By Landing Ceesay
Hon. Justice Ebrima Jaiteh of the High Court of the Gambia has ordered the Gambia Armed Forces (GAF) to pay Sarjo Saine, trading as Kono Construction, a sum of Six Million, Three Hundred and Thirteen Thousand, and Twenty-Five Dalasis (D6,313,025.00) in damages.
Justice Jaiteh issued this order on July 31, 2024, while delivering the judgment on the lawsuit filed against the GAF by Sarjo Saine.
Facts of Sarjo Saine’s Lawsuit Against GAF
By an amended writ of summons, Sarjo Saine (the Plaintiff), trading as KONO CONSTRUCTION, claims against the Gambia Armed Forces (Defendant) for the recovery of D5,713,025.00 (Five Million, Seven Hundred and Thirteen Thousand, and Twenty-Five Dalasis). This amount represents the invoice value of monies owed by the GAF to Sarjo Saine for emptying cesspit pools at various Army Barracks in The Gambia.
Sarjo Saine also seeks legal and administrative fees of D500,000.00 (Five Hundred Thousand Dalasis); interest at the rate of 33% from 2014 until the date of final liquidation; costs; and any further or other orders the Court may deem fit.
The amended writ of summons was accompanied by an amended statement of claim, the affidavit of witness statement of Sarjo Saine and an amended and additional list of documents.
The Gambia Armed Forces were served with the said originating processes and through Binga D., the Director of Civil Litigation and International law at the Attorney General’s Chambers filed a statement of defence on the 24th of June 2021 together with the affidavit of Mamat Jobe, a Lieutenant at Fajara, Kanifing Municipality, The Gambia and list of documents.
On the 14th of September 2021, Sarjo Saine filed a reply to the statement of defence. Upon filing the statement of defence and other processes, GAF representative Captain B. Sanneh would occasionally appear in court and various State Counsels would also appear without any preparation to proceed.
Principal State Counsel Patrick Gomez had entered appearances during the pre-trial conference and objected to the Plaintiff’s documents because they are not original copies and the Defence withdrew the tendering of the documents and the matter was subsequently adjourned.
The Plaintiff (Sarjo Saine) served the defendant (GAF) with notice to produce documents and thus failed to produce same to the court and did not appear in court despite being served with hearing notices.
The Plaintiff proceeded with a pre-trial conference where he tendered numerous documents as exhibits.
Gambia Armed Forces failed to appear in court for a pre-trial conference to tender their documents despite being served with notice of a pre-trial conference.
On the 27th of July 2023, Sarjo Saine adopted his affidavit of witness statement as his evidence in chief and State Counsel F. Drammeh sought an adjournment for cross-examination.
The adjournment application was granted at the instance of the Defence Counsel on the 30th of November 2023.
State Counsel F. Drammeh for the Defendant (GAF) appeared in Court on the 14th of March 2024 and the case could not proceed because Defence Counsel Hon. E. A. Gomez was sick and admitted to hospital and the case was subsequently adjourned to the following dates: 20th June, 27th June 2024 and 4th July and 11th July 2024.
The court sent a hearing notice to Sarjo Saine’s Counsel for cross-examination of his client.
On the 20th of June 2024, the case was called, the Defence Counsel was absent in court without any reason and she was present when the case was adjourned on multiple dates as outlined above.
As there was no reason as to why GAF and its counsel were absent in court, Hon. Justice Jaiteh said the court cannot exercise its discretion to adjourn the case without any reason as provided under Direction 6 (1) of the High Court Practice Direction 2013.
The defence cross-examination was closed and the plaintiff also closed their case and written briefs of argument were ordered.
The Plaintiff (Sarjo Saine) filed and served their brief on Defence Counsel, however, the Defence failed to file briefs of argument as ordered by the court.
On the 25th of July 2024, the Plaintiff (Sarjo Saine) adopted their brief of argument and the Defence was absent in court.
The case was adjourned to the 31st of July 2024 for judgment and a notice of judgment was sent to the Defence Counsel.
Hon. E. A. Gomez Counsel for the Plaintiff (Sarjo Saine) in his brief of argument formulated two issues for determination.
The two issues are; Has the Plaintiff brought before this Court, a genuine case supported by cogent and convincing evidence and which on the balance of probability entitles the Plaintiff to judgment?; And Has the Defendant brought before this Hon. Court a reasonable defence supported by cogent and convincing evidence to persuade this Hon. Court that they are not liable to the Plaintiff in accordance with his claim?
It is the submission of the Plaintiff’s counsel that from the records of the court, and all material and documentary evidence, it is quite reasonable that the Plaintiff has proved his case on the balance of probability.
The Plaintiff’s counsel argued that the Defence by their comportment has by implication acknowledged the fact that the Plaintiff is owed by the Defendant. The Plaintiff’s counsel urged for the court to enter judgment for the Plaintiff on its claim with interest and costs.
Hon. Justice Ebrima Jaiteh’s Adjudication On the Matter
“I have read the reliefs sought on the amended writ of summons and amended statement of claim, the respective pleading filed by the Plaintiff, and the evidence presented with great interest,” Hon. Justice Jaiteh said.
Hon. Justice Jaiteh said having considered the argument as raised in the Plaintiff’s brief of argument, there is only one issue and that is whether the Plaintiff is entitled to the reliefs sought on the amended statement of claim.
Hon. Justice Jaiteh said it is important to reiterate that GAF and its counsel did not fully take part in the trial and certainly goes to show that Defendant has no defence.
Hon. Justice Jaiteh cited that the Gambia Court of Appeal in the case of OUSMAN BALDEH; RIAD AZI V. MOMODOU TIJAN JALLOW (2002-2008) 2 GLR at 284, holding 11, held as follows: “Where a party (Defendant) took no part in a proceeding or offered no evidence in his defence as in the case at hand, the evidence before the court goes one way there would be nothing on the other side of the imaginary scale or balance against the evidence of the (Plaintiff).”
“It was further held at Holding 10 as follows: Civil cases are decided on a preponderance of evidence and the onus of adducing evidence is on the person who would fail if such evidence were not produced. The nature of proof in a given case is dictate of the available by the particular circumstances evidence.
“In our instant case, the only evidence before this Court is that of the Plaintiff. In civil cases, the burden of proof is on a party who asserts a tact, to prove the same because it is settled that “he who asserts must prove” It is the cardinal principle of law that the said proof is on a balance of probabilities or on a preponderance of evidence,” Hon. Justice Jaiteh said.
Hon. Justice Jaiteh asserted that Section 141(1) of the Evidence Act 1994 provides that “a person who desires any court to give judgment as to a legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist.”
Hon. Justice Jaiteh also cited the Gambia Supreme Court case: THE CORPORATION LIMITED VT. K. MOTORS LIMITED [2014- 2015) GSCLR AT PAGE 1, HOLD 6, which was held that: “A Plaintiff is obliged in law to prove its case on the strength of his own case and not necessarily on the weakness of the defendant’s case.
Hon. Justice Jaiteh said it is the Plaintiff’s case and that he may succeed or fail even if the Defendant did not do anything. He said the Plaintiff is required to sail on his own steam and power otherwise the voyage must fail.
“From the foregoing, it is now well settled that a Plaintiff is bound to establish his or her entitlement from the case it has presented to the trial court. There is no gainsaying that the Plaintiff must supply the material facts and evidence to back up its claim. It therefore presupposes that the failure of the Defence to take part in this trial cannot enhance the Plaintiff’s position which is not well supported.
“The Plaintiff wins or fails on his steam and not because the opposing party did not participate in the trial or did not prove a strong contention. Where the Plaintiff has pleaded and adduced evidence, it is the duty of the trial court to evaluate the evidence and determine whether the Plaintiff has established that he is at least, prima facie, entitled to the reliefs sought. In other words, it is when the Plaintiff can adduce sufficient credible evidence in support of its claim, that it would have succeeded in proving a prima facie case, which if not rebutted by the Defendant, will ultimately lead the court to grant the reliefs in its favour,” Hon. Justice Jaiteh said.
Hon. Justice Jaiteh said said where the Plaintiff succeeds in proving its claim by cogent and credible evidence, the burden will then shift to the Defendant to adduce evidence to rebut the Plaintiff’s case.
Hon. Justice Jaiteh further stated that Where the Defendant fails to adduce such evidence in rebuttal or the evidence led by him is not credible or sufficient, the reliefs sought would be granted in favour of the Plaintiff.
Hon. Justice Jaiteh then reproduced Sarjo Saine’s affidavit of witness statement from paragraphs 5 to 20.
Sarjo Saine in his affidavit said sometime in 2012, GAF approached him through one of its Commandant attached to the Fajara Barrack for the emptying of cesspit pools in Fajara Barrack.
Sarjo Saine said subsequently, GAF contacted him again to empty cesspit pools in various Barracks within the country.
The Plaintiff said upon completion of work done he submitted a delivery note to confirm work done to the Army personnel on the ground to sign and attest to the completion of work done.
“Invoice of any work done would be prepared and sent to the Chief Clerk for a departmental memo to be raised for onward transmission to the Chief of Defence Staff for payment. Copies of letters are hereby exhibited and marked as “SS1”. Based on this arrangement a pattern contract was established that the Defendant do contact me to empty cesspit pools from time to time at various Army Barracks within the country, after which invoices will be sent and paid for.
“In the course of my work for the Defendant the unpaid sum of the job done is discovered to have piled up over time. A copy of the summary of unpaid invoices is hereby exhibited and marked as SS2”. On the 23d of June 2019, I wrote a letter to the Chief of Defence Staff requesting for outstanding payments for emptying cesspit pools from various Army Barracks in The Gambia. A copy of the said letter is hereby exhibited and marked as “SS3,” the Plaintiff said in his affidavit of witness statement.
Sarjo Saine said on the 20th day of October 2020, he asked his counsel to write to GAF demanding the outstanding payment of Four Million Two Hundred and Thirty-One Thousand Four Hundred and Fifty-Three Dalasis (D4, 231, 453.00) being the outstanding payment discovered as at that time, A copy of the said letter is hereby exhibited and marked as “Ss4”.
Sarjo Saine said the Ministry of Defence invited him to a meeting vide a letter dated the 17th day of November 2020, at the Ministry of Defence scheduled for the 23rd day of November 2020 to discuss on the issue.
Mr. Saine provided a copy of the said letter, exhibited and marked as SS5.
Plaintiff said on the 23th of November 2020, he attended to the meeting, but the Defendant failed to turn up for the meeting.
“On the 10th day of December 2020, I wrote to the Defendant informing them about their absence in the meeting and also suggesting that the matter has been pending for too long and it will be fair to make arrangements for immediate payment of the debt by the Defendant. A copy of said letter is hereby exhibited and marked as SS7”. In the course of my various visit to the Army Headquarters, I tendered the statements of account showing the outstanding sums that remains unpaid by the Defendant, but nothing was forthcoming.
“I have gathered all the unpaid invoices and same now amounting to D5, 713, 025.00 (Five Million, Seven Hundred and Thirteen Thousand and Twenty-Five Dalasis). In order to recover the outstanding sum, I sought the service of a legal practitioner, making me to incur unplanned expenses. The inability of Defendant to pay for services rendered by me has caused hardship and loss in the cause of my business,” Mr. Saine said in his affidavit of witness statement.
Hon. Justice Jaiteh said the above averments or evidence are not challenged or controverted by the Gambia Armed Forces (GAF).
“I have perused exhibits “P1” to “P7”, there is sufficient documentary evidence of unpaid invoices thus amount to the claim of D5, 713, 025.00 being monies due and payable by the Defendant to the Plaintiff for services rendered to the Defendant by the Plaintiff by emptying cesspit pools in various military barracks in the country.
“The Plaintiff’s Counsel has written to the Defendant demanding for the full payment of the outstanding balance and the Defendant failed to pay same. It is settled law that cost follows the event and same was not denied or contested by the Defendant at all. It is settled principle of law that facts in an affidavit not challenged or controverted are deemed admitted,” Hon. Justice Jaiteh said.
Hon. Justice Jaiteh then cited the case of ANTOINE BANNA v OCEAN VIEW RESORT LTD (2002-2008) 1 GLR Holding 5.
Hon. Justice Jaiteh said in the absence of any defence on this aspect of Plaintiff’s claim, he is satisfied on the balance of probabilities that Plaintiff has proof of his claim against Defendant and therefore resolves the lone issue in favour of Plaintiff.
“From the foregoing reasoning, and having looked at the totality of the evidence on a balance of probability, I hereby enter judgment in favour of the Plaintiff against the Defendant as follows: That the Defendant is hereby ordered to pay the Plaintiff the sum of D5, 713, 025.00 (Five Million, Even Hundred and Thirteen Thousand and Twenty -Five Dalasis) being invoice value of monies owed by the Defendant to the Plaintiff for emptying cesspit pools from various Army Barracks in The Gambia.
“That the Defendant is hereby ordered to pay the Plaintiff legal and administrative fees of D500, 000.00 (Five Hundred Thousand Dalasis) incurred in prosecuting this suit. Interest at the rate of 10% from year 2014 until date of judgment. Statutory interest of 4% is awarded in favour of Plaintiff against the Defendant from the date of Judgment up to the date of final liquidation of the judgment. At the discretion of the Court D100, 000.00 is awarded in favour of the Plaintiff against the Defendant for general damages. There shall be no further orders,” Hon. Justice Jaiteh delivered judgement on the suit.