By: Isatou Sarr
The Banjul High Court Annex Monday struck out an interlocutory application filed by the defendant in an on-going land dispute, saying it lacked merit.
The presiding judge of the case, Justice Sonia Akinbiyi also awarded costs of D5,000.00 in favour of the respondent.
The ruling was delivered in a civil suit involving Mustapha Drammeh, Mamadou Drammeh, Ousainou Drammeh and Fatoumatta Drammeh, who were suing on their own behalf and on behalf of beneficiaries of the estates of Lasana Drammeh, Malick Drammeh, Omar Drammeh and Ebrima Drammeh, against Momodou Bojang.
The application was brought by the defendant during the trial after the plaintiffs had closed their case and the defence had already commenced presenting its evidence.
The defendant sought leave of the court to file an affidavit containing the statement of Ousman Jarjusey, together with a sketch plan and a surveyor’s report, despite the fact that the hearing had already commenced. The defendant also sought an order deeming the documents properly filed.
In support of the application, the defendant relied on Order VI Rule 2 of the High Court Rules, arguing that the omission was not prejudicial to the respondent and that admitting the documents would assist the court in reaching a conclusive determination of the dispute, particularly on issues relating to the boundaries of the disputed land.
The respondent opposed the application, citing the expiration of the period for filing pleadings, the likelihood of prejudice to the respondent, and inconsistencies in the defendant’s explanation for the delay. The respondent further argued that the application amounted to a waste of the court’s time.
In her ruling, Justice Akinbiyi stated that the court considered several factors, including the principles governing the admission of evidence after the commencement of a hearing, the court’s discretionary powers under Order VI Rule 2, the issue of prejudice to the opposing party, and the need to balance substantial justice with procedural requirements.
The court observed that applications seeking the admission of additional evidence during trial must be made promptly and supported by convincing reasons for any delay. The judge further noted that applicants were expected to demonstrate that no prejudice would be suffered by the opposing party and, where necessary, proposed measures to mitigate any such prejudice.
Justice Akinbiyi found that the defendant failed to satisfy these requirements. She held that no adequate explanation had been provided for the delay, no measures had been proposed to address potential prejudice to the respondent, and the applicant had failed to demonstrate that the evidence sought to be introduced was essential to the just determination of the case.
The judge also found that the defendant had not exercised due diligence in obtaining the evidence within the prescribed timelines.
“The applicant having failed the test of timeliness, clear and consistent justification, mitigation of prejudice, failed to demonstrate essentiality and has not exercised due diligence before bringing this application, I find that the application lacks merit,” Justice Akinbiyi ruled.
She subsequently struck out the application in its entirety and awarded costs of D5,000 in favour of the respondent.
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