U. A. Musale of the High Court in Brikama has declared that proper and valid
initiating process is a requisite for competent court procedure.
Justice Musale disclosed that suits are initiated by the due process of the law and that it is the initiating processes that ignite life to suits, motion on notice amongst others.
Justice Musale made this declaration recently in a ruling premised on the motion on notice filed in the matter between Sakar Jatta and Tijanin Saidy. The suit amongst others sought for an extension of time to file a notice of appeal.
The court ruling was hailed amongst the legal fraternity and is widely regarded as adding to the jurisprudence of Gambia judicature.
Justice Musale asserted that the motion was signed by Antouman A.B. Gaye & Co. 1 Russel Street, Banjul, The Gambia, legal practitioners for the appellant.
Justice Musale drew the attention of the court and essentially Counsel S. Gaye, on the ‘incompetence’ of the processes filed by Antouman A. B. Gaye & Co.
Justice Musale stated that the written address prepared by: Combeh Gaye, Antouman A.B.Gaye & Co, 1 Russel Street, Banjul, The Gambia. Legal practitioner for the applicant and a signature was written on top of the address for the said Combeh Gaye.
Justice Musale revealed that in practice, the proper procedure is for the counsel signing for and on behalf of another to write his/her name under the signature.
Justice Musale stated that Counsel S. Gaye in his argument tried to distinguish his stand in The Gambia with that obtainable in Nigeria.
The trial judge revealed that the law in The Gambia had gone a step ahead of the Nigerian Act when it provides as a general rule under S.45(1) that:- A person other than a legal practitioner shall not prepare any legal document.
He explained that the exception is whereby a regulation of a fiat is given to a person to practice and that person whose name has been admitted and enrolled to practice before the courts of The Gambia is called a “legal practitioner”.
Justice Musale further explained that the motion on notice and the notice of appeal were filed by Antouman A.B. Gaye & Co., adding that even lawyer S. Gaye did not dispute that Antouman A.B. Gaye & Co is not a legal practitioner in The Gambia.
Justice Musale said lawyer S. Gaye only submitted that their processes were properly filed having satisfied the requirement of S.43 of the Legal Practitioners Act, 2015, a repealed Act.
Justice Musale cited the provision of Order 10, Rule 2 of the first Schedule and pointed out that the said provision had put to rest the issue and disclosed that both the Legal Practitioners Act, 2016 and the Courts Act did not provide for any other to file legal document but a human person who has blood running in his veins and not artificial person.
He noted that the requirement is not signature, but name of the person, adding that signature authenticates the person that prepared the process.
“What is simply required of the counsel is to present the processes viz— S. Gaye. Antouman A.B Gaye & Co, 1 Russel Street, Banjul, The Gambia. Legal practitioner for the applicant. His signature will then follow. Period” he stated.
Justice Musale explained that there are miles apart between irregularity and incompetence, adding that the court may condone irregularity but, it cannot condone incompetence.
He further explained that incompetence is multidimensional, adding that there may be incompetence of the court, incompetence of the parties or incompetence of processes.
Justice Musale pointed out that where a plaintiff or petitioner is bereft of locus standi to institute an action or a petition, such a matter becomes incompetent and the court will be disrobed of the jurisdiction to entertain the matter, citing the case of Amosun vs Inec (2009) 4WRN 32 at 82.
He revealed that a firm of legal practitioners cannot sign a process in the place of a legal practitioner, adding that where a counsel is required to sign a document, it is a person whose identity is ascertainable from the roll of legal practitioners that must append his signature.
Justice Musale cited a plethora of cases to buttress the fact that court processes must therefore be signed by a named legal practitioner.
“For any court process to be valid and proper, it must be issued and signed by the party (plaintiff, petitioner or appellant) or the legal practitioner representing him.” he asserted.
He therefore declared that the motion on notice is incompetent and was accordingly struck out.