By Bruce Asemota
Justice Ebrima Jaiteh of the High Court in Banjul has referred the Bankai/Gamtel suit to the International Court of Arbitration in London for interpretation and implementation of their dispute.
Bankai International Private Limited is claiming the sum of USD 2,940,012.01 being monies owed for international telephone services rendered to Gambia Telecommunications Company, Gamtel.
Justice Jaiteh disclosed that his ruling to refer the case to the court of arbitration concerns a strongly contested objection raised by the defendant, Gamtel.
“The counsel for the defendant Gamtel, AA Bensouda has contended that the figures presented by the plaintiff in its various documents are irreconcilable and contradictory,” he said.
The trial judge added that the discrepancy is not trivial but cuts to the heart of the plaintiff credibility and the veracity of the amount claimed.
According to Justice Jaiteh, the plaintiff itself cannot determine with certainty what it is owed, and so it would be unjust to saddle the defendant with a claim that fluctuates without explanation.
Justice Jaiteh further said the counsel for the defendant denied any acknowledgment of the debt. “Rather, the defendant upon receipt of the plaintiff’s demand letters, prudently constituted an internal task force in consultation with the legal counsel, specifically to ascertain the accuracy of the plaintiff’s claims but no findings were made confirming any financial liability on the part of the defendant,” the judge said.
He said in response, the plaintiff’s legal representative argued that the claim includes accrued interest at a rate of 18% amounting to USD486,287.31 as of 9th March, 2021 and that the plaintiff contends that this interest, added to a principal of USD2,512,484.42 and an earlier figure of USD2,026,197.11, justifies the claim of USD2,940.012,01.
Justice Jaiteh stated that the court finds such arithmetic legally untenable and to permit it would tantamount to allowing one party to rewrite the contract to its benefit, to the prejudice of the other, a notion wholly repugnant to basic principles of contract law.
The judge went on to state that there is an active dispute as to the interpretation and implementation of the contract, in relation to invoicing, acknowledgment of debt and interest calculations.
He asserted therefore that the court cannot arrogate unto itself jurisdiction which the parties have contractually assigned elsewhere.
The judge held that the court lacks jurisdiction to entertain the suit and accordingly struck out the suit with cost of D50,000.00 awarded to Gamtel and referred the suit to the International Court for Arbitration in London for interpretation and implementation.
