IN THE GAMBIA COURT OF APPEAL

IN THE GAMBIA COURT OF APPEAL
CA No.45/2007
BETWEEN:
ALIEU K. SAINE
…………… Appellant
AND
YAYA MANNEH
………….... Respondent
Appellant
Respondent
…… Present
…… Absent
FRIDAY 5 TH FEBRUARY 2010
O.D. Mbye holds for J.H. Joof for the Appellant
Mr. B. Carrol for the Respondent
CORAM:
Hon. Justice E.A. Ota (PCA)
Hon. Justice J.B. Kalaile (JA)
Hon. Justice J. Wowo (Ag. JA)
J U D G M E N T
LEAD JUDGMENT DELIVERED BY HON. JUSTICE E.A. OTA (PCA)
This is an appeal against the judgment of the High Court of The Gambia per
Anin Yeboah J (as she then was) rendered on the 13 th day of July, 2007, in
Civil Suit No.54/96 commenced by writ of summons dated the 25 th day of
March 1996, wherein the Appellant herein as Plaintiff at the Lower Court

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claimed the following reliefs against the 1 st
Defendant:
Respondent herein as 1 st
1) A declaration that the Plaintiff is the leasee of a leasehold property held
by him under a lease S.R. No.P.269/1992 and situated at Brufut in the
Western Division of The Gambia;
2) An order confirming the possession of Plaintiff in respect of his leasehold
property situated at Brufut in the Western Division of The Gambia and
held under a lease bearing S.R. No.P.269/1992;
3) Damages in the sum of D500,000 against the 1 st Defendant for
trespassing on the Plaintiffs land;
4) An order declaring as null and void and setting aside the decision of the
Kombo North Authority. Chief Eric Janneh presiding delivered on
10 th March 2006 purporting to set aside, challenge or impeach the
Plaintiff’s lease S.R. No.P.269/1992 in respect of his leasehold property
situated at Brufut in the Western Division of The Gambia;
5) An injunction restraining the 1 st Defendant, his servants, agents and
anyone whomsoever from entering, working on or in anyway interfering
with the Plaintiff’s leasehold property bearing S.R. No.P.269/1992 and
situated at Brufut in the Western Division;
6) Damages;
7) Further or other relief;

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8) Interest at the rate of 25% per annum on all sums awarded to the
Plaintiff;
9) Costs.
The 1 st
Defendant at the Lower Court denied the Plaintiffs claim and counter
claimed as follows as per his defence and counter claim:-
1) A declaration that he is the rightful owner of the Suitland;
2) Cancellation of Lease Serial Registration No.P.269/1992;
3) Damages for trespass against the Plaintiff;
4) Possession of the Suitland;
5) D25,000.00 being the expenses and cost of materials used by the
Plaintiff on the Suitland;
6) Interest on any award granted by this court at the rate of 25% per
annum from 1 st April 1990 to date of Judgment, costs and any other
relief.
The 2 nd
Defendant also denied the Plaintiff’s claim though they filed a
statement of defence, they did not however participate in the proceedings.
After a consideration of the evidence adduced before her the Learned Trial Judge
in her judgment delivered on the 13 th day of July, 2007, dismissed the 1 st
Defendant’s counter claim and held that the Plaintiff established his title to the
Suitland. The court in conclusion however held that inspite of its earlier finding

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that the Plaintiff established his title to the Suitland, that the valid and subsisting
judgment of the Kombo North District Tribunal between the same parties, on
the same question, in relation to the same subject matter, rendered the Suit at
the Lower Court res judicata.
It is against the backdrop of the foregoing facts and in dissatisfaction thereof,
that the Plaintiffs as Appellants herein, commenced this appeal via Notice of
Appeal filed on the 18 th of August 2007, upon the following grounds:-
1) The Learned Trial Judge erred in law and in fact in holding contrary to the
binding judgment of The Gambia Court of Appeal in Belgolaise V Fawaz
GR (1997-2001) P.563 that it was mandatory necessary or essential for
the Appellant to appeal against the decision of the kombo North
District Tribunal which was stated and pleaded to be without
jurisdiction and null and void.
PARTICULARS OF ERROR
a. The Learned Trial Judge fell into error in her interpretation of the
decision of Belgolaise V Fawaz contained in Gambia Law Reports
1997-2001 page 559-564 in particular the citation of Macfoy V
UAC and her reliance on a decision which was obiter dicta in that
she misinterpreted the binding judgment of the Gambia Court of
Appeal to mean that it was necessary and mandatory to appeal
against the judgment made without jurisdiction or void when it
stated that it was desirable to have it set aside and not that it
should be appealed against especially in the light of Evidence Act
1994 S.53
2) The Learned Trial Judge erred in law and in fact in holding that it was
unnecessary to determine whether the judgment memorial tendered in

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the Suit complied with S.12 and S.14 of the land (Registration of
Deeds) Act Cap 57.01.
PARTICULARS OF ERROR
a. The Learned Trial Judge having fallen into error to wit that it was
necessary to appeal against the judgment of the Kombo North
District Tribunal failed to rely on the binding judgment of the
Gambia Court of Appeal in Belgolaise V Fawaz and failed to
determine whether she could set aside the judgment of the
Kombo North District Tribunal as the Gambia Court of Appeal
did in Belgolaise V Fawaz or whether the judgment of the
Kombo North District Tribunal was validly or properly
registered pursuant to S.12 and S.14 of the Land (Registration
of Deeds) Act Cap 57.01.
3) The Learned Trial Judge erred in law and in fact in failing to determine
whether the Kombo North District Tribunal had jurisdiction to
determine the Suit which dealt with land covered by a Lease SR
No.P.269/1992 or whether it was only determinable by the High Court
being land under the State Lands Act 1991;
4) The Learned Trial Judge erred in law and in fact in effectively giving
judgment in favour of the Respondent in respect of the Suitland when she
previously held in her judgment that his counter claim fell flat and had
failed and that the Plaintiff had proved his title to the satisfaction of the
court citing inter alia the evidence of their common grantor, receipts, and
the developments made by Appellants on the Suitland;

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5) Without conceding that the Kombo North District Tribunal had
jurisdiction over the Suitland, the Learned Trial Judge erred in law and in
fact in failing to hold that the dismissal of the Respondent’s case against
the Appellant’s privy and grantor Alh. Kalifa Sanno by the same tribunal
headed by Chief Dodou Touray was binding on the Kombo North
District Tribunal and Respondents could not sue the Appellant on the
same issue before the said Tribunal.
6) The judgment is against the weight of the evidence.
Relief sought from this court are as follows:
1. An order that the Kombo North District Tribunal had no jurisdiction to
determine the ownerships of the Suitland being land under the State
Lands Act 1991;
2. An order setting aside the judgment of the High Court delivered on 13 th
July, 2009, and entering judgment for the Appellants;
3 Further or other relief;
4. Costs.
It is apposite for me from this juncture to refer to the Plaintiff as Appellant and
the 1 st Defendant as 1 st Respondent. Briefs were ordered, filed and
exchanged. The Appellant’s brief was filed on the 28 th of October, 2009. I
notice a fundamental defect in the Appellants brief. This defect is based on the
fact that Learned Counsel for the Appellant, Mr. J.H. Joof, failed to formulate
issues for argument in the brief, rather basing his argument on the grounds of
appeal themselves. Whilst conceeding that our rules are silent on the question

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of issues in brief writing, I however find that it is a well settled practice in this
jurisdiction based on the preponderance of case law on the subject matter that
issues are formulate in briefs. A restatement of this fact in a myriad of cases has
rendered this practice sacrosanct.
I find the question of issues in brief writing a practice founded on good
reasoning. This is because issues serve as a guide to the court in determining
cases. Its purpose is to enable the parties narrow down the questions in
controversy in the interest of accuracy, clarity and brevity. Thereby deterring
the court, as well as litigants, from falling into the danger of going on a fishing
expedition, ultimately resulting in an unnecessary waste of time, and money, and
more often than not in a miscarriage of justice.
The above importance of issues not withstanding, the absence of issues in a brief
has been held not to be enough reason for the court to throw the brief in the
waste bin like an unwanted meal, provided the brief addresses the questions
arising from the grounds of Appeal. See Jurgen Despiegelare (as
Administrator of the Estate of Petra Despiegelare (Deceased) and anor
V Ebrima Sanneh CA No.19/07 (unreported decision of the Court of Appeal
delivered on the 18 th of December 2009). See also the Supreme Court of
Nigeria decisions in Weide and Co (Nigeria) Ltd V Weide and Co
Hamburg (1992) 6 NWLR P6 249 627 and Echo Enterprises Ltd V
Standard Bank of Nigeria Ltd and anor (1989) 4 NWLR (Pt. 116) 509.
Having fulfilled my judicial responsibility in commenting on the issueless brief, I
will in the light of the totality of the foregoing not discard the said brief but use it
in the interest of substantial justice.

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The 1 st Respondent for his part filed the 1 st Respondent’s brief filed on the
23 rd of November 2009, wherein 1 st Respondent’s Counsel Mr. B. Carrol,
distilled five issues from the grounds of appeal and argued along same to wit.
1) Was the judgment of the District Tribunal void?
2) Even if the judgment of the District Tribunal was void should it be ignored
and the same issues relitigated in the face of the fact that there is a valid
subsisting judgment in favour of 1 st Respondent declaring inter alia that
the Suitland belonged to the 1 st Respondent, after hearing the parties?
3) Does the District Tribunal have the jurisdiction to deal with leasehold
properties?
4) Did the trial judge have jurisdiction to evaluate the evidence in the Suit
below and make a pronouncement as regards the counterclaim?
5) Was there any evidence before the High Court to the effect that 1 st
Respondent instituted an action against the Appellant’s grantor, and
lost, and could the learned judge have considered such evidence, if it
existed, in the face of the fact that the Suit was res judicata?
I have carefully considered the foregoing issues and I find they are somewhat
repetitive which fact is borne out of the convoluted nature of the grounds of
appeal. In as much as I find that these issues address the grounds of appeal, I
however prefer to determine this appeal based on the following issues namely:
1) Did the trial court have the jurisdiction to determine the question of the
validity of the decision of the Kombo North District Tribunal?

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2) Is the decision of the Kombo North District Tribunal null and void for
lack of jurisdiction?
3) Is the decision of the Kombo North District Tribunal void for non
compliance with the provisions of S.12 and S.14 of Land (Registration
of Deeds) Act Cap 57.04 Laws of The Gambia 1990?
4) Was the Suit at the High Court res judicata as held by the trial judge?
5) If the Suit was res judicata, did the trial judge have the jurisdiction to
determine the Suit on the merits, find for the Appellant and dismiss the
Respondent’s counter claim?
ISSUE ONE
Did the Trial Court have the jurisdiction to determine the question of the validity
of the decision of the Kombo North District Tribunal?
This is a vexed question in this appeal. In arguing this question the parties
relentlessly urged the decision of this court in Belgolaise V Fawaz (supra), as
well as the celebrated dictum of Lord Denning MR in Macfoy V UAC (1961)
3 ALL ER 1169, PC.
The funor generated by these authorities is predicated on the interpretation
given to them by the Learned Trial Judge, which led her to decline jurisdiction
over the question of whether the decision of the Kombo North District
Tribunal upon which the Respondents founded their defence of estoppel at the
trial nisi prius, was null and void. The Learned Trial Judge held that the only
medium, via which the courts competence could be invoked over the said
decision, was if same was conveyed to it by way of an appeal. She based her
views on her interpretation of this courts decision in Begolaise V Fawaz

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(supra). The 1 st Respondent accedes to the views of the Learned Trial Judge;
whilst the Appellant is vehemently opposed to same. His stance is that once the
decision of the Kombo North District Tribunal was relevant to the
determination of the Suit at the trial court and its validity is questioned, the trial
court was obliged pursuant to the decision in Belgolaise V Fawaz and S.53 of
the evidence Act 1994, to determine it, before taking any further steps in the
matter. This is irrespective of the fact that the said decision was not challenged
before the court by way of an appeal.
What then is the purport of this courts decision in Belgolaise V Fawaz. A
statement of the facts of that case would enhance an understanding of same. In
that case the Appellants case was dismissed at the Lower Court. The Appellants
i.e. Plaintiffs at the Lower Court sought the leave of the High Court to appeal
against same in contravention of the provisions of S.130 (3) of the Constitution
of The Republic 1997, which states in clear and unambiguous words that such
appeals lie as of right. The High court fell into the error of granting the leave
sought. The High Court committed the further predicating error of the said leave
on payment of some costs within 7 days.
On appeal to this court against the dismissal of the Suit at the Lower Court, the
Appellants who themselves as Plaintiffs at the Lower Court had erroneously
applied for the said leave to appeal, boldly condemned both their actions
applying for said leave and the orders of the High Court granting same on
condition, as incompetent and thus a nullity. The Respondents for their part
argued that an order emanating from a court of competent jurisdiction had to be
obeyed and it did not lie with the Appellants to ignore it. They further contended
that as long as the Appellants failed to comply with the order granting leave
upon costs, the appeal purportedly filed without said compliance, was
incompetent and remained incompetent.

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In its decision, this court held thus “when a judge has decided the issue of
jurisdiction wrongly, his decision would not give him jurisdiction which he did not
have, but that decision must be first set aside. Even though neither counsel
adverted to Section 53 of the Evidence Act, 1994 (No.14 of 1994) (as
stated above), it is noteworthy to observe that it provides for a situation such as
is before the court. In the instant case, the order made by the High Court Judge
granting leave on terms was made without jurisdiction as the court had no power
to make it. Consequently, on the authority of Timitimi V Amabebe (1953) 14
WACA 374 and by virtue of Section 53 of the Evidence Act, 1994, the said
order was void and a nullity and the same would be set aside. Having set aside
the order as being void and a nullity for want of jurisdiction, it is from this point
that the effects of Lord Denning’s Distinctions in Macfoy V UAC Ltd
although obiter, come into play. Applying to the instant case, the principles in
Macfoy case “You cannot put something on nothing and expect it to stay there.
It will collapse,” the objections of counsel for the Respondent founded on the
order set aside would equally collapse and are thus overruled.”
It is obvious that this court relied on the decision of Timitimi V Amabebe
(supra) and S.53 of the Evidence Act 1994, to set aside the orders of the
Lower Court even though there was no formal appeal against same. As stated
by the court on Page 563 of that report “The case of Timitimi (supra) is an
authority of the proposition that a party such as the applicants is, could plead in
this court that the order relied upon by the Respondent was made without
jurisdiction, not withstanding the fact that no proceedings had been taken to set
that order aside”.
Furthermore S.53 of the Evidence Act 1994 also relied upon States: “Any
party to a Suit or other proceedings may show that any judgment, order, decree
which is relevant under Section 49, 50 or 51 and which has been proved by

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the adverse party, was delivered by a court without jurisdiction or was obtained
by fraud or collusion.”
I see five clear features that emanate from the foregoing decision in Belgolaise
V Fawaz which to my mind constitute the purport of that decision. These
features are as follows:-
1) A judgment entered without jurisdiction is a nullity and is liable to be set
aside;
2) The judgment of a court of competent jurisdiction cannot just be ignored,
if it is found to be void, it must first be set aside See Aladegbemi V
Fasanunade (1988) INSCC 1087 SC;
3) A party could plead in court that an order relied upon by the opponent
was made without jurisdiction, not withstanding the fact that no
proceedings e.g. by way of an appeal, had been taken to set that order
aside;
4) Once the question of the nullity of an order relied upon or relevant to the
determination of a case is raised, it behoves the court to determine that
question, and if the order is found to be void for lack of jurisdiction, to set
same aside even though no formal proceedings e.g. by way of appeal, is
taken to set same aside;
5) After setting the void order aside, the court is then obliged to set aside
any other actions, orders, proceedings etc founded on the void order, in
line with the dictum of Lord Denning in Macfoy (supra) “if an act is
void, then it is in law a nullity. It is not only bad, but incurably bad.
There is no need for an order of the court to set it aside. It is

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automatically null and void without more ado though it is sometimes
convenient to have the court declare it to be so. And any proceeding
founded on it is also bad and incurably bad. You cannot put something
on nothing and expect to stay there. It will collapse”(underline mine).
It is clear therefore that in Macfoy (supra) Lord Denning did not propound
the theory that a judgment of a court of competent jurisdiction can just be
ignored because it is perceived by a party to be a nullity. Such a position as
rightly held by the Supreme Court of Nigeria in Aladegbemi V Fasanunade
(supra) would enthrone anarchy and lawlessness in the society, giving parties
aggrieved the mandate to act in flagrant disregard of same and in contempt of
court.
I am in complete agreement that once a judgment that is a nullity is pleaded in a
case, the court needs no formal proceedings, that is by way of appeal, etc., to
set it aside. Therefore, where a court is faced with the question of the
competence of an order relevant to the matter before it, it behoves the court to
determine the competence of the order before it takes any further steps. Once
the court determines that the order, decree, judgment, is null and void for want
of jurisdiction, it is the duty of the court to set same aside, whether the question
of its competence was raised by way of appeal or not. It is my firm believe that
such a matter can be raised at anytime, in any manner and at any stage of the
proceedings, even for the first time on appeal. This power of the court to set
aside a null and void order or judgment being inherent is neither original nor
appellate, so that where there is no competent appeal before an appellate court
because the judgment appealed against is a nullity, the appellate court, in the
exercise of that inherent power can declare the judgment a nullity even though it
cannot exercise its appellate jurisdiction.

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This is premised on the fact that a null act is void abinitio. It amounts to
nothing, it amounts to no proceedings. It is an act which may be treated as
though it had not taken place, or which has absolutely no legal force or effect.
It is for the totality of the reasons ante, that I agree with the Appellant that the
Learned Trial Judge misinterpreted the decision of this court in Belgolaise V
Fawaz, when she held that the validity of the decision of the Kombo North
District Tribunal which was pleaded by the Appellant and upon which the 1 st
Respondent had founded his defence of estoppel at the Lower Court, was
required to be raised before it by way of appeal, before it could be
countenanced. I say this because the defence of estoppel can only be grounded
on a valid and subsisting judgment of a court of competent jurisdiction. The
Learned Trial Judge was thus required to determine the validity of that decision,
but failed to do so.
Inspite of failing to determine the competence of the said decision of the
Kombo North District Tribunal, the trial court went ahead and relied on it in
declaring the Suit at the Lower Court Res judicata. There is a need therefore for
us to find out if the trial judge was correct on this question. In doing this, we
must first find out if the said decision was null and void as alleged. This is
because as I said before in this judgment, the defence of estoppel can only be
founded on the decision of a court of competent jurisdiction. This leads us to
issue two.
ISSUE TWO
Is the decision of the Kombo North District Tribunal null and void for lack of
jurisdiction?
It was contended for the Appellant in Appellant’s brief, that the Kombo North
District Tribunal could only deal on the customary law of the indigenes and

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thus lacked the jurisdiction to make the decision of 13 th May 2006, which
decision was in respect of a leasehold property held under S.R No.P.269/1992
and issued by the state under the State Lands Act 1990. That any Suit in
respect of leasehold properties is the exclusive province of the superior courts,
especially the High Court, pursuant to the State Lands Act 1990 as amended,
S.55 of the Courts Act, as well as the Constitution of the Republic 1997.
On the other hand, it was argued Replicando for the 1 st Respondent in 1 st
Respondent’s brief, that apart from applying customary law, the District
Tribunal has the jurisdiction to deal with Suits in relations to all lands within its
area of operation. That S.7 and S.10 of the District Tribunal Act did not
draw any distinction between leasehold land or customary land. That as long as
both the parties and the property lie within the jurisdiction of the District
Tribunal, that the District Tribunal has the jurisdiction pursuant to S.7 of the
District Tribunal Act to deal with it. It was further contended that pursuant to
S.7 of the State Lands Act of 1990, that all lands previously held under
customary tenure were converted to deemed leases. Therefore, so goes the
arguments, the Suitland had ceased to be held under customary tenure since
1991. That in this event the only type of property that the District Tribunals
had jurisdiction over after the coming into effect of the State Lands Act 1990,
were leasehold properties, be it “deemed leasehold property” or actual leasehold
property”.
1 st Respondent’s Counsel also advanced the view that the fact that the
decision of the Kombo North District Tribunal was entered on a Sunday,
cannot operate to void the decision pursuant to S.6 of the District Tribunal
Act, which empowers the Tribunal and the Commissioner to direct that sessions
are held at such times and places as they shall deem fit. Counsel made
references to S.5 (1) and (2) of the Public Holiday Act, contending that

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nothing in this statute prohibits the District Tribunal or any other body or
institution, from working on a Sunday.
I have carefully considered the different posture of the two sides to this contest,
and let me say straightaway that the District Tribunals, are creations of
statute. Their jurisdiction is therefore derived from the enabling statute which is
the District Tribunal Act Cap 6.01 Law of the Gambia 1990. It is to this
statute that recourse must of necessity be had in a bid to ascertaining the limits
of the jurisdiction of the District Tribunal over customary land, or leasehold
land or both. It is also this statute that must enlighten us as to the days
prescribed for the sessions of the District Tribunals.
For the purposes of ascertaining the jurisdiction of the District Tribunal, we
must examine the provisions of Section 7 and S.10 of the District Tribunal
Act, urged by the 1 st Respondent. They provide thus.
“7. Every District Tribunal shall have full jurisdiction, to the extent set forth
in the order establishing it and, subject to the provisions of this Act over
cases and matters in which all the parties are resident or being within the
area of the jurisdiction of the Tribunal.
10. The civil jurisdiction of a District Tribunal shall extend, subject to the
provisions of this Act to the hearing, trial and determination of all civil
suits and matters in which the Defendant is ordinarily resident within the
area of the jurisdiction of the Tribunal or in which the cause of action shall
have arisen within the said area.
Provided that civil proceedings relating to immovable property shall be taken in
the District Tribunal within the area of whose jurisdiction the property is
situated”.

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It would appear to me that the foregoing provisions drew no distinction between
leasehold property and customary property in conferring jurisdiction on the
District Tribunals. These provisions clearly confer jurisdiction on the District
Tribunals to determine all Civil Suits and matters in which the defendant is
ordinarily resident within the jurisdiction of the tribunal or in which the cause of
action arose. Implicit from the proviso to S.10 is that the District Tribunal has
the jurisdiction to hear and determine all Civil Suits and matters relating to
immovable property, which are located within the area of jurisdiction of the
District Tribunal. Again, the Act in referring to immovable property drew no
distinction between leasehold property and customary property. Therefore, this
provision by its wording appears to encompass both leasehold property and
customary property. Furthermore, S.6 (1) (b) of the District Tribunal Rules
Cap 6.03 Laws of The Gambia provides thus
“6 (1) There shall be two grades of District Tribunals and each grade
shall, subject to any extension or limitation which may appear in
the order establishing the Tribunal, exercise respectively the
jurisdiction set out hereunder:-
(b)
Group Tribunals –
Full jurisdiction in cases concerning land, or in or in which the title
to land or any interest therein comes in question”.
It is worthy of note that S.6 (1) (J) confers the same jurisdiction on Single
District Tribunals. Here again, statute has not drawn any distinction between
the types of land over which the District Tribunals have jurisdiction. The
implication therefore is that District Tribunals have full jurisdiction in causes
concerning land located in their area of jurisdiction irrespective of whether the
land in question is a leasehold property or one held under customary tenure.

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Now, Mr. J H Joof has urged the provisions of the State Lands Act 1990, in a
bid to establish that leasehold properties be it situate in the provinces, or not,
are State Lands, and are therefore outside the jurisdiction of District Tribunals.
A look at that statute will help to confirm or dispel this notion, as well as the
notion created by the submission of Mr. B. Carrol for the 1 st Respondent,
citing S.7 (1) and (2) of the State Lands Act 1990, that with the coming into
effect of the State Lands Act, that all lands held under customary tenure were
converted into leasehold properties called “deemed leases” including the
Suitland. What then does the State Land Act 1990, say concerning these
subject matters? I find a need in this exercise to reproduce verbatim certain
portions of that statute for a better understanding of the conclusions reached.
State land is defined as follows in the State Land Act, “State Land” means all
land referred to under Section 4 and all lands which have been or may
hereafter be acquired by or on behalf of the state for any public purpose or
otherwise however and all such land so designated by the minister under the
Act.
Section 4 of the Act provides thus
“4. All land in Banjul and Kombo Saint Mary, excluding such land as is
held in fee simple and subject to any grant which has been or may
hereinafter be made, shall rest in the state absolutely”.
Section 3 of the Act defines the area of the application of the Act in the
following words:

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“3. This Act shall apply to all land in Banjul and Kombo Saint Mary and to
such other areas as the Minister may by order published in the Gazette,
designate”.
Section 5 of the Act provides for designation of any area as state land by the
Minister as follows:
“5 (1) The Minister may, by order published in the Gazette, designate
any provinces land for the purpose of this Act
(2) Where any area is designated under Sub-section (1) of this section.
(a)
All land in such area shall, excluding such land as is held in fee
simple, vest in and be administered by the state for the use and
common benefit direct or indirect of the community in which such
land is situated and
(b)
The Lands (Provinces) Act shall not apply to such areas”.
It is clear from the foregoing Provisions of Sections 3, 4 and 5 of the State
Lands Act, that State Land are all land in Banjul and the Kombo Saint Mary,
excluding those held in fee simple, and subject to any grant, as well as any
provinces land, which are designated to be State Land by the Minister by order
published in the Gazette (excluding those held in fee simple). Therefore, I find
Mr. Carrols submission that all customary land became deemed leases with the
coming into effect of the State Lands Act 1990, erroneous. This is because as
I have already demonstrated in this judgment, the litera legis of the said
statutes is to the effect that it is only customary land in designated areas that
became deemed leasees pursuant to the said statute, infact that is the purport of
S.7 (1) of the State Lands Act. Implicit from this is that all land held under

20
customary tenure which are not situated in designated area, still remained
customary land. I must also say that the State Lands Act 1990, did not oust
the jurisdiction of the District Tribunals over leasehold properties located in
the provinces and confer same on the High Court of The Gambia, as is
propounded by Mr. J H Joof. I have frantically searched that legislation and I
see no provision to that effect and none is urged on us. It is rather my views,
that S.7 (7) of the State Lands Act, confirmed the jurisdiction of the District
Tribunals over all causes and matters within their areas of operation in the
following parlance “if there be any dispute as to whether a person holds any land
under customary law or any other matter relevant thereto, such dispute shall be
heard and determined by the Board who may refer the matter to and seek the
views of the relevant District Tribunal”.
The foregoing provision must be read inconsonance with S.7 (1) which provides
thus “any person who holds any land in a designated area under customary
tenure or year to year tenancy shall at the date on which such area is designated
and subject to the provisions of this Act, be deemed to be a leasee of such land”.
It is therefore clear that S.7 (7) is meant to take care of a scenario where a
dispute arises as to whether land in the provinces is customary land or deemed
lease, and confered jurisdiction on both the Board and the District Tribunals to
determine that question. With the abolision of the Board pursuant to the State
Land Amendment Act, the resolution of such dispute rest solely on the District
Tribunals. It is only after the question has been determined by the District
Tribunal, that an aggrieved party has a right to proceed to the High Court by
way of appeal pursuant to S.7 (8) of the Act which provides “A deemed leasee
who is adversely affected or dissatisfied with any decision made under Subsection
(6) or Sub-section (7) of this Section, may appeal to the Supreme
Court” i.e the High Court. It is worthy of note that Appeals lie from any
judgment, order, decision of a District Tribunal in any case, or of a

21
Commissioner in exercise of his reversionary power under Section 23 (1) (a) of
the District Tribunals Act to the High Court, in the same manner as if such
appeal were from a subordinate court to the High Court. See the text The
Gambia Legal System by Emmanuel Akomaye Agim Page 132-137, on the
jurisdiction of the District Tribunal.
There is therefore no controverting the fact that District Tribunals, inclusive of
the Kombo North District Tribunal, have jurisdiction over all causes and
matters with respect to land, interest or title in land, be it leasehold property or
customary property, within their areas of jurisdiction. I am of the firm conviction
that if it was the intention of legislature to oust the jurisdiction of the District
Tribunals over deemed leases or leasehold property within their areas of
jurisdiction, that the makers of our laws would have said so in clear and
unambiguous words.
It is in the light of the reasons ante, that I find that the Kombo North District
Tribunal had the jurisdiction to determine the question of the title to the
leasehold property held under lease Serial Registration No.P.269/1992,
which property is located within its area of jurisdiction. The judgment of that
Tribunal rendered on the 10 th day of March 1995, is therefore final, valid and
subsisting, until it is set aside by a higher court of competent jurisdiction. I must
say that I agree with Mr. Bola Carrol, that the day that the said judgment was
rendered being a Sunday cannot also operate to invalidate the said decision, as
canvassed by the Appellant. In coming to this conclusion, I am mindful of the
fact that Sunday not being a working day is ordinarily not a day that a court
would hold its sessions. However, the scenario is different in this case, in that
Section 6 of the District Tribunal Act and the proviso thereto, mandates the
District Tribunals and Commissioner respectively, to decide on the times and
places where the Tribunal shall sit. Section 6 provides thus

22
“A District Tribunal shall hold sessions at such times and places as may be
necessary for the convenient and speedy dispatch of the business of the
Tribunal.
Provided that the Commissioner may direct sessions to be held at such times
and places as he shall think fit.”
I find it therefore incontrovertible that the question of the day, the hour and
location that the District Tribunal’s sessions are held, are at the discretion of
both the District Tribunals and the Commissioner. I apprehend that the
spirit behind this provision or the intent of legislature, is to enhance the work of
the District Tribunals, by making their sessions flexible in other to
accommodate its members who are usually drawn from all works of life, and
therefore, as rightly submitted by Mr. Carrol, in paragraph 27 of the 1 st
Respondent’s brief, “are usually busy during the week days doing their normal
work.” I take judicial notice of this fact.
It is for the above reasons that I am firmly resolved, that the fact that the
decision of the Kombo North District Tribunal was given on a Sunday cannot
operate to void the judgment. More so in the face of the fact, that there is no
evidence to show that that day was not elected by either the District Tribunal
or the Commissioner for the session of the Tribunal. The Appellants
contention in this regard therefore fails. We come to the next issue also
propounded by the Appellant to void the said judgment as coached in Issue
Three.
ISSUE THREE
Is the decision of the Kombo North District Tribunal void for non compliance
with the Provisions of S.12 and S.14 of the lands (Registration of Deeds)
Act Cap 57.04 Laws of The Gambia 1990.

23
The Appellant contends that the said decision is void for non compliance with the
Land (Registration of Deeds) Act. His contest in this regards, is premised
on the supposition that the alteration of the date on the judgment memorial and
the fact that no plan was annexed thereto, violated Sections 12 and 14 of the
Land (Registration of Deeds) Act. That this fact rendered the said judgment
not registered as required by the Act, which non registration must operate to
void the said judgment. I find that the Appellant’s argument in this respect is
based on the language of S.12 (1) of the Land (Registration of Deeds) Act,
which rendered judgments affecting land void for non registration after 16 days
from the date thereof. That provision states thus “Every judgment shall be void,
so far as regards any land to be affected thereby, unless registered by memorial
within sixteen days from the day thereof”.
Let me straightaway state here that I have no wish to belabour this issue. This
is because as rightly pointed out by Mr. Carrol in Paragraph 39 of the 1 st
Respondent’s brief, the question of the applicability of S.12 (1) of the Land
(Registration of Deeds) Act, to void a judgment of a court of competent
jurisdiction, sixteen days after same was rendered, has been settled by case
law in this jurisdiction. A case in point is the celebrated decision of this court in
Edward Graham V Lucy Mensah reported in (2002-2008) GR 22, where
the court held that non registration of a judgment cannot nullify a valid judicial
decision and declared S.12 (1) of the Land (Registration of Deeds) Act
unconstitutional to this extent. It is worthy of note that the Supreme Court of
The Gambia affirmed this decision in its recent decision in the case of Edward
Graham V Ruth Rowe (Legal Representative of the Late Lucy Mensah)
(unreported decision of The Supreme Court of The Gambia in SC Civil Appeal
No.4/2006, delivered on Friday the 20 th of November, 2009.) The very
instructive words of Jones Dotse JSC, to be found on Page 19 of that decision
is worthy of restatement. He declared thus

24
“The intention of courts in these modern times is to strive to do substantial
justice. In our quest to do substantial justice to the parties in this case, it is
important to adopt the purposive approach to the interpretation of the
Constitution and the Act. When that approach is applied, the only rationale,
logical and reasonable interpretation, will be to declare Section 12 (1) of the
Land (Registration of Deeds) Act, as being inconsistent with the provisions
of the Constitution especially, Sections 4,7,100 (2) (c) and 120 (2) to the
extent that it purports to make judgments of courts of competent jurisdiction
void. Thus, it is the void effect which Section 12 (1) of the Act renders
judgment that has been declared unconstitutional, whilst the administrative
obligations to file judgments under the Act generally is preserved.
With this constitutional interpretation, it does not even matter whether the
registration regime is not pursued or complied with after the delivery of a final
non-appealable judgment”.
I find therefore that, the complaints of the Appellant that the decision of the
Kombo North District Tribunal is rendered void for non compliance with the
registration requirements, is completely extinguished, in the face of the
foregoing pronouncement of the apex court in the land. This issue is resolved in
favour of the 1 st Respondent.
ISSUE FOUR
Was the suit at the High Court res judicata as held by the Learned Trial Judge?
The principle of estoppel per rem judicata is that a party is estopped from
relitigating the same issue between the same parties and on the same subject
matter on which a decision of a court of competent jurisdiction had been made.
The rules of res judicata apply in the Gambia as part of common law by virtue of

25
S.7 (d) of the 1997 Constitution, as statutory law by virtue of S.54 of the
Evidence Act and S.64 CPC and as a Constitutional and fundamental law by
virtue of S.24 (6) of the Constitution of the Republic, 1997. The policy
that underpines the principle is not only the avoidance of double jeopardy, but
that it is in public interest that there be an end to litigation. The maxin “interest
reapublice ut sit finis litum” applies.
The rules of res judicata were concisely stated by Brett MR in Re May (1885)
28 Ch.D 516 as follows:- “It is a very substantial doctrine, and it is one of the
most fundamental doctrines of all courts that there must be an end to all
litigation, and that the parties have no right of their own accord, having tried a
question between them and obtained a decision of a court, to start that litigation
over again on precisely the same question. We were unanimously of the view
that the issue sought to be relitigated in the instant appeal had been conclusively
and finally determined by this very court for the same parties; that it was in the
public interest that there should be an end to litigation (interest republicae ut
sit finis litum) it was for these reasons that we upheld the Respondent’s plea
of res judicata and dismissed the Appellant’s appeal”. See the Case of
Abdallah Salman V Shreepal Jain (unreported decision of the Court of Appeal
delivered on Monday the 1 st of February 2010) See also Atley V Gambia
Ports Authority (1960-1993) GR 441
Estoppel by record arises from the effect of the judgment of a court of law.
Once a court has given judgment on a particular issue and there is no successful
appeal against it, the decision must be taken as final and binding and the issue
regarded as closed. However a declaration that a Suit is res judicata cannot be
had just for the asking.
An objection by a party on the basis of res judicata can only succeed if he can
establish all of the following requirements, laid down by this court in the case of

26
S.O.S. Kinderdorft International and Anor V Ebrima B Bittaye CA
No.13/93, which requirements are as follows:
a) That the question which falls to be decided in the subsequent proceeding
is the same as that which was decided in the earlier proceeding;
b) That the judicial decision said to create estoppel by record was final as
opposed to an interlocutory judgment and
c) That the parties to the action in which the decision was given or their
privies were the same as the parties to the proceedings in which the
defence of estoppel by res judicata is raised or their privies.
The question then is, did the 1 st Respondent meet all the foregoing
requirements at the trial nisi prius to justify the application of the doctrine of
estoppel by that court.
Now the parties are concessa that the 1 st Respondent as Plaintiff sued the
Appellant as Defendant before the Kombo North District Tribunal. The
judgment of the District Tribunal in that Suit as well as the judgment
memorial, Exhibit G, are as depicted on Pages 154 and 149 of the record
respectively. I will reproduce the judgment verbatim hereunder. It states
“In the Kombo North District Tribunal court sitting before President Eric
Janneh on the 10 th March 1996 on Sunday at Bajulunding Village and
members as follows:-
Members - Karammo Janneh - Present
“ - Juldeh Bah - “
“ - Malamin Bojang - “

27
“ - Pa Jobe - “
Scribe - A.B. Njie - “
CS 150/95
Plaintiff - Yaya Manneh - Sukuta village “
Vs
Defendant - Alieu Saine - S/K “
By Act: This said land was before our court against the former Alkali of
Brufut village where the said land is, who sold to the Plaintiff (Yaya Manneh)
and went to sale it to the Defendant whilst the Plaintiff was away for a course in
Nigeria according to their evidences. Then this land was declared by this court
that it belongs to the Plaintiff and advises the Alkali the Defendant in that case to
advise the present Defendant to vacate the land.
JUDGMENT
By Court: Judgment entered in favour of the Plaintiff that the said land
remains in the ownership of the Plaintiff.
SENTENCE
By Court: You are to leave the said land as soon as possible, it is still the
Plaintiff’s land.”
It was on the foregoing judgment that the 1 st Respondent based his plea of res
judicata at the trial nisi prius, which plea was raised via Paragraphs 8 and 9 of
the 1 st Respondent’s Amended Statement of Defence and Paragraphs
2,3,4,5 and 6 of the counter claim
It appears to me therefore, that the parties in CS 150/95 before the Kombo
North District Tribunal, are exactly the same parties in CS 54/96,

28
Commenced at the High Court of The Gambia. The record has demonstrated
that the subject matter of the Suits in both courts are the same i.e leasehold
property with Serial Registration No.P.269/1992.
Furthermore, one of the issues determined by the Kombo North District
Tribunal, i.e the title to the Suitland in respect of which the Tribunal declared
“that the said land remains in the ownership of the Plaintiff” is the same issue
which the Appellant sought to relitigate at the High Court when he claimed as
follows: “A declaration that the Plaintiff is the lawful owner of the leasehold
property bearing lease SR No.P.269/1992 and situated at Brufut in the
Western Division”. In coming to this conclusion, I am mindful of the fact that in
the writ of summons at the District Tribunal, Ext B, to be found on Page 140
of the record, the 1 st Respondent therein as Plaintiff, did not expressly claim
for ownership or a declaration of title to the Suitland. His claim in that court is
expressed thus “That he claiming for your withdraw your trip of sand from his
compound in Trankely Village, Kombo North District”. Implicit from the
foregoing as rightly held by the Learned Trial Judge is that the 1 st Respondent
was claiming title to the said property.
The foregoing not withstanding, the paramount fact to my mind is that the
District Tribunal in determining the claim before it clearly determined the title
to the Suitland, declaring the 1 st Respondent herein the owner. The question
of the title to the Suitland was thus determined by the tribunal. It is immaterial
in what language the matter was conveyed to that court. In this regard, I agree
in totality with the Learned Trial Judge when she declared thus “In determining
the subject matter, the courts have always, especially with customary courts
looked at the substance rather than the form. The wording of the courts
judgment shows, it was a question of ownership which is at stake. See in
Edem Uno Edem V Chief Oyo Edet (1940) 6 WACA 220.”

29
It is therefore in my views, established beyond any peradventure, that the claims
before both the Kombo North District Tribunal and the High court, were for a
declaration of title to the Suitland.
More to the above is the fact that the record has also demonstrated that the
judgment of the Kombo North District Tribunal is a final judgment, in that it
finally determined the rights of the parties herein to the Suitland and no appeal
was filed against same. By that judgment, the 1 st Respondent was declared the
owner of the Suitland and the Appellant was ordered to vacate the Suitland.
That judgment is final, valid and subsisting, until it is set aside by an Appellate
court in the judicial hierarchy. This is because a judgment given by a court of
competent jurisdiction is presumed to be right and valid until it is set aside. As
long as the judgment is not appealed against it is unquestionably valid and
subsisting. This is so no matter how perverse it may prove to be eventually.
Since the judgment of the Kombo North District Tribunal is final, valid and
subsisting, the Appellant is therefore estopped per rem judicata, from relitigating
the question of the title to the Suitland as he sought to do in Civil Suit
No.54/1996 commenced at the High Court of The Gambia.
Before I draw the curtain on Issue Four, I wish to comment briefly on ground 5
of the grounds of appeal. This ground deals with an alleged dismissal of the 1 st
Respondent’s case against the Appellant’s privy and grantor Alh. Kalif Sanno,
by the Kombo North District Tribunal headed by Chief Dodou Touray. In
this regard, the Appellant contends that this decision was binding on the Kombo
North District Tribunal and 1 st Respondent would not sue the Appellant on
the same issue before the said tribunal. I will make very quick work of this
issue. This is because I agree entirely with the position of the Learned Counsel
for the 1 st Respondent, Mr. Bola Carrol, on this matter, as is reflected in
Paragraphs 83,84 and 85 of the 1 st Respondents brief as follows:-

30
“83 There is no evidence before the High Court that the Respondent brought
an action against the Appellant’s grantor and lost. What is clear from the
judgment in Exhibit G is that the 1 st Respondent brought an action against
the former Alkalo of Brufut Village and succeeded in this claim, and the land
was declared by the Tribunal to be the property of the 1 st Respondent.
Subsequently, the Appellant went and heaped sand on the Suitland, so the 1 st
Respondent then brought an action against a different party not the Alkalo,
but now against the Appellant herein. The court there reiterated or repeated its
previous declaration that the Suitland was held to have belonged to the 1 st
Respondent, and then went on to order that the Alkalo advise the Appellant to
vacate the Suitland, in response to the claim of the 1 st Respondent that the
Appellant should vacate the Suitland by removing the heaps of sand therefrom.
The court in its judgment then further held that the ownership of the Suitland
remains in the 1 st Respondent, as it had previously declared in the action
between the 1 st Respondent and the former Alkalo of Brufut.
“84. The principle of res judicata could not operate in the two cases before the
Tribunal because, the parties were different, and the claims were different,
although the subject matter remained the same…………”
“85. So there is no evidence before the High Court that the 1 st Respondent
instituted an action against the Appellant’s grantor and lost which the court had
to consider……”
I cannot agree less with Mr. Carrol on this issue. His foregoing submission in
my views correctly address this issue and I therefore find that Appellants
contention in this regard fails. I will uphold the trial court’s decision that Civil
Suit No.54/96 commenced at the High Court of The Gambia was res judicata.

31
ISSUE FIVE
If the Suit was res judicata, did the trial judge have the jurisdiction to determine
the Suit on the merits, find for the Appellant and dismiss the 1 st Respondent’s
counter claim?
I have already held in this judgment that the Suit at the Lower Court was res
judicata. I find therefore that the Learned Trial Judge fell into grave error when
she embarked on a determination of the Suit on its merits. This error spun
clearly from the position of the Lower Court that it lacked the jurisdiction to
determine the status of the decision of the Kombo North District Tribunal,
whether valid or a nullity. It was this error that led her into a determination of
the merits of the case without first ascertaining that she had the jurisdiction to
do so I say this because the plea of res judicata at the Lower Court, bothered on
the jurisdiction of that court, to entertain and determine the Suit before it. It is
to avoid this kind of error that it has become an established practice, backed by
a myriads of case law across jurisdictions, that once the jurisdiction of a court is
questioned, it behoves the court to brush aside every other business of the day
and determine the question of its jurisdiction before taking any further steps in
the matter. This is a fundamental practice, premised on the fact that jurisdiction
is the foundation upon which all the labourers, the court, the litigants and their
Lawyers, labour. In the case of Edward Graham V Lucy Mensah (supra)
this court described it as the “Soul and Foundation” of any case. A case
determined without the requisite jurisdiction is tantamount to a voyage in futility,
due to the fact that no matter how brilliant and aesthetic the decision emanating
therefrom, it will at the end of the day amount to nothing for that lack of
jurisdiction. This is why Lord Denning in Macfoy V UAC Ltd (supra)
declared “you cannot put something on nothing and expect it to stay there, it will
collapse”.

32
Anin Yeboah J (as she then was), was thus in view of the foregoing, required
to determine first, whether the case was res judicata before dabbling into the
merits thereof. Once she determined that the case is res judicata she was
required not to dabble into the merits of the case, because in that circumstance
she lacked the jurisdiction to do so. What she did by determining the merits of
the case before declaring same res judicata is tantamount to putting the carte
before the horse. She assumed jurisdiction which she did not have. Her
assumption of jurisdiction will not clothe her findings at the trial nisi prius with
validity.
I therefore hold that the Learned Trial Judge lacked the jurisdiction to determine
the merits of the Suit at the trial nisi prius find for the Appellant and dismiss the
1 st Respondent’s counter claim. Her findings on these matters at the trial nisi
prius are hereby declared a nullity and set aside accordingly for lack of
jurisdiction. See Kempa V the State (1986) NWLR 396. See also Abdallah
Salman V Shreepal Jain (supra).
In the light of the totality of the foregoing, this Appeal lacks merits it fails and is
accordingly dismissed. Appellant shall pay costs of D20,000 to the 1 st
Respondent.
…….....................................
HON. JUSTICE E.A. OTA
PRESIDENT, COURT OF APPEAL

33
I AGREE
……………………………………
HON. JUSTICE J.B. KALAILE
JUSTICE OF APPEAL
I AGREE
……………………………………
HON. JUSTICE J. WOWO
AG. JUSTICE OF APPEAL