENCEMENT IS

PRESCRIBED
Where no mode of commencement is prescribed by the rules or
statute any of the originating processes can be used. The mode
for application for enforcement of a person's fundamental right
under S.37 of the Constitution is not stated by the constitution,
rules or other statute. The GCA in IEC v NADD (supra) at p.287
held that -
"It is settled in our law that an application for
redress in respect of an alleged violation of a
person's fundamental right can be brought by
means of any of the originating processes of writ of
summons, originating summons and originating
motion. Whichever method one adopts must not
only be appropriate for the purposes of the issues to
be determined, but must also comply with the
procedure for commencing actions by that method."
NATURE OF ORIGINATING PROCESSES
All originating processes command the appearance of the party
sued to answer to the claims stated therein within a specified time
and that in default of so doing, the case may proceed and
judgment may be given in the absence of such defendant or
respondent as the case may be. They are originating because
they commence an action. Although named differently, they are
the same in substance. It is therefore unnecessary to define them
differently. They are all court processes commanding the
appearance or attendance of a defendant or respondent to answer
to a claim by the plaintiff or petitioner against him or her within a
certain time. The difference between them is in the content, form
and the type of actions they are used.

WHAT EACH CAN BE USED FOR

WRIT OF SUMMONS
It can be used to commence every suit. Order 11 Rule 1(1)
Schedule II provides that "every suit shall be commenced by a
writ of summons". However, it is often used where the facts are
likely to be or are in dispute. In Re Sir Lindsay Parkinson &
Co Ltd v Trusts Deed (supra) it was held that claims of a
contentious nature by beneficiaries against trustees charging
breach of trust or default in performance of their duties, while
properly constituted if commenced either by writ or originating
summons, should normally be commenced by writ. Here,
whether there has been breach of trust or default in
performance of their duties by the trustees involves the
construction of the trust deed but since the claims are
contentious, the appropriate originating process is the writ of
summons.

In Green Lane, Ilford, Gooding v Borland (1971)1 All ER 315

it was held that proceedings should be commenced by writ of
summons if the plaintiffs claim is based on allegation of fraud
and he has to give particulars.

Proceedings commenced by writ of summons will require filing

of pleadings and calling of witnesses, except for matters by writ
of summons heard and determined as an undefended list
action.

ORIGINATING SUMMONS
Order XXVII Rules 1 Schedule II HCR provided that in the High
 Court a person claiming to be interested under a deed, will, or
other written instrument, 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.

So originating summons is the appropriate process to use

where the sole or principal question at issue is, or is likely to be,
one of the construction of a written law or of any instrument
made under any written law, or of any deed, will contract or
other document or some other question of law.

In practice, it is the recommended process where there is

unlikely to be any substantial dispute of fact.

PETITION
This originating process is only used where a statute or rule of
Court prescribe that it be used. Examples are:-
Order L Rule 3 RHC provide that every matrimonial cause shall
be commenced by filing a petition addressed to the Court.
S216(1) of the Companies Act Cap.94:01 Vol.15. Laws of The
Gambia 2009 provide that an application for the winding up
of a company shall be by petition.
Petitions are the only method of commencing election
litigations. S.97 of the Election Act Cap 3:01 Vol.I Laws of
the Gambia 2009 provide that an election and a return to an
elective office shall not be questioned in any proceedings
except by an election petition presented in accordance with
this part.

A petition unlike the writ of summons, originating summons and

motion, is both the originating process and the pleading on the
basis of which the trial of the petition proceeds. In suits
commenced by writ of summons, the writ constitute the originating
process while trial and evidence is based on pleadings, statement
of claim, statement of defence, etc. In suits commenced by
originating motion and originating summons, the motion or
summons is the originating summons but the trial is based on the
affidavits in support of the summons or motion.

ORIGINATING MOTION
It is a motion that commences the suit. It is often used only in -
Commencing actions for enforcing fundamental rights under
 S.38 of the Constitution.
Commencing judicial review proceedings.

FORM AND CONTENT

A WRIT OF SUMMONS
Order 11 Rule 2(1) Schedule II RHC provide that a writ of summons
shall contain -
The name and place of abode of the plaintiff and of the defendant.
It shall state briefly and clearly the subject matter of the claim and the
relief sought for.
The return date and place of hearing.
Order II Rule 3 Schedule II RHC require that every writ of summons
shall bear the date of the day on which it is issued.
Order II Rule 2(2) Schedule II RHC provide that in civil proceedings
against the state in civil proceedings against the State, it shall
be sufficient to state the defendant to be the Attorney-General
and his or her place of abode to be the Attorney-General's
Chambers, Banjul and the writ shall be accompanied by
particulars of the claim which shall comply with Order V of this
Schedule.
The Rules of the High Court prescribe standard form for writ of
summons. It is in form 19 of the third Schedule to the Rules as
follows -
"FORM 19
Writ of Summons
(General List)
In the High Court of The Gambia.
Suit No…………….
Between:……………………………Plaintiff.
And
………………………………………Defendant
To:…………………….of ………………………….
You are hereby commanded in the name of the
Republic to attend this Court at ………. On the ….. day of
………………. 20 ………. At …………………….. o'clock in
the forenoon to answer a suit by
…………………………………………. of ……………………
against you.
Within ……….. days from the date of service on you of this
Writ, you are required to file your defence, if any, to the
claim, or submit to judgment.
The Plaintiff's claim………………………..
Issued at …………… the ………………… day of
 ……………….. 20……
Court fees ……………………….

(Signed)…………………………………….
Judge
Take notice that if you fail to attend at the hearing of this suit
or at any continuation or adjournment thereof, the Court may
allow the plaintiffs to proceed to judgment and execution.
If you have to counterclaim or set-off against the plaintiff you
must lodge with the Registrar, FOUR CLEAR DAYS before
the Return Day, a notice in original with as many copies
thereof as there are plaintiffs, containing your name and
address and a concise statement of the grounds of such
counterclaim and se-off and pay such Court and service fees
as may be payable in respect thereof.
If you fail to file your defence within ……… days of service
on you to this Writ and Statement of Claim, the Court may
allow the plaintiff to proceed to judgment and execution.
Upon the ………….. day of …………… 20…….., this
summons was served by me on …………………………
defendant. this I did by serving
CERTIFICATE OF SERVICE BY BAILIFF
A copy of the above summons (and the particulars of claim)
on the said defendant personally at
…………………………….

(Signed)…………………………………….
Bailiff or Officer of the High
Court

EFFECT OF FAILURE TO COMPLY WITH ORDER II RULES 2 AND 3

OF THE RULES OF THE HIGH COURT
Name and address of parties
Failure to stat the address of the defendant will make the service of the
writ on the defendant impossible or suspect. So that if the defendant
enters a conditional appearance or contending that he was not served,
the objection is likely to succeed in the circumstance.

Stating the name and address of the plaintiff gives the defendant, upon
being served the notice of who filed the suit and the address of such
person. The plaintiff's address is what the processes will be served on
him or if the writ is prepared by a legal practitioner on behalf of the
plaintiff, the name and address of the legal practitioner must be indorsed
on the writ. This is in addition to the name and address of the plaintiff.
Although this is not expressly stated by the rules. But this is implicit in
the provisions of Order II Rule 2(1) Schedule II which requires the name
and address of the plaintiff. The legal practitioner is agent of the plaintiff.
Processes not required to be served personally on the plaintiff can be
served on his or her legal practitioner. The omission to state the name
and address of the legal practitioner is not an irregularity since it is not
expressly required by the rules. It does not affect the writ. Failure to
state the plaintiffs address is an irregularity as to form and will not affect
the validity of the writ. See the Nigerian cases of Threson & Co Ltd v
Obioha (1967)LLR 14 and Akida v Fasehun & ors (1967) NMLR 61
Failure to state the names of the parties on the writ will vitiate the
process and rob the court of jurisdiction to entertain it as an action
cannot be constituted without parties.

Failure to state the address of the parties will not vitiate the process but
will prevent same from being administratively processed and served.
Proceedings cannot go on until the writ is served on the defendant and
only the processes filed by the defendant are served. To proceed
without serving the other party will violate that party's right to notice and
fair hearing and render the proceedings a nullity.

Subject-matter of the claim and relief sought for

This is very important and fundamental requirement. This enables the
defendant to know why he or she is sued and what is claimed against
him. For this purpose there must be sufficient particulars. But lack of
such particulars does not render the writ a nullity. Se the English case
of Pantin v Wood (1962)1 QB 594. As held in Hill v Borough of Luton
(1951)2 KB 387 such defect is curable either by amendment or
subsequent filing of a statement of claim. The endorsement of the claim
and relief on the writ merely informs the defendant in general terms of
the nature of the action and the reliefs. It is the statement of claim that
contains the full details of the claim. The statement of claim overrides or
supercedes the writ.

Just as an amendment of the writ cannot introduce a new cause of

action, the statement of claim cannot introduce a new cause of action or
one different from that on the writ. See Sherman v E.W. and W.J.
Moore (1970)2 WLR 386.

Date of Issue of the Writ

Although it appears to be a formal requirement it is a very important one.
Failure to state it can have the following implications -
It will make it impossible to reckon the commencement of the one year
period within which a writ must be served to remain alive as required by
Oder II Rule 5 Schedule II RHC.

It will make it difficult to reckon if the action was commenced within the
time prescribed by a statute of limitation.
The failure to state the date of issue can be cured by the endorsement of
the process clerk or account office as to the date of payment of the filing
fees and the date of filing of the writ of summons.

ORIGINATING SUMMONS
Order XXVI Rule 4 Schedule II RHC provide that "an originating
summons shall be in form 27, 28, 30 or 31 set out in the third schedule
to these Rules with such variations as circumstances may require."
The forms are reproduced hereunder as follows -

Form 27
General Form of Originating Summons
In the High Court of The Gambia.
Between: …………………………………………. A.B., Plaintiff.
And
……………………………………………………C.D.,
Defendant
Let ………………… of ………………… within eight days after
service of this summons on him (her), inclusive of the day of
service, cause an appearance to be entered for him (her0 to
this summons, which is issued on the application of
……………................... of …………………. who claims to be
9here state the nature of the claim) ……………………. for
the determination of the following questions:-
Dated the …………………. day of ………………………..
20…………..
This summons was taken out by
………………………………………, legal practitioner for the
above-named…………………………………….
The defendant may appear hereto by entering appearance
either personally or by legal practitioner at the office of the
Registrar of the High Court.

(Signed)………………………………
Registrar of the High
Court
Form 28
Originating Summons not Inter parties
………………………
20………
In the High Court of The Gambia.
In the matter of the Will of A.B. ……………….(or as the case
may be).
Let …………………………of………………..within eight days
after service of this summons on him (her), inclusive of the
day of service, cause an appearance to be entered for him
(her) to this summons, which is issued on the application of
…………………….of …………….for an order that (state the
object of the application).
Dated the ………………….day
of…………………………20……………..
This summons was taken out by
…………………………………., legal practitioner for the
above-named …………………………………………...
The respondents may appear hereto by entering appearance
either personally or by legal practitioner at the office of the
Registrar of the High Court.
Note:….. If the respondent does not enter appearance within
the time and at the place above-mentioned, such order will
be made and proceedings taken as the Judge may think just
and expedient.

Form 29
Notice of Appointment to Hear Originating Summons
In the High Court of The Gambia
Between…………………………………………………..Plaintiff,
And
……………………………………………………………Defenda
nt
To (insert the name of defendant or respondent). Take notice
that you are required to attend the Judge in chambers at the
…………………on……………….. day of
………………………. 20……… at ……. O'clock in the
…………. noon, for the hearing of the originating summons
issued herein on the …………. day of ………….., 20…….
and that if you do not attend in person or by legal practitioner
at the time and place mentioned, such order will be made
and proceedings taken as the Judge may think just and
 expedient.

(Signed)………………………………………
Legal Practitioner for the
Plaintiff
(or Applicant)
Form 30
In the High Court of The Gambia.
In the matter of A.B., a legal practitioner.
Let A.B. of …………………………. attend (at the chambers
of the Judge, at the time specified in the margin hereof), on
the ……………day of
………………….20………at………………o'clock in the
…………….noon, on the hearing of an application on the part
of ……………………………….(State relief sought).
Note: … It will not be necessary for you to enter an
appearance in the office of the Registrar of the High Court,
but if you do not attend either in person or by your legal
practitioner at the time and place above mentioned (or at the
time mentioned in the endorsement hereon), such order will
be made and proceedings taken as the Judge may think just
and expedient.

Form 31
Form of Ex Parte Originating Summons
………………………………………. 20………….. B.
No…………………..
In the High Court of The Gambia.
In the matter of A.B., an infant (or, as may be).
Let all parties concerned attend at the chambers of the
Judge at the time specified in the margin hereof, on the
hearing of an application on the part of the above named
A.B., an infant, by C.D. his (her) next friend, that, etc.
This summons was taken out by
…………….of……………………legal
practitioner for the applicant

Any of these can be used.

Order L Rule 2(1) Schedule II to the RHC provide that "
"
Form 90 is reproduced here as follows -
"An application for leave to present a petition for
divorce before two years have passed since the date
 of the marriage shall be by originating summons in
accordance with Form 90 set out in the Third
Schedule to these Rules."
The RHC do not expressly state what an originating summons
should contain. This is however implicit in the provisions of
Order XXVII Rule I and the forms above.
An originating summons should contain -
The nature of the claim
The questions to be determined
The reliefs) sought
The names of the parties and their addresses
The name and address of the plaintiff's legal practitioner if it is
taken out by a legal practitioner on his behalf
The date of hearing or return ate
Date of issue
Order XXVI Rule 13 Schedule II RHC provide that in every
cause or matter where any party thereto makes any application
in chambers, either by way of summons or otherwise, he or she
shall be at liberty to include in one and the same application all
matters on which he or she then desires the order or directions
of the Judge and on the hearing of the application it shall be
lawful for the Judge to make any order and give any directions
relative to, or consequential on, the matter of the application as
may be just; any such application may, if the Judge thinks fit, be
adjourned from chambers into Court, or from Court into
chambers.
This provision cannot apply to originating summons except ex-
parte originating summons.
The use of the general forms for summons in form 32 of the
third schedule to the RHC to commence an action instead of by
originating summons as required by law has been held to be an
irregularity that may or may not vitiate the action. See IEC v
NADD (supra)

C. PETITION
Order L Rule 4 prescribes the form and content of a matrimonial petition.
The form and content of petitions generally are the same. Save that the
particulars may differ according to the subject matter.

D. ORIGINATING MOTION
This is not expressly prescribed in the Rules. However it takes the
general form of notice of motion in Form 26 in the Third Schedule to
RHC as reproduced hereunder -
"FORM 26
Notice of Motion
In the High Court of The Gambia.
Suit No:…………………………. ,
20………
Between: ………………………………………………………………..
Plaintiff
And
…………………………………………………………………………..Defend
ant.
Take notice that the Court will be moved on ……….day, the
………………..day of ……………………….., 20……. at …………o'clock
in the forenoon, or so soon thereafter as counsel can be heard, by
………………….that ……………………….
Dated the ……………………….day of …………………………,
20…………………
(Signed) ……………………………..of
…………………………
To ……………………………………Legal Practitioner for the
………………………….."
It must contain the following -
The name and addresses of the parties
The reliefs prayed for
Date of hearing
The date of issue
The name and address of the legal practitioner for the plaintiff if taken
out by a legal practitioner.

THE REQUIREMENT TO USE COURT FORMS

The position is clearly stated by the GCA in FIB Ltd V Gambia
Shipping Agency Ltd (No.2) (2002- 2008) 2 GLR 380 held 13 and 14
as follows -
"(13) The forms in the third Schedule of the Rules are not
sacrosanct. Order II Rule 4 of the first schedule to the Rules
state that the forms may be used in all matters, causes and
proceedings to which they are applicable with such variations
as circumstances require. The forms must therefore be used
with such adaption and variations as will bring them into
conformity with the provisions of the Rules in the First and
Second schedules.

"(14) This is because in the event of a conflict between any of

 the forms and the provision of the Rules, the latter will prevail.
The forms are made pursuant to the Rules and are meant to
give effect to the Rules. The forms are subsidiary to the
Rules."

Order 1 Rule 4 of the 1st Schedule of the RHC provide that the forms in
the 3rd Schedule to the rules or forms to the like effect, may be used in
all matters, causes and proceedings to which they are applicable with
such variations as circumstances require.
S.17 Interpretation Act Cap. 4:01 Vol.1 Laws of the Gambia 2009 permit
deviation from forms prescribed in a law. It states that "except as is
otherwise expressly provided, whenever any from is prescribed, an
instrument or document which purports to be in the form shall not
be void by reason of any deviation therefrom which does not affect
the substance of the instrument or document, or which is not
calculated to mislead."

COMMENCEMENT OF ACTION BY WRIT OF SUMMONS

The procedure for commencing a suit by writ of summons is as
prescribed in Rule 3(1) of the High Court (Amendment) Rules 2009 as
follows -
(a) in Order II, rule 1, by substituting for sub-rule (1) the following
new sub-rule -
"(1) Except for suits to be heard on the undefended list, a
civil suit commenced by a writ of summons shall be
accompanied by -
A statement of claim which complies with Order XXIII;
Affidavits of statements or testimonies of persons the
plaintiff intends to call to testify during the trial; and
All the documents the plaintiff relies on or intends to rely
on in the trial of the suit."

Order 2 Rule 9 2nd Schedule RHC provide that where the claim is for a
debt or liquidated sum and it is intended that the action be heard on the
undefended list, order 2 Rule 1 Schedule 2 Rules of High Court require
that the action will be commenced by a writ of summons and a
supporting affidavit. See Gamstar Insurance Co. Ltd v Musa Joof
(2002-2008)1 GLR 3 held 6.

MUST A WRIT OF SUMMONS BE SIGNED BY A JUDGE OR OTHER

OFFICER OF COURT TO VAIDLY COMMENCE THE SUIT?
According to the GCA in FIB Ltd V Gambia Shipping Agency Ltd
(No.2) supra held 10 and 12 a suit is validly commenced once a writ of
summons is filed by a party. There is no need for the writ of summons
to be signed or issued by any judge or other officer of court. There is
nothing in the rules of the High Court requiring that a writ of summons
must be signed by the Chief Justice or any other Judge as a requirement
for the valid commencement of any civil proceedings. The same Court
had held in I.E.C. v NADD (supra) that a writ of summons need not be
signed by a Judge or Registrar of Court.

COMMENCEMENT OF ACTION BY ORIGINATING SUMMON

The procedure for commencing action by originating summons is
prescribed in Order XXVII Rules 1 and 3 2nd Schedule RHC. It is by
filing an originating summons supported by an affidavit. Although Rule 3
provides that the originating summons shall be supported by such
evidence as the court may require, the usual practice for the applicant to
accompany the summons with an affidavit without waiting for the
direction of the court as to what evidence it requires to support the
summons.

MUST AN ORIGINATING SUMMONS BE SIGNED BY A JUDGE OR

OTHER OFFICER OF COURT TO BE VALIDLY ISSUED?
The answer to this question is to be found in Order XXVI Rule 4 which
provides for the form and issue of originating summons as follows -
"An originating summons shall be inform 27, 28, 30 or 31
set out in the Third Schedule to these Rules with such
variations as circumstances may require. It shall be
prepared by the applicant or his or her legal practitioner
and shall be sealed in the office of the Registrar of the
High Court and when and when so sealed shall be
deemed to be issued. The person obtaining the summons
shall leave at the office of the Registrar of the high Court a
copy thereof which shall be filed and stamped in the
manner required by law."

There is nothing in this provision requiring that an originating summons

be signed by a Judge or other officer of court before it can be validly
issued.
The provision for signature of the Registrar of the High Court in form 27
(the general form of originating summons0 give an impression that it
must be signed by the registrar of the High Court. To the extent that if
so provides, the form conflicts with the above provision of order XXVI
Rule 4. As held by the GCA in FIB Ltd V Gambia Shipping ltd (No.2) in
similar circumstances, the provisions of the rules prevail over the forms.
The marginal notes to order XXVI Rule 4 indicate the originating forms
that can be used as forms 27, 28, 30 and 31. Only form 27 makes
provision for signature of registrar of the High Court. The other forms do
not provide for the signature of any officer of Court. This shows clearly
that such a signature is not required for the originating summons to be
validly issued.
Even Form 90, the originating summons for commencing a matrimonial
cause has no provision for such signature.

A similar question was determined by the GCA concerning Form 32 in

IEC V NADD supra at 288 where the Court held that -
"There is no provision in the Rules of the High Court
requiring that a summons must be signed by the Registrar
or a Judge before it can be considered to be issued. The
form 32 used for commencing this action did not provide
any place for signature. The procedure for issuing a
summons is prescribed in Order XXVI Rule 15 as follows
In all cases of applications originating in chambers, a
summons shall be prepared by the applicant or his legal
practitioner, and shall be sealed in the office of the
Registrar of the Supreme Court, and when so sealed shall
be deemed to be issued. The person obtaining a
summons shall leave at the office of the Registrar of the
Supreme Court, as the case may be, a copy thereof, which
shall be filed, and stamped in the manner required by
law."

This rule did not require that the summons must be signed by the
Registrar or Judge. It provides that a summons shall be issued
when it is sealed in the office of the Registrar of the High Court.
On the face of the summons there is a stamped form showing the
date the summons was received by the High Court, the fee paid
and the receipt number of the receipt acknowledging payment.
There is even a signature by the form. All these go to show that
the respondents did all that was required of them to qualify their
summons for processing. I agree with the Learned trial Judge
when she said that the acceptance of the summons by the
Registrar who issued it renders it regular. Granting that there was
an irregularity, I do not think that it was waived by the appellants
by the fact that they filed a process in objection to the irregularity."

COMMENCEMENT OF ACTION BY PETITION

MATRIMONIAL CAUSES
This is provided for by Order 4 Rule 3. It is by simply filing a
 petition signed by the petitioner or his or her counsel as required
by Order L Rule 4(5).

COMMENCEMENT OF ACTION BY MOTION

It is simply by filing the originating motion signed by the applicant or his
or her counsel and accompanied by an affidavit containing facts
supporting the prayers on the motion. Judicial review proceedings are
commenced by filing an exparte motion, or exparte summons or exparte
originating summons for leave to apply for judicial review. It is when the
leave is granted that an originating motion or summons is filed applying
for judicial review.

THE REQUIREMENT OF FILING

A civil is commenced only upon the filing of the originating process. A
party desiring to file a process, must do the following -
Produce copies of the process in numbers enough to serve all the
parties to case and provide the court with copies in the case file.
Present all the copies of the process for filing to the Registrar of the
Court.
Pay the fees assessed by the Registrar as fees for the filing of the
process. The fees are prescribed in the 4th Schedule to RHC and
Order 1 Rule 6 of the 1st Schedule RHC provide these fees shall
be paid by the party filing the process. Unless filing fees are
assessed and paid for, the purported filing or processing of a
process is invalid. In the Nigerian case of Onwugbufor v Okoye
(1996)1 SCNJ. Prima facie proof of the payment of filing fees, the
court registry's endorsement at the back of the process of the
amount paid and the date of payment. The absence of such
endorsement can justify or ground an objection that the document
had not been filed in that filing fees had not been paid. However
the objection will fail upon production of the document
acknowledging (receipt of the registry). So it is important that a
party filing a process ensures that the fact of payment and the
number of the receipt issued to him or her is endorsed at the back
of the process by the process clerk to avoid the waste of time and
delay that can be caused by objections that can result from the
lack of such endorsements.

Order VI Rule 6 RHC provide that a document shall not be filed

unless it has endorsed on it the name and number of the cause,
the date of filing and whether filed by plaintiff or defendant and on
being filed such endorsement shall be initialled by the Registrar of
the High Court. In the absence of such endorsement, the GCA in
 State v Darboe (unreported ruling in Crim. Appeal No.1/2000.

ENDORSEMENT AS TO PARTIES ON THE ORIGINATING PROCESS

The names of the parties to a suit must be stated on the originating
process. How this should be done is prescribed in Order III and Order
VII Rule 2 2nd Schedule RHC.

When to state more than one person as plaintiff

Order III Rule 2 2nd Sch. RCH provide that where a person has
jointly with other persons a ground for instituting a suit, all those
other persons ought ordinarily be made parties to the suit.

When to state more than one person as defendant

Order III Rule 4(1) 2nd Sch. RHC provide that " "
Sub-rule (2) therein provide that where a defendant claims
contribution, indemnity, or other remedy or relief against any other
person he or she may apply to have such person made a third
party to the suit.

Representative Capacity
Order III Rule 3 2nd Sch. To RHC provide that where more persons
than one have the same interest in one suit, one or more of such
persons may be authorised to sue or to defend in such suit for the
benefit of or on behalf of all parties so interested.
Order III Rule 1 2nd Sch. RHC require that if the plaintiff sues or
any defendant is sued in any representative capacity, it shall be so
expressed on the writ. Example of how this representative
capacity is usually expressed as follows -
Musa Sambou
……………………………………………………….Plaintiff
(for himself and on behalf of the Colley Family of Fatato) or

Defendant

CONDITIONS TO BE SATISFIED FOR A PARTY TO SUE OR

DEFEND IN A REPRESENTATIVE CAPACITY.
All the persons must have the same interest in the subject matter of
the suit. See Order III Rule 3 2nd Sch. RHC. The named
representative and those represented must have the same
interest. This is the most important requirement for an action to be
brought in a representative capacity. In Marks & Co Ltd v Knight
S.S. Co ltd (1910)2 KB 1021 The plaintiffs sued in a
representative capacity on behalf of themselves and other persons
including firms and companies claiming damages for loss of
cargoes in a ship. Each of those represented and of the plaintiffs
own distinct and different cargo and sought to establish his right to
damages for the loss of the cargo. It was held that a
representatives action could not lie because none of the owners
sought to be represented had any interest in the damages to be
recovered by any of the plaintiffs seeking to represent him. This
was a case where all the owners could have joined as plaintiffs.

Mere similarity of circumstances or the mere fact that the persons

were affected by the same event does not necessarily result in
them having a common interest. In Oregbade v Chief Onitiju
(1962)1 ALL NLR 32 The plaintiff brought the proceedings on his
own behalf and on behalf of a certain community claiming an area
of land as communal property. The evidence adduced by the
plaintiff, however, showed that he and the others represented by
him claimed to have each an individual farm of his within the area
in dispute. This meant that the said community could not have
owned the whole area as communal land. Accordingly the plaintiff
and the community could not be said to have the same interest
and the former could not sue on behalf of the latter.

The plaintiffs in Adeiran v Interland Transport Nig. Ltd were held

to have wrongly brought a representative action for injuries arising
from nuisance created by the defendants transport company. The
company operated in the neighbourhood of the plaintiffs who
undoubtedly suffered damages caused by the nuisance. But then
the nature and extent of their damages varied from one plaintiff to
another represented and unrepresented. It was held that in the
circumstance each plaintiff suffered a separate and distinct tort
actionable at his instance. A representative action was thus
improper. There was only similarity in the acts of the defendants in
creating the nuisance in the area that affected all the complainants
but their grievances were different and varied.
In Ayinde and Others v Akanji and Others, a representative
action by some plaintiffs for trespass and injunction alleged to
have been committed on their separate holdings was held to be
improperly constituted as damages suffered by each plaintiff as
well as each of those represented must be different.

On the other hand, in Prince v Rhondda urban council, one female

married teacher working under the defendant Council was held to
be entitled to sue on behalf of herself and all other female married
 teachers of the Council in an action challenging the validity of a
resolution of the Council affecting the terms of employment of the
teachers. Each of the female married teachers including the
plaintiff obviously had the same interest in the validity or otherwise
of the resolution.

In the case of communal or family land, all the members of the

community have common or the same interest in the land a
representative action is proper. It is in regard to suits affecting
such lands that representative actions are mostly taken. In Imam
Llawani Lediju v Diani Odulaja, the plaintiff, an Imam, brought an
action for damages for trespass in the yard of a mosque on behalf
of himself and the congregation who used that yard for their
worship. The case against the defendant was that he broke down
the fence of the yard and was then using it as a dumping ground
for refuse and rubbish. It was held that the case was a proper one
for one person to sue on behalf of others as all the worshippers of
the congregation had a beneficial and proprietary right in the yard
and it would be practically impossible for them to sue as
individuals. Also, a representative action was instituted by some
members of a chieftaincy family as plaintiffs in Adefulu v Oyesile.
It was the turn of the family to nominate a candidate out of their
members and have him appointed to a particular chieftaincy office.
The candidate ultimately appointed to office was not from that
family and the procedure laid down for such exercise was not
followed in that case. It was held that the members of the
chieftaincy family had a common interest to see that a candidate
nominated by them became the holder of the office this making the
representative action a competent one.
The person who have the said same interest must have authorised
one or more of them sue or defend on their behalf. See Order III
Rule 3 2nd Sch. RHC. The authority can be express or implied.
The express authority is usually in writing. As held in (Mam
Lawani Lediju v Daina Odulaja (1943)17 NLR 15) the express
authority can be oral. However it is better for it to be in writing so
as to put it beyond dispute.

The authority can be implied from the circumstances of the case.

The family head (kabiloteo) has the implied authority to sue or be
sued as a representative of the family in respect of family land.
According to the West African Court of Appeal in Mahmudu v
Zenuah 91934)2 WACA 172, the authority of Chief to bring or
defend an action in respect of communal land is inherent in his
 position as the manager of the land, so that no specific
authorization by the members is required to be proved.

LEGAL INCIDENCE OF REPRESENTATIVE CAPACITY OF PARTIES.

The parties to the suit include the persons named on the originating
process as representing others and the unnamed persons being
represented. See the Nigerian case of Oketie v Olughor (1995)5
SCNJ 217 at 226
The unnamed parties are deemed to be present at the trial of the suit
through the named parties representing them and are bound by
any decision the court renders for or against them in the suit. See
the Nigerian case of Tebi Opebiyi v Shitta Osibanjo & Anor
(1975)9-12 SC 195 at 200 and the English case of Commissioner
of Sewers v Gallatty and Medicine Hat Land Co Ltd (1876)3 CH
610 at 615.
Where judgment is entered against a defendant in a representative
capacity, the judgment may be enforced outright against the
named defendant. But leave of court is required to enforce the
judgment against the unnamed parties. See Enabirhre & Anor v
Atamabo (1967) NMLR 253.
If all the named parties die, the action, provided it is still maintainable,
subsists on behalf of and or against the unnamed parties they
represent both at the trial and appeal stage. It is for the
represented persons being the unnamed parties to bring an
application by motion on notice supported by an affidavit praying
for an order substituting the deceased parties with the unnamed
persons who are living. It is only when such substitution is allowed
that the action continues. See Oketie v Olughor (supra) and
Tebi Opebiyi v Shutta Osibanjo (supra)

The usefulness of Order III Rules 1 and 3 2nd Sch. RHC

It facilitates suits by or against unincorporated body of persons. See
London Association of Protection Trade v Greanland Ltd
(1916)2 AC 30.
It enables suits to be brought or defended in representative capacity
where it is not convenient to name on the originating process all
the persons having the same interest in the subject matter of the
action.

EFFECT OF FAILUE TO COMPLY WITH ORDER III RULES 1 AND 3

2ND SCH. RHC
The failure to state the representative capacity of the parties will not
affect the representative nature of the proceeding or vitiate the
 originating process and subsequent proceedings will bind the
represented persons where the pleadings and or the evidence
show that the parties possess representative capacity and act or
presumably act on the authority of those they represent. This was
the decision of the West African Court of Appeal in Chief
Ggbogbolulu of Vakpo v Head Chief Hodo Afoega Akukome
(1941)7 WACA 164 at 165. Here …..Pp117-118 C
See also for support the Nigerian Supreme Court decisions in Wiri
v Wuche & Ors (1980)1-2 SC 12 and Ayeni & Ors v Sowemimo
(1982)5 SC 60.

Where a party sues or defend an action without the prior authorization

of the persons to be represented first had and obtained such a suit
and its outcome would ordinarily not bind those represented.
However if the circumstances of the case show that the parties
appear to possess representative capacity and acted or can be
presumed to have acted on the authority of those they represent,
the processes and proceedings will not be aff3cted by the lack of
authorization. Example is where the persons represented had
knowledge of the representative proceedings and did or said
nothing or supported it.

WHEN TO RAISE OBEJCTION TO REPRESENTTIVE CAPACITY

This should be raised early in the case, in limine, by way of preliminary
objection and not as a defence. See the English case of Russian
Commercial & Industrial Bank v Comptoi D'Escompt de Mulhotuse
(19250AC 112. See also Melifonwu & Ors v Egbuji & Ors (1982)9 SC
145. If the defendant want to raise an objection to their being sued in a
representative capacity, that is, for and on behalf of their family, they
ought to raise the objection as a preliminary objection and should not file
a statement of defence containing averments purporting to defend the
action or lead evidence to defend the suit for and on behalf of their
family. They should, at an early stage of the proceedings move the
court to strike out the name of the community as plaintiffs or by counter-
affidavit filed at the time of hearing of the application for the order of the
court for leave to sue is being made. But where there is a challenge to
the capacity and/or authority of the plaintiff to sue in a representative
capacity and the parties have joined issues on it in their pleadings, it is a
matter to be resolved by the trial judge after hearing evidence.
See the cases of Anabaronye v Nwakaihe (1997)1 SCNJ 161 at 167
and Enang & Ors v Adu (1981)11-12 SC 25.

AMENDMENT OF THE REPRESENTTIVE CAPACITY OF PARTIES

Where the pleadings and or evidence show a representative capacity,
the trial or appellate court can allow amendment of the process to reflect
the proper capacity. See Afolabi & Ors v Adekunle (1983)8 SC 98.
See again the WACA decision in Chief Ggbogbolulu of Vakpo v Head
Chief Hado of Anfoega Akukome that such an amendment will be
allowed provided that it could be done without injustice to either party.

DUTY TO PROVE REPRESENTATIVE CAPACITY

Whenever the authority of a person to sue is challenged, the onus is on
the person so suing to satisfy the court that he had been duly
authorised. See Olafunji v Registrar Co-operative Socies (1968)
NMLR 393.

SUITS BY COMMITTEE OR NEXT FRIEND OR GUARDIAN AD LITEM

COMMITTEE OR NEXT FRIEND
Order VII Rule 2 2nd Sch. RHC provide that infants or person of weak or
unsound mind may sue as plaintiffs by their committee or next friend, on
such terms as to the liabilities for costs and otherwise of the committee
or next friend as the Court shall deem just.

The term "infant" as used here as in all situations where it definds legal
capacity to act is not restricted to it ordinary or grammatical meaning of a
baby or very young child. It covers all categories of children and means
a person who has not attained the age of majority. Act which is in the
Gambia is by virtue of S. of the Childrens Act Cap.45:01 Vol.7 Laws of
The Gambia 2009. The term "persons of weak or unsound mind" is self-
explanatory. Because of their disability, the rules allow them to sue by a
normal person described as their committee or next friend.

In the title of a suit to which an infant, person of unsound or weak mind

or a lunatic is a party, his or her name should be stated along with the
name of the person who is his next friend. In suits by infants it is usually
stated as follows -
Ebrima Amadou (infant)
By Conteh Abdou, his next friend………………….plaintiff

Where the plaintiff is a person of weak or unsound mind the same

pattern is followed, except that the fact of his disability is not mentioned.
Therefore, if Ebrima Amadou in the above example is a person of weak
or unsound mind the title should be simply "Ebrima Amadou by Conteh
Abdou, his next friend". He should not be described as a person of
weak or unsound mind, unlike in the case of an infant where the infant is
expressly described as such.
GUARDIAN AD LITEM
Order VII Rule 1 2nd Sch. RHC provide that where on default made by a
defendant in answering or otherwise defending the suit, after service of
the writ, it appears to the Court that he or she is an infant, or a person of
weak or unsound mind, so that he or she is unable of himself or herself
to defend the suit, the Court may, if it thinks fit on the application of the
plaintiff or of its own motion, appoint by order some fit person to be
guardian of the defendant for the purposes of the suit, by whom he or
she may defend it.

A guardian ad litem is defined in Black's Law Dictionary 6th Edition page

706 as a special guardian appointed by the Court in which a particular
litigation is pending to represent an infant, ward or unborn person in that
particular litigation and the status of guardian ad litem exists only in that
specific litigation in which the appointment occurs".

The defendant who is an infant or a person of weak or unsound mind is

allowed to defend by a normal person described as his or her guardian
ad litem. The title in suit against infants usually will read Ebrima
Amadou (an infant0 by Conteh Abdou his guardian ad litem. The title in
suits against a person of weak or unsound mind will reads "Ebrima
Amadou by Conteh Abdou, his guardian ad litem.

THE LEGAL STATUS OF NEXT FRIEND OR GUARDIAN AD LITEM

An infant or person of weak or unsound mind cannot properly bring or
defend an action by himself and so must do so by another person called
next friend or guardian ad litem. But as held in Pink v Sharwood
(1913)2 Ch. 286 the next friend or guardian ad litem is not himself a
party to the proceedings.
A next friend is personally liable for the cost of the suit. See Masling v
Motor Hiring Manchester O. Ltd (1919)2 KB 538. But the infant is
liable to indemnify him for costs properly incurred for the infant's interest.
See Steeden v Walden (1910)2 Ch. 393.
The guardian ad litem of an infant is not personally liable for the cost of
the suit unless he has been guilty of some misconduct.

THE ROLE OF THE NEXT FRIEND OR GUARDIAN AD LITEM

The law recognises the lack of capacity of an infant or a person of weak
or unsound mind to properly conduct his or her case and seeks to
protect their vulnerability from being taken advantage of by adults or
normal persons in civil suits. This is the reason underlying the
requirement of next friend or guardian ad litem. Bowen LJ in Rhodes v
Seithernbank (1889)22 QB 577 at 579 described a next friend as "the
officer of the Court to take all measures for the benefit of the infant2 in
the litigation which he appears as "next friend". This observation also
applies to the next friend of persons of weak or unsound mind and to
guardian's ad litem generally.

The object of appointing a next friend or a guardian ad litem is to

supplement the want of capacity and judgment of an infant, or a person
of unsound mind or weak mind or a lunatic in the conduct of litigation.
Also the next friend is appointed to furnish security for costs to the
defendant.
The next friend "undoubtedly has the conduct of the action in his
hands." The same is true of a guardian ad litem. Accordingly each
"can do anything which in the ordinary conduct of any proceedings
is required or authorised by the rules to be done by a party." But he
cannot validly settle or compromise any proceedings unless such
settlement or compromise is in the interest of the infant, etc.

PERSONS QUALIFIED TO ACT AS NEXT FRIEND OR GUARDIAN

AD LITEM
From the nature of his role, it is important that a next friend or guardian
ad litem should not have an interest in the suit which conflicts with that of
a person under disability. Each should be a fit and proper person to be
a party to proceedings in the court. as either of them is an "officer of the
Court" it is also desirable that he should be within the jurisdiction.
Therefore, any person who is within the jurisdiction, had full personal
capacity to sue, no interest adverse to that of the infant and no
connection with the defendant may be a next friend of the infant. A
person resident outside the jurisdiction may also be appointed on
providing security for costs.

It is desirable that a next friend or guardian ad litem of a person under

disability should be a relation or friend of his or his family and not a mere
volunteer. In this regard a father is generally preferable.

POWER TO REMOVE AND REPLACE NEXT FRIEND OR GUARDIAN

AD LITEM
This power is not expressly prescribed in the RHC. The power to
appoint guardian ad litem expressly vested on the Court by Order VII
Rule 1 2nd Sch. RHC carries with it the power to remove and replace the
guardian ad litem by virtue of S.20 of the Interpretation Act which
provides that where by or under any Act a power to make any
appointment is conferred, then, unless the contrary intention appears,
the authority having power to make the appointment shall also have
power to suspend or dismiss any person appointed by it in exercise of
the power.

The power to remove and replace a next friend is derived from the
inherent power and duty of the High Court to do substantial justice to
avoid injustice. Order VI Rule 2 1st Sch. RHC provide that subject to
particular rules, the Court may in all causes and matters make any order
which it considers necessary for doing justice, whether such order has
been expressly asked by the person entitled to the benefit of the order or
not.

SUITS BY ATTORNEY
The owner of a right or interest may donate a power of attorney to
another person to sue or defend in the name and on behalf of such
owner to protect such right or interest. This practice which is so
prevalent that is now usual and approved is not provided for in the rules.
Where an action is brought or defend by an attorney, the title of the party
must be so endorsed on the processes of court in the following manner -
Ebrima Amadou…………………………..Plaintiff
(by his attorney Conteh Abdou)

The name of the owner of the right of action is stated and the fact that he
is suing or defending by his attorney is endorsed under such name. The
attorney is not the party to the action. The attorney equally has the
same legal status as a next friend or guardian ad litem.

It is wrong and can be fatal to state the name of the attorney as the
party.
The name of the attorney was indicated as plaintiff. Below the name
was an endorsement that he was suing as attorney of the owner of the
right of the action. The court upheld the objection of counsel for the
defendant to the title of the plaintiff and the same was amended with
leave of court to reflect the owner of the right of action.

If the plaintiff sues by his attorney the power of attorney must be pleaded
in the statement of claim and tendered in evidence to prove that
capacity.
If the defendant is sued by his attorney, the statement must plead facts
to show that it is justified to sue the defendant by such attorney.

NON JOINDER AND MIS-JOINDER OF PARTIES

Order III Rule 5(1) Sch. 2 to RHC provide that -
 "(1) if it appears to the Court, at or before the hearing of a suit,
that all the persons who may be entitled to, or who claim
some share or interest in the subject matter of the suit, or
who may be likely to be affected by the result, have not been
made parties, the Court may adjourn the hearing of the suit to
a future day, to be fixed by the Court, and direct that such
persons shall be made either plaintiffs or defendants in the
suit, as the case may be. In such case the Court shall issue a
notice to such persons, which shall be served in the manner
provided by the rules for the service of a writ of summons, or
in such other manner as the Court thinks fit to direct; and on
proof of the due service of such notice, the person so served,
whether he or she appears or not, shall be bound by all
proceedings in the cause:

Provided that a person so served, and failing to appear within

the time limited by the notice of his or her appearance may, at
any time before judgment in the suit, apply to the Court for
leave to appear, and such leave may be given on such terms
(if any) as the Court thinks fit." "

Sub-rule 2 provide that -

"The Court may at any stage of the proceedings, and on such
terms as appears to the Court to be just, order that the name
or names of any party or parties, whether as plaintiffs or as
defendants, improperly joined, be struck out."

A non joinder of a party or parties occurs where there is failure to join as

a party to the suit, a person who ought to have been so joined either as
plaintiff or as a defendant. It means that a proper or necessary party
has not been made a party to the suit.

A misjoinder of a party occurs when a person who ought not to be a

party to the suit is joined as a party thereto. This means that a person
has been wrongly joined as a party to the suit.

EFFECT OF NON-JOINDER OR MISJOINDER

A cause or matter cannot be defeated by reason of the non-joinder or
misjoinder of any party. See the English case of Van Gelder Apsimon
& Co v Sowerby Bridge United District Flour Society (1880) 44 Ch. D
374 per Bowen LJ and the Nigerian case of Peevok Investment Ltd v
Hotel Presidential Ltd (1982)12 SC 1 at 52 per Idigbe JSC. The
mistake can be corrected upon by either party to the suit or a third party
having interest in the suit by the court suo moto.

Order III Rule 5(1) 2nd Schedule allows a mistake of non-joinder to be

carried by the court ordering the joinder of the party wrongly excluded.
Sub-rule (2) hereto allows a misjoinder to be corrected by an order of
court striking out the party wrongly joined .

THE NEED FOR JOINDER OF A PARTY

To enable the issues in the controversy to be effectually and completely
determined. So unless there exist a question in the suit which cannot be
effectually and completely resolved unless a person is joined as a party
to the suit, a problem of non-joinder does not arise and there will be no
need for an order of joinder. See the English case of Amon v Raphael
Truck & Sons Ltd (1956)1 QB 357 at 380. In Alhaji Raji Oduola &
Ors v John Gbadebo Coker & Anor (1981)5 SC 197, the plaintiffs, in
an action for possession of land left the persons in physical possession
or actual occupation of the land in dispute and sued only their lessor
who let them into such occupation. It was held that as the question of
possession could not be effectually and completely adjudicated upon
and settled without adding these person in actual occupation, they
should have been joined as defendants.

On the other hand in Lajumoke v Doharty (1969)1 NMLR 281, a joinder

was refused as the court was satisfied that the case could be effectually
and completely determined without it. The claim was for damages for
negligence. The plaintiff alleged in his statement of claim that
negligence was caused by the defendant. The statement of defence
denied the alleged negligence and also averred that the injuries suffered
by the plaintiff were caused by the negligence of a third party. The
defendant then sought to join that third party as a co-defendant under
the Order 7, rule 10 (West). In upholding the refusal of the High Court to
grant the application for the joinder, the Court of Appeal (West) held that
it was not necessary to have the third party, who was alleged to have
caused the negligence joined before the denial by the
defendant/appellant of the plaintiff's allegations in the statement of claim
could be effectually and completely established.

To enable the person joined to be bound by all proceedings in the cause

including its outcome. See Order III Rule 5(1) 2nd Sch. RHC which
states clearly that the order should be made "if it appears to the Court, at
or before the hearing of a suit, that all the persons who may be entitled
to, or who claim some share or interest in the subject matter of the suit,
or who may be likely affected by the result have not been made parties".
It goes further to state that even proof of the due service of the order of
joinder notice of hearing and all the relevant processes, on the joined
party, he or she shall be bound by the proceedings and out come
whether he or she appears or not.

WHO CAN APPLY FOR JOINDER

From the express provisions of Order III Rule 5(1) 2nd Sch. RHC the
following persons can apply for joinder.
Parties to the suit.
All persons who may be entitled to, or who claim some share of interest
in the subject matter of the suit or who may be likely affected by the
result of the suit.

In Baldeh v Njie (1997-2001) GR 914 at 916 the Gambia Court of

Appeal observed that application for joinder of parties under order 3,
Rule 5 of schedule II to the High Court Rules, Cap 6:01 is not limited to
parties who were never parties at the initial stage of the suit. Even
parties who were initially defendants and who have been struck out for
one reason or another, may be re-joined.

FURTHER POINTS TO NOTE ON JOINDER OF A PERSON AS

PLAINTIFF
Although as a rule, every plaintiff should show in the statement of
claim a cause of action against the defendant, the question
whether or not the new plaintiff has such a cause of action will
not be considered on the application to join him, the object of
the rules of the joinder being not that the party's case should be
so framed that it can be adjudicated on whether in his favour or
not. The applicant must however make it appear to the Court
that he might be entitled to a share or interest in the subject-
matter of the suit. See Long v Gossley (1879)13 CH D 388 at
391. In Jia Enterprises ltd v British Commonwealth
Insurance Co. Ltd (1962)1 ALL NLR 363 the first respondent
sued an insurance company claiming a certain amount as
money due on an insurance policy in respect of goods and a
building destroyed by fire. The appellants brought a motion
asking to be joined as plaintiffs. The supporting affidavit
deposed that the appellants were jointly insured with the
respondent under the policy and therefore were jointly insured
with the respondent under the policy and therefore were jointly
entitled with him to the amount claimed. The respondent
opposed the application and swore in a counter-affidavit that the
appellants were simple creditors and had no interest
 whatsoever in the property insured. The appellants did not
deny this last averment by the respondent and the trial judge
dismissed the motion on the ground that the appellants, being
simple creditors of the respondent, could not prove an insurable
interest in the property insured. This ruling was upheld by the
Federal Supreme Court.
An application to add a new plaintiff will however not be granted, if by
so doing a statute-barred action will be revived. See Mbro v
Eagle Star British Dominions Insurance Co. Ltd (1932)1 KB
488 and Kamouth v Associated Electrical Industries
International Ltd (1980)QB 199.
In an action where the issue is right of property, if the existing plaintiff
is an equitable owner, the legal owner may be ordered to be
joined as a co-plaintiff. So where the owners in equity of cargo
damaged in collision at sea sued for damages, the legal owners
of the cargo were added as co-plaintiffs.
The application is generally not contentious. It is the person who is
joined as plaintiff that should complain of such joinder and not
the defendant.
FURTHER POINTS TO NOTE ON JOINDER OF A PERSON AS
DEFENDANT
It is improper to join as defendants, persons against whom the
plaintiff has no cause of action and made no claim against and
whose interest is adverse to that of the other defendants. See
Aromire & Ors v Awoyemi (1972)1 ALL NLR (Pt.1)101 and
Okafor & Ors v Nnaife (1973)1 NMLR 245.
The following persons can apply for joinder of a defendant -
The plaintiff
An existing defendant.
A person who is not a party to the suit but who has an interest
in the subject matter of the suit (intervener).
As held in the cases of Dolfus Miegete v Bank of England (1951)
Ch. 33 or (1950)2 ALL ER, Nomis v Beazley (1877)2 CP 80,
Lajumoke v Doherty (supra and Ige v Farinde (1994)7-8
SCNJ (Pt.2) 284 at 302 a plaintiff cannot be compelled to
proceed against persons he has no desire to sue.
Although the consent of the plaintiff and that of the person sought to
be joined is material, and the court may in appropriate cases
allow a joinder without any of such consent. An appropriate
case is where it is necessary that the person sought to be
joined be bound by the outcome of the case or where the case
cannot be effectually concluded without the joinder. See
Lajumoke v Doherty (supra)
 A joinder of a defendant without the consent of the plaintiff can be
allowed to enable the defendant effectually set up a defence
necessary to his case.
A joinder of a defendant without the consent of the plaintiff for the
sole purpose of the existing defendants using the additional
defendant merely as plaintiffs to their counter-claim was
rejected in Abid Navigation Co. Ltd v Fairplay Towage and
Shipping Co. Ltd (1955)1 WLR 836.
In Lucy v W.T. Henleys Telegraph Works Co. Ltd (1970)1 QB 393
it was held that the joinder of a defendant would not be allowed
if the claim against him in the suit is statute-barred. This is in
line with the general rule that a joinder of a defendant that
deprives him of his defence to a claim will not be allowed. See
Liff v Peasley (1980)1 ALL ER 623.
In Raleigh v Goschen (1898)1 Ch.81 it was held that a joinder of a
defendant will be refused if its effect would be the addition of a
new cause of action.

JOINDER OF THIRD PARTIES (INTERVENERS) AS PLAINTIFF OR

DEFENDANT
The express words of order III Rule 5 2nd Sch. To RHC allows "all the
persons who may be entitled to, or who claim some share or interest on
the subject matter of the suit, or who may be likely to be affected by the
result have not been made parties" to be joined as parties. This clearly
include third parties who apply to be joined as parties to the suit. In
Oyedej Akambi & Anor v Fabunmi & Anor (1986)2 SC 471 the
Nigerian Supreme Court stated the conditions for granting a joinder of an
intervener as 91) that the intervener ought to have been joined in the
first instance as a party; 920 the joinder of the intervener as a party is
necessary to enable the court effectually and completely adjudicate
upon and settle all the questions involved in the cause or matter. Where
all the facts necessary for the effectual and complete determination of
the claim between the parties are before the court, non-joinder of the
intervener will not affect the decision. Also, 930 an intervener must
satisfy the court that his presence is necessary for the effectual
adjudication of the matter; (40 that the plaintiff must have a claim against
him and desire to pursue it and that his interest must be identical with
that of the existing defendants.

A key test for the joinder of an intervener, whether as plaintiff or

defendant according to the case, is whether he will be directly affected
by the judgment of the court in the suit by curtailing or interfering with the
enjoyment of his legal rights. This is because the only reason which
makes it necessary to make a person a party to an action is so that he
should be bound by the result of the action, and the question to be
settled therefrom must be a question in the action which cannot be
effectually and completely settled unless he is a party. Also:

Where the determination of an action between the parties would

directly affect a third person's legal right or his pecuniary interest,
the courts have a discretion to order the third person to be added
to the action on such terms as the