IN THE GAMBIA COURT OF APPEAL

IN THE GAMBIA COURT OF APPEAL
BANNA BEACH HOTEL
VS
THOMPSON HOLIDAYS LIMITED
J U D G M E N T
This is an appeal against the judgment of the High Court of The Gambia per
A.M.A Dordzie J (as she then was) in Civil Suit No.142/2000, wherein the
Appellant herein as Plaintiff at the Lower Court, (hereinafter called Appellant),
sued the Respondent herein as Defendant at the Lower Court, (hereinafter called
Respondent) for the following reliefs as set out in the Amended Statement of
claim as per Pages 62 to 66 of the record of this Appeal volume 1, as follows:
1. The sum of ₤424,140.00 as Special Damages;
2. General Damages for breach of contract;
3. Interest at such rate and for such period as the court may deem just and
proper;
4. Costs;
5. Further Relief.
Pleadings were ordered, filed, and duly exchanged. The Respondents filed a
statement of Defense dated the 24 th of October 2000, (see pages 17-19 of
the record 1). The Appellant filed a reply dated the 28 th January, 2002
(pages 35-37 of the records). The Respondent filed a Rejoinder dated the
7 th of March, 2002 (pages 45-47 record 1). At the end of the trial, the
Learned Trial Judge rendered judgment on the 17 th day of November, 2007,
wherein she dismissed the Plaintiff’s claim on the grounds that the oral evidence
adduced by the Plaintiff in proof of his claim, is not admissible in proof of the

content of the written agreements, which had previously been rejected, and
upon which the entire action was based at the trial nisi prius.
Aggrieved by the foregoing decision of the trial court, the Appellant commenced
this Appeal vide Notice of Appeal filed on the 13 th of February, 2008,
challenging same upon the following grounds:
(1) The Learned Judge erred in law when he refused to admit into
evidence a Photostat copy of a standard form of contract which
clearly emanated from the Respondents.
(2) The Learned Judge erred in law in failing to admit into evidence
three contract documents authorized by the Respondents on the
erroneous ground that the Appellant has no right to refuse to
comply with a Notice to Produce which itself was, in any event,
defective and not in compliance with the requirements of the Rules
governing Notice to Produce Documents.
(3) The Learned Judge wrongly exercised his discretion to reject the 3
standard forms of contract by basing his decision on legal
technicality at the expense of substantial justice, well knowing from
the pleadings that the said documents formed the substratum of
the Appellants case.
(4) The Learned Judge was wrong in rejecting the tendered contracts
when the justice of the case demanded a more equitable approach
such as ordering the Appellant to produce and in the meantime the
proceedings stayed until compliance.
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(5) The Learned Trial Judge was wrong when she held that it cannot
be said that the facts numerated in paragraph 22 (2.2) of the
Plaintiff’s address are admitted and not in issue because the
Defendant vehemently denied that it signed any agreement with
the Plaintiff.
(i)
Particulars of Error
Paragraph 2.2 of the Plaintiff’s Address lists 10 material facts which
the Plaintiff said were not in issue.
(ii)
The Learned Trial Judge’s finding merely avoided a determination
on the 10 issues raised.
(6) The Learned Trial Judge was wrong when she held that “the true
parties to the said agreements can only be determined from the
contents of the documents.”
(i)
Particulars of Error
The existence of the contracts and that the Banna Beach Hotel was
made available to the Defendant was not denied by the Deponent.
(ii)
That Sheriff Marong signed the contracts was also not denied by
the Plaintiff.
(iii)
What was in issue was the capacity in which Sheriff Marong acted
when he signed.
(iv)
The Plaintiff had argued that this could be decided without the
contracts and cited authorities to that effect. The Learned Trial
Judge never considered this issue.
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(7) The Learned Trial judge misdirected herself when she held that
“without the written agreements in evidence this court has no
evidence before it to help it determine the issues raised from the
pleadings”.
(i)
Particulars of Error
The case put forward by the Plaintiff’s in their address was that the
Defendant’s had admitted sufficient material facts to determine the
issues without the contracts.
(ii)
The Court did not evaluate the pleadings in relation to the issues.
Reliefs sought from The Gambia Court of Appeal:
(1) That the said Judgment of the Lower Court be set aside;
(2) That the documents improperly rejected be admitted into evidence;
and
(3) That the case be determined on its merits by this Court; or be
remitted to the Lower Court for determination on the merits.
Briefs were ordered, filed, and exchanged. The Appellants brief was filed on the
2 nd of November, 2009, wherein Appellant’s Counsel, Mrs. Amie Bensouda,
raised five issues for determination and argued along same namely:
1. Whether the Learned Trial Judge properly exercised his discretion in
rejecting the three agreements (Reject A,B and C);
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2. Whether the fact that the Defendant “vehemently denied that it entered
into the agreements with the Plaintiff” precluded the court from examining
the issues set out in paragraph 2.2 as having been admitted by the
Defendant and therefore needed no proof;
3. Whether the Learned Trial Judge was right when she held that the true
parties to the contract could only be determined from the content of the
agreement;
4. Whether the Learned Judge was right to hold that without the written
agreements it had no evidence before it to help it determine the issues
raised from the pleadings;
5. Whether the Plaintiff is not entitled to its claim on a balance of
probabilities.
The Appellant also filed a reply on points of law, filed on the 23 rd of March,
2010.
For their part, the Respondent filed Respondents brief of argument on the 6 th of
February, 2010. I notice that Respondent formulated no issues for
determination in their brief. However, Learned Counsel for the Respondents,
Ms. Ida D Drameh, argued replicando the issues raised in the Appellants brief.
I have carefully considered the issues raised by the Appellant, in Appellants brief
and argued by the Respondents in Respondents brief and I find that in as much
as these issues address the grounds of appeal they are however largely
internover. I thus prefer to adopt issue one and two in the Appellants brief,
however I prefer to formulate a third issue to wit “whether the Appellants Case
at the Lower Court could have succeeded without the two written agreements
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which had been rejected.” It is my views that this views that this issue
encapsulates issues three, four and five formulated in the Appellants brief. I will
this determine this Appeal based on the following issues.
1) Whether the Learned Trial Judge properly exercised his discretion in
refusing the three agreements (Rejects A, B and C).
2) Whether the fact that the Defendant “vehemently denied that it entered
into the agreements with the Plaintiff” precluded the court from
examining the issues set out in paragraph 2.3 as having been admitted
by the Defendant and therefore needed no proof.
3) Whether the Appellants case at the Lower Court could have succeeded
without the two written agreements which had been rejected”.
ISSUE ONE
Whether the Learned Trial Judge properly exercised his discretion in rejecting the
three agreements (Reject A, B and C).
This issue is clearly distilled from Grounds 1 to 4 of the grounds of appeal.
Appellants Counsel submitted in paragraph 6.2 of the Appellants brief, that if
Issue One is found in favour of the Appellants, then the need to determine
Issues 2 to 4 will be obviated. That remains to be seen. I say so because this is
a vexed issue in this Appeal. It elicited considerable fight from the Respondent.
The Respondents challenge both the Notice of Appeal and Grounds 1 to 4 of the
grounds of Appeal as incompetent. They contend in paragraph 5 of the
Respondents brief, that “the Notice of Appeal strangely purports to be against
the decision of the High Court contained in the judgment of the Hon. Justice
A.M. Dordzie, date the 17 th day of November, 2007, based on the Ruling of
Okoi Itam dated the 18 th December, 2002 and this cannot be a valid way of
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appealing against two decision of the High Court. This is so, particularly having
regard to the fact that the Learned Trial Judge Dordzie J. did not interfere
with, comment on or make any decision regarding the propriety or otherwise of
rejecting the documents that were sought to be tendered before Itam J and
rejected by him in 2002.”
Similarly the Respondents question the competence of Grounds 1 to 4 of the
grounds of this appeal, contending that this court lacks the jurisdiction in this
appeal, to determine any issues arising from the Ruling of Okoi Itam J,
rendered on the 18 th day of December 2002. They submit that the said ruling
not having been appealed against within time, and not having been an issue that
was determined in the impugned judgment, cannot therefore be a matter for
determination in this appeal. Respondents relied on Section 130 of the
Constitution of the Republic of the Gambia 1997, Rule 14 of the Gambia Court of
Appeal rules, and a host of cases both within and without this jurisdiction,
notable amongst which are, First International Bank V Gambia Shipping
Agency Civil Appeal No.24/2002, Ruling delivered on 21 st June, 2007,
Haro Company Limited & Ors V Ousman Jallow (2002-2008) GLR Vol.1
128, Saraki V Kotoye (1992) 9 NWLR (Part.264) 162, Oshodi V
Eyifummi (2002) 13 NWLR (Part.684) 298, 313, Emco-Nasa Computers
Limited V British Airways and Another (2002) 13 NWLR (Part.684) 203,
204,208, Dagaci of Ddre V Dagaci of Ebwa (2001) 7 NWLR (Part.712)
257-516, Simetequip Limited Vs Omega Bank (2001) 16 NWLR
(Part.739) Page 325-345, Dantata & Sawoe Const. V Hassan (2001) 5
NWLR (Part.705) 129 as well as Spencer Bower and Turner on the
Doctrine of RES JUDICATA 2 nd Edition Page 15 paragraph 16.
Now, I have said it in this judgment, that the competence of the Notice of
Appeal, as well as Grounds 1-4 of the grounds of appeal, are under attack by the
Respondents. The jurisdiction of this court to entertain and determine the
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Appeal is thus challenged. It is trite learning, that once the jurisdiction of a court
to determine a matter is challenged, it behoves that court to suspend every
other business of the day and settle the question of its jurisdiction, before taking
any further steps in the matter. This is because, a determination of a matter
over which a court lacks jurisdiction, cannot clothe that court with the jurisdiction
which it does not have. Therefore, any decision emanating from such a matter,
no matter how fanciful and aesthetic it be, will still amount to a nullity for that
lack of jurisdiction. It is thus imperative that a court determines its jurisdiction
once raised, in other not to engage in an exercise in futility. I will thus in honour
of this trite principle of law, determine whether this court has the jurisdiction to
entertain the Appeal against the decision of Itam J rendered on the 18 th of
December 2002 and grounds 1 to 4 of the grounds of appeal upon which Issue
One is predicated. I will like to commence this exercise from the tangent of
Grounds 1 to 4 of the grounds of appeal, and to that end I find it convenient at
this juncture to reproduce Grounds 1 to 4 of the grounds of appeal, for ease of
clarity in this judgment. They state thus
1) The Learned Judge erred in law when he refused to admit into evidence a
Photostat copy of a standard form of contract which clearly emanated
from the Respondents.
2) The Learned Judge erred in law in failing to admit into evidence three
contract documents authorized by the Respondents on the erroneous
ground that the Appellant has no right to refuse to comply with a Notice
to Produce which itself was, in any event, defective and not in compliance
with the requirements of the Rules governing Notice to Produce
Documents.
3) The Learned Judge wrongly exercised his discretion to reject the 3
standard forms of contract by basing his decision on legal technicality at
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4) The Learned Judge was wrong in rejecting the tendered contracts when
the justice of the case demanded a more equitable approach such as
ordering the Appellant to produce and in the meantime the proceedings
stayed until compliance.
It is a cardinal rule of appeal, that Grounds of Appeal must relate to matters
decided in the impugned judgment. The Grounds of Appeal must isolate and
accentuate for attack the basis of the reasoning of the decision challenged. It
must be fixed and circumscribed within a particular issue in controversy,
otherwise it cannot be regarded as related to the decision. It is incompetent
when not fixed and circumscribed within a particular issue in controversy decided
in the judgment. This is because an appeal presupposes the existence of some
decision appealed against. In the absence of such a decision on a point, there
cannot possibly be an appeal against what has not been decided against a party.
See Haro Company Limited V Ousman Jallow (supra) Edward Graham V
Lucy Mensah (2002-2008) GR1, Amadou Jallow V Bakary Drammeh.
Saraki V Kotoye (supra) Babalola & ors V The State (1989) 4 NWLR
(Pt.115) 246 at 294.
Grounds 1 to 4 of the Grounds of Appeal do not emanate from the judgment of
the 17 th of November 2007. I say this because these grounds of appeal are
not fixed and circumscribed within any issues decided in that judgment.
I have carefully perused these grounds of appeal and I find that they do not
emanate from the impugned judgment of 17 th day of November, 2007 to be
found on pages 409 to 415 of the record of Appeal*.
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It is worthy of note that on the 18 th of November, 2002 at the trial nisi prius,
the Plaintiff sought to tender three Contract Agreements dated 24 th June 1998,
3 rd November 1999 and 4 th November 1999, respectively, through PWI,
Sheriff Marong. The Respondents took issue with the admission of these
agreements in evidence upon the following grounds:
1) The agreement of 24 th June 1998 is a photocopy and no explanation
was given as to why the original was not produced;
2) The Defense gave notice to produce these documents to the Plaintiff, but
the Plaintiff failed to produce the documents, and failed to give sufficient
explanation for their none production;
3) None of the documents is stamped.
In a Ruling delivered on Wednesday the 18 th of December 2002, the
Learned Trial Judge, Okoi Itam J, upheld the objection of the Defense and
rejected the three agreements, on the grounds that the agreement dated 24 th
June 1998, is a photocopy and no foundation was laid as to the whereabouts of
the original. He also rejected the agreements of 3rd November 1999 and 4 th
November 1999, respectively, on the premise of the Plaintiffs failure to honour
the notice to produce same, served on it by the defense and the failure by the
Plaintiff to offer any plausible explanation for said failure to produce. The trial
court duly marked these rejected agreements, Rejects A, B and C respectively.
(Pages 85 to 91 of the record of Appeal.)
I agree entirely with the Learned Counsel for the Respondents, that grounds 1 to
4 of the grounds of appeal emanate from the Ruling of Okoi Itam J (as he then
was) rendered on the 18 th day of December, 2002.
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I have myself carefully perused Grounds 1 to 4 of the grounds of appeal vis a vis
the Ruling of Okoi Itam J delivered on 18 th December 2002, and I am of the
firm conviction that these grounds of appeal clearly emanate from the Ruling of
18 th December 2002 and not from the judgment of 17 th November 2007.
Appellants Counsel conceeded this fact by necessary implication in Appellants
Reply on points of law, wherein she sought to justify the inclusion of the ruling of
the 18 th of December 2002 in this appeal.
It is obvious to me that it was in a bid to raise these grounds of appeal, that the
Appellant couched the Notice of Appeal, to be “based on the Ruling of Okoi
Itam dated the 18 th December, 2002”. It is clear from ground 1 to 4 of the
grounds of appeal, combined with the fact that the appeal is based on the Ruling
of Okoi Itam dated the 18 th December, 2002, that the Appellant is
challenging not only the judgment of the 17 th of November, 2007, but also
the Ruling of 18 th December 2002 in this appeal. The question that begs for
determination at this juncture, is, does this court have the jurisdiction to
entertain and determine the Ruling of Itam J. rendered on the 18 th of
December, 2002, or and any issues emanating there from? I think not. I say
this because, as rightly contended by the Respondent, the right to file an appeal
against the Ruling of Itam J. of 18 th December, 2002, is completely
extinguished.
I count it now settled law that, in as much as S.130 of the Constitution of
Republic of The Gambia 1997, affords an Appellant a right of appeal as of right
to this court, from the decision of the High Court, however, the question of time
to file an appeal against the judgment of the High Court is regulated by statute.
The enabling statute is Rule 14 of the Gambia Court of Appeal Rules
(hereinafter called GCA rules) which provides thus:
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“1) Subject to any provision which may be made by the legislature, no
appeal shall be brought after the expiration of fourteen days in the
case of an appeal against an interlocutory decision or of three
months in the case of an appeal against a final decision, unless the
court below or the court shall enlarge the time;
2) The prescribed period for appeal shall be calculated from the date
of the decision appealed against:
Provided that where there is no appeal as of right the prescribed
period shall be calculated from the date upon which leave to appeal
is granted;
3) An appeal shall be deemed to have been brought when the Notice
of Appeal has been filed in the Registry of the court below:
4) No application for enlargement of time in which to appeal shall be
made after the expiration of one month from the expiration of the
time prescribed within which an appeal may be brought. Every
such application shall be supported by an Affidavit setting forth
good and substantial reasons for the application and by grounds of
appeal which prima facie show good cause for leave to be granted.
When time is so enlarged, a copy of the order granting such
enlargement shall be annexed to the Notice of Appeal.”
The Ruling of Okoi Itam J rendered on the 18 th of December 2002, presently
under contemplation is an interlocutory decision of the High Court, as the
decision did not finally dispose of the right of the parties. See Banna Beach
Hotel Ltd V Thompson Holidays Ltd CA 2/2003 (unreported decision of the
Gambia Court of Appeal, delivered on the 28 th of February 2006), Central
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Bank of The Gambia V Continent Bank Ltd Misc. App, No.1/91 (1990-
83) GR.335.
The litera legis of Rule 14 (1) and (2) supra, are clear and unambiguous, as to
the time within which an appeal against an interlocutory decision of the High
Court should be brought i.e. within fourteen days from the date of the decision
appealed against. Rule 14 (4) (supra), also postulates the fact, that an
application for an extension of time to file an appeal against an interlocutory
decision, outside the fourteen days statutorily prescribed, can only be
competent, if it is filed, within one month after the fourteen days statutorily
prescribed for such appeals has expired. I count it now settled law, that failure
by an appellant to comply with the provisions of Rule 14 GCA rules in filing an
appeal divests this court of jurisdiction to entertain same. See Banna Beach
Hotel Ltd V Thompson Holiday Ltd (supra). Alagie Jallow V Guaranty
Trust Bank (unreported decision of the Gambia Court of Appeal delivered on
the 22 nd of December 2009, in Misc. App. No.2/2009). In Moore V
Tayee (1932) 2 WACA 43 at 44-45 per Lord Atkin, put this position thus:
“it is to be remembered that all appeals in this country and elsewhere exists
merely by statute and unless the statutory conditions are fulfilled no jurisdiction
is given to any court of justice to entertain them”.
It is in the light of the totality of the reasons ante, that I reiterate my position,
hereinbefore, expressed in this judgment, that the Appellants rights to file an
appeal against the Ruling of the 18 th of December 2002 is irredeemably
extinguished.
I say this because the Appellant had 14 days from the 18 th of December,
2002, to file this appeal, he failed to do so. There is nothing in the processes
filed or in the record before the court, to demonstrate, that an extension of time
to file the said appeal was applied for, or granted, either in the court below, or in
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this appeal. The Appellant was therefore required in the circumstances to file
this appeal within fourteen days from the 18 th of December, 2002 inclusive of
Sundays and Public Holidays. The notice commencing this appeal was filed on
the 13 th of February, 2008, which was more than five years after the ruling of
the 18 th of December 2002. The right to bring this appeal is completely
extinguished thereby rendering the appeal against the said ruling of 18 th of
December, 2002, and grounds 1 to 4, of the grounds of appeal predicated
thereon, incompetent and unarguable. In the cases of Banna Beach Hotel V
Thompson Holiday Ltd, (supra) and Alagie Jallow V Guaranty Trust
Bank (supra), this court struck out the Notice of Appeal commencing those
appeals for non compliance with the statutorily provisions of Rule 14 GCA rules.
I have no wish to depart from those decisions. Therefore grounds 1 to 4 of the
grounds of appeal, issue one predicated thereon and all argument advanced by
the Appellant in furtherance thereof, are liable to be struck out. However before
striking out these Grounds of Appeal I am constrained to consider another angle
presented by the Appellants to save these grounds of appeal. This angle is
premised on the question as to whether these grounds of appeal can be
competently argued without the necessity of filing an appeal against the decision
of Itam J of the 18 th December 2002. This question was canvassed with so
much anxiety in this appeal, that I cannot resist the urge of adding my voice in a
bid to resolve same.
The Appellants position on this issue is clearly expressed in the Appellants Reply
on points of law, wherein Appellants Counsel, contends that Grounds 1 to 4 can
be properly raised in this appeal. She placed reliance on the dictum of
Ogwuegbu JSC (as he then was) to be found on Page 361 of Saraki V
Kotoye (supra) where his Lordship declared thus “Section 227 of the Evidence
Act relates to wrongful admission or exclusion of evidence in the course of trial
which can be taken upon appeal after a final determination of the substantive
case by the court of trial”. Appellants Counsel submitted that S.226 of the
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Evidence Act of The Gambia is in pari material with Section 227 of the Evidence
Act of Nigeria, and contended that in that event, the question of rejects A,B, and
C contained in the Ruling of 18 th December, 2002, is properly before the
court.
Let me straight away say here that I disagree completely with Learned Counsel
for the Appellant on this issue. Now S.226 of the Evidence Act of The Gambia,
1994, provides thus:
“(1) The wrongful admission of evidence shall not of itself be a ground
for the reversal of any decision in any case where it shall appear to
the court on appeal that the evidence so admitted cannot
reasonably be held to have affected the decision and that such
decision would have been the same if such evidence had not been
admitted;
(2) The wrongful exclusion of evidence shall not of itself be a ground
for the reversal of any decision in any case if it appears to the court
on appeal that had the evidence so excluded been admitted, it may
reasonably be held that the decision would have been the same.”
Let me quickly observe here that there is nothing in Section 226 (supra) to
suggest that a party aggrieved by an interlocutory decision of a trial court
cannot, appeal against such an interlocutory decision during the pendence of the
substantive suit. No that is not the purport of Section 226 (supra). Irrespective
of the foregoing, I must point out that the current judicial trend however is that
parties are discouraged from engaging in irrelevant interlocutory appeal over
trifling legal issues. This is because this practice has been recognized over the
years as one of the greatest causes of delay in justice. This not withstanding, I
am of the firm view that where the question considered at the interlocutory
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stage of the trial, is not a trifling legal issue, but one that is paramount to the
case of a party at the trial court e.g. the question of wrongful admission or
rejection of evidence, in that case, the litigant must weight the paramouncy of
the evidence wrongfully admitted or rejected, to his case, and that should be the
criteria for lodging an appeal at that stage. I say so because, it is
commonsensical in my views, that if evidence rejected at the trial nisi prius
forms the very crux of a party’s case at the trial stage, as is the position in this
case, prudence demands that the litigant either pursues an appeal at that stage
or in the very least, timeously files an appeal within the time statutorily
prescribed for filing same, whilst he awaits the conclusion of the substantive suit.
This is to ensure that his right of appeal is not extinguished, regard being had to
the length of time it takes for cases to be determined across jurisdictions. My
views, ante, are in accord with the current judicial position on this subject
matter, as demonstrated by case law across jurisdiction, which is, that, where
subsidiary issue decided in the course of a trial is not a trifling legal issue, but is
essential and crucial to the just determination of the substantive issue between
the parties, and is also the factor upon which the determination of other issues
at the trial court is predicated, a determination of such a subsidiary issue by an
appellate court cannot abate the determination of the substantive issue at the
trial court. The foregoing is the purport of the decision in Saraki V Kotoye
referred to by both sides to this contest. Their Justices of the Supreme Court of
Nigeria in pages 165-166 of that case, made very graphic and illuminating
statements on the question of wrongful admission or exclusion of essential
evidence and the exercise of a right of appeal thereon. I find a need to
reproduce these statements as they appear on page 8 of the Respondents brief.
“In every case, there are principal and subsidiary issues in respect of which
parties are before the court. Where a subsidiary issue is essential or critical to
the just determination of the principal issue, the controversy in respect of which
the parties are before the court, as for example where there is an allegation of
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wrongful admission or exclusion of essential evidence crucial to the case of a
party, the determination of such a subsidiary issue by an appellate court cannot
wait until the Lower Court decides the issue before it. This is because other
issues in the case are still dependent on that subsidiary issue “(P.187, para E-F)
per Ogundare JSC (at page 202, para E-F).
“From all I have been saying above, it is my conclusion that under Section 220
(1) (b) of the Constitution the Defendant has a right of appeal as of right to the
Court of Appeal against the decision of the trial High Court rejecting the
evidence. The issue to be determined on the appeal against the interlocutory
decision is different from the question to be decided on the final judgment which
would be the effect on the final judgment of the wrongly admitted or rejected
evidence. It may be that a wise step to take is to raise the issue of admissibility
of the evidence at the end of the day when final judgment is given but this does
not necessarily follow in every case. For there may be cases where a wrongly
rejected evidence may be all that a party relies on in support of its case and
without which it would be futile for him to continue to contest his opponent’s
case. In such a case, I cannot say why he must be prevented from proceeding
to test the correctness of the decision to exclude such evidence before
proceeding with the trial” page 169. (Underline mine)
“In the instant case however…..the issue in contention has a serious bearing on
the course of the trial as well as on the outcome of the proceedings. It is not a
trifling legal issue which can be taken up generally with the substantive appeal at
conclusion of hearing Bakare V ACB Ltd (1986) 3 NWLR (Pt. 26) 47 Globe
Fishing Industries Ltd V Coker (1990) 7 NWLR (Pt.161) 265 referred to
(Pt.205-206, para H-A_.”
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“……………….it does not preclude a party from lodging an interlocutory appeal
where the issues raised by the rejection of his evidence are so crucial and critical
to his case. In such a case it is prudent for him to exercise the right of appeal”.
I also say that it was prudent for the Appellant herein to timeously exercise his
constitutional right of appeal, pursuant to S.130 of the Constitution of the
Republic 1997, against the decision of Itam J of the 18 th December 2002, in
view of the fact that the evidence rejected, rejects A B and C, formed a crucial
part of his case at the trial nisi prius. To wait until 5 years after, when the right
of appeal has completely extinguished, to raise these issues in the way and
manner he seeks to do in this appeal, in my view tantamount to “shutting the
stable after the animal had bolted away”.
The Appellants are therefore precluded from raising the issues in grounds 1 to 4
of the grounds of appeal, in the way and manner they seek to do in this appeal,
in the absence of a competent appeal against the Ruling of 18 th December
2002. This is because the decision of Okoi Itam J contained in the said Ruling
is valid and subsisting and binding upon the parties thereto including the
appellant. It must be obeyed and respected by all, including this court. This is
premised on the fact that no court has the powers to assume that a subsisting
order or judgment of another court of competent jurisdiction, can be ignored
because the former, whether it is a superior court in the judicial hierarchy,
presumes the order, as made or the judgment as given by the latter, to be
manifestly invalid, without a pronouncement to that effect by a competent
appellate or reviewing court. See First International Bank Ltd V Gambia
Shipping Agency (supra) Edward Graham V Lucy Mensah (supra) Haro
Co Ltd & ors V Ousman Jallow (supra) Udom V Micheletti & Sons Ltd
(1997) 7 SCNJ 44.
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Furthermore, I am in complete consonance with Ms. Drameh in Respondents
brief, that grounds 1 to 4 of the grounds of appeal, cannot even in the wildest of
imaginations qualify as new issues in this appeal. I say this because quite apart
from the fact that these issues have been decided in the Ruling of 18 th
December 2002, which remains valid, subsisting and binding upon the parties,
to treat them as new issues if the occasion demands (which is not the position in
this appeal,) requires the leave of this court. There is no evidence to show that
the requisite leave was sought and obtained before these issues were raised and
argued. Therefore even in that extreme of scenarios, grounds 1 to 4 of the
grounds of Appeal remain incompetent and unarguable. See Haro Company
Ltd V Ousman Jallow (supra) First International Bank V Gambia
Shipping Agency CA No 24/2002) Amadou Jallow V Bakary Drammeh &
ors (unreported decision of the Gambia Court of Appeal in CA 35/2007
delivered on Thursday, 10 th of June, 2010.
On these premises grounds 1 to 4 of the grounds of appeal, Issue One
predicated thereon and all argument proffered in furtherance thereof by the
Appellant, are hereby struck out.
I have already held in this judgment that the Notice of Appeal herein is obviously
challenging two decisions of the High Court, to wit the Ruling of Okoi Itam J
delivered on the 18 th of December 2002, and the judgment of Dordzie J
rendered on the 17 th of November, 2007. I agree with Ms Drameh in
paragraph 5 of the appellant’s brief, that this is not a valid way of appealing
against two decisions of the High Court. I am of the firm view that each decision
should be the subject of a separate Appeal. It matters not that the decisions
were made in the same suit. What the Appellant did was to consolidate two
appeals without the leave of court. Such consolidation ought to have been done
with the leave of court See Mohamadou Sissoho V Inspector General of
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Police Crim. App No.HC/068/08/CR/020/60, Groupe Eyssauties V
Lamin Bun Gaye. I have already demonstrated in this judgment that the
Appellants right to file an appeal against the ruling of the 18 th of December
2002, is completely extinguished. That part of the Notice of Appeal is therefore
incompetent.
I will not strike out the Notice of Appeal in the interest of substantial justice I will
severe the incompetent part and allow the part that deals with the judgment of
the 17 th of November, 2007, to subsist, since that part of the appeal was
brought within the statutorily prescribed time and is thus competent. This was
the position adopted by this court in Groupe Eyssauties V Lamin Bun Gaye
(supra), where this court was faced with 2 appeals consolidated in one Notice
of Appeal without the leave of court. The court suo motu raised the question of
the competence of the part of the appeal against the judgment of the 15 th of
April 2005, declaring same incompetent for failure to comply with Rule 14 of
the GCA rules. Instead of striking out the whole appeal, the court severed the
incompetent part of the Appeal, and allowed the part that dealt with the ruling of
the 15 th of July 2005, to subsist, since that part of the appeal was brought
within time, in the interest of substantial justice. I am bound by the decision in
Groupe Eyssauties V Lamin Bun Gaye (supra). I have no wish to depart
from it.
On these premise, the part of the Notice of Appeal based on the decision of
Okoi Itam J. of the 18 th of December, 2002, is hereby struck out.
ISSUE TWO
Whether the fact the that Defendant “vehemently denied that it entered into the
agreements with the Plaintiff” precluded the court from examining the issues set
out in paragraph 2.2 as having been admitted by the Defendant therefore
needed no proof.
20

It was submitted for the Appellant with respect to this issue, that the 10 material
facts raised by the Appellant are enumerated in paragraph 2.2, at page 378 of
the record, and not paragraph 22 as indicated in the impugned judgment. That
none of these issues include whether the agreements were signed between the
parties or not. They had no connection with the “vehement denial made by the
Defendant.” Appellant contended that the court had a constitutional
responsibility to consider all issues raised and submissions made on the merits to
avoid a miscarriage of justice. That the Learned Trial Judge,s findings merely
side stepped the issues raised. Appellants Counsel relied on Odunayo V State
(1972) 8-9 SC 290, Owodunni V Registered trustees of Celestial Church
of Christ (2007) – (NWLR) (Pt 675) 325, Nduka V Ezenwaku Part 709
(2001) 6 NWLR P.495.
It was argued replicando for the Respondent in Respondents brief, that ground 5
of the grounds of appeal upon which Issue Two is predicated, does not actually
challenge the findings of the Trial Judge, but rather complains that the judge did
not accept the facts that the Appellant had set out in its address at the trial nisi
prius. Respondents Counsel therefore argued, that this cannot be a competent
ground or issue. It was further contended, that the facts enumerated in
paragraph 2.2 of the Appellants brief must be taken in context with the other
issues identified by the Appellants, including those listed in paragraph 2.3 and
2.4 of the Appellants brief as they appear in pages 379 to 380 of the record.
That the context of the case required that there be sufficient evidence in the
evidence to determine with whom the Respondent actually contracted. There
was no such evidence in the absence of the written agreements between the
parties. That the finding of the trial judge was right in the circumstances.
Now, there is no controverting the fact that the Respondents by the tenor of
their argument are challenging the competence of ground 5 of the grounds of
21

appeal, from which Issue Two emerged. I count it expedient therefore to
examine ground 5 of the grounds of appeal to ascertain whether there is any
substance or efficacy, in the Respondent’s complaints, before taking any further
steps in this matter.
Appellant alleges the following in ground 5.
“(5) The Learned trial Judge was wrong when she held that it cannot be said
that the facts enumerated in paragraph 22 (2.2) of the Plaintiff’s address
are admitted and are not in issue because the Defendant vehemently
denied that it signed any agreement with the Plaintiff.
(i)
Particulars of Error
Paragraph 2.2 of the Plaintiff Address lists 10 material facts
which the Plaintiff said were not in issue.
(ii)
The Learned Trial Judge’s finding merely avoided a
determination of the 10 issues raised.
I have hereinbefore stated in this judgment that the grounds of Appeal serve as
a notice of the issues in controversy to the Respondent. This purpose is to fulfill
the fair hearing requirement which is expressed in the maxim “audi alteram
partem.” It also defines the jurisdiction of the court. That is why strict
compliance with the principles that attend appeals, sanctioned by the rules of
court is of utmost expediency. I have hereinbefore identified Rule 12 (1) to (6)
of the rules of this court, as the “soul and foundation” of any proper, grounds of
appeal. That is why I am inclined to agree with Ms Drameh in her grouse
against ground 5 of the grounds of this appeal. I say this because, I am
completely at pains to comprehend what this ground of appeal, purports or
22

intends or conveys. What actually is this ground of appeal challenging? How
was the Learned Trial Judge wrong? Did he commit any error or misdirection in
law? This ground of appeal, is too nebulous. It is too vague and general in
terms. It discloses no reasonable ground of appeal and clearly offends Rule 12
(3) of the GCA rules. The predicament of this ground of appeal is in my views
compounded by the particulars appended thereto. These particulars are peculiar
in that they cannot honestly qualify as particulars of the error, if any, complained
about in the ground of appeal itself. These particulars have not shown how the
Learned Trial Judge erred against or wronged the law, as the case may be. The
particular merely allude to the 10 items enumerated in paragraph 2.2 of the
Appellants brief at the trial court, and complains that the trial judge avoided
determining these facts by side stepping them. With all due respects, these
allusions do not amount to particulars of the wrong, if any, alluded to in ground
5 itself. As this court said in the case of Momodou D. Jallow & ors V Faama
Saine CA 49/2006 (unreported decision of the Court of Appeal rendered on
Monday 28 th of July, 2008) per Agim PCA (as he then was).
“…………………….It is beyond dispute that the phrase “wrong in fact and in law” in
the context used therein, mean the same thing as “error” infact and in law. A
wrong judgment or decision is an erroneous judgment or decision. A wrong or
erroneous judgment means one rendered contrary to law or fact or upon a
mistaken view of law or fact or upon a mistaken conception or application of the
law or incorrect belief as to the existence or effect of matters of fact.
Grammatically, ordinarily and literally the word “wrong” can also mean error or
erroneous and in the context it is used in the 1 st ground of appeal, it means that
the Trial court erred in fact and in law. The new Cambridge Advanced
Learners Dictionary, at page 412, states the meaning of the word
“erroneous” as “wrong or false impression” and the word “error” as “mistake or
fault”. It also defines the phrase, “error of judgment” as a “wrong decision.” At
23

pages 1481-1482, it states that when something is wrong it can also mean that it
is not correct or is a mistake. It states that to go wrong is to make a mistake.
A ground of appeal that alleges that a judgment is wrong or erroneous in fact
and in law without stating the particulars of error is clearly vague and
unarguable and must be struck out. See the decision of this court in Edward
Graham V Lucy Mensah (unreported judgment in Civil Appeal No.36/99 of
26 th January 2004) and Haro Co Ltd V Ousman Jallow (unreported
judgment in Civil Appeal No.3/2003 of 1 st June 2006), which held that
grounds of appeal exactly the same as the one here violate Rule 12 (2) GCA
Rules and were incompetent for not stating the particulars of error”.
Even though in the case of Faama Saine (supra) the 1 st ground of Appeal which
elicited the foregoing remark of this court, had no particulars at all, it is my view
that the decision of the court therein should apply to the Appeal instant. I say
this because, as I have already held in this judgment, though the Appellant
appended particulars to ground 5, those particulars cannot however qualify as
proper particulars of any wrong, if any complained about in ground 5 itself.
Therefore, I construe that ground of appeal as not having any particulars at all.
The requirement of particularization embodied in Rule 12 (2) is to ensure
adequate notice of matters in controversy, so that the Respondent is not
disabled by vague and general statements. Ground 5 of the grounds of appeal is
the epitome of vagueness, and I agree entirely with Ms Drameh, that it does
not qualify as a ground of appeal. Ground 5 of the grounds of appeal is therefore
incompetent and is hereby accordingly struck out. Issue two emanating from
ground 5 and all arguments proffered in furtherance thereof are also accordingly
struck out.
24

ISSUE THREE
Whether the Appellants case at the Lower Court could have succeeded without
the two written agreements which had been rejected.
By the tenor of their argument in this appeal the Appellants are alleging that the
Learned Trial Judge failed to evaluate the evidence placed before her at the trial
court. It is by reason of this fact that the Appellants are inviting this court to go
down stairs to the trial court, re-evaluate the evidence tendered there, set aside
the findings not supported by evidence, substituting same with findings which
ought properly to have been made having regards to the evidence.
It is trite learning, that an appellate court usually will not interfere with the
findings of fact made by a trial court after a proper evaluate of the evidence,
unless there was no proper evaluation of the evidence led by both sides on the
point. It is the duty of the trial court to review and evaluate all relevant and
material evidence, before it, before making any findings of facts. Where the trial
court fails to make proper use of its opportunities to appraise the evidence given
before it, this court can dismiss the findings of facts of the said Trial Court. In
the case of Armanti Gambia Company Ltd V DHL International (Gambia)
Ltd (2002-2008) 1 GR 194, the Supreme Court of the Gambia put the
position thus. “As a general rule, an appellate court does not disturb findings of
fact made by a trial court unless it can be demonstrated that the said findings of
fact are perverse, or are not supported by the evidence on record, or absurd in
that no reasonable tribunal applying itself to the same facts, could have reached
the same findings.” See Singam Investment Company Gambia Ltd V
Nasser H Farage (2002-2008) GR 68 Christiana Williams V Melville
Williams (CA 37/2007). Similarly, in the case of Fashonu V Adekoya
(1974) 1 ALL NLR (pt.1) 35 at 41, The Supreme Court of Nigeria
postulated this principle of law in the following language:
25

“The appraisal of oral evidence and the ascription of probative value to such
evidence is the primary duty of a tribunal of trial, and a Court of Appeal would
only interfere with the performance of that exercise, if the trial court had made
an imperfect and improper use of the opportunities of hearing and seeing the
witnesses, or had drawn wrong conclusions from accepted or proved facts, which
those facts do not support, or indeed has approached the determination of those
facts in a manner, which those facts cannot and do not in themselves support”.
I find it expedient therefore to discover whether the findings of fact made by the
trial judge on this issue was as result of a proper evaluation of the evidence led
at the trial nisi prius.
How the Learned Trial Judge came to dismiss the Appellant’s case in the court
below is clearly decipherable from different portions of the impugned judgment:
I will endeavour to reproduce some of the relevant portions of the impugned
judgment for ease of clarity. The Learned Trial stated thus
“From the 1 st paragraph of the Plaintiff’s amended statement of claim the two
agreements referred to therein were the agreements that regulated their
transactions with the defendant. Throughout the pleadings the Plaintiff had not
shown that there had been an oral agreement between the parties rather the
pleading show that this action is based on two written agreement between the
parties” (see page 413 paragraph 4 and 414 paragraph I.)
“The Plaintiff, to succeed in this action must prove that it entered the two
agreements with the Defendant. For the Defendant had vehemently denied that
it signed any agreement with the Plaintiff, Banna Beach Hotel Ltd. The
Defendant having taken this position, it cannot be said that the facts numerated
in paragraph 22 of the Plaintiff’s address are admitted and are not in issue.
26

The true parties to the said agreements can only be determined from the
contents of the document. The position of the law as stated above is that the
oral evidence led by the Plaintiff and his witnesses, to prove who the parties are
to the agreement is not admissible. Section 79 of the Evidence Act further
supports the law on this. S.79 of the Evidence Act says “All facts except the
contents of documents may be proved by oral evidence”.
It is unfortunate that the agreements were rejected in evidence. Without the
written agreements in evidence this court has no evidence before it to help it
determine the issues raised from the pleadings. To be able to determine
whether there had been a breach of the terms of the agreements, there must be
evidence as to what the terms are. Negotiations or any transactions the
Plaintiff’s evidence referred to cannot be admissible evidence in proof of the
contents of the agreements.
Damages would be awarded if there is proof that there had been a breach of the
terms of the agreements. In the absence of proof of breach the claim in
damages must fail (see page 414 paragraphs 3,4,5 & 6.)
“The rejection of the written agreements in evidence had dealt the Plaintiff’s
claim a deadly legal blow. The oral evidence adduced by the Plaintiff I find is not
admissible in proof of the contents of the written agreements this action is based
on. The Plaintiff I find has failed to place any evidence before this court in proof
of its claims. The Plaintiff’s action are hereby dismissed as not proved” (see
page 415 paragraph 1).
The Poser here is, are the findings of fact of the Learned Trial Judge sustainable
in the face of the pleadings of the parties and the evidence led at the trial nisi
prius? I ask this question because, it is trite law that all through the journey of
a case in court, from the trial stage until, all appeal channels are exhausted,
27

parties are bound by their pleadings. The essence of pleadings is to enable the
court, and the parties in the case, know from the joinder of issues the exact case
which the parties have to meet at the hearing. It protects the audi alteram
partem rule, in that, it is a means via which each party gives fair and proper
notice to alert his opponent of the case he has to meet, to enable him frame and
prepare his own case for the trial. It is for this reason that a party cannot set up
one thing in their pleadings, and in court rely upon something entirely different
not pleaded by him. It is necessary also to stress the fact that the court is also
bound by the pleadings. Pleadings provide the legal basis for judgment which
must be confined to the matters in which issues have been joined. It is
incontrovertible from the foregoing, that it is upon the pleadings that the case
must be fought and it is upon the pleadings that the case must be decided. It is
therefore convenient for me at this juncture, to reproduce the relevant portions
of the pleadings filed by the parties herein at the trial court, to demonstrate the
case relied upon by each party at the trial court.
The Appellant relied on an Amended Statement of claim filed on the 4 th of June
2007 (page 62-65 of the record) I agree with Ms Drameh as she submitted
in paragraph 3.1 to 3.3 of the Respondent’s brief, that following the ruling of the
trial court on the application for amendment of the statement of claim, made by
the Plaintiffs, in which the trial court refused the proposed amendment for
paragraphs 2,3,4,5 and 9 of the proposed amendment statement of claim (pages
55 to 58 of the record) but allowed paragraph I of same, that the amended
paragraph 1 automatically replaced the original paragraph I. Therefore the
original paragraph 1 in the Amended Statement of claim on pages 63 to 65, of
the record, which is reflected therein as paragraph 2, does not represent the
Ruling of the court.
Be that as it may, in the Amended Statement of Claim as it appears on pages 63
to 65 of the record, the Appellant averred as follows:
28

1. The Plaintiff’s is a limited liability Company and owns the hotel called
Banna Beach Hotel and the Defendant is a British Tour Operator who
brings tourist to The Gambia.
2. By two Agreements in wring dated the 4 th November, 1998, and 3 rd
November 1999, respectively and made between the Plaintiff and the
Defendant, the Plaintiff agreed to provide accommodation at “Banna
Beach Hotel” situate at Kololi/Kotu, The Gambia, West Africa for the use
of the Defendant’s Tourist during the Winter Seasons – November 1999 to
April, 2000 and November, 2000 to April, 2001, at the rates and upon the
terms and conditions set out in the said agreements.
3. The Plaintiff will refer to the agreements for their full terms, meaning and
effect as may be necessary.
4. Pursuant to the said agreements the Plaintiff duly held and made the said
Hotel available to the Defendants who in pursuance of the Agreements
made an advance payment to the Plaintiff of ₤30,000.00 and on or about
the 2 nd November, 1999, flew out Guests from the United Kingdom to The
Gambia. The said guests were accommodated at the said Hotel.
5. The Defendants have paid a total sum of ₤30,000 to the Plaintiff by way
of installments in respect of guests occupation of the said Hotel for the
period 2 nd November 1999 to 28 th December, 1999.
6. The Defendant’s wrongfully and in breach of contract the Defendant by a
letter dated 3 rd February 2000 repudiated the said Agreement and refused
any longer to be bound by them.
29

7. Further or in the alternative, notwithstanding repeated demands and
warning by the Plaintiff the Defendants wrongfully and in breach of the
agreement failed and refused to send any more guests to the said Hotel
since the date of the said repudiation mentioned in paragraph 5 herein.
8. By their conduct as set out in paragraph 5 and 6 above the Defendant
have evinced an intention no longer to be bound by the said agreement
and they have repudiated same.
9. The Plaintiff as he was entitled to do, accepted the Defendant’s
repudiation by Notice in writing dated 29 th May, 2000.
10. By reason of the foregoing the Plaintiff has lost the benefit of the said
Agreements and lost the revenue he would otherwise have received under
them and has therefore suffered loss and damage.
PARTICULARS
11. The Plaintiff will give credit for ₤9118.50
12. As a result of the Defendants action the Plaintiff was unable to service its
loan with the Bank and had to sell the Hotel when the Bank threatened to
foreclose on their mortgage.
By the statement of Defense dated the 24 th day of October 2000 (pages 17 to
19) of the record the Respondent averred thus:
1. Paragraphs 1 and 2 of the Statement of Claim are denied.
2. The Defendant is a United Kingdom tour operator and operates holiday
programmes which depart from various destinations in the United
30

3. The Defendant denies that it made the alleged or any agreement as
alleged or at all with the Plaintiff.
4. The Defendant had no contractual relations with the Plaintiff. At no time
was Banna Beach Hotel made available to the Defendant pursuant to
agreements entered into between the Plaintiff and the Defendant.
5. Save that payments totaling ₤30,000.00 were made to one Sheriff Marong
by the Defendant as advances under agreements signed by the Defendant
with the said Sheriff Marong, paragraph 3 of the Statement of Claim is
denied.
6. The Defendant entered into contracts (“the Contracts”) with the said
Sheriff Marong (“the Owner”) for use of the Banna Beach Hotel (“the
Hotel”) for the Winter 1999 – 2000 and 2000 – 2001 seasons.
The Contracts were entered into, subject to the Defendant’s Health and
Safety Addendum, which required the Hotel to be safe for the Defendant’s
customers, and which provided an indemnity where this was not the case
7. The Addendum referred to in paragraph 6 of this defence was stated to
be supplemental to and “treated for all purposes as being part of” the
Contracts. Under the Addendum, the Owner allowed inspection of the
contract accommodation, and the Owner agreed to implement such
recommendations as well made under the Defendant’s Safe First Project
by a stated date, amongst other things.
31

8. Hygiene Audit Reports were made after inspection by auditors pursuant to
the requirement of the Contracts with the Owner, and other inspections
were carried out. The Owner was required to address all the queries in
any such report or after such inspections or when queries were raised
either immediately or within stated periods.
9. The Hotel achieved a final audit of 43% only, in the Hygiene Audit Report
of the 15 th day of November 1998.
10. By a letter dated the 11 th day of November, 1999, the Defendant
complained to the Owner about the continued overbooking of its guests,
the increasing number of guests complaints about the Hotel, and the
unacceptable state of the Hotel, along with the unavailability of the tennis
and squash court which had been advertised as part of the Defendant’s
package, and in its holiday travel brochures.
11. By letter of the 16 th day of December, 1999, the issue of the quality of the
Hotel was again raised.
12. By letter of the 31 st day of December, 1999, the Owner was informed that
because of the decline in the quality of service and accommodation, and
the failure to address the outstanding fire and safety issues, repeated
customer complaints, coupled with overbooking, no further bookings
would be placed in the Hotel until further notice.
13. Paragraphs 5,6,7,8 and 9 of the statement of claim are denied. There
were exchanges of correspondence between the Owner and/or his
employees and the Defendant.
32

By letter of the 3 rd February, 2000, the Defendant as it was properly
entitled to do, notified the Owner of the cancellation of the contracts for
the rest of the 1999/2000 season and the winter 2000/2001, due to “a
large number quality problems including health and safety issues”.
14. Despite several opportunities given to the Owner by the Defendant, the
Owner failed to carry out the required remedial works related to health
safety and hygiene.
15. Had the Defendant continued to send customers to the owner’s Hotel, the
Defendant would have incurred losses, harmed its business reputation and
would have continued to have to compensate guests and receive guest
complaints, since the Defendant is, under United Kingdom law,
responsible for liability for breaches of contract made with it customers.
16. The particulars in paragraphs 9 of the statement of claim are denied.
The terms of the Contracts entered into with the Owner, were for a
percentage of the total number of rooms in the Hotel (“an allocation”).
However, only those rooms actually booked and occupied were to be paid
for by the Defendant. At no time did the Defendant guarantee the Owner
that it would make any bookings.
17. The effect of the said Contracts was that until up to seven days before
each arrival date, the Owner contracted to hold a number of rooms
available for use by the Defendant, thus an allocation was taken without
commitment and no payment was due to the Owner unless the rooms
were actually occupied by its guests.
33

Further, were the Defendant did not notify the Owner of any books for
any of the beds seven days before the arrival period, such unbooked beds
were available for the Owner to sell elsewhere.
18. By failing to carry out all the health and safety works required to bring the
Hotel up to an acceptable health and safety standard, despite the Owner
agreeing to carry out such works within the periods stated, the Owner
was in breach of the terms of the Contracts.
19. It was further expressly agreement under the terms of the Contracts that
the Defendant could terminate the Contracts by giving notice, if the level
of complaints relating to either the accommodation, food service,
amenities facilities received from its customers during the period of not
less than twelve weeks immediately prior to the giving of such notice,
were unacceptable and damaging to the Defendant’s reputation.
20. The level of complaints received from the Defendant’s customers before
and after 2 nd November 1999 were excessive, unacceptable and damaging
to the Defendant’s reputation, and the Defendant was entitled to and did
terminate for this reason and others.
21. The Plaintiff is not entitled to the amounts claimed or any sum at all, nor
is any sum payable to the Plaintiff by the Defendant.
22. The contract for the winter season 2000/2001 has yet to take place. The
Owner had sufficient time to enter into other contracts or to mitigate any
purported losses.
34

23. Save as hereinbefore expressly admitted the Defendant denies each and
every material allegation of fact contained in the Statement of Claim as if
the same has been set out and traversed seriatim.
By a Reply dated the 28 th day of January 2002 (pages 35-37 of the record)
the Appellant averred thus
1. In answer to paragraphs 1,2,3, and 4 of the Statement of Defense, the
Plaintiff aver that the Defendants are estopped and precluded from
denying the existence of the two agreements mentioned in the
paragraphs 1 and 2 of the statement of Claim.
PARTICULARS:
By a letter dated 11 th of August 2000, written by the Defendants to the
Director of Tourism of the Gambia, the Defendants, inter alia, confirmed
entering into the said agreements with the Plaintiff.
Further in the said letter, the Defendants sought the assistance of the said
Director of Tourism to use his office to persuade the Plaintiffs to drop their
action against the Defendants
2. In further answer to paragraph 4 of the Statement of Defense, the
Plaintiffs aver that 336 tourists of the defendants were accommodated at
the plaintiffs hotel at various times during the period 2 nd November, 1999
to the 14 th of December, 1999, and will at the trial produce the necessary
and relevant documents in proof thereof.
3. In reply to paragraph 5 of the Statement of Defense, the Plaintiffs aver
that the said #30,000 thirty thousand British Pounds was disbursed in two
35

The said Managing Director even made an attempt to change the
payment of the first cheque from Banna Beach Hotel to Sheriff Marong
but the Defendants refused that request stating that they were dealing
with Banna Beach Hotel.
The second payment was made through a telegraphic transfer to the
Plaintiff’s account at the Arab Gambian Islamic Bank (AGIB) through the
Standard Chartered Bank in Banjul.
Further, Sheriff Marong signed the said contracts on behalf of the
Plaintiffs.
4. In reply to paragraphs 6,7,8, and 9 of the Statement of Defense, the
Plaintiff aver that recommendations made by the Defendants on hygiene
and safety inspections were fully met and works that were recommended
to be done or completed, were also carried out to the satisfaction of the
Defendants which they themselves confirmed by their representatives
issuing a “Work Done Report” dated the 29 th day April, 1999, as a
result of which they (the Defendants) increased the allotment to the
Plaintiff from 20 rooms to 50 rooms for the 1999/2000 winter season.
This increase was done notwithstanding the final audit report of 43% for
the 1998/1999 winter season.
5. In reply to paragraph 10 of the Statement of Defense, the Plaintiffs aver
that the said letter dated the 16 th November, 1999, was faxed to them
36

The Plaintiff’s further averred that the said hotel was far from being in an
unacceptable state.
6. In reply to paragraph 11 of the Statement of Defense, the Plaintiffs aver
that the letter dated 16 th December, 1999, that was faxed to them, dealt
with other issues for example, payment and the issue of the quality of the
hotel was merely incidental in a very general manner.
7. In reply to paragraph 12 of the Statement Defense the Plaintiffs aver that
the letter dated 31 st December, 1999, as never received by the Plaintiff’s.
8. In further reply to paragraphs 7,8,9,10,13, and 14, of the Statement of
Defense, the Plaintiffs aver that the Defendants sent a representative to
the Plaintiff’s hotel who carried out a thorough inspection of the said hotel
as a result of which the said representative issued a report entitled;
“Representative’s Special Report”. The said report was not
unfavourable to the Plaintiffs.
Further, the Plaintiffs aver that the Defendant’s representative Mrs. Sheila
was found to be racist in her attitude towards the management of the
Plaintiffs hotel whereupon, the Plaintiffs were obliged to send an official
letter of complaint to the Defendants dated 2 nd January, 2000, wherein
the said Mrs. Sheila’s poor attitude and approach was stated.
9. In reply to paragraph 15 of the Statement of Defense the Plaintiffs states
that the matters raised in the said paragraph are highly speculative in
37

10. In reply to paragraph 16 and 17 of the Statement of Defense, the Plaintiff
aver that the contracts mentioned in paragraph 1, and 2, of the statement
of claim were entered into about one year before the start of each tourist
season and that will enable the Defendants to package the resort
exclusively and feature it in the relevant brochures which are always
prepared well in advance of the tourist season and distributed worldwide.
It is a rule of practice in the tourist industry, that a contract resort is
contractually bound to the Tour Operator and the allocated rooms cannot
be offered or resold in the event of a breach to another tour operator
during the season in question.
Further, the Plaintiffs resort was featured in the Defendant’s brochure for
the 1999/2000 and 2000/2001 tourist seasons.
11. In reply to paragraph 18 of the Statement of Defense, the Plaintiffs
repeats the averment contained in paragraphs 4 and 8 of this reply.
12. In reply to paragraphs 19 and 20, the Plaintiffs repeats the averments
contained in paragraphs 4,5 and 8 of this reply.
13. In reply to paragraph 22 of the Statement of Defense, the Plaintiffs repeat
the averment contained in paragraph 10 of this reply.
14. In further reply to paragraphs 10,11,13,14,15,16,17, and 18, the Plaintiffs
aver that the Defendants are further estopped and precluded from relying
38

In the said letter the Defendants stated: “As you can see there are
some very good scores and I would like to thank everyone for all
their hard work over the millennium to ensure that we had no
major problems.”
The said letter was signed by one Helen Catlow, then Team Manager for
The Gambia on behalf of the Defendants.
By a Rejoinder dated the 7 th day of March 2002 (pages 45-47 of the record)
the Respondent averred thus
1. The Defendant denies the particulars contained in the Reply to Statement
of Defense.
2. If which is denied a letter dated the 11 th day of August 2000 was written,
the said letter did not confirm entering into the said agreement with the
Plaintiff or seek the assistance of the said Director of Tourism as stated in
the Particulars in Paragraph 1 of the Reply to Statement of Defense. The
said letter, if written in any event, was a without prejudice letter and is
otherwise inadmissible and irrelevant to these proceedings.
3. Paragraph 2 and 3 of the Reply to Statement of Defense are denied save
that payments were made to Banna Beach Hotel pursuant to the terms of
the agreement signed by the Defendant. Of the ₤30,000.00 paid, the sum
of ₤9,331.70 remains due and owing to the Defendant.
39

4. Paragraph 4 of the Reply to Statement of Defense is denied. No
allotments were made to the Plaintiff and the Defendant states that the
number of rooms contracted for the 1999/2000 winter season was fifty
and for the 2000/2001 season because of quality concerns and a
consequent drop in demand the number of rooms contracted decreased to
twenty rooms.
The contracts were signed prior to the Defendant discovering problems with
the operation management and standards of the Banna Beach Hotel.
The Defendant denies issuing the Work Done Report for 1999/2000. At the
time of signing the contract for 1999/2000 (i.e 4 th November 1998) the
Defendant was unaware of how poorly the Hotel was going to score in the
audit. The Final Audit Report is dated 15 th November, 1998.
5. Paragraph 5 of the Reply to the Statement of Defense is denied. By a
letter dated 11 th day of November, 1999, all queries raised by the
Defendant in relation to matters relating to stay of guests at Banna Beach
Hotel or the standards of the said hotel, were matters properly raised by
the Defendant, having regard to its contractual obligations with the said
quests and/or relevant and applicable United Kingdom legislation.
6. The said letter of the 11 th day of November, 1999 concluded by stating,
that the Hotel needed “to do some thing urgently to put the hygiene
right…”
7. Paragraph 7 of the Reply to Statement of Defense is denied. The Hotel
acknowledged receipt of the said letter in writing by facsimile dated the
4 th day of January 2000.
40

8. Paragraph 8 of the Reply of Statement of Defense is denied. The
management of Banna Beach Hotel was not prepared to attend to
genuine and relevant issues raised by the Defendant and/or its
representatives.
The Defendant denies that its representative Mrs. Sheila was “found to be
racist in her attitude towards the management” of Banna Beach Hotel.
The Defendant will seek withdrawal of the said allegations or full details of
when these alleged acts took place in support of this claim.
In any event, the fax of the 2 nd day of January 2000 made no mention of
the said complaint, and this is the first time this allegation has been raised
by the Plaintiff.
9. The Defendant did not at any time surcharge the Plaintiff or Banna Beach
Hotel. The Defendant was at all times however entitled to compensation
in accordance with the terms of the contract.
The Defendant denies that it is speculative in its pleading
10. Paragraphs 9 and 10 of the Reply to Statement of Defense are denied.
a) The contracts with Banna Beach Hotel were subject to a seven day
release period. The Defendant was at no time under a commitment
to occupy any room in Banna Beach Hotel.
Under the terms of the contract, the Defendant agreed to only pay
for any room occupied by its guests.
41

) The contracts for Banna Beach Hotel were not committed
contracts.
No payment needed to be made by the Defendant under the terms
of the said contracts unless and until the rooms were actually
occupied and the requisite seven day notice called for under the
contracts had been given.
Although irrelevant is this suit, the Defendant admits that in
accordance with normal business practice, the Banna Beach Hotel
was advertised in its Brochures several months prior to the start of
the season in order to be able to sell the holidays.
11. Paragraph 11, 12 and 13 of the Reply to statement of Defense are denied.
12. The Defendant denies paragraph 14 of the Reply to Statement of Defense
authorizing or wiring the letter referred to therein. If which is denied, the
said letter was written, it was written without the writer having all the
facts relevant to this matter, and/or was written without authority and/or
is irrelevant to this suit.
13. The Defendant was under the terms of the contracts, required to provide
a rooming list seven days before arrival of its guests, and then Banna
Beach Hotel was entitled to invoice for the rooms actually occupied.
The Defendant not having occupied any room during the period covered by this
suit, the Defendant does not owe either Banna Beach Hotel or the Plaintiff the
sum of ₤424.140.00 or any sums at all.
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Now the Appellant case at the trial court clearly decipherable from the pleadings
and the evidence of PWI, Sheriff Marong the Managing Director of the Appellant
Hotel, as well as PW2, Mr. Buba Drameh who worked with the Appellant Hotel as
a Front Office Manager, is that the parties entered into two agreements, by the
terms of which the Appellants agreed to provide accommodation for the
Defendants tourists in the Banna Beach Hotel owned by the Plaintiff for the
period covering November 1999 to April 2000 and November 2000 to April 2001.
That the Respondents approached the Appellants to block 50 rooms in their
Hotel for their guests from the UK for the first period that is 1999/2000 period.
The Respondent also requested that 20 rooms be blocked for their guests for the
2 nd period, that is the 2000/2001, period that the Respondent paid the Appellants
₤30,000 for the 1 st period. That the Appellants duly blocked the rooms, but that
the Respondents only brought guests to be accommodated in the Hotel for only
part of the 1 st period. That the Appellants accommodated the guests brought by
the Respondents in November and December 1999. That after January 2000,
the Appellants received no more guests from the Respondents. On the 3 rd of
February 2000, the Appellants received a letter from the respondents, Exhibit D,
terminating the contract between the parties, and the Appellants replied via
Exhibit E, accepting the repudiation of the contract. That the Appellants could
not sell the rooms blocked for the Respondents because agreements are signed
with tour operators one year ahead of time. The 50 rooms they blocked could
take about 135 guests and the room rate was ₤11 per person. That as a result
of the termination of the contract by the Respondent, the Appellant incurred
huge revenue losses. The Appellant lost ₤176,000 representing room sales, food
and other outlets. The Appellant further contended that they met the safety
requirements of the Respondents therefore the termination of the contract was
not justified. That as a result of the Respondent’s action the Appellant could not
service a Bank loan and had to sell the Hotel. Appellants particularized the claim
of special damages in paragraph 10 of the statement of claim.
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On the other hand the Respondents case as demonstrated by the pleadings is
that the Agreements that the Appellant pleaded at the Lower Court were signed
by on Sheriff Marong who is described in the agreement as “owner” of Banna
Beach Hotel for the use of the said hotel for the 1999-2000 and 2000-2001
winter season. The Respondents admitted that they paid ₤30,000 (Thirty
Thousand pounds) to Sheriff Marong as advance under the agreement they
signed with him. That the agreement was subject to a Health and Safety
Addendum which was to be treated as part of the contract. That the owner
failed to meet the Health and Safety requirements though he was given several
opportunities to do so. By failing to bring the hotel to the acceptable health and
safety standard required under the terms of the contract, the owner had
breached the terms of the contract. The Respondents therefore terminated the
contract and are thus not liable to the Appellant’s claims. That by the terms of
the contract the Respondents took allocation of rooms from the owner without
commitment and no payments were due to the owner unless the rooms were
occupied. The Appellants are therefore not entitled to any of the sums they
claimed.
It is beyond disputation from the state of the pleadings and evidence led that the
Appellants claim at trial court was founded on breach of contract. The terms of
the contract were contained in two agreements which the Appellants pleaded in
paragraph 2 of their statement of claim. The Appellants placed dogged reliance
on the 2 agreements in proof of the agreement between the parties. There is no
evidence that there was a subsequent oral agreement between the parties. It is
therefore incontrovertible that the parties intended to bind themselves by the 2
agreements pleaded.
I have already demonstrated in this judgment that the two agreements pleaded
by the plaintiffs and admitted by the defendants as evidencing, the terms and
conditions of the transactions between them, that is the agreements dated the
44

4 th of November 1998 and the 3 rd of November 1999 respectively (see
paragraph 2 of the Statement of Claim) were part of the three agreements
rejected by the trial court, per Okoi Itam J, in a Ruling delivered on the 18 th of
December 2002 and duly marked Rejects A B and C respectively, pursuant to
Section 95 of the Evidence Act 1994. The effect of the rejection of these
agreements is that they do not form part of the evidence tendered at the Lower
Court and cannot, therefore in the circumstance, be countenanced by the court.
The agreements are therefore not before the court to deduced not only the
parties thereto, but the intentions of the parties therein. It is by reason of this
fact that Mrs. Bensouda invites the court, to consider the facts which she says
were admitted in the Lower Court, in determining not only the parties to the
agreement which was clearly in issue, but also in determining on the merits,
what terms were breached and the liability of the Respondents to the damages
claimed. Counsel contended that failure of the Learned Trial Judge to evaluate
the evidence led resulted to a serious miscarriage of justice.
The legal question that arises at this juncture, is whether the oral evidence
adduced on behalf of the Appellants at the trial court, can lie to prove the
contents of the written agreements the Appellants action was based on at the
trial court.?
It is the position of the law that what was contemplated between the parties to a
written agreement is to be looked for in the first instance in the agreement to
which they subscribed. See Ebun Omoregie Breitenhurgen Portland
Cement Fabrick (1962) All NLK 159. The intention of the parties to a
written contract is to be gathered from the agreement to which they set their
hands Bangue Genevoise De Commerce EE De Credit V CIA Mar DI
Ishola Spetsal Ltd (No.2) 1962 All NLR 565.
45

The position of common law on this position is correctly postulated by the
Learned Trial Judge on pages 413 of the impugned judgment, where she stated
thus:
At common what is known as The Patrol Evidence Rule forbids the
giving of verbal evidence in proof of a written agreement.
This rule is stated in Chitty on Contracts Vol. 1, 28 th Edition paragraph
12 – 094 as follows
“If there be a contract which has been reduced to writing, verbal
evidence is not allowed to be given so as to add to or subtract from, or
in any manner to vary or qualify the written contract.” It has been
held that the operation of the rule is not confined to oral evidence it
has been taken to exclude extrinsic matter in writing such as drafts,
preliminary agreements and letters of negotiation. The English court
of appeal held in the case of Henderson V Arthur (1907) 1 KB 10 that
an attempt to put in evidence of an agreement antecedent to the
written lease which forms the contract between the parties will be
violation of one of the first principles of the law of evidence. To quote
Collins MR at page 12 “It seems to me that to admit evidence of such
an agreement as being so available would be to violate one of the first
principles of the law of evidence; because in my opinion it would be to
substitute the terms of an antecedent patrol agreement for the terms
of a subsequent formal contract under seal dealing with the same
subject – matter”.
And in the case of Mercantile Bank of Sydney v Taylor (1893) AC 317 at
321 the Privy Council held that previous verbal communications which
had passed between the parties were completely superseded by the
written agreement and could not be legitimately referred to either for
46

the purpose of adding a term to their written agreement or of altering
its ordinary legal construction.
In modern times it has been held in the case of Turner v Forwood
(1951) 1 All ER 746 that the rule only applies where the parties to an
agreement reduce it to writing and agree or intend that the writing
shall be their agreement.
An exception to the rule is where it is shown that the parties intend the
agreement to be partly written and partly oral. Even then extrinsic
evidence is admissible only to the oral part of the agreement. (See the
case of In Gillespie Bros. & Co v Cheney Eggar & Co (1896)2 QB59).
Our laws in The Gambia have given a nod to the position of common law on this
subject matter via section 79 of the evidence Act of 1994, which states “All facts,
except the content of documents may be proved by oral evidence.
This position of the law as is backed up by the Evidence Act of the Gambia 1994,
in S.138 thereof, where it states as follows:
“When any judgment of any court in other judicial or official proceedings or any
contract, or any grant or other disposition of properly has been reduced to the
form of a document, or series of documents, no evidence may be given of such
judgment or proceedings or of the terms of such contract, grant or disposition of
properly except the document itself is produced or secondary evidence of its
contents in cases in which secondary evidence is admissible under the provisions
herein before contained is given nor may the contents of any such document be
contradicted, altered added to or varied by oral evidence.”
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Let me quickly make the observation at this juncture, that I have carefully
considered the entire evidence tendered at the court below and I see no where,
where the Respondents herein admitted that the agreements they entered into
for the use of the Banna Beach Hotel was with the Appellants. There is no doubt
there was an agreement for the use of the Appellant hotel by the Respondent,
the Respondents admitted this fact. However, they have maintained all through
that they contracted with PWI, Sheriff Marong, in his personal capacity as the
owner of the Appellant Hotel and not with the Appellants. There is no doubt that
PWI Sheriff Marong was the Managing Director of the Appellant Hotel. I however
find that the mere fact that he was the Managing Director, and as contended by
the Appellants, signed the 2 agreements in his capacity as such, does not
establish the fact, of the parties to the said agreement. Appellants contend that
the question of the parties to the agreement is one of the exceptions
enumerated in S.138 of the evidence Act of the Republic of The Gambia 1994,
and thus can be resolved by oral evidence.
With all due respect, the Appellants contention on this issue at the Lowe Court as
contained in Counsel’s Submissions to be found at pages 382 to 385 of the
record is not tenable. S.138 (1) (a) and (3) relied upon by learned counsel for
the Appellants in the Appellants brief under issue number three, cannot in my
views, aid the position of the Appellant on this subject matter. S.138 (1) (a)
provides “provided that any of the following matters may be proved.
(a)
Fraud, intimidation, illegality, want of due execution, the fact that it
is wrongly dated, existence or want of failure of consideration,
mistake in fact or law, want of capacity in any contracting party or
the capacity in which the contracting party acted, when it is not
inconsistent with the terms of the contract, …………(underline mine)
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It is obvious that the foregoing legislation deals with the question of oral
evidence to establish the capacity in which a contracting party acted, and not
oral evidence to establish who the contracting parties were. It’s beyond dispute
that the parties to the agreement, if disputed, can only be deduced from the
agreement itself.
Similarly I hold the view that S.138 (3) which provides thus
“Oral evidence of the existence of a legal relationship is not excluded by the fact
that it has been created by a document, when the fact to be proved is the
existence of the relationship itself, and not the terms on which it was established
or is carried on” cannot also advance the cause of the Appellants. I say so
because whilst not disputing that fact that oral evidence can be given as to the
parties to a written agreement, however, where there is a conflict in the oral
evidence tendered as to the actual parties to the agreement, as is the position in
this case, that conflict can only be resolved by the production of the written
agreement itself. It is my views that where there is a conflict as to the parties to
an agreement, the status of the parties automatically fall within the purview of
the terms on which the agreement was established and is to be carried on and in
that event can only be resolved by the production of the written document itself
and not by the oral evidence tendered. On the whole I agree entirely with the
Learned Trial Judge, that in the face of the pleadings and the state of the
evidence at the Lower Court, the question of the parties to the agreement for
the use of the Banna Beach Hotel by the Respondents can only be deduced from
the agreements themselves. Similarly, the question of what the terms of the
agreements between the parties therein were, to determine whether these was
actually a breach of the contract and if there was, what terms were breached, is
also one within the province of the agreements themselves. It is only if there
was a breach, that the question of damages would arise.
49

I am in complete consounce with the Learned Trial Judge that Negotiations or
any transaction the Plaintiff’s evidence referred to cannot be admissible evidence
in proof of the contents of the agreements.
In reaching the above conclusions, I am guided by the case of Gamstar
Insurance Company Limited V Musa Joof (2002-2008) 1 GR 103, where
this court expressed pretty much the same views. In that case much was
decided on the undefended lists, the claim at the Lower Court was to enforce a
contract of Insurance. The Respondent failed to exhibit the insurance policy
which contained the terms and conditions of the contract between the parties.
The trial court heard the case and found for the Respondent. The Appellant
appealed to this court. The court held thus in allowing the appeal.
“I have no choice but to agree with the submission of learned Counsel for the
appellant that the plaintiff’s claim was not established and remained disputable.
This is an action to enforce a contract of insurance. The contract is contained in
the insurance policy which stipulates the terms of the contract like the insured
peril, the insured interest and the amount payable as indemnity for loss resulting
from the occurrence of the insured peril. The respondent’s claim was based on
this policy which is in documentary form. The policy is obviously the foundation
of this case. It is surprising that he did not exhibit such a fundamentally relevant
document along with his affidavit in support of his writ of summons. This would
have put the terms of the policy beyond dispute. Even the documentary
particulars of the ownership and license of the vehicle, and the license of the
person who drove the vehicle at the time of the occurrence of the accident are
not exhibited. It is obvious from paragraphs 6 and 7 of the affidavit in support
of the writ of summons that there is a documentary evidence of the occurrence
of the insured peril, the police interim report. The respondent did not also
border to exhibit a copy of this report before the trial Court. No document was
exhibited by the respondent to show that he submitted a claim form to the
50

appellant. There is no doubt that if the respondent had exhibited all these
documents with his affidavit, his claim would have been beyond dispute. It did
not and the appellant filed a notice of intention to defend disputing the amount
covered by the policy and the occurrence of the insured peril. The appellant
denied taking over the insured vehicle, declaring it a write off or having
possession of it. The appellant also denied receiving the requested documents
from the respondent. These disputations rendered the production of the above
documents necessary to enable the Court decide the indemnity stipulated in the
policy, the occurrence of the insured peril and if such occurrence did not result
from a breach by the respondent of a term of the policy and the submission of
the requested documents to the appellant. With these issues remaining
unsettled I do not see how judgment can justifiably be entered for the plaintiff
on the undefended list…………….The question here is, why the respondent did
not exhibit such an important document upon which his case is founded? Why
keep the document away and rather be leading secondary evidence of its
contents? Which is better, to produce the document or to testify as to its
contents? If the document is produced, it will speak for itself particularly on the
matter of the agreed indemnity. Furthermore by virtue of S.79 of the Evidence
Act 1994 it is doubtful if affidavit evidence of the contents of the insurance policy
is admissible. The section provides that all facts except the contents of
documents may be proved by oral evidence. Clearly affidavit evidence is akin to
oral evidence in all respects. S.138 (1) of the said Evidence Act put the matter
beyond doubt. It provides interalia that when any contract has been reduced to
the form of a document no evidence may be given of such contract except the
document itself is produced or secondary evidence of its contents in cases in
which secondary evidence is admissible under the Evidence Act.
Since the 2 agreements pleaded by the Appellants and relied on by the parties
herein, as regulating the transactions relating to the Appellant hotel, are not in
evidence before this court, and in the face of the pleadings and evidence led at
51

the trial court I consider the invitation by the Appellants to resolve the question
of the parties to the agreement, the alleged breach and alleged damages, on the
premise of the evidence led, an invitation to speculate on the terms of the
agreements. It is trite learning that a court cannot speculate on the contents of
a document not before it. We therefore refuse to be enticed into engaging in
that exercise.
It is by reason of the totality of the foregoing, that I cannot fault the Learned
Trial Judge on the findings made conclusions reached at the trial nisi prius. I
have no reason to disturb the said findings and conclusions.
I will affirm the decision of the Learned Trial Judge and dismiss this Appeal. This
appeal accordingly stands dismissed. Appellants shall pay Respondents costs of
D75, 000.00, (Seven-five Thousand dalasis).
52