31 December 2012

Gambia: Court of Appeal Awards Cost Against Businessman

The Gambia Court of Appeal, presided over by Justice Joseph Wowo as president, Justice Emmanuel O. Fagbenle and Justice Amie Joof as members, has awarded the sum of D5, 000 as cost against one Ndaga Nyang, a businessman and further grant leave for one Abdoulie Mbye to appeal to the Supreme Court of The Gambia.

The Gambia Court of Appeal made this decision following an application filed by the Assets Management and Recovery Corporation (AMRC) against Ndaga Nyang as first respondent and Abdoulie Mbye as 2nd respondent in a civil matter revolving around the estate of one Bai Samba Nyang (deceased).

Delivering judgement, the Gambia Court of Appeal, presided by Justice Joseph Wowo disclosed that Ndaga Nyang was one of the defendants at the Lower Court, noting that the trial court had entered judgement in favour of Ndaga Nyang (who was the plaintiff at the Lower Court, but now the 1st respondent at the Court of Appeal).

The judge averred that on the 30th March 2010, the Court of Appeal entered a consent judgement between the applicant,Assets Management and Recovery Corporation and the 1st respondent, Ndaga Nyang (as representative of the Estate of Bai Samba Nyang - deceased) without the 2nd respondent, Abdoulie Mbye.

The Court revealed that the 2nd respondent being dissatisfied, filed a motion on notice seeking to appeal to the Supreme Court against the decision of the Gambia Court of Appeal given on the 30th March 2010.

The court noted that the applicant's leave is predicated on three grounds:

A) that the Court of Appeal erred by entering consent judgement without process of court in the said appeal ever being served on the applicant that was an interested and necessary party.

B) The Court of Appeal erred by striking out the name of the applicant that was an interested and necessary party without notice to the applicant.

C)That the learned justices of the Court of Appeal erred by entering consent judgement without jurisdiction when by the joint provision of Decree No 11 of 1994 as amended by Decree No. 25 of 1994 as well as Section 11(3) of the transitional provisions of the Constitution of the Republic of The Gambia 1997.

The court further noted that the appellant's application is supported by a 7-paragraph affidavit deposed to by Abdoulie Mbye, adding that there is no affidavit in opposition filed by the respondents. The court pointed out that the counsel for the applicant, S. Akimbo argued that he relied on all the paragraphs whilst the counsel for the 1st respondent A.A. Bensouda argued that the court does not have the jurisdiction to hear the motion because the consent judgement was entered into over two years ago and there is no application for extension of time before the court.

The court revealed that two issues arose in determining the instant case, one, whether the applicant can competently bring the application before the court and whether the applicant is an interested and competent party.

The court also declared that where evidence whether viva voce or in an affidavit remains unchallenged and uncontroverted the court has no choice than to regard it as establishing the facts alleged therein, citing the case of Antoine Banna Versus Ocean View Resort Ltd and others (2002 - 2008) IGLR 1 at 3.

The president of the Gambia Court of Appeal disclosed that since the application is only seeking leave to appeal to the Supreme Court, the Court of Appeal will only narrow itself to the issue before the court. He said that the court will only take into consideration the averments that are relevant to the issue at stake.

Justice Wowo further disclosed that from the combined effect of paragraphs 2(d)(e)(f) and 3 of the affidavit of the applicant, it is clear that the applicant is an interested and necessary party in the civil appeal No 32/09 and the consent terms entered into between the appellant Assets Management and Recovery Corporation (AMRC) and the 1st respondent, Ndaga Nyang will surely affect his interest. He also disclosed that the issue in the said suit is whether the applicant can bring application after more than two years when the Court of Appeal gave the consent terms decision.

Justice Wowo said there is nowhere in the applicant's affidavit stating the time he became aware of the consent terms decision of the Court of Appeal, therefore the court cannot speculate as to when the applicant became aware of the consent terms. He stated that it is duty of the applicant to state when he became aware of the consent terms decision which he did not do.

According to Wowo it is clear that it is more than two years, which makes it far out of time within which to appeal to the Supreme Court. He cited rules 10(1)(9) and (b) of the rules of the Supreme Court which governed the time within which to appeal to the Supreme Court. He pointed out that there must be an end to litigation and that is why there is time limit within which to appeal. Justice Wowo further pointed out that the parties in the instant case raise yet another issue.

"Since the Assets Management and Recovery Corporation is a party to this, can the issue of time be a bar to the leave to appeal since the time limit within which to appeal is clearly 42 days from the date of the consent term decision by virtue of rules 10(1)(b) rules of the Supreme Court?" he asked.

Further in his judgement, Justice Wowo answered in the negative and revealed that Section 17 of the Assets Management and Recovery Corporation Act Cap 76:01 Laws of The Gambia provides as follows: - A person shall not enjoy or claim the benefit of any limitation period contain in any enactment in any action in which the corporation is a party.

The Honourable Court of Appeal j0udge declared that since the corporation is a party to this action, the time limit which to appeal becomes irrelevant and is of no moment. He said that despite the fact that the applicant is seeking for leave to appeal against the decision of the consent terms, the Court of Appeal would still grant the leave despite the provision of rules 10(1)(b) of the rules of the Supreme Court.

The Court of Appeal president therefore granted accordingly the applicant Abdoulie Mbye's leave to appeal to the Supreme Court and the sum of D5, 000 was awarded as cost against the 1st respondent, Ndaga Nyang.

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