By: Isatou Sarr
Justice Sonia Akinbiyi of the Banjul High Court on Thursday delivered judgement in the protracted Old Yundum village land case that a certain Lamin Barrow (plaintiff) instituted against four individuals (Abdoulie Faye, Mahmud Faye, Yaya Mass Cham and Buba Conteh).
Lamin sought from the high court a declaration that he is the owner and entitled to possession of all that piece or parcel of land situated at Old Yundum Village, Kombo North District, West Coast Region, The Gambia measuring 19.00m x30.00m, or there about more particularly delineated in the sketch plan annexed to the writ of summons herein and edged PINK. 2. He also sought an order revoking or setting aside any purported transfer of title of the suit land or a portion thereof to the 3rd and 4th defendants, their servants or agents by the 1st and 2nd defendants, a perpetual injunction whether by themselves, their servants, agents or assigns or otherwise howsoever and all those deriving title through them from entering upon, selling, delineating or interfering with the aforesaid piece or parcel of land situated at Old Yundum village, Kombo North District, West Coast Region, The Gambia.
Bah also claimed GMD300,000.00 damages for breach of contract, GMD100,000.00 for legal fees, GMD 15,000.00 being survey fees, cost and any further or other orders as the court deemed fit to make.
According to the court records, the plaintiff was seeking the recovery of sum of two hundred thousand dalasis (GMD 200,000) being the sum of money paid by the plaintiff to the 1st defendant as purchase price of the suit land, a consideration that has totally failed, GMD 100,000.00 being damages for breach of contract, interest at the current commercial bank rate from December 2014 to date of judgment sum and 4% thereafter until full liquidation, 100,000.00 for legal fees, GMD 15,000.00 being survey fees, costs and any further or other orders the court deemed fit to make.
The plaintiff called two witnesses. In proof of his claims, the plaintiff/attorney testified as PW1 and Ousman Jarjusey testified as PW2. The Pw1 and PW2 (a retired Civil Servant) adopted their affidavit of statement as their evidence-in-chief and posited under cross examination that the land is situated in Yundum.
The 1st defendant adopted his affidavit of statement and gave evidence as DW1. He stated that he was Abdoulie Faye and that he was in court as a result of the land dispute between parties. He admitted that he sold the said land to the plaintiff as the land was given to him by his late father in 2002.
He said he fenced it to be two courses high, adding that when he wanted to sell it, he went to his brother who was the Alkalo to tell him that he was desirous of selling the land and he gave him a go ahead. He later said, he met with one Lamin Barrow and they agreed on the sale price and he explained to the 2nd Defendant who prepared the Alkalo transfer for him.
He admitted under cross examination that he sold the land to the plaintiff and due to the mistake of the plaintiff, he [plaintiff] was unable to access the land that he paid for and owned despite the fact that he told him that he wished to relocate him, and that he was not relocated as he promised.
The case of the plaintiff was supported by the following documents and exhibits:Power of attorney dated 30th January 2018 admitted as Exhibit PE1, Alkalo transfer of ownership of the land dated 17th January 2017 admitted as PE2, Alkalo transfer of ownership of land dated 24th March 20023, land use report issued by the department of physical planning and housing admitted as Exhibit PE3, location/sketch plan attached to the writ of summons and report prepared by Sey Sawaneh & Associated admitted as exhibit PE4 and receipts issued by Kansala Law Chambers.
Justice Akinbiyi further stated that proof in civil cases is on preponderance of evidence or on the balance of probabilities (See Micheal Idowu V. Dr Raphael Akin Ajayi & Ors (2018) LPELR 41339 (CA) Per Danjuma, JCA (PP 17-18, Paras F-A). In adumbration, Wimpar, JCA held in Elemoro & Anor V. Abiodun (2014) LPELR 23195 (CA) as follow, the Standard of proof in civil matters is on the Preponderance of evidence).
“The 1st defendant admits in totality the Claims of the Plaintiff whilst the 2nd Defendant despite ample opportunities advanced failed to challenge and controvert the Plaintiff’s Case, thereby admitting tacitly the Claims of the Plaintiff, as it is elementary principle of law that unchallenged averments must be acted upon by the Court’s as true, See Simon Ezechukwu & Anor V. IOC Onwuka (2016) LPELR 26055 (SC).
“Per Muhammad JSC (P 19 Paras C-D), with Bada JCA adumbrating the foregoing in Vincent Ugo & Ors V. Diokpa Maha & Ors (2005) LPELR 25930 (CA) as follows-“It is settled law that unchallenged or uncontroverted affidavit evidence is deemed admitted by the adverse party and the Court will normally admit it. While the 2nd Defendant admitted the Plaintiff’s vase by the non-challenge, the 1st defendant on his part gave evidence in total corroboration and admission of the plaintiff’s case.”
Justice Akinbiyi said that an admission of a party in law is the best evidence, in the sense that the opposing party needs not make any strenuous effort to prove the admitted facts.
“Thus, a Court of Law is entitled to give Judgment based on an admission by a party if the admission is relevant to the facts in issue, as in this Case before me, See Eco International Bank PLCAV Nigerian Union Local Government Employment Board (2014) LPELR 2417 (CA) Per Sankey, JCA (P42, Paras A-D),” stated the judge.
“The defendants in this suit fully admits the plaintiff’s claims, judgment is hereby entered in favour of the plaintiff in its alternative claims (1), (2), (3), (5), cost in claim (6) is assessed at GMD20,000.00 while claim (4) for lack of substantiation is struck-out. “See Jalbat Ventures Nigeria Ltd & Anor V. Unity Bank PLC (2006) LPELR 41625 (CA) wherein a claim for legal fees is made, it must be established in like manner with establishing a claim special damages with schedule of work and legal engagement terms as captured attached,” the judge stated.
“However, I take cognizance of advocacy and legal representation by Counsel K. Sanyang to the plaintiff. Consequently, the sum of GMD 25,000 is awarded as legal fees for the advocacy and legal representation in court, in favour of the plaintiff and against the defendants,” said Justice Sonia Akinbiyi.
