Abdoulaye Thiam, Senegalese businessman
By Landing Ceesay
Lawyers representing Abdoulaye Thiam (plaintiff) and Aisha Fatty (first defendant) argued over the admissibility of copies of €150,000 receipts into evidence during a pre-trial hearing.
This civil case, one of the most prominent in the country, resumed its pre-trial proceedings on Tuesday, presided over by Hon. Justice Ebrima Jaiteh of the High Court of the Gambia.
Counsel Lamin A. Ceesay, appearing for the plaintiff, Abdoulaye Thiam, informed the court that they had the last document on the plaintiff’s list of additional documents. He said the documents they sought to be tendered were the ones the plaintiff intends to rely on in the trial. Counsel L. Ceesay informed the court that the documents were receipts for €100,000 and €50,000 signed by Aisha Fatty (first defendant).
Counsel Lamin S. Camara, appearing for Aisha Fatty (first defendant), objected to the submission of Counsel L. Ceesay that the receipts are signed by Aisha Fatty. He argued that his learned counsel was giving evidence from the bar and that there was no evidence that the receipts were signed by Aisha Fatty.
In response, Counsel L. Ceesay insisted that the receipts were signed by Aisha Fatty. He further informed the court that they had also filed a notice to produce the original copies of the receipts, which he said were in the possession of Aisha Fatty.
Reacting to the documents sought to be tendered by Abdoulaye Thiam’s legal team, Counsel LS Camara objected to the admissibility of the documents. He argued that the law requires that a person, on whom the notice to produce is served upon, should produce the document requested in the notice to produce for trial. He further argued that the notice to produce did not specify the law under which they were coming and that the document sought to produce is in possession or power of the person against whom it is sought to be tendered.
“I have the notice to produce dated July 24, 2023, issued to her (Aisha Fatty) by United Foreign Exchange Bureau Limited. The said receipts are dated 10th and 12th September 2021, respectively. My lord, the law requires that a person on whom the notice to produce is served upon, should produce the document requested in the notice to produce for trial.
“The notice to produce, dated 24th July 2023 did not specify the law under which they are coming. But notice to produce evidence is stipulated in the laws of civil proceedings. However, my lord, the law requires that the document sought to produce is in possession or power of the person against whom it is sought to be tendered,” Counsel LS Camara argued.
Counsel LS Camara further elaborated on the law pertaining to notice to produce, citing Section 102 of the Evidence Act. Counsel then proceeded to read the relevant section aloud to the court and emphasized that the document in question must be in the possession or control of the party upon whom the notice to produce is served. In this instance, Counsel asserted that the original receipts should be in the possession of United Foreign Exchange Bureau Limited, not Aisha Fatty.
“My lord, it is the fact that the original copies should have the issuing authority, that’s the United Foreign Exchange Bureau Limited situated in Latrikunda Germany. The original is not in power or possession of the first defendant (Aisha Fatty).
“The court will need to make a determination that original copies are in the custody of the first defendant (Aisha Fatty). Because the Bureaus give you a copy and they keep the original receipts. Consequently, you cannot rely on secondary evidence to prove the content of the original simply because the notice has been served on the first defendant. We respectfully urge this honorable court to reject the documents and mark them accordingly,” Counsel LS Camara urged.
In response to Counsel LS Camara’s submission, Abdoulaye Thiam’s lawyer, Lamin A. Ceesay said Aisha Fatty has a joint issue with Abdoulaye Thiam on the issue of €100,000 and €50,000 given to her. Counsel L Ceesay referred the court to paragraphs 29, 30, and 31 of Aisha Fatty’s statement of defense. He further argued that the €150,000 has already been acknowledged and accepted by Aisha Fatty in her statement of defense.
“My lord, we are completely on the opposite side when it comes to the counsel’s submission that when you receive money, you are given a copy, not the original. That does not happen anywhere in the world. The first defendant (Aisha Fatty) did not deny receiving the money, and she even signed,” Counsel L. Ceesay argued.
Counsel L. Ceesay asserted that the purpose of a notice to produce is solely to inform the opposing party that they possess an item relevant to the case and that they should submit it to the court. He emphasized that the notice does not compel the first defendant to physically bring the item to court; rather, it serves as a notification that the item is required. To further support his argument, Counsel L. Ceesay cited the law of evidence as outlined by the Hon. Chief Justice of the Gambia.
“We are giving them sufficient notice that if you don’t produce the original evidence, then secondary evidence will be relied upon. It is not in dispute that the first defendant (Aisha Fatty) received this money,” he argued.
Replying on the point of law, Counsel LS Camara said the authorities cited by Counsel L. Ceesay are not helpful to him. He argued that if you wish to tender documentary evidence, that documentary evidence must meet the requirements of admissibility even if the facts are admitted.
“My lord, Yes, we have joint issues with the plaintiff on the facts admitted. But If you wish to tender documentary evidence, that documentary evidence must meet the requirements of admissibility even if the facts are admitted,” Counsel LS Camara argued.
Justice Jaiteh adjourned the case to November 14th, 2023, for ruling on the arguments and continuation of the pre-trial.
Background of the case
Aisha Fatty, a Gambian socialite, has been sued by her ex-fiancé, Senegalese businessman Abdoulaye Thiam, for allegedly breaching their marriage promise. Thiam claims that the breach has caused him emotional distress and embarrassment. He is also suing the Inspector General of Police, Abdoulie Sanyang, who is the second defendant in the civil suit.
The civil suit was first brought before Justice Ebrima Jaiteh of the High Court of the Gambia in April 2023.