in the high court of the gambia in the matter of an application to ...

IN THE HIGH COURT OF THE GAMBIAMISC. APP. NO: HC/290/08/MF/050/FIIN THE MATTER OF AN APPLICATION TO APPLY FOR AN ORDER OFCERTIORARIANDIN THE MATTER OF A JUDGEMENT MADE BY THE KOMBO NORTH DISTRICTTRIBUNAL SITTING AT LAMIN VILLAGEBETWEENHASSAN CORRBy his attorney INGRID CORR....................................................APPLICANTANDHASSIB T. MASSRY................................................................RESPONDENTFRIDAY 26 TH NOVEMBER 2010BEFORE HON. JUSTICE KUMBA SILLAH - CAMARAMr. E. Jah for the Applicant ..........presentApplicant’s representative.................presentMr. B. S. M. Conteh for the respondent...presentRespondent.......absentJUDGEMENTThe Applicant commenced this application by originating summons filed on the1 st of September 2008 praying the court for the following orders:1. An order for certiorari to issue to remove into the high court for thepurpose of it being quashed a judgement of the Kombo North DistrictTribunal purporting to grant ownership and possession of the said plotof land situate at Bijilo, to Hassib T. Massry the respondent herein in acivil suit NO. 012/08.1

2. Further or other relief this Honourable Court shall deem fit to make.This application is supported by a 5 paragraph affidavit filed on the 1 st ofSeptember 2010, sworn to by one SALLY DRAMMEH, attached is exhibit SD1the order of this court granting leave to apply for certiorari, and astatement setting out the grounds upon which the relief is sought. Thegrounds are:i. The purported judgement of the tribunal is a nullity as it had nojurisdiction to entertain the suit having failed to join the person inlegal possession contrary to section 6 of the subordinate Courts (civilproceedings) Act Cap 8.02.ii. The tribunal’s findings are contrary to the rules of natural justice as itsscribe Mr. Longs Jarjue participated in recording the proceedings ofhearing and read the judgement of the tribunal even though he wasthe main witness for the plaintiff in the said civil suit no 012/08between HASSIB T. MASSRY the respondent herein and Hassan Corrthe Applicant herein.Respondent in opposing this application, filed an 8 paragraph affidavit inopposition dated the 15 th September 2008 sworn by HASSIB T. MASSRYAt the court’s sitting on the 27 th August 2008 the court presided over by HonJUSTICE WOWO granted leave to the applicant to apply for an order ofcertiorari.The applicant filed a written address on the 12 th January 2010. Thereafter therespondent filed a written address dated 15 th February 2010.In the written address of the applicant learned counsel for the appellantconceded that section 6 of the subordinate courts (civil proceedings) Act cap8.02 does not apply to District Tribunals and therefore abandoned the words inground (i) of the statement which stated that “contrary to section 6 of thesubordinate courts (civil proceedings) Act cap 8.02”. Counsel for the Applicanthowever maintained that the tribunal acted without jurisdiction.Counsel for the Applicant formulated one issue as:2

Whether the applicant has made out a case for an Order of Certiorari to issuefor the judgement of the Kombo North District Tribunal to be removed intothe High Court for the purpose of being quashed?On the other hand the respondent formulated four issues as follows:a. Whether the provisions of the subordinate courts (CIVIL PROCEEDINGS)ACT, CAP 8.02, LAWS OF THE GAMBIA is applicable to the Kombo NorthDistrict Tribunal?b. Whether the Kombo North District acted either without jurisdiction orin excess of it in the hearing and determination of Civil Suit No:012/08?c. Whether there is any evidence in support of the allegation atparagraph 3(ii) of the statement concerning one “MR LONGS JARJUE”to warrant this court to hold that the judgement of the Kombo NorthDistrict Tribunal in the said civil suit:012/08 was delivered withoutobserving the principles of natural justice?d. Whether the applicant is entitled to the relief he is seeking?The order sought is an order for certiorari to issue to remove into the HighCourt for the purpose of it being quashed a judgement of the Kombo NorthDistrict Tribunal sitting at Lamin purporting to grant ownership and possessionof the plot of land situate at Bijilo, to the respondent in civil suit no:.012/08.The constitution confers on the High Court supervisory powers over lowercourts and adjudicatory authorities pursuant to which it may issue prerogativeorders which includes an order of certiorari. See section 133 of the 1997constitution which states:The High Court shall have supervisory jurisdiction over lowercourts and adjudicatory authorities in The Gambia, and, inexercise of its supervisory jurisdiction, shall have power to issuedirections, orders or writs, including writs of habeas corpus,orders of certiorari, mandamus and prohibition as it mayconsider appropriate for the purposes of enforcing its supervisorypowers.3

It follows from the foregoing provision that the court can issue a writ ofcertiorari to quash a decision of a court or Tribunal which acts withoutjurisdiction or in excess of it; or where such a Tribunal makes a decision whichaffects the rights of a citizen without observing the principles of natural justice.See: CONTEH V ATTORNEY GENERAL 1960-1993 GLR 124KANDA V GOVERNMENT OF MALAYA [1962] AC 322PC AND RIDGE V BALDWIN [1964] AC 40I have examined these issues carefully and have formulated my own issues fordetermination and I will proceed to deal with them seriatim as follows:1. Whether the Tribunal acted without jurisdiction for failing to join theperson in legal possession?2. Whether the Tribunal’s findings are contrary to the rules of naturaljustice?ISSUE NO 1Whether the Tribunal acted without jurisdiction for failing to join the person inlegal possession?The test as to whether or not a person should be joined as a party to an actionis whether the order being sought by the plaintiff directly affects theintervener in the enjoyment of his legal right. See ORIARE V GOVT. (W. N.)(1971) 1 ALL NLR 138.Non-joinder of a necessary party cannot defeat a claim. If a necessary party isnot joined, it is the duty of the defendant to draw attention of the court to theabsence of such party. See ONAYEMI V OKUNUBI (1965) 1 ALL NLR 362.SEE ALSO BOHSALI V ARIKPO (1966) 1 ALL NLR 161. It held that Non-joinder ofparties cannot defeat a claim, but the defendant should raise the point thatnot all the interested parties are before the court as soon as possible.In the instant case there is nowhere in the record of proceedings where thedefendant raised the point that not all the interested parties are before the4

court. That being so the applicant cannot now complain that the court belowfailed to join the person who was in legal possession.Failing to join the party to the suit has nothing to do with the jurisdiction of theDistrict Tribunal. I agree with the submission of counsel for the respondent inrespect of the fact that section 7 and 10 of the District Tribunals Act, Cap 6.03Laws of the Gambia 1990 conferred jurisdiction on the District Tribunal to hearand determine the matter.Section 7 of the District Tribunals Act provides:Every District Tribunal shall have full jurisdiction, to the extent set forthin the Order establishing it and, subject to the provisions of this Actover causes and matters in which all the parties are resident or beingwithin the area of the jurisdiction of the Tribunal.Section 10 of the District Tribunals Act provides:The civil jurisdiction of a District Tribunal shall extend, subject to theprovisions of this Act to the hearing, trial and determination of all civilsuits and matters in which the defendant is ordinarily resident withinthe area of the jurisdiction of the tribunal or which the cause of actionshall have arisen within the area:Provided that civil proceedings relating to immovable property shall betaken in the District Tribunal within the area of whose jurisdiction theproperty is situated.The subject matter of the suit the suit land is situate at Bijilo and the KomboDistrict Tribunal sits at Lamin which is both in the Brikama Area CouncilDivision.In the light of the foregoing I thus find that the District Tribunal’s decision isnot a nullity and that it had jurisdiction to entertain the suit. I also find that thenon-joinder of the said party did not affect the jurisdiction of the DistrictTribunal. Issue no 1 is resolved in favour of the respondent.5

ISSUE NO.2Whether the Tribunal’s findings are contrary to the rules of natural justice?In QUEEN V L.T. GOVERNOR, EASTERN REGION (1957) 2 FSC 46-49. The courtheld some of the compliance of rules of natural justice as:1. To use certiorari to question a decision on ground of error of law, theerror must be apparent on the face of the record.2. Where however certiorari is sought on ground of breach of naturaljustice, extraneous evidence such as affidavits are admissible.3. Hearing evidence in the absence of parties is prima facie evidence ofbreach of natural justice.4. Circumstances of a case may remove breach of natural justice.5. So long as administrative tribunals act in good faith and observe rules ofnatural justice, the court will not question their decisions.6. A tribunal inspecting premises the subject matter of its decision mustinform the parties and give them a chance of dealing with it.7. Where no injustice arises from the tribunal’s decision, the order is adischarge of the writ of certiorari.Natural justice demands that a party be allowed to put forward his case asbest as he could and that the court hears any witnesses he may wish to callto establish his defence, and where the records of the court shows that thishas been done, it cannot be said that there has been a denial of naturaljustice.See KANO N. A. V OBIORA (1959) 4 FSC PAGE 226.In the instant case counsel for the applicant contended that the tribunalsfindings is contrary to the rules of natural justice as its scribe MR LONGJARJUE participated in recording the proceedings of the hearing and readingof the judgement of the tribunal even though he was the main witness forthe plaintiff in the matter in the District Tribunal.The applicant in the District Tribunal called four witnesses namely;1. Tapha Njie2. Mr Secka6

3. Modou Ceesay4. Modou JarjuThere is nowhere in the records were it stated that MR LONG JARJUE testifiedas a witness for the plaintiff and no extraneous evidence such as affidavitswere filed in respect of this issue. I thus agree with counsel for therespondent’s submission that, the statement that MR LONG JARJUE testifiedfor the plaintiff was not borne out of from either the records or the judgementof the Kombo North District Tribunal. He further submitted that there isabsolutely no evidence to support such allegation which is clearlymisconceived and apparently existing only in imagination of the applicant.On the other hand, the applicant was also given an opportunity to callevidence and put up a defence he called three witnesses.Fairness is the determining factor for the application of principles of naturaljustice. In other words, natural justice is “fair play in action.” See EXPARTEOBAYAN (1973) 12 SC 23.Based on the foregoing I thus find that the tribunal’s findings were notcontrary to the rules of natural justice. I thus resolve issue no 2 in favour of therespondent.I hereby hold that for the foregoing reasons the writ of certiorari does not lieto quash the decision of the Kombo North District Tribunal. I hereby dismissthe application for an order of certiorari.Costs of D20, 000 is awarded to the Respondent against the Applicant.............................................................HON. JUSTICE KUMBA SILLAH CAMARAJUDGE26/11.107