Ebrima Jaiteh of the High Court has upheld the decision of Kombo South District
Tribunal delivered on 30 November, 2016 and declared that Omar Bittaye family
in Tujereng is the rightful owner of a land in Tujenreng, Kombo South District,
West Coast Region.
Justice Jaiteh disclosed that the appellants: Joking Mendy; Lena Mendy; Ebu Mendy and Fara Mendy were the defendants in the lower court and the appellants were dissatisfied with the judgment of the Kombo South District Tribunal so they filed an appeal at the High Court.
The trial judge asserted that there is clear evidence from the record of proceedings that on the 3rd day of August 2016, that Joking Mendy and co were all present at the district tribunal when the plaintiff testified under oath and gave his evidence in chief and was cross-examined by them.
Justice Jaiteh said the matter was subsequently adjourned to the 8th day of September and Joking Mendy and co were all absent in court without any reason (s).
Justice Jaiteh explained that the adjournment of a case is at the discretion of the trial court and the court can only adjourn a matter based on compelling circumstances with verifiable reasons.
Justice Jaiteh revealed that from the record of proceedings, there was no reason why they were absent before the Tribunal to warrant an adjournment.
He further revealed that the Tribunal was right to have proceeded with the hearing of the suit in their absence, noting that they are not entitled to be issued with a fresh hearing notice because they were aware of the trial date but deliberately chose to stay away from the trial and as a result they were not denied a fair hearing.
He stated that district tribunals are subordinate courts to the High Court and it is trite that in a claim for declaration of ownership or exclusive possession of a piece or parcel of land, the first and foremost duty of the plaintiff is to describe the land in dispute with a reasonable degree of certainty and accuracy that it will no longer be in doubt.
Justice Jaiteh held that the respondent sufficiently described the suit land and cited the case of Fatou Badjie and four others versus Joseph Bassen (Civil Appeal No:SC4/2002) where it was held in The Gambia Supreme Court case that there are five (5) different ways in proving ownership of any land in The Gambia.
Justice Jaiteh stated that this can be done by: Traditional evidence; by production of document of title; by acts of the person claiming the land; by acts of long possession and by proof of possession of connected or adjacent land.
He revealed that from the evidence adduced at the lower court, it is apparent that Bittaye Kunda family’s claim to the suit land was by traditional history.
He stated that the law is clear that where two persons make conflicting claims to possession of land, the law ascribes possession to the person that can prove better title to the land.
He asserted that a party relying on evidence of traditional history must plead his root of title. He must show in his evidence who those ancestors of his are and how they came to own and possess the land and eventually passed it to him.
Justice Jaiteh disclosed that in the instant case, the plaintiff/respondent gave a narration of how the suit land in question devolved from his grandfather to him and was never challenged under cross-examination by the appellants/defendants.
Justice Jaiteh further disclosed that the testimony of Omar Bittaye was sufficiently corroborated by one Omar Jatta, where he testified that the suit land belongs to Bittaye Kunda and they share boundaries; Musa Jawara, also testified that he is from Baduma Kabilo and that they share boundary and everybody in Tugereng knows that Bittaye Kunda farm is in Bunkiling.
Justice Jaiteh disclosed that Bittaye Kunda witnesses were never cross-examined by Joking Mendy and co as they were absent in court in most of the sittings of the Tribunal.
Justice Jaiteh noted that Omar Bittaye provided credible and supportive evidence that traces the origin of the root of his title to the land that it was his grandfather who owned the land and gave it to his father and he inherited it from his father.
Justice Jaiteh further noted that Joking Mendy and co did not counterclaim for a declaration of title and from the totality of evidence adduced in the record of proceedings, Bittaye Kunda family proved a better title to the land.
Justice Jaiteh accordingly upheld the judgment of Kombo South District Tribunal delivered on 30 November, 2016 and dismissed the amended notice of appeal filed.