IN THE GAMBIA COURT OF APPEAL

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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
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 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: It is obvious that the foregoing le

IN THE GAMBIA COURT OF APPEAL

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