Court grants Africell leave to adduce evidence against MGI Telecoms

Thursday, May 03, 2018

Justice Ebrima Jaiteh has granted leave to Africell Gambia Limited to adduce evidence and amend statement of claims to plead facts in a million dollar civil suit against MGI Telecoms Limited.

The trial judge also granted leave to permit MGI Telecoms Ltd to amend their statement of defence and to plead their facts.

Justice Jaiteh made these declarations in a ruling he delivered last Thursday, 26th April, 2018 in the civil matter between Africell Gambia Ltd and MGI Telecoms Ltd.

Africell Gambia Limited is claiming the sum of US$1.000.000 (one million dollars) being damages for interference with contractual relations, namely a consortium agreement made on 16th September, 2011 between Africell, Comium, Netpage Company, Qcell Company Ltd, Unique Solutions Company Ltd, Gambia Telecommunication Company Ltd, Gambia Cellular Company Ltd, The Government of the Republic of the Gambia, the Gambia Submarine Cable Trust and The Gambia Submarine Cable Company Ltd.

The trial Judge disclosed that by a motion dated the 22nd January 2018  and filed on the 23rd day of January 2018, the plaintiff sought an order of the court to be granted leave to adduce evidence on the matters that have arisen since the institution of the action, to grant leave to amend its statement of claim to plead the said facts and matter and such further orders the court may deem fit to make.

Justice Jaiteh said briefs of arguments were ordered, filed, exchanged and adopted.

Justice Jaiteh further said that it was the plaintiff counsel submission that the evidence of Mr. Baboucarr Sanyang, the former Managing Director of Gamtel on the 5th January 2018 and Dr. Njogou Bah, former Secretary General on the 29th January 2018 before the Commission of Inquiry is of great importance as Mr. Sanyang was the one who signed the Management agreement dated the 1st June 2014 between The Gambia Government and the Defendant, which contract is very central to the issues in the suit as his evidence before the commission touched on matters concerning the contract.

Justice Jaiteh disclosed that it was the plaintiff counsel’s argument that Dr. Njogou Bah’s evidence before the said commission testified that the former President asked for and received a bribe from the Defendant and that the Defendant pleaded and relies in its defense, especially paragraph 2 of their Statement of defense that the Plaintiff’s license issued in August 2009 was issued and signed by the former President Yahya A. J. J. Jammeh.

Justice Jaiteh further disclosed that after considering all the arguments raised in the respective briefs, he believed that the sole determination was whether the amendments sought was necessary to warrant the court to exercise its discretion to grant the plaintiff’s application.

Justice Jaiteh stated that the counsel for the Plaintiff and the Defendant referred the court to order 36, rule 1 of the second Schedule and order 24, Rule 1 of the Second Schedule of the Rules of The High Court.

The trial Judge said the Rules of Court allow for facts occurring after the institution of a suit to be adduced so that parties concern will have the opportunity to meet the statement so introduced.

He noted that the court should not be seen to encourage the whims and caprices of counsel, adding that rules of the court must be obeyed to promote justice and fair proceedings, especially where the amendment sought is to eliminate or resolve controversies between the parties.

He further noted that pre trial conference has not commenced as the suit is at the stage of pleadings as a result he does not believe that to amend the pleadings and to adduce new evidence will occasion a delay in the trial and thus be prejudicial to the Defendant as they will have the opportunity to amend their statement of defence and witness statements and also to cross-examine the Plaintiffs’ witnesses on those new facts so adduced. 

Justice Jaiteh remarked that the Courts have now departed from that cruel era of using pedestal technicalities to defeat the equity and justice of a given case.

He further remarked that the law should always look forward and not backwards adding that since there is no evidence before the Court that the application is made mala fides or in bad faith, it is therefore imperative to grant the application.

Justice Ebrima Jaiteh accordingly granted Africell leave to adduce evidence on the matters that has arisen since the institution of this action and they were further granted leave to amend its statement of claim and to plead the said facts and matters.

Justice Jaiteh however permitted the defendant (MGI Telecoms) to amend its statement of defense and plead facts as leave had previously been sought and granted and ordered an accelerated hearing.

Author: Bruce Asemota