Issued: Tuesday 26 March 2018
Justice Ebrima Jaiteh has ordered the Banjul Magistrate Court to relist a civil suit filed by Seedy Nanding Fofana, Seedy Saidykhan, Manding Darboe, Kajally Dibba, Ferry Saidykhan and Musa Sawaneh against the Public Service Commission and be given expedited hearing.
Justice Jaiteh made this order in a judgment delivered recently in a civil appeal case against the ruling of the Banjul Magistrates’ Court delivered by Isatou Janneh.
Delivering judgment, the trial judge said the appeal gave rise to two issues:
1. Whether the learned trial magistrate was right in refusing the appellants’ application to relist the suit that was struck out on the 24th of October 2017?
2. Whether the learned magistrate exercised her decision judiciously before striking out the suit on the 24th of October 2017?
Justice Jaiteh said Section 7(2) of the Subordinate Courts (Civil Proceedings) Act emphasised the operative words that the court may dismiss the suit.
He referred to the order of the lower court made on Thursday the 1st day of September 2016 by her Worship E.J.C. Dunn (as she was then), which is the subject of the appeal and revealed that the suit was not dismissed but struck out.
Justice Jaiteh disclosed that the law permits a person whose suit has been struck out to bring an application to relist it or to bring a fresh action, citing the case of FORTUNA versus HYACINTH  13 WRN 172.
He pointed out that an application can only be dismissed after there has been an inter parties hearing, noting that an order of dismissal means that the trial judge heard the matter on the merits.
Justice Jaiteh revealed that he agree with the submission of plaintiff’s counsel that Section 7(2) of the Subordinate Courts (Civil Proceedings) Act does not apply to the case, as the suit was not dismissed on the 1st day of September 2016 by Magistrate Dunn (As she then was), rather struck out the the suit.
Justice Jaiteh further revealed that a suit that was struck out as in the present case, the plaintiffs/appellants do not need any application for extension of time to relist a case struck out.
Justice Jaiteh pointed out that there is no time stipulated in our statute books for relisting of a suit that has been struck out but noted that the magistrate misconstrued the legal principles of relisting and dismissal of cases.
The trial judge said relisting of cases is the discretion of court that ought to be exercised judiciously and one of the guiding principles on how to exercise the discretion to relist a case is found in the case of NSCC versus Establishment SIMA OF VADUZ  7 NWLR Part 164 in consideration with the case of WILLIAM & other versus Hope Rising Voluntary Funds Society  Vol 13.
Justice Jaiteh stated that the NSCC case outlined several factors to be considered in an application to relist a struck out case.
Justice Jaiteh disclosed that he concurred with the submission of counsel for the appellants that the evidence in support of the motion to relist was not even considered in the ruling and that the Magistrate did not go into the merits of the application.
Justice Jaiteh disclosed that he carefully read the facts deposed and sworn to by Kemesseng S.M. Jammeh on the 5th day of October 2017 in support of the application and he found the facts deposed to in the affidavit in support of the application as good reasons to convince the magistrate to relist the suit but she woefully failed to consider the affidavit in support of the application.
The trial judge pointed out that after careful analysis of the record of proceedings of the case file he discovered that the plaintiffs/appellants have all given evidence and crossed examined.
The trial judge further pointed out that it would be in the interest of justice to hear the case on the merits and do justice by hearing both sides.
He disclosed that the appropriate procedure for the magistrate was to call the Defendants (the Public Service Commission) to open their case and proceed to judgment on the merits.
Justice Jaiteh said striking out the suit and refusing to relist the suit amounts to letting the defendants off the hook of justice.
Justice Jaiteh further said he found that the appellant/plaintiff’s conduct throughout the proceedings at the lower court is worthy of sympathetic consideration. And therefore declared that the appeal is meritorious and should be allowed.
Justice Ebrima Jaiteh therefore ordered that the ruling delivered by Magistrate I. Janneh on the 24th of October 2017, refusing to relist the consolidated suit be set aside and of no effect.
Justice Jaiteh also ordered that the Banjul Magistrates’ Court relist the suit with immediate effect and be heard and determined by another magistrate on the merits.
Justice Jaiteh further ordered that trial be expedited without unnecessary delay and that the case file and all documents be reverted to Central Registry for onwards transmission to Banjul Magistrates’ Court for re-assignment.