Civil Procedure in the High Court and Subordinate Courts
Sources and forum
Civil litigation in The Gambia rests on the Constitution, the Courts Act, the High Court Rules (which follow the English RSC order numbering) and the Subordinate Courts rules, together with the inherent jurisdiction of the court. The exam tests whether you choose the correct mode of commencement, comply with service and pleading rules, and know when an interlocutory shortcut is available.
Commencement and pleadings
- Use a writ of summons where facts are disputed and oral evidence is likely; an originating summons for construction of documents or pure questions of law; a petition for probate and matrimonial causes.
- The defendant enters a memorandum of appearance; the statement of claim follows, then the defence with any counterclaim, and optionally a reply.
- Pleadings state material facts, not evidence, and must contain the reliefs sought. Amendments are granted to determine the real question, but not to introduce a new cause of action after limitation has expired.
- Interlocutory relief includes ex parte motions for urgency, motions on notice supported by affidavit, summary judgment where the defence is shadowy, and injunctions preserving the status quo.
- A default judgment entered irregularly is set aside as of right; if regularly entered, the court has a discretion exercised on terms.
Service and jurisdiction
Personal service is the rule; substituted service requires an order. Magistrates' courts are limited by pecuniary and territorial jurisdiction, and a claim exceeding those limits must be filed in the High Court. Appeals from a magistrate lie to the High Court, and from the High Court to the Court of Appeal, on notice within the prescribed time.
Worked example
P sues D for GMD 500,000 on a contract. The writ issues and D files an appearance but no defence. P obtains judgment in default of defence; D later applies to set it aside, exhibiting a draft defence that the goods were never delivered.
Reasoning: because the judgment was regularly obtained, the court has a discretion. The governing questions are whether D has a defence on the merits and a reasonable explanation for the delay. Since refusing would shut out a triable issue, the court sets aside on terms as to costs, consistent with the right to a hearing.
Traps
Filing in the wrong forum; allowing the writ to expire without renewal or service; arguing the merits inside an affidavit instead of pleading them; and forgetting that a counterclaim is a separate claim attracting its own filing fees.