Tuesday, July 27, 2010

Judiciary Building Credibility

As delay in Proceedings Will Result to Public Lost of Confidence
VOL:1 ISSN:2The Gambian judiciary recently held a day sensitisation on the amendment of the High Court Rules 2009. The amended rules, which had been published in The Gambia Gazette is meant to speed up court cases in their efforts towards maintaining a vibrant justice delivery system.
In as much as this aim is not achieved it is believed that people, especially those whose cases in the High Court has been dragging over the years will loose credibility in the country’s justice delivery services, thus a sign that justice remains partly unfulfilled.
In an introduction of the new rules on 5th November, 2009 at the Kairaba Beach Hotel, the Chief Justice of The Gambia, Emmanuel Agim, said that the rationale behind the drafting of the new rules is to reduce the backlog of cases at the High Court and to speed up trials, citing that indeed some cases have been dragging on for a decade or more.
“The 1997 Constitution calls for speedy trials in the justice delivery services,” he said.
Most of the cases piling up at the court are usually land cases, he said, adding that some of which can even be settled out of court (amicably).
However, the High Court (Amendment) Rules, 2009 were subjected to a review and criticism in the second session of the programme, and one can only imagine how much scrutiny the Rules most have went through in the midst of legal practitioners, those that supposed to defend and uphold the country’s main legal document, the Constitution.
In this final part, we continue to look at the Amended Rules, the criticisms, suggestions and recommendations of legal practitioners. The Commissioner of the African Commission, Mr. Musa Bittaye observed that in respect of where a party is served with is served with an affidavit, sub-rule
16 (4) will not be applicable, that the defendant will not be barred from further time frame to file a defence within the time frame of 14 days.

For his part, B. S. Janneh on Rule 16 (1) asked whether it is practical to put forward all the required documents, citing that it will be expensive.
Meanwhile, Lawyer O.B. Njie who was not satisfied with Rule 3(1) a. decided to move the session a step back to ask: “what is an affidavit of statement? A statement is a statement and an affidavit is an affidavit.”
In response, the Chief Justice argues that an affidavit of statement is a narration of facts but Mr. Njie belief that the word ‘statement’ is redundant.
Madam Sallah Jeng, the President of The Gambia Female Lawyers Association also throw weight on Lawyer Njie’s argument, citing that it is erroneous because an affidavit contains a statement and it need to be considered.
In an attempt to clear some of the concerns raised, the Chief Justice Emmanuel Agim pointed out that these rules are not enacted and were made by the rules committee and have been gazetted in the statue book of The Gambia’s legal system.
But for Lawyer Badou Conteh and Mr. Fafa Mbaye, now that these rules have been gazetted, he asked what will become of the points made that are said to have been noted. The Chief Justice then put it to him that all the points that have been noted will be looked at by the Rules Committee and integrated into the Amended Rules if necessary. “There can always be technocratic errors in these kinds of under-takings,” he conceded.
He added that the rules will be imposed and the comments will be reflected as the rules are applied in court.
At this point, the Chief Justice went through the final part of the amended rules as follows:
(c) In Order XXXV, by substituting for rules 3, 4, 8 and 10, the following new rules-
“Adoption of affidavits as evidence
3. (1) Before a party commences to call his or her witness during the trial of the suit, the party shall adopt, as the evidence of his or her witnesses in examination-in-chief, the affidavits of statements or testimonies previously filed.
(2) On the adoption of the affidavits, they shall constitute evidence-in-chief.
(3) The party who adopts the affidavits shall call, and make available for cross-examination, the person whose statement or testimony has been adopted.
(4) Where a person whose statement or testimony has been adopted is not called or made available for cross-examination, his or her affidavit shall cease to have effect as part of the evidence in the case and shall be expunged from the records.
“Adoption of documents as evidence
3A. (1) Before a party commences to call his or her witnesses in the trial of a suit, the party shall adopt, as part of his or her evidence, documents previously filed.
(2) On adoption of the documents, they shall constitute documentary evidence adduced in the case.
Production of real evidence
3B. (1) Immediately after the adoption of the affidavits of statements or testimonies of witnesses and documents previously filed, a party shall produce in Court all the real evidence or objects, such as computers and accessories, tapes and other electronic devices, referred to in the party’s pleadings, statements or testimonies of witnesses and documents, as the case may be.
(2) The party producing real evidence shall apply, without calling a witness, that the items of real evidence be admitted as part of the evidence in the case.
(3) An objection to the admissibility of any real evidence shall be argued and determined at the time the evidence is tendered for admissibility.
(4) If no objection is made or if an objection fails, the Court shall order that the real evidence produced form part of the evidence in the case.
(5) An application to stay the trial or proceedings of the suit pending the determination of an appeal against the decision on the objection shall not be allowed.”
“Summing up
4. If the other party does not intend to call evidence, the party beginning shall be entitled, at conclusion of his or her case, to sum up the evidence already given and comment on it.”
Evidence in reply
8. If the other party calls evidence, the party beginning shall be at liberty to reply generally on the whole case.”
“Where no provision made under this Order
10. Where a matter arises for which no provision is made under this Order, the Court shall do sub-substantial justice to the case.”
(d) in Order XLI, by substituting for rule 1, the following new rules-
Power of review
1. A Judge may review a judgment or decision given by him or her on the following grounds only-(a) to correct a typographical error or omission;
(b) to correct an inadvertent error in the use of words or figures; or
(c) to set aside or nullify the judgement or decision for lack of jurisdiction, illegality or unconstitutionality which was unknown to the Court during the trail.”
As soon as he finish reading the rules, Lawyer O.B. Njie, Lawyer Camara and Neneh Chongan all spoke on the production of real evidence in Rule 3B (1), asked why should real evidence be produced in the trial and not at the pre-trial stage to ensure a speedy process.
The Chief Justice responded by saying that real evidence is produced at that stage as the rules states that it should be brought at the time of cross-examination.
“The essence is that the council responsible for examining will be able to made reference to the evidence cross-examination,” he noted.
Madam Sallah Jeng argued that the word ‘sub-substantial’ in 10 is not appropriate and if it is to be reviewed, it will have to pass through an amendment.
Note: The High Court (Amendment) Rules, 2009 will take effect from January 1, 2010.
The Judiciary can be hailed for striving to reduce the backlog of cases at the High Court and the Magistrates’ Courts. Earlier this year, Saturday court proceedings was introduced in an attempt to speed up the process of justice delivery at the Magistrates’ Courts across the country.
However, in as much as the judiciary wants to build public confidence in delivering justice, it should be or remain impartial; ensure that the writ of habeas corpus is respected; and even provide legal frameworks that will guarantee the freedom of persons whereas they have been freed by a court of law on grounds of no evidence.
If the penultimate can be achieved, then one can conclude that justice has been fulfilled and this will no doubt give The Gambian Judiciary the credibility it deserves from the public.

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