The Corporation sued 72-year-old Mam Sait before the High Court seeking to recover the D30 million paid to him. However, the High Court on the 19th March 2020 referred the case for arbitration at the Alternative Dispute Resolution Secretariat (ADRS).
In deciding the matter, the High Court judge relied on clause 12 of the JVA, which covers all disputes or differences that could arise under the agreement. He referred the matter to the ADRS for arbitration as provided under clause 12 of the agreement (JVA) and section 12 of the Alternative Dispute Act. The judge relied on section 12 (1) of the ADR Act, the statutory provision dealing with referral to arbitration. The judge was satisfied that there was indeed an arbitration agreement between the parties and that it was proper to refer the matter to the ADRS for arbitration.
SSHFC was dissatisfied with the decision of the High Court and decided to appeal before the Gambia Court of Appeal.
The Appeals Court, on the 8th June delivered a unanimous decision that the case should go for arbitration instead of litigation as provided in their Joint Venture Agreement. The Joint Venture Agreement (JVA) was dated the 12th February 2009 and was between SSHFC and Mam Sait Njie.
Justice Achibongs further held that the Supreme Court judgement between Mam Sait Njie and the Attorney General did not make an order for the D30 million to be paid, but instead the Apex Court merely recommended that action be taken to recover the amount, without stating the basis of such as claim or whether such an action would succeed.
The Court of Appeal held that section 12 (1) of the ADR Act is mandatory; that when an issue of arbitration is raised and the court is satisfied, the matter should be referred to the Alternative Dispute Resolution Secretariat for arbitration.
Justice Njie, President of Court of Appeal, said the High Court judge did not misdirect himself by referring the matter for arbitration.
Justice Njie also said the statements of the Supreme Court in the judgement were mere advices or pointers to the SSHFC to take court action in relation to the Deed of Assignment and the sum of D30 million, if they so chose. He said the highest court simply upheld the recommendation of the Commission of Inquiry, which is merely advisory, and that their judgment did not set aside or nullify the said agreement between the parties.
“Indeed if the Supreme Court had so nullified the agreement, why would there have been a need to file the Originating Summons to again have that same agreement set aside – this is an obvious contradiction on the part of the appellant’s counsel’s position on the matter,” Justice Njie quizzed.
The President of the Court of Appeal held that there was no issue before the Supreme Court on whether or not the agreement was a nullity, adding SSHFC were not a party in that case. He stressed that the Supreme Court did not declare the agreement between SSHFC and Mam Sait Njie as null and void and of no effect.
Justice Njie said the arbitration clause in the JVA is no doubt very broad. He said the dispute falls within the ambit of arbitration and therefore, section 12 of the ADR Act would apply – to have the matter referred to the ADRS for arbitration. He emphasized that the high court judge was right to have stayed the matter and referred it for arbitration per the ADR Act.
He fined SSHFC D50,000 as cost in favour of Mam Sait Njie.
Justices Na-Salla Wadda and Kumba Sillah-Camara both concurred with Justice Njie’s lead judgment and fine against SSHFC.
