IN THE GAMBIA COURT OF APPEAL

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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
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: Furthermore, I am in complete conso
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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