Africa-Press – Gambia. The Gambia Court of Appeal chaired by Honorable Justice N.Salla -Wadda on Tuesday set aside the High Court judgment, ordering the respondent, Vicente Rivero Bolanos S.L. to pay a cost of D50,000 to Mourad Maroun and Paul Maroun.
According to court records the parties had an agreement on 1st June 2007, wherein Bolanos S.L. was to sell his business to the appellants, Mourade and Paul.
It also revealed that on a separate agreement, the respondent, Bolanos on exhibit P1, agreed to supply exclusively kalise products, mainly ice-cream products to Mourade and Paul.
Court records further showed that it was not disputed that Mourade and Paul between August and September 2010 placed an order for a twenty-foot container of kalise ice-cream with a total of 2,440 cartons of ice cream product, costing 16,551.97 euros.
The appellants noted that when a shipment was made C.I.F to Banjul seaport, Bolanos provided an invoice and bill of lading number 752181224 to the appellants, backed with several emails between parties.
However, the appellants stated that at the time the said container bearing the ice-cream had melted when they opened it upon arrival at the Warehouse at Kanifing.
Justice Wadda in her ruling said that from the evidence, it was established that the parties entered into a C.I.F contract.
The trial Judge stated that despite repeated requests and demands from the defendants at the time for the plaintiff, Bolanos now provides them with the insurance policy for them [defendants, herein appellant] to make claim with the shippers Maersk Line.
The Appellate Judge said that the plaintiff [herein respondent], Bolanos repeatedly and persistently refused to give the defendants the said insurance documents that was an essential ingredient in the formation of a C.I.F. contract.
The Court of Appeal Judge deduced that on the basis of the findings the trial court had made findings that were ‘’contrary’’ to the evidence that was adduced.
The presiding Judge disclosed that the lower court Judge also failed to consider the totality of the defendant’s pleadings to be able to appreciate the possible defenses that may be contained therein.
Justice Wadda went on to say that the trial Judge fell into ‘’error’’ by arriving at a conclusion that was neither supported by the evidence on record nor clear provisions of the law on the formation of CIF contracts.
‘’I therefore find and hold that the judgment of the court below was delivered against the weight of the evidence that was adduced before the trial court and the judgment of the trial court was arrived at in’’error,” Justice Wadda declared.
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