Magistrate Ngube of the Kanifing Magistrates’ Court on 2 May 2012 ruled against the application made by state counsel Kulo to represent Pro-Poor Advocacy Group, which was sued by John Charles Njie for wrongful dismissal.
This development followed the objection made by the defence counsel, Mrs Mendy, who argued that the state counsel had no locus in the case.
She stated that it is not a government case, adding that Pro-Poor Advocacy Group has nothing to do with the government.
She further argued that the state counsel should apply as a party to the case.
Mrs Mendy submitted that the authority cited by the state counsel was not relevant to the application for the magistrate to come to the conclusion that the state counsel could represent a non-government party.
She further stated that to say that the defendant could be represented by a counsel of its choice was a misrepresentation of the law.
She said the state counsel is a member of the official bar, and could only deal with matters where the state was a party.
State Counsel Kulo responded by saying that his appearance in the case to defend the defendant was proper in law.
He argued that every litigant appearing before a court of law in The Gambia has the right to choose any counsel to appear on his behalf to conduct his case.
He added that if an NGO is sued and rushed to the government to be represented, it was it choice to do so.
He went on to say that the Government of The Gambia was by implication a party to the case, and ought to be joined as a co-defendant, adding that the government has interest in the case.
Magistrate Ngube, in his ruling, said it was true that the right of a party to choose a counsel of his choice to represent him in the conduct of his case was a non-derogable one.
He stated that, however, the exercise of his freedom of choice was limited to counsel of the private bar representation and of state counsel being limited to matters of state.
The magistrate further adduced that state counsels are paid from the public money for the services they render to the state, adding that there would be a conflict of interest if state counsel were to represent private persons, including private legal persons like NGOs, as it would become difficult to draw a line between interest of the state and those of private individuals.
He indicated that it would also be unconscionable to allow state counsel who is paid from tax payers money to put their services to use of individuals and private entities, adding that on the day that it would be allowable, the state would be competing with private persons for the services of state counsel it has hired and is paying solely to cater for matters it has interest in.
The magistrate further stated that despite the role that the government plays in ensuring the efficient operation of NGOs, these organizations are not government departments for which the state should provide legal representation.
“I do not think the articles relied on by the state counsel or any other articles of the NGO Act empower the government to order the dismissal of a director of an NGO. That decision, in my view, should lie with the NGO’s disciplinary organs,” he said.
He added that the main purpose of making a person a party to an action was to make him bound by the result of the suit, adding that the question to be settled must therefore be a question in action which could not be effectually and completely settled unless the person was a party.
He said the question to be settled in this case was the plaintiff’s claim for wrongful dismissal by the defendant.
“I found the application by the state counsel to be without merit, and I dismiss it. I award cost of D2,000 to the plaintiff,” declared the magistrate.
The case was then adjourned till 30 May 2012, for hearing.
