IN THE GAMBIA COURT OF APPEAL

More documents

Recommendations

Info

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
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 and 16: Evidence Act of The Gambia is in pa
Page 17 and 18: wrongful admission or exclusion of
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: Now the Appellant case at the trial
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

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?