PROCESSES TO COMPEL ATTENDANCE OF AN OFFENDER BEFORE A COURT

An offender must attend court to know charges preferred against him by the complainant.
The two processes by which the attendance of an offender is secured are by summons and
arrest. In most instances, the attendance of an offender in court is ensured by the arrest
of the offender with or without a warrant of arrest.

SUMMONS

A Magistrate may issue a summons to compel the attendance of an accused person before
the court over which he presides, or if the offence alleged appears to be one which he is
not empowered by law to try or inquire into, before a competent court having jurisdiction.
See s. 69 (5) CPC. A summons may be issued on any day including a Sunday or a public
holiday. See s. 69 (8) CPC.

CONTENTS OF A SUMMONS

Every summons issued by a court under s. 69 of the CPC must be in writing and in duplicate.
It must also be signed and sealed by the presiding officer of such court or such other
officer as the High court may from time to time by rule direct. See s. 70 (1) CPC.

Where the law requires that processes issuing from a court shall be signed by the
presiding officer of the court, it is sufficient compliance with the law, if the presiding
officer affixes his signature by means of a rubber stamp. In Goodman v. Eban Ltd (1954)
1 QB 551, the English Court of Appeal held that where a statute requires a person to sign
a document, the provision of the statute is sufficiently complied with if the person affixes
his signature on the document by means of a rubber stamp. Such a signature is deemed
valid in law. Evershed M.R quoted with approval the following observations of Sir William
Bovill C.J in Bennet v. Brumfitti:
“The ordinary mode of affixing a signature to a document is not by hand alone, but
the hand coupled with some instrument such as a pen or pencil. I see no distinction
between using a pen or pencil and using a stamp, where the impression is put upon
the paper by the proper hand of the party signing. In each case, it is the personal
act of the party and to all intents and purposes a signing of the document by him.”

A summons should also be directed to the party summoned and shall require him to appear
at the time and place stated in the summons. It must also contain a concise statement of
the complaint against the accused person. See s. 70 (2) CPC.
EXECUTIONS OF SUMMONS

A summons is served by a police officer or by an officer of the court issuing it or other

public servant. See s. 71 (1) of the CPC. If the summons is to be served by a police officer,
it is served at any time during the hours of daylight. Where, however, a police
officer has reasonable cause to believe that a person is evading the service the
summons may be served anytime. See section 30 of the Police Act.

If practicable, a summons is served personally on the person summoned by delivery or

tendering to him one of the duplicates of the summons. The person served with the
summons, must sign the back of the duplicate to acknowledge receipt of the service of the
summons. See s. 71 CPC.

Where the person summoned cannot by the exercise of due diligence be found, the
summons may be served by leaving one of the duplicates for him with some adult male
member of his family or with his employer or his servant residing with him. The person
with whom the summons is so left shall, if so required by the serving officer, sign the back
of the duplicate to acknowledge receipt of service of the summons. See s. 72 CPC.

If the mode of service stipulated in ss. 71 and 72 of the CPC cannot by the exercise of
due diligence be effected, the serving officer shall affix one of the duplicates of the
summons to some conspicuous part of the house or home in which the person summoned
ordinarily resides. The summons is then deemed duly served. See s. 73 CPC. Note that a
summons can also be served anywhere in The Gambia. See s. 76 CPC.

Where the person summoned is on Government service, the court issuing the summons
shall send it in duplicate to the head of the office in which such person is employed. The
head of office shall then cause the summons to be served in the manner provided by s.71
of the CPC and shall return it to the court under his signature with the endorsement
required by that section. Such signature shall be evidence of service.

Where a summon is to be served on an incorporated company or other body corporate,

service is effected by serving it on the secretary, local manager or other principal officer
of the corporation or by registered letter addressed to the chief officer of the
corporation in The Gambia at the registered office of such company or body corporate. If
the summons is posted, service is deemed to have been effected when the letter arrives in
the ordinary course of post. See s. 75 of CPC.

When the officer who effected service is not present at the hearing of the case, and
where a summons issued by a court has been served outside the local limits of its
jurisdiction, an affidavit purporting to be made before a Magistrate that such summons
has been served and a duplicate of the summons as endorsed shall be admissible in
evidence. The statements made in the affidavit are deemed to be correct unless and until
the contrary is proved. Such an affidavit may be attached to the duplicate of the summons
and returned to the court. See s.77 of the CPC.

Where a Magistrate issues a summons in respect of any offence other than a felony, he
may, if he sees reason to do so, and shall when the offence which the accused is charged is
punishable only by fine or only by fine and imprisonment for a term not exceeding three
(3) months or by fine or imprisonment not exceeding three (3) months, dispense with the
personal attendance of the accused, provided that he pleads guilty in writing or appears by
a counsel. See s.78 (1) of the CPC.

ARREST

The appearance of an offender may be secured before a court of law by means of an

arrest. The offender may be arrested with or without a warrant of arrest. See s.. 69 (1)
(a) of the CPC.

ARREST WITH WARRANT

A warrant of arrest may be issued by a Magistrate or Judge after receiving a complaint

that a person has committed an offence. In practice, a warrant of arrest is usually issued
by a Magistrate in the following circumstances:

(a) When the statute creating the offence or any other law provides that the offender
cannot be arrested without a warrant.

(b) When a serious offence is alleged to have been committed by an offender.

(c) When a summons issued by a Magistrate has been disobeyed.

FORM CONTENT AND DURATUION OF WARRANT OF ARREST

Every warrant of arrest shall be signed by the Magistrate or Judge issuing it. It is also
dated and bears the seal of the court issuing it. S. 81 (1) of the CPC.

A warrant of arrest shall also state shortly the offence with which the person against
whom it is issued is charged. Such a person must be named or described in the warrant.
It should further order the person or persons to whom it is directed (usually a police
officer or police officers) to apprehend the person against whom it is issued and bring him
before the court issuing the warrant or before some other court having jurisdiction in the
case to answer to the charge therein mentioned and to be further dealt with according to
law. See s. 81 (2) of the CPC.

Every arrest warrant shall remain in force until it is executed or cancelled by the court
which issued it. See s. 81 (3) of the CPC. Thus once an arrest warrant is executed, its life
expires. A fresh warrant of arrest has to be issued to effect an arrest. In the Nigerian
case of R v. Akinyanju (1959) WRNLR 253, a warrant of arrest was issued for the arrest
of the accused. It was executed on him and he was duly arrested. Subsequently, he was
discharged. However, he was subsequently re-arrested on the same warrant of arrest.
The court held that the subsequent execution of the warrant of arrest which had been
earlier executed and had thus outlasted its duration, was irregular.

Like a summons or other processes issued by a Judge or Magistrate, a warrant is not

invalidated by reason of the Judge or magistrate who signed it dying or ceasing to hold
office or have jurisdiction. See s. 88 (2) of the CPC.

ISSUE OF WARRANT OF ARREST

Even where a summons is issued, a warrant of arrest may be issued at any time before or
after the time appointed in the summons for the appearance of the accused. See section
79 of the CPC.

If an accused person, other than a corporation, disobeys a summons and his personal
attendance has not been dispensed with under s.78 of the CPC, the court may issue a
warrant for him to be arrested and brought before it. See s. 80 (1) of the CPC. If the
accused person disobeying the summons is a corporation, the court may cause an officer of
the corporation (any director or member of the Board of management) to be summoned
before it in the manner provided for under the CPC for compelling the attendance of
witnesses. It such an officer fails to attend, a warrant may issue against him. See s. 80
(2) (3) of the CPC.

A warrant can only be issued under s. 80 of the CPC if the court is satisfied by evidence on
oath that the summons directed to that person was duly served. Note that the court can
deal with a case in the absence of the accused person in the manner provided for by s.
163 of the CPC. See s. 80 (5) of the CPC.

EXECUTION OF A WARRANT OF ARREST

A warrant of arrest may be directed to one or more police officers named therein or
generally to all police officers. A police officer can effect an arrest where the warrant
issued by a court is not in his possession but when a person to be arrested asked for it, he
should show and read it over to him. See s. 29 of the Police Act. Note that where the
immediate execution of the arrest is necessary and no police officer is immediately
available, the court issuing such a warrant may direct it to any other person and such
person may execute it. See s. 83 (1) CPC.

When a warrant is directed to more officers or persons than one, it may be executed by
all or any one or more of them. See s. 83 (2) CPC. When directed to any police officer, it
may also be executed by any other police officer whose name is endorsed upon the warrant
by the police officer to whom it is directed or endorsed. See s. 84 CPC. A warrant of
arrest may also be executed of any place in The Gambia. See s. 86 CPC.

If a police officer or another person is effecting an arrest under the authority of a

warrant, he/she shall notify the substance of the warrant to the person to be arrested
and if so required, shall show him the warrant.

When a warrant of arrest is executed outside the local limits of the jurisdiction of the
court which issued it, the person arrested shall, unless the court which issued the warrant
is within 20 miles of the place of arrest, or is nearer than the Magistrate within the local
limits of whose jurisdiction the arrest was made or unless security is taken under s. 82 of
the CPC, be taken before the Magistrate within the local limits of whose jurisdiction the
arrest was made. Such magistrate shall, if the person arrested appears to be the person
intended by the court which issued the warrant, direct that the arrested person be taken
to the court which issued the warrant. Note that bail can be given unless the law states
otherwise. See s. 87 CPC.

The police officer or the other person executing a warrant of arrest shall (subject to the
provisions of s. 82 of the CPC) without unnecessary delay bring the person arrested
before the court which issued it. See s. 85 CPC. Compare with s. 19 (3) (b) of the
Constitution.

WARRANT OF ARREST ENDORSED WITH BAIL

See s. 82 of the CPC. A warrant of arrest other than one for an offence punishable with
death (murder or treason), may be endorsed with a direction to grant bail to the arrestee,
after the conditions of bail endorsed on the warrant are met by the arrestee. The
endorsement directs that the person named in the warrant on arrest, be released on his
entering into a recognizance in such amount as may be specified, with or without sureties.
The endorsement also requires the arrestee to appear before a particular court and at
such time as the endorsement shall state. The endorsement therefore specifies:
 (a) the number of sureties (if any);
(b) the amount in which they and the person named in the warrant are respectively
bound;
(c) the court before the person arrested is to attend and
(d) the time at which he is to attend, including an undertaking to appear at such
subsequent times are may be directed by such court.

Where such an endorsement is made, the officer in charge of any police station to which
on arrest the person named in the warrant is brought shall release him upon his entering
into a recognizance with or without sureties approved by that officer. Where security is
taken, the officer taking it shall have it forwarded to the court that issued the warrant.