This is an appeal against the judgment of the High Court of The ...

IN THE GAMBIA COURT OF APPEALCIVIL APPEAL NO.67/07BETWEEN:PAP SALIEU GAYE … APPELLANTANDALH. MBYE SAHO … FIRST RESPONDENTATTORNEY GENERALCLERK OF THE WESTERN ...REGION RENT TRIBUNAL ...SECOND RESPONDENTTHIRD RESPONDENTCORAM: THE HON. MR. JUSTICE J. WOWO PCATHE HON. MRS. JUSTICE M.M. AGYEMANG JATHE HON. MRS. JUSTICE A. JOOF AG JAFOR THE APPELLANT:B. TOURAY ESQ.FOR THE RESPONDENT: B. CARROL ESQ.DATED THE 5TH DAY OF JULY 2011LEAD JUDGMENT DELIVERED BY AGYEMANG JA:This is an appeal against the judgment of the High Court of The Gambiapresided over by Roche J, delivered on 26 th of November 2006.1

The matters antecedent to this appeal are the following:The first respondent herein is the attorney of one Dodou Lait Saho his brotherfor whom he processed lease SR No. K 302/2000 in respect of land situate atOld Yundum. The appellant herein is the occupier of a parcel of land at OldYundum which he alleged had been wrongfully taken up by the said lease. Forthis reason, the appellant instituted an action against the first respondent at theHigh Court seeking inter alia, declaration of title in respect of the same parcel ofland alleging inter alia, fraud in the processing of the said lease. That action waspending when the first respondent commenced a suit against the appellant atthe Western Region Rent Tribunal for ejectment of the appellant from the land. Itwas the case of the appellant that on 9 th of May 2007, a summons from theWestern Region Rent Tribunal was served in his absence on his wife. It was forhim to attend the next day, the 10 th of May 2007. In an affidavit sworn to by oneFaburama Jammeh on behalf of the appellant at the court below in anapplication for leave to bring an application for certiorari, the said deponent whoalleged that he had the authority of both the appellant and his counsel B. TourayEsq, alleged that the said summons was brought to counsel that day by oneDam Kumma. He deposed further that counsel immediately wrote a letterexhibited as FJ2, to the Governor of the Western Region, informing him of thependency at the High Court of a case involving the same subject matter andbetween the same parties. Counsel also, in spite of the short notice went to thecourt the next day at 10.30 am to attend to the summons only to be informed bythe clerk of court, that the matter had been called and dealt with, judgment2

having been entered against the appellant in his absence. Counsel was alsoallegedly informed by one Momodou Lamin Sanneh, the only member of thetribunal then present, that judgment was entered not by the properly constitutedtribunal (for it had not sat that day), but by himself, sitting with the clerk of thetribunal. Counsel then procured a photocopy of the day’s proceedings exhibitedas FJ3. These, it was deposed, revealed that not only was the tribunal notproperly constituted, but that no evidence had been led in support of the claimfor ejectment. Thus did the appellant as applicant seek leave of the High Courtto bring an application against the said tribunal for an order of certiorariquashing the judgment of the said tribunal.Leave having been granted by the High Court presided over by Dordzie J, theappellant brought an application for certiorari seeking an order for theproceedings of the 10 th of May 2007 before the Rent Tribunal, to be broughtbefore the High Court for the purpose of being quashed.The grounds of the application were the following:1. That there was a patent error of law on the face of the record whenjudgment was entered for the respondent without calling him to prove hisclaim;2. That the court lacked jurisdiction because the tribunal was not properlyconstituted, the dispute was the subject of a suit before the High Courtand was one of title, not possession;3

3. That the tribunal failed to observe the principles of natural justice and didnot give the appellant a fair hearing when it did not give him theopportunity to be heard and entered judgment for the first respondentwithout taking evidence;4. That the tribunal adopted the wrong procedure when without takingevidence, it entered judgment in favour of the first respondent.5. That the decision of the tribunal was tainted with bias in that the appellantas a member of the Kanifing Rent Tribunal enjoyed special treatment.During the arguments, the appellant appeared to have abandoned the lastground.After all arguments were heard from counsel for the parties, the learned trialjudge dismissed the application for the following reasons:That the certiorari application was a fresh action before the High Court whichwas already seized of an action involving the same subject matter in the suitnumbered HC/044/07/BK/004/AO. It was the view of the learned trial judgethat this amounted to an abuse of the court’s process in that by theapplication, the High Court presided over by herself was being asked tousurp the powers of the judge dealing with suit numberedHC/044/07/BK/004/AO. The learned judge also held that the Rent Tribunalhad no jurisdiction to determine title to land and therefore the High Courtseized with the matter could interfere with its decision even where no appealhad been lodged or prerogative order sought. Thus did she maintain that theappellant could have obtained the redress in what he sought, if he had4

applied to the High Court in that other suit for interim relief in accordance withOrder 12 Rules 1 and 3 of the High Court Rules.It is against the said judgment that the present appeal has been lodged.In his notice of appeal, the appellant filed four grounds of appeal out of which heformulated two issues. To these the respondent added two other issues fordetermination one of which because it overlaps another, may be subsumedunder the appellant’s issues: They are as follows:1. Whether or not the original jurisdiction of the High Court and thesupervisory jurisdiction of the High Court are one and the same as torun co-terminus in the same stream thus permitting the review powersof the High court to be exercised in a suit commenced by a writ ofsummons;2. Whether or not the High Court, seized of a suit for a declaration of titleto land, lacks jurisdiction to exercise its supervisory jurisdiction toquash an order of an inferior tribunal;3. Whether or not the appellant was entitled to an order for certiorariunder the law.It seems to me that this appeal can be made short work of as the issues aresufficiently simple.In the instant case, the appellant as plaintiff had instituted an action fordeclaration of title before the High Court. It was while this was pending that thefirst respondent also commenced an action on the same subject matter beforethe Western Region Rent Tribunal, admittedly seeking a different relief:5

ejectment. But the fact that the reliefs sought in the two forums were different,does not deny the fact that in granting the relief sought by the first respondent,the first respondent’s remedy affected the suit before the High Court, for theexecution of the order of ejectment would affect the appellant’s right as a plaintiffin the suit for a declaration of title. It is my view that had all been properregarding the manner of the exercise of the court’s jurisdiction, the appellantmay have had little to complain about except with recourse to the appellateprocess. It would not have mattered in that circumstance if the appellant whosecase was yet to be determined at the High Court, had been ejected by the orderof the tribunal. The appellant would have had a number of remedies whichincluded getting the default judgment set aside, or seeking a stay of executionfrom that court pending an appeal or perhaps, the determination of the HighCourt suit. Certainly, it is my view that unless such redress was sought, contraryto what was held by the learned trial judge and canvassed in the firstrespondent’s brief, the High Court would lack the jurisdiction to restrain the victorof a case decided within jurisdiction, from enjoying the fruits of his victory.But in this case, what was sought before the High Court was an application forcertiorari upon grounds alleging inter alia, lack of jurisdiction, an error on theface of the record, improper procedure, and a breach of the rules of naturaljustice in respect of a matter heard by a lower adjudicatory body which althoughself-regulatory in terms of its procedure, was subject by its nature, to theobservance of the rules of natural justice and limited by its statutorily-definedjurisdiction.6

It seems to me that the learned trial judge erred in law when she failed toappreciate that the invocation of the supervisory jurisdiction of the court in noway undermined the court in the exercise of its original jurisdiction.It is at this point, apposite to set out the differences in the two jurisdictionsexercisable by the High Court: The original jurisdiction of High Court of TheGambia to hear and determine civil criminal cases and to interpret and enforcethe Constitution is set out under S. 132(1) of the Constitution of The Gambia. InS. 133 thereof, the framers of the Constitution set out the supervisory jurisdictionof the court. The two jurisdictions are vastly different from each other and areaccessed or invoked in different circumstances and for different outcomes, forwhilst the original jurisdiction of the High Court empowers that court to entertainall matters civil, criminal and constitutional brought before it by making adetermination thereon, final or interlocutory upon evidence adduced, thesupervisory jurisdiction examines the process of adjudication and is aimed, byits prerogative orders, at correcting the procedural errors in proceedings ininferior courts and other adjudicatory bodies whether they be judicial or quasijudicial.Certiorari is one such remedy by which the High Court in its discretion,may quash proceedings in a lower court or other body exercising judicial orquasi-judicial functions where it fails to properly adjudicate a matter not in thesubstance thereof, but in the manner thereof. The matters which existing in anadjudication, may lead to the invocation of, and the application of the said orderof certiorari, include where there is lack of, or excess of jurisdiction, where rulesof natural justice have been breached as in a person is not given a fair hearing,7

see: Republic v. High Court, Kumasi, Ex parte Appiah and Ors [1997-98] 1GLR 503 SC.As aforesaid, the learned trial judge held (a matter which is canvassed by thefirst respondent) that the appellant could have sought redress in the suit alreadypending at the High Court. This revealed a misapprehension of the purpose androle of judicial review, for she seemed to have laboured under themisapprehension that what was sought was in the nature, or would have thesame effect as an interim/interlocutory relief.The first respondent in his brief has argued that no matter the form, the purposeof the application before the court was to stop execution or the further executionof the order of the rent tribunal. Thus did he argue that it would have sufficed ifthe appellant had obtained an interlocutory relief in the pending High Court case.To begin with, what the application sought was not a stay of execution but aquashing order of the High Court which would render non-est, the judgment ofthat court upon the grounds stated in the affidavit in support of the application.But beyond this, the error of this argument is that it fails to appreciate that theHigh Court did not, while exercising its own original jurisdiction, have thejurisdiction in that exercise, to stop execution of a judgment entered by a bodyacting within its jurisdiction, no matter how much of an inconvenience it was to itor to the parties. But even if as argued by learned counsel, an interlocutory reliefwould have had the effect of stopping execution, what then would have been thestatus of the judgment of that other body when same had not been set aside? It8

must be noted that the claim decided by the tribunal was one of ejectment andwithin its jurisdiction.Would the judgment of the rent tribunal given within jurisdiction cease to existbecause of the High Court’s orders given as an interim/interlocutory measureunder Order 12 rules 1 and 3 as postulated by the learned trial judge? Mostcertainly not.It is my view that the arguments of learned counsel for the respondent,regarding the effect of obtaining an interlocutory order in the pending High Courtcase, did not consider the status of the yet subsisting judgment of the renttribunal (which the appellant alleged had been entered without jurisdiction) evenif the High Court’s interlocutory order succeeded in holding it in abeyance. Thatjudgment irregular or not, would subsist and be executable.Unfortunate also, was the trial court’s holding that as long as the rent tribunalhad no jurisdiction to determine title, the High Court did not need its appellatejurisdiction or the exercise of its supervisory jurisdiction invoked to be able tointerfere with it. This was wrong in law, for it cannot be gainsaid that even awrong judgment/order subsists until it is set aside, see: Asin Apemanim LocalCouncil v. Williamson [1965] GLR 18.Learned counsel for the first respondent in supporting the ruling of the courtbelow, canvassed the alleged impropriety of the application for certiorari while asuit was pending before the High Court and relied on the plea of lis alibipendens. In that regard, he relied on the Ghanaian case of Kumah v. Ankoma9

[1972] 2 GLR 134. But the said case must be respectfully distinguished from thepresent instance.As a self-regulatory measure, the courts generally frown upon a multiplicity ofsuits. Thus will the court before which a case is brought, frown upon it, should itbe brought to its attention that a suit between the same parties, on the samesubject matter, is brought by the same person, before that court or in anothercourt. When this happens, the party who stands to be prejudiced thereby mayraise a plea of lis aibi pendens and upon demonstrating that the two or moresuits are concurrent and vex him, will have the suit brought against him stayedto abide the result of the former suit, or struckout depending on thecircumstances, see per Baidoo J in Kumah v. Ankoma (supra): “The cardinalrule is that a plea of lis alibi pendens will not succeed unless the applicantproves as a matter of fact that the action instituted by the plaintiff is vexatious inthe sense that he the applicant is doubly and unnecessarily vexed by reason ofanother action for the same cause of action which has been instituted in anothercourt between the same parties” see also: per Jessel MR in MacHenry v. Lewis(1883) 22 Ch. D 397at 400: “...where two actions are by the same man in courtsgoverned by the same procedure, and where the judgments are followed by thesame remedies, it is prima facie vexatious to bring two actions when one willdo”. These dicta represent the foundation of the plea. The plea has no placewhere a party who commences an action for the vindication for his right, invokesthe supervisory jurisdiction of the court regarding the proceedings of an inferiortribunal upon grounds such as patent error or lack of jurisdiction. What the10

application was aimed at, was a quashing of proceedings upon grounds thatthey were irregularly held in that they inter alia, did not observe the rules ofnatural justice. That suit which was directed at the proceedings of a loweradjudicatory body, was essentially different from the pending suit at the HighCourt that sought a declaration of title. Indeed, even the parties were not thesame, for whereas the former was a state proceeding and cited the tribunal andthe Government’s legal representative as well as the first respondent, the latterwhich was in the domain of private law was only against the first respondent.Nor was it a fresh action, as the learned trial judge pronounced it to be. Unlikethe action for a declaration of title, this was an application for a prerogative orderto issue and there is a world of difference between the two. The plea of lis alibipendens thus did not arise, and the arguments and case cited for the persuasionof this court were utterly inapplicable. I might add that in any case, that wasnever the case of the first respondent at the court a quo.As aforesaid, contrary to the holding of the trial judge, the High Court seized withthe suit for a declaration of title was in no position in that proceeding, to interferewith the judgment of the tribunal under any circumstance, including the exerciseof its supervisory jurisdiction. The reason is as has been reiterated: the twojurisdictions were different and mutually exclusive.Although the appellant limited himself to the ruling of the court below that deniedhim the order sought upon the grounds stated, the respondent in his briefargued extensively as to why the order of certiorari would not have succeededon its merits. He thus set out the matter as an issue for determination which11

moves this court thus to consider the merits of the case before the court below.Should the appellant have succeeded in his application for certiorari? It seemsto me that he was entitled to the order for the reasons I will set out shortly.The applicant set out the following four complaints regarding the proceedingsbefore the tribunal:That the tribunal failed to observe the principles of natural justice and did notgive the appellant a fair hearing for he was not given an opportunity to be heard,that there was a patent error of law on the face of the record when judgmentwas entered for the respondent without calling him to prove his claim; that thetribunal adopted the wrong procedure when it gave judgment without takingevidence, that and lastly, that the court lacked jurisdiction because apart fromthe fact that the tribunal was not properly constituted, the dispute was thesubject of a suit before the High Court and was one of title, not possession.I will discuss them in that order. Regarding the charge that the appellant wasnot given a fair hearing, I am not persuaded that this obtained. On the admissionof the appellant, service was effected on an adult inmate in his house. This wasnot, as canvassed by learned counsel for the appellant, unauthorised substitutedservice. Because the tribunal’s enabling Act did not set out what would bedeemed to be personal service, I will, for guidance, call in aid S. 4 (8) of theSubordinate Courts (Civil Proceedings) Rules Cap 8:03 which prescribedpersonal service to include service on an inmate of the place of the defendant’sabode who was above sixteen years old.12

The summons commanded the appellant to appear at 10.00am the next day. Itwas the appellant’s showing that the summons upon due service, managed toget his attorney to attend, albeit half an hour later than was commanded. That inmy view sufficed for an appearance although it would certainly have beenpreferable if he had been given more time than he was, or if the tribunal hadbeen guided by time limits before the subordinate court which was three daysbefore the hearing of the summons. But to say service was short and thereforebad, was to say that it fell short of the requisite period. It must however be notedthat the tribunal which by statute, is vested with the jurisdiction to regulate itsown procedures, see: S. 7(5) of the Rent Decree 1996, was not subject to Cap8:02 (supra), and the time limits therein prescribed for the regulation of theproceedings of such courts was inapplicable to the tribunal, see S. 5 thereof.The tribunal, set up under, the Rent Decree 1996, is by the combined effect ofSs. 6(1) 2 nd Schedule and 120 (b) of the Constitution, a court in The Gambia.It is however not the subordinate court governed by the said Cap 8:02, becausethe jurisdiction of the subordinate court contained in S.3 of the Act, differs fromthat of the rent tribunal which, like the District Tribunal, has its jurisdiction isprovided for under its enabling Act, (in this case the Rent Decree). Because ofits adjudicatory function, it was bound to act judicially in its proceedings. Thisincluded its duty to ensure that parties before it were given reasonable notice ofhearing to afford them the opportunity of appearing to make their case before it.It was thus sufficient to meet its duty of acting judicially, once it wasdemonstrated that there had been service of its notice of hearing to parties13

appearing before it. This was met when due service was acknowledged by theappellant in his supporting affidavit before the court below.Regarding the two grounds which alleged that no evidence was led by theplaintiff before the tribunal before judgment was entered for him, it seems to methat although there was no prescribed mode under the Rent Decree whichtherefore could not be said to be an infraction resulting in an error patent on therecord, the taking of evidence before the entry of default judgment is more inaccord with the judicial standard and should have obtained in the presentinstance.Regarding the matter of jurisdiction also, it seems to me that the proceedingsthat culminated in a judgment against the appellant were indeed conductedwithout jurisdiction and it is not because the same matter was pending beforethe High Court. No doubt the case pending at the High Court was between thesame parties and involved the same subject matter which was land situate at oldYundum. It is a fact however that the cause of action before the High Court wasone of title to land and that before the rent tribunal was one of ejectment uponan allegation of failure to pay rent. The rent tribunal, by Ss. 20 (6) and (7) and 24of the Rent Tribunal Decree, had the jurisdiction to entertain landlord and tenantsuits and in particular, actions for ejectment under S. 20(6) thereof. I reproducethe said provisions:20 (6) “When a tribunal refuses to make an order on an application under this section,a tenant, after the expiry of the termination date refuses to give up possession of aproperty, the tribunal may, on an application by the landlord, make an ejectmentorder against the tenant...”14

24: “A dispute between a landlord and tenant shall, not withstanding any other causeof action available to them in law, be referred to a tribunal for adjudication and thedecision of the tribunal shall be final and binding between the parties...”There was thus no conflict between a suit for ejectment between an allegedlandlord and his tenant being heard by the tribunal in the proper exercise of itsjurisdiction in the circumstance where a suit, not seeking ejectment, but seekinga declaration of title was pending at the High Court. It most certainly was not acircumstance for which an order of certiorari may be granted.The appellant as applicant before the court below also alleged that the tribunalthat entered judgment against the appellant was not properly constituted. Thiswas contained in the affidavit sworn to by Faburama Jammeh in support of theapplication for certiorari and supported by the photocopy of the proceedings ofthat day. Learned counsel for the first respondent has alleged that the saiddeposition sinned against Ss 91 and 92 of the Evidence Act 1994. I could notdisagree more. It seems to be that the said deposition by Faburama Jammehwho stated his source of information to be counsel et al, sufficiently compliedwith the said provisions. The said averment was never denied. This court has ontwo previous occasions taken differing positions on the status of an averment inan affidavit which is not denied. But there is a weight of judicial opinion in favourof the holding of this court that failure to deny a deposition in an affidavit unlikein a pleading, does not necessarily constitute an admission of the truth thereof,and I will accept that as the position in this regard, see per Chomba P in Carrolv. Carrol [1997 - 2001] 339 GR at 349. Even so, it is my view that in the15

present instance where the name of the person who allegedly gave thatinformation was provided in the affidavit, he could it seems to me at the veryleast, have sworn to an affidavit denying the said averment. In the circumstancewhere no such denial obtained, it seems to me reasonable to assume that it wasbecause there was no contrary position. Although the document FJ3 which wasexhibited by the appellant was not certified by the office from which it wasproduced and was thus of no probative value as without authentication, it sinnedagainst S. 113 of the Evidence Act 1994 (and in any case did not disclose suchlack of quorum as was being alleged), it seems to me that the unchallengedaverment in the affidavit that named a particular member as having sat alone toenter judgment leaves me with no other conclusion than that the failure to denymust be taken as an admission of the truth of the averment. The Rent Tribunalwas thus not properly constituted when one, instead of the three membersprescribed under its enabling Act, sat to determine the case brought against theappellant and entered judgment against him, see S.7(2) of the Rent Decree,1996.It is my view then that on the sole ground of lack of jurisdiction, the appellantwas entitled to the order he sought and the court below should not havedeprived him of it as the learned trial judge did, citing in error, technical rulesthat had no application in the matter.The appeal is thus hereby allowed and the ruling of Roche J of the 26 th ofNovember 2007 is hereby set aside.16

Costs of D25,000 to the appellant.M.M. AGYEMANG JAI AGREEJ. WOWO PCAI ALSO AGREEA. JOOF AG JA17