IN THE GAMBIA COURT OF APPEAL

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“The appraisal of oral evidence and the ascription of probative value to such evidence is the primary duty of a tribunal of trial, and a Court of Appeal would only interfere with the performance of that exercise, if the trial court had made an imperfect and improper use of the opportunities of hearing and seeing the witnesses, or had drawn wrong conclusions from accepted or proved facts, which those facts do not support, or indeed has approached the determination of those facts in a manner, which those facts cannot and do not in themselves support”. I find it expedient therefore to discover whether the findings of fact made by the trial judge on this issue was as result of a proper evaluation of the evidence led at the trial nisi prius. How the Learned Trial Judge came to dismiss the Appellant’s case in the court below is clearly decipherable from different portions of the impugned judgment: I will endeavour to reproduce some of the relevant portions of the impugned judgment for ease of clarity. The Learned Trial stated thus “From the 1 st paragraph of the Plaintiff’s amended statement of claim the two agreements referred to therein were the agreements that regulated their transactions with the defendant. Throughout the pleadings the Plaintiff had not shown that there had been an oral agreement between the parties rather the pleading show that this action is based on two written agreement between the parties” (see page 413 paragraph 4 and 414 paragraph I.) “The Plaintiff, to succeed in this action must prove that it entered the two agreements with the Defendant. For the Defendant had vehemently denied that it signed any agreement with the Plaintiff, Banna Beach Hotel Ltd. The Defendant having taken this position, it cannot be said that the facts numerated in paragraph 22 of the Plaintiff’s address are admitted and are not in issue. 26
The true parties to the said agreements can only be determined from the contents of the document. The position of the law as stated above is that the oral evidence led by the Plaintiff and his witnesses, to prove who the parties are to the agreement is not admissible. Section 79 of the Evidence Act further supports the law on this. S.79 of the Evidence Act says “All facts except the contents of documents may be proved by oral evidence”. It is unfortunate that the agreements were rejected in evidence. Without the written agreements in evidence this court has no evidence before it to help it determine the issues raised from the pleadings. To be able to determine whether there had been a breach of the terms of the agreements, there must be evidence as to what the terms are. Negotiations or any transactions the Plaintiff’s evidence referred to cannot be admissible evidence in proof of the contents of the agreements. Damages would be awarded if there is proof that there had been a breach of the terms of the agreements. In the absence of proof of breach the claim in damages must fail (see page 414 paragraphs 3,4,5 & 6.) “The rejection of the written agreements in evidence had dealt the Plaintiff’s claim a deadly legal blow. The oral evidence adduced by the Plaintiff I find is not admissible in proof of the contents of the written agreements this action is based on. The Plaintiff I find has failed to place any evidence before this court in proof of its claims. The Plaintiff’s action are hereby dismissed as not proved” (see page 415 paragraph 1). The Poser here is, are the findings of fact of the Learned Trial Judge sustainable in the face of the pleadings of the parties and the evidence led at the trial nisi prius? I ask this question because, it is trite law that all through the journey of a case in court, from the trial stage until, all appeal channels are exhausted, 27
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: ISSUE THREE Whether the Appellants
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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