Gambia Bar Finals cheat sheet

Arrest without warrant is lawful under the Criminal Procedure Code where a person is reasonably suspected of an arrestable offence, is found in circumstances suggesting an offence, obstructs a police officer, or is a suspected deserter; the arresting officer must inform the suspect of the ground of arrest.

A suspect must be brought before a court as soon as practicable; the Constitution (s.19) requires that a person arrested be informed promptly, in a language they understand, of the reason for arrest and of the right to counsel and to remain silent.

Bail: the High Court and subordinate courts have discretion to grant bail; offences punishable by death are generally non-bailable save in exceptional circumstances, and refusal of bail must be justified on grounds such as flight risk, interference with witnesses, or public safety.

The right to a fair trial within a reasonable time is guaranteed by s.24 of the Constitution; an accused is presumed innocent, must be given adequate time and facilities to prepare a defence, and is entitled to legal representation at State expense where the interests of justice require it.

Confessions are admissible only if voluntarily made; a confession to a police officer below the rank of inspector or to a person in authority is inadmissible unless made in the presence of a magistrate or other authorised officer, and the court tries voluntariness in a trial within a trial.

The prosecution bears the burden of proving guilt beyond reasonable doubt; the accused bears no burden save where a statute imposes a legal burden (e.g. insanity, alibi notice), and evidential burdens may shift on particular issues.

Search warrants must specify the premises and items; warrantless searches are lawful only in limited cases (search incidental to lawful arrest, consent, exigent circumstances), and illegally obtained evidence is admissible at the court's discretion, weighed against unfairness to the accused.

Committal proceedings in the subordinate court transfer cases to the High Court for trial; the subordinate court takes depositions and exhibits, and the High Court may try the accused on the committal papers.

Appeals from subordinate courts lie to the High Court, and from the High Court to the Gambia Court of Appeal; the Court of Appeal's decisions may be appealed to the Supreme Court with leave on grounds of public importance or miscarriage of justice.

The High Court's civil jurisdiction is exercised under the High Court Act and the Rules of the High Court; the subordinate courts (Magistrates' Courts, Cadi Courts, District Tribunals) are governed by the Subordinate Courts Act and their own rules, with monetary and subject-matter limits.

A civil action is commenced by writ of summons (generally endorsed with a statement of claim) or by originating summons where the facts are largely undisputed and the relief is declaratory or constructional; originating motions are used in specific statutory contexts.

Service must be personal on the defendant or by substituted service ordered by the court; proof of service is by affidavit of service, and default judgment may be entered only after the court is satisfied that service was effected.

Defences and counterclaims must be filed within the time prescribed by the rules (generally 14 days after service of the statement of claim, subject to extension); failure to defend may lead to judgment in default, which can be set aside on application showing a defence on the merits.

Pleadings must state material facts, not evidence; amendments are liberally allowed before trial to determine the real issues, but amendments after the limitation period are refused if they introduce a new cause of action.

Summary judgment is available where the plaintiff's claim is for a debt or liquidated demand and the defendant has no real prospect of successfully defending; the defendant must show a triable issue to obtain leave to defend.

Limitation periods: contract and tort claims generally 6 years, actions on judgments 12 years, claims for land recovery 12 years, and personal injury claims 3 years; time runs from the date the cause of action accrued.

Interlocutory relief includes interlocutory injunctions (American Cyanamid principles: serious question to be tried, adequacy of damages, balance of convenience), Mareva (freezing) orders, and Anton Piller orders in exceptional cases.

Costs follow the event unless the court orders otherwise; the court may award costs on a standard or indemnity basis and may order security for costs where the plaintiff is ordinarily resident outside The Gambia.

Relevance is the threshold of admissibility: evidence is admissible if it is logically probative of a fact in issue or a collateral fact that affects credibility; irrelevant evidence is excluded even if reliable.

The best evidence rule requires the original document to prove its contents unless secondary evidence is justified (loss, destruction, opponent's possession, public documents, or statutory exception).

Hearsay (an out-of-court statement tendered to prove its truth) is generally inadmissible in criminal cases save for statutory exceptions and the res gestae, dying declarations, and admissions; the Evidence Act and the Constitution govern the specific exceptions.

The parol evidence rule excludes extrinsic evidence to vary or contradict a written contract, subject to exceptions for ambiguity, fraud, mistake, illegality, and proof of a condition precedent.

Character evidence is generally inadmissible in civil cases; in criminal cases the accused may adduce his own good character, and the prosecution may rebut by evidence of bad character only where the accused has put character in issue.

Opinion evidence is admissible from experts on matters calling for specialised knowledge; the expert must be qualified, the evidence must be relevant, and the court retains the duty to decide the ultimate issue.

Privilege: legal professional privilege covers communications between client and legal adviser for legal advice or litigation; it belongs to the client and survives termination. The privilege against self-incrimination is a constitutional right (s.19(10)) subject to statutory exceptions.

The standard of proof in criminal cases is beyond reasonable doubt; in civil cases it is on a balance of probabilities, and in some civil matters (e.g. allegations of fraud) the court requires a higher degree of probability.

Judicial notice dispenses with proof of matters of common knowledge, law, and official acts; the court may also rely on presumptions (presumption of regularity, presumption of death after 7 years' absence, presumption of legitimacy).

A company is incorporated under the Companies Act on registration of the memorandum and articles with the Registrar; incorporation creates a separate legal person (Salomon principle) with perpetual succession and capacity to sue and be sued in its own name.

The memorandum states the company name, registered office, objects (where required), and liability of members; the articles govern internal management and, together with the memorandum, form a statutory contract binding the company and its members.

Directors owe fiduciary duties of good faith, loyalty, and avoidance of conflicts, plus duties of care, skill, and diligence; they must act within powers and for proper purposes, and may be liable for breach, negligence, or wrongful trading.

Share capital: shares may be issued at par or at a premium; the company may not generally reduce capital without court or statutory procedure; dividends may be paid only out of distributable profits.

A company may be wound up voluntarily (members' or creditors') or compulsorily by the court on grounds including inability to pay debts (insolvency), just and equitable grounds, or default in statutory filings.

The Bills of Exchange Act governs negotiable instruments; a bill of exchange is an unconditional written order to pay a sum certain to a named payee or bearer, and a cheque is a bill drawn on a banker payable on demand.

Sale of goods: the Sale of Goods Act implies conditions that the seller has the right to sell, that goods correspond with description, are of merchantable quality, and are fit for purpose where the buyer makes known the purpose; property and risk pass as agreed, or on delivery.

Agency: an agent may bind the principal where actual authority (express or implied) or apparent/ostensible authority exists; the principal may ratify unauthorised acts, and the undisclosed principal may sue and be sued on the contract.

The Companies Act requires annual returns, audited accounts (subject to exemptions for small companies), and registration of charges; failure to register a charge renders it void against the liquidator and creditors.

A valid contract requires offer, acceptance, consideration, intention to create legal relations, and capacity; consideration must be sufficient but need not be adequate, and past consideration is generally no consideration.

An offer may be revoked before acceptance, and acceptance must be communicated to the offeror; the postal rule applies only where the parties contemplate post, and instantaneous communications (email, telephone) take effect on receipt.

Terms are classified as conditions, warranties, and innominate terms; exclusion clauses are construed contra proferentem and are subject to statutory controls (Unfair Contract Terms Act, Sale of Goods Act) and the requirement of reasonableness.

Misrepresentation (false statement of fact inducing the contract) may be fraudulent, negligent, or innocent; remedies include rescission and damages, subject to bars such as affirmation, lapse of time, and third-party rights.

Frustration discharges a contract where an unforeseen event renders performance impossible, illegal, or radically different; the Law Reform (Frustrated Contracts) Act governs the adjustment of money and benefits already transferred.

Remedies: damages aim to put the claimant in the position as if the contract had been performed (expectation) or, in tort, as if the wrong had not occurred (restitution); remoteness is governed by Hadley v Baxendale and the test of reasonable contemplation.

Negligence requires a duty of care, breach, causation, and damage; the duty is established by foreseeability of harm and proximity, subject to policy (Caparo test), and professionals are judged by the standard of a reasonably competent member of their profession.

Tortious liability includes trespass (to person, land, goods), nuisance (unreasonable interference with use and enjoyment of land), defamation (libel and slander, with defences of truth, fair comment, and qualified privilege), and occupiers' liability.

Vicarious liability imposes liability on an employer for torts committed by an employee in the course of employment; the control test, integration test, and the 'close connection' test determine employment status and scope.

Land in The Gambia is held under customary, statutory, or freehold tenure; the Land Act and the State Lands Act govern state leases, and the Land Registry maintains records of title.

All land ultimately vests in the State; leases of state land are granted for specified terms (commonly 21, 50, or 99 years) subject to conditions of development, payment of rent, and covenants against assignment without consent.

A contract for the sale of land must be in writing and signed by the parties (or their agents) and must state the parties, the property, the price, and any conditions; an oral contract may be enforceable only by part performance or estoppel.

Conveyancing follows stages: pre-contract inquiries and searches, contract and deposit, investigation of title (root of title, searches, requisitions), preparation and approval of the draft conveyance or lease, execution, stamping, and registration.

Registration is essential to perfect title; unregistered instruments may be inadmissible in evidence and void against a subsequent registered purchaser for value without notice.

The vendor must show a good root of title (generally a document at least 15-30 years old depending on practice) and must disclose latent defects in title; the purchaser bears the risk of patent defects and must raise requisitions within the stipulated period.

Mortgages of land must be created by deed or registered instrument; the mortgagee's remedies include sale, appointment of a receiver, and foreclosure, exercisable after default and compliance with notice requirements.

Landlord and tenant: leases for more than 3 years must be by deed and registered; the Rent Act controls residential tenancies, and the landlord must give statutory notice to quit and comply with the grounds for possession.

Compulsory acquisition requires publication of a notice of intention, inquiry into objections, and payment of compensation for the value of the land and disturbance; the State Lands Act sets out the procedure.

The 1997 Constitution, as amended, is supreme; any law inconsistent with it is void to the extent of the inconsistency, and the Supreme Court has jurisdiction to determine constitutional questions.

The Constitution establishes the three arms of government and guarantees separation of powers, judicial independence (security of tenure and salary protection), and the rule of law.

Chapter IV guarantees fundamental rights and freedoms, including the right to life, personal liberty, fair trial, freedom of expression, assembly, association, movement, and freedom from torture and inhuman treatment; these rights may be limited only by law and to the extent reasonably justifiable in a democratic society.

Enforcement of fundamental rights is by application to the High Court under s.37 (or the equivalent enforcement provision), which may grant declarations, injunctions, and compensation.

The executive power of the State vests in the President, who is Head of State and Government; ministerial appointments require confirmation in accordance with the Constitution, and the Public Service Commission controls appointments in the public service.

Administrative law grounds of review include illegality (acting beyond statutory powers), irrationality (Wednesbury unreasonableness), procedural impropriety (breach of natural justice: audi alteram partem and nemo judex in causa sua), and legitimate expectation.

Judicial review is commenced by originating motion (or the procedure prescribed by the High Court Rules) and requires leave in certain cases; remedies include certiorari, mandamus, prohibition, declaration, and injunction.

Public bodies must give reasons where a statute so requires, and the Ombudsman may investigate maladministration; the Public Service Commission and the Independent Electoral Commission are constitutional bodies with defined independence.

The African Charter on Human and Peoples' Rights is given effect in The Gambia, and the courts may have regard to international human rights standards in interpreting Chapter IV rights.

Marriage in The Gambia may be contracted under the Civil Marriage Act, the Mohammedan Marriage and Divorce Registration Act, or customary law; each regime has its own requirements for validity and dissolution.

Civil marriage is monogamous; a subsequent civil marriage while an earlier one subsists is void, and the parties may be liable for bigamy. Customary and Sharia marriages may be polygamous, subject to the husband's obligation of equal treatment.

Divorce under the civil regime requires a court decree on grounds such as adultery, cruelty, desertion, or irretrievable breakdown; under Sharia, talaq, khul' (divorce by consent), and judicial dissolution (faskh) are recognised, and iddat must be observed.

Maintenance: a husband is obliged to maintain his wife and children during the marriage and after divorce as the court orders; the court considers the means of the parties and the needs of the children.

Custody (hadana) of young children under Sharia is generally granted to the mother until a specified age (often 7 for boys, puberty for girls), after which the child may choose; the welfare of the child is the paramount consideration.

Succession: under the Wills Act, a testator may dispose of property by will subject to formalities (writing, signature, attestation by two witnesses); under Sharia, a Muslim may bequeath only one-third of the estate and the remainder devolves on Quranic heirs in fixed shares.

Intestate succession under customary law varies by community; under statutory law, the estate devolves on the surviving spouse and children in prescribed shares, and the personal representatives must obtain probate or letters of administration.

Probate and administration: the High Court exercises probate jurisdiction; an executor named in the will applies for probate, and where there is no will, the next of kin applies for letters of administration, usually with sureties.

The Cadi Courts apply Sharia in matters of marriage, divorce, inheritance, and guardianship for Muslims, and appeals lie to the Cadi Appeals Panel and ultimately to the Supreme Court on points of law.

A legal practitioner must be admitted and enrolled under the Legal Practitioners Act; only enrolled practitioners may hold themselves out as such, and unauthorised practice is an offence.

Duties to the court: candour, avoidance of misleading the court, disclosure of adverse authorities, and no improper communication with judges; the duty to the court overrides the client's interests.

Duties to the client: competence, diligence, confidentiality, avoidance of conflicts of interest, keeping client money in a separate client account, and providing a clear fee agreement.

Confidentiality survives the retainer and applies to all information acquired in the professional relationship; disclosure is permitted only with consent, by court order, or to prevent a serious crime.

Conflict of interest: a practitioner may not act for two clients with opposing interests in the same or a related matter, nor act against a former client in a matter where confidential information was obtained.

Advertising is permitted within professional limits: it must be accurate, not misleading, not comparative in a disparaging way, and must not solicit clients in person or through intermediaries.

Professional misconduct includes dishonesty, misappropriation of client funds, failure to account, gross negligence, and breach of undertaking; sanctions range from reprimand and fine to suspension and striking off.

Practice management: keep proper books of account, issue receipts for client funds, maintain a ledger of client and office accounts, and comply with tax and anti-money-laundering obligations.

Continuing professional development and compliance with the Bar Association's code of conduct are conditions of practice; failure to comply may attract disciplinary proceedings before the Bar Council or the General Legal Council.

Pleadings must include a heading, the parties' description, a statement of facts in numbered paragraphs, the relief sought, and a prayer; each paragraph should contain one allegation, and material facts must be pleaded with particularity.

A statement of claim should plead the cause of action chronologically, specify the loss and damage, and avoid evidence and argument; a defence should admit, deny, or require proof of each allegation and plead any positive case and set-off.

Affidavits must be in the first person, sworn before a commissioner for oaths or a magistrate, and must disclose the source of information and belief; exhibits are marked and referred to in the body.

Legal writing: use plain English, define terms on first use, use headings and numbering, avoid archaic phrases, keep sentences short, and cite authorities in a consistent style (e.g. case name, year, volume, report page).

Statutory interpretation: apply the literal rule first, then the golden rule and the mischief rule; consider the purpose of the statute, definitions section, and any constitutional presumption of consistency.

Advocacy: preparation includes a case theory, a chronology, a list of issues, and a list of authorities; opening should state the case briefly, and examination-in-chief should be non-leading and confined to relevant matters.

Cross-examination should be controlled and purposeful, using leading questions, one fact at a time, and putting the opponent's case fairly; re-examination is limited to matters arising in cross-examination.

Submissions should state the issues, the facts found, the law with authorities, and the relief sought; written submissions are increasingly required and must be filed within the time ordered by the court.

Citation and ethics: do not cite a case without reading it, do not misstate the holding, and disclose adverse authority; the court may impose costs for improper conduct of litigation.

Sources of international law under Article 38(1) of the ICJ Statute: treaties, customary international law, general principles of law, and judicial decisions and teachings as subsidiary means; jus cogens norms override conflicting treaties.

A treaty binds a State only after ratification or accession and entry into force; under the Vienna Convention on the Law of Treaties, a State may not invoke internal law to justify non-performance, and reservations are permitted unless incompatible with the object and purpose.

State responsibility arises from an internationally wrongful act attributable to the State (breach of an international obligation); remedies include cessation, assurances of non-repetition, and reparation (restitution, compensation, satisfaction).

The African Union Constitutive Act (2000) establishes the AU's objectives, including continental integration, peace and security, and respect for human rights; the AU has the right to intervene in a member State in grave circumstances (war crimes, genocide, crimes against humanity).

ECOWAS law: the Revised Treaty (1993) and the ECOWAS Court of Justice Protocol establish the Court's jurisdiction over disputes between States and, since 2005, over individual complaints of human rights violations by member States.

ECOWAS Community law is directly applicable in member States; the ECOWAS Court has held that its judgments are binding and that member States must comply, and it may award reparations to individuals.

The African Charter on Human and Peoples' Rights (Banjul Charter) protects civil, political, economic, social, and cultural rights and imposes duties on individuals; the African Commission and the African Court on Human and Peoples' Rights supervise compliance.

The Protocol on the Rights of Women in Africa (Maputo Protocol) requires States to eliminate discrimination against women, including in marriage, inheritance, and political participation.

Diplomatic and State immunity: diplomatic agents enjoy immunity from criminal and civil jurisdiction (subject to exceptions), and State immunity is generally restrictive, covering sovereign acts (acta jure imperii) but not commercial acts (acta jure gestionis).