By: Sulayman Waan
The High Court in Banjul presided over by Justice Basiru Mahoney dismissed the appeal case of Sambang Mandinka Kunda against Sambang Fula Kunda on land issue on 12th September, 2019.
Katim Jadama of Sambang Mandinka Kunda appealed against the Niamina West Group Tribunal judgment, in favour of Sambang Fula Kunda, presented by once Samba Bah to the High Court.
In moving the summons, counsel for the Applicant submits that the Niamina West Group Tribunal gave two judgments in the same case between the same parties on the same subject matter and both parties were issued with writs of profession.
That the 1st judgment was dated on 16th March 2018 declaring as the Jadama family as owners of the land at Bundusutu whereas the second 2rd judgment dated 14th May 2019 states that the fulas owns Bundusutu; That the court has to hear the certiorari application in order to regularize the situation.
However, the respondent filed a 37 affidavit in opposition to the summons on 10th September 2019 and exhibiting thereto a letter from the President of the Group Tribunal dated 18th June 2018, a judgment of the Tribunal dated 20 June 2018, a letter from the Governor and dated 25th June 2018, a letter from Gomez law chambers dated 5th April 2019, a certificate copy of judgment dated 14th May 2019 and writ of possession dated 27th May 2019.
In his ruling Justice Mahoney ruled that the averments in the affidavit in opposition raise very important facts about the date of judgment sought to be quashed which affects the limitation period for bringing an application for judicial review and which limitation period issue had been brought to the notice of the parties in the ruling of 4th September 2019.
“It behooved the respondent and his counsel to react to the said averments if he wished to challenge same. There is no affidavit in response to the affidavit in opposition and the new averments therein are deems established,” he added.
Justice Mahoney further told the court that the consequence is that the respondent has clearly proved that the corrected decision of the Group Tribunal which sought to be quashed by these proceedings is dated 20th June 2018 (exhibited as attachment to DB1and DB2) and the certified copy of the said judgment is dated 14th May 2019 (exhibited as DB5 and DB6).
“The uncontroverted averments supported by the documents exhibited to the affidavit have proved that the judgment sought to quashed is dated 20th June 2018 which is the commencement date for the purposes of the limitation period and 14th May 2019 which is the date of the certified copy.”
“As application for leave to apply for certiorari was filed on 6th September 2019, it is far beyond the six month limitation period mandatorily for in section 16 of the law of England (Application) Act and cannot be granted,” he told the court.
He added that since leave to apply for certiorari cannot be granted because the application is statute barred, the whole suit is incompetent and this Court lacks jurisdiction to determine the application. Consequently this suit is hereby struck out with cost of D5, 000 bearing in mind the cost previously awarded.
