High Court presided over by Justice Komba Kamanda on Friday 17th January 2020, struck out an application filed by lawyers representing leaders of the All Peoples Congress (APC) party because of the wrong date. This came after Hindolo M. Gevao, counsel representing the National Reformation Movement (NRM), raised a preliminary objection to the Court hearing the application. Gevao said there was no application before the court dated 14th January 2020 in that the papers before the Judge expressly states that the affidavit was sworn to on 14th January 2019 when there was no cause of action before the Judge. He argued that the affidavit was sworn to in January 2019 and stamped by the commissioner on 14th January 2020 adding it was ambiguous. The counsel said it was their submission that affidavits must be credible and all information thereto must be honestly and sincerely stated. He added, “…an affidavit could not have been sworn on that day to support an action in 2020.” He relied on Order 31 Rule 1(1) and Order 31 Rule 9 of the High Court Rules stating that the date expressly stated is fatal and so cannot be used as a defective affidavit. He urged the Judge to discountenance the application. Replying to the objection, the lead counsel for the Party, Wara Serry-Kamal said it was a pure “inadvertent mistake, a typographical error.” She took full responsibility for that but noted that the rules were cognisance that they were not perfect. She said the provisions Mr Gevao referred to did not say anything about the dates but the address where the affidavit was sworn. She stressed that there was no ambiguity as to place as it was sworn to at the law court building. She also relied on Order 31 Rule 4 of the High Court Rules which gives the court discretionary powers stating that the defect can be cured. She said the date was a form defect and does not call into question anything that is contained in that affidavit.
Sorry, there are no polls available at the moment.
She argued that lawyer Gevao did not show to the court what prejudice or hardship had been caused to him or his client. She applied for leave to allow her alter and fix the date so that they can proceed. In his ruling, the Judge said it was obvious that the court have discretionary power but it was not every defect that can be cured by Order 31 Rule 4. He said Serry-Kamal had not made an application before moving the affidavit, and she cannot do it in the middle of an objection. Justice Kamanda also said that solicitors must double check their papers and that it was not the duty of the Judge to correct papers. He struck out the affidavit and ordered that cost of Le 4 million be paid to Gevao. Meanwhile Serry-Kamal has also objected to an application Gevao intended to move dated 15th January 2020. The objection is based on the jurisdiction of the court to interpret certain provisions in the National Constitution and whether the plaintiff has ‘Locus Standi.’ The hearing will continue on Friday 24th January 2020.
By Edna Browne-Dauphine
Login or Subscribe to read the entire article