IN THE GAMBIA COURT OF APPEAL

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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 16
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_.” 17
Page 1 and 2: IN THE GAMBIA COURT OF APPEAL BANNA
Page 3 and 4: (5) The Learned Trial Judge was wro
Page 5 and 6: 2. Whether the fact that the Defend
Page 7 and 8: appealing against two decision of t
Page 9 and 10: 4) The Learned Judge was wrong in r
Page 11 and 12: I have myself carefully perused Gro
Page 13 and 14: Bank of The Gambia V Continent Bank
Page 15: Evidence Act of The Gambia is in pa
Page 19 and 20: Furthermore, I am in complete conso
Page 21 and 22: It was submitted for the Appellant
Page 23 and 24: intends or conveys. What actually i
Page 25 and 26: ISSUE THREE Whether the Appellants
Page 27 and 28: The true parties to the said agreem
Page 29 and 30: 1. The Plaintiff’s is a limited l
Page 31 and 32: 3. The Defendant denies that it mad
Page 33 and 34: By letter of the 3 rd February, 200
Page 35 and 36: 23. Save as hereinbefore expressly
Page 37 and 38: The Plaintiff’s further averred t
Page 39 and 40: In the said letter the Defendants s
Page 41 and 42: 8. Paragraph 8 of the Reply of Stat
Page 43 and 44: Now the Appellant case at the trial
Page 45 and 46: 4 th of November 1998 and the 3 rd
Page 47 and 48: the purpose of adding a term to the
Page 49 and 50: It is obvious that the foregoing le
Page 51 and 52: appellant. There is no doubt that i

IN THE GAMBIA COURT OF APPEAL

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