Mar 5, 2009, 5:04 AM
By the specific reference to pleadings, lawyers want to concentrate on the “HOW OF PLEADING”, rather than “WHY”. Emphasis is laid on learning the CRAFT of pleading; rather than the art of pleading.We can better appreciate the how of pleading if we can fully appreciate the why in all its ramifications.
Putting it simply, the nature and significant of pleadings cannot be sufficiently discerned unless one understands and appreciates the FIRST PRINCIPLES under lying the nature and significance of Pleadings in the settlement of Civil claims in our courts.
One should therefore deal with the subject by resort in the grunt-norm of our legal system: the 1997 Constitution of the Republic of The Gambia.
Section 24(1) Provides that:-
“Any court or other adjudicating authority established by law for the determination of the existence or extent of any civil or obligation, shall be independent and impartial; and”
(b)where proceedings are commenced for the determination or the existence of any civil right or obligation, the case shall be afforded a fair hearing within a reasonable time.
It is now my task to think through with you how Pleading’s can be of assistance in the determination of the existence or extent of any civil right or obligation; how that can be done with due regard to the independence and in partiality of the court; without in any form compromising the essential need for fair hearing; and the determination of the existence or extent of any civil right or obligation within a reasonable time.
Let me now analyze the role of pleading in relation to:-
(i)the independence and impartiality of the court.
(ii)the need to adhere to the fundamental principles of fair hearing.
(iii)the court’s duty to determine the existence and extent of the civil right or obligation before it within a reasonable time.
Pleadings are deeply rooted in our adversarial system of justice which is premised on 2 opposing sides putting their case before the court; and the case before it determined by the court (presided over by a Judge) independent of parties, only having regard to the issues raised in the pleading in the determination of the suit before it.