On the basis of the foregoing, I therefore solidly find and I so hold
that the Respondent herein had failed to prove his case beyond a
balance of probabilities and so cannot make claims to the
construction and extension of the matrimonial property herein.
Having so failed to prove his case, I have been wondering and left
flabbergasted as to what point the learned trial judge had any basis
upon which to apportion the value of the development as between
the parties herein in the absence of any cogent and or compelling
evidence that the Respondent herein had tendered before the trial
court. Upon what yardstick or criteria did the learned trial judge rely
upon to make this calculation? It was in my view a mere speculation
that led the trial court to arrive at such a determination. There is no
gainsaying that a court of law cannot make a determination of any
matter on the basis of a mere speculation or mere conjecture and it
is trite that any determination in a court of law must be based by a
presiding judge on the basis of clear facts and or a claim and
cogent and compelling evidence in support of that claim or case as
the case may be. In the Gambian Supreme Court case of
MANSONG DAMBELL & ANOR V WEST AFRICAN EXAMINATION
COUNCIL – SC Civil Appeal No. 6/2004 judgment of Niki Tobi JSC
dated 3rd July 2008, the Supreme Court had this to say about a Court
speculating:
“There are questions galore but I can stop here in the
belief that I have made the point that the learned trial
judge was merely involved in speculation, a power
which he does not possess. The judge that he is. A
judge qua judex is an exact human being and he
deals with facts in cases with all exactitude or
exactness. The learned trial judge with all respect
threw overboard this important nature of his function
and went into speculation or conjecture clearly
CA – JUDGMENT MATTY FAYE V DAWDA JAWARA
Page 15
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