Justice Ebrima Jaiteh of the High Court
By Landing Ceesay
Hon. Justice Ebrima Jaiteh of the Gambia’s High Court has ruled that the Kanifing Estate taxi garage is unlawful. He has ordered the drivers to pay Mr. Beran Malick Sosseh (the applicant) cost D100,000.
On July 14, 2023, Mr. Beran Malick Sosseh, a resident of Kanifing Municipal Council, filed a civil lawsuit against Amadi Kanteh (on behalf of all the drivers of Kanifing Estate taxi garage), the Ministry of Transport, Works and Infrastructure, the Inspector General of Police, and the Attorney General for violating his right to privacy.
Mr. Sosseh alleged that the taxi drivers set up a garage in front of his house without any lawful authority from any public institution. He said that the garage has caused a number of problems, including noise pollution, traffic congestion, and a decrease in the value of his property.
In response to the lawsuit, Hon. E. A. Gomez, counsel for the first respondent (Drivers), referred the court to Section 17 (1) and (2) of the 1997 Constitution of the Gambia. He submitted that the provisions of the Constitution are sacrosanct, but that the rights and interests of individuals are subject to the rights and freedoms of others. Counsel Gomez argued that there is no evidence before the court to show that Mr. Sosseh’s privacy has been violated.
F. Drammeh, a State Counsel, represented the Ministry of Transport, Works and Infrastructure (2nd Respondent), Inspector General of Police (3rd Respondent) and the Attorney General (4th Respondent) in court. She argued that the institutions she is representing are nominal parties in the case and referred the court to Section 23 of the Evidence Act, 1994.
Counsel Drammeh further argued that the applicant (Mr. Sosseh), in his own affidavit, admitted at paragraphs 14, 20, and 21 that two plots of land had been allocated as a car park with all the necessary amenities. Therefore, the 2nd and 3rd respondents have fulfilled their obligations.
In his reply to the points of law, Counsel L. Mboge, who represents Mr. Sosseh, argued that the first respondent admitted in paragraphs 6 and 7 of their affidavit in opposition that they set up the garage without authorization.
Counsel Mboge further stated that paragraphs 8, 9, and 10 of the affidavit in opposition violate Section 90 of the Evidence Act because they introduce extraneous matters.
In his ruling on the lawsuit, Hon. Justice Jaiteh found the taxi garage to be unlawful and a violation of Mr. Sosseh’s right to privacy. He stated that the power to establish car parks lies with the Minister of Transportation, Works, and Infrastructure (2nd Respondent), as per Section 92(1) of the Motor Traffic Act, Cap. 70:03, volume 10, Law of the Gambia.
“The Power to set up car parks in the Gambia is the responsibility of 2nd respondent and not the 1st respondent. The 1st respondent and his drivers do not have any legal authority to set up a taxi garage without the consent of the Minister, ” Hon. Justice Jaiteh said.
Hon. Justice Jaiteh further noted that Amadi Kanteh and the drivers did not dispute or deny Mr. Sosseh’s claim that two plots of land were allocated to them for a garage. He stated that it is a well-established principle of law that facts that are not challenged or disputed are deemed to be admitted.
“From the foregoing reasons, it is a fact that the 2nd respondent has discharged its responsibility under the Act by providing the two garages for use of public vehicles plying for hire and fare and these garages are at the Kanifing and Jeswang Markets respectively and are provided therein with facilities such as toilets and sitting area for waiting passengers and drivers. Unfortunately, these garages are abandoned for no apparent reason and the 1st respondent, and his drivers did not proffer any reason why they refused to use the designated garages for their commercial use.
“It is apparent that the 1st respondent did not have the authority of the 2nd respondent to establish the said garage beside the compound of the applicant without lawful authority. The 1st respondent averred that him and taxi drivers established the car park at the request of the residents of the Kanifing Estate and I must emphasis that, that is not proper procedure for obtaining request to establish a garage for commercial use. The proper authority to establish garage is vested in the Minister and not the residents of the Estate, ” Hon. Justice Jaiteh said.
Hon. Justice Jaiteh ruled that the first respondent did not have the authority of the second respondent to set up a car park next to Mr. Sosseh’s compound. He cited Section 23(1) of the 1997 Constitution of the Gambia, which guarantees the right to privacy of every person in the country. This includes the privacy of their home, correspondence, and communications.
Hon. Justice Jaiteh said from the tenor of the case, and the reliefs sought against the respondents, it is predicated upon an alleged violation of the Mr. Beran Malick Sosseh’s legal right provided for and guaranteed and protected under section 23 (1) of the Constitution.
“As could be seen, the declaration sought in paragraphs (b), (c), and (d), are on the facts that the 1st respondent established an unlawful taxi garage in front of his compound and therefore constitutes a nuisance which unduly interferes with his comfortable, convenient use and peaceful enjoyment of his home and a violation of his right to privacy. The legal and evidential burden is on the applicant to prove on the balance of probabilities that his legal right was breached by the 1st respondent through the establishment of unlawful taxi garage, the 1st respondent has no right to or authority to establish a taxi garage and the 1st respondent continuous use of the said taxi carpark constitute a violation of his right to privacy and peaceful enjoyment of his home,” Hon. Justice Jaiteh said.
Justice Jaiteh ruled that the points made by the applicant, Mr. Sosseh, were not disputed by the first respondent and are therefore accepted. He also asserted that the first respondent’s conduct amounted to nuisance because it interfered with and obstructed the applicant’s convenience and comfort in exercising his right to use and enjoy his home.
Hon. Justice Jaiteh further told the court that by the reason of the matters aforesaid, Mr. Beran Malick Sosseh’s home has been rendered unhealthy, and uncomfortable to live in and his family have suffered and are still suffering great discomfort, very considerate apprehension for their safety, inconvenience, disturbance and upset.
“The 1st respondent unless restrained from doing so, to continue the said nuisance and illegal use of the area of land as taxi garage. The 1st respondent has more than 30 vehicles parked on pedestrian walkways endangering the lives of other road users. It is trite that nuisance whether public or private is an injury which confer on the person affected a right to action.
“Even an injury to the public may also constitute injury to the individual and the applicant herein has demonstrated with copious evidence and established on a balance of probabilities that the 1st respondent unlawfully operating a garage has resulted to noise and environmental pollution and hence there are no toilets, the drivers urinate on the applicant’s fence causing foul odour which is unacceptable in any decent society, ” Hon. Justice Jaieteh said.
Justice Jaiteh ruled that the illegal establishment of the taxi garage had caused chaos between the drivers and Mr. Beran Malick Sosseh (the applicant). Even if the garage had been legally established, the drivers would still have a duty of care to other road users and not interfere with or obstruct the peaceful environment of the applicant and his family at home. It is unfair for the drivers to cause nuisances to the applicant while still enjoying quiet and peaceful enjoyment themselves. Justice Jaiteh cited Blackstone’s Commentaries on the Laws of England (Volume 1, p. 360) to support his ruling that the lawfulness or legality of the occupation of the property does not absolve the drivers of liability for nuisances committed by their use of the property.
“It therefore beats imagination, why the 1st respondent and his drivers would refused to use the designated taxi garage at Kanifing Estate Markets with toilet facilities, but rather stubbornly insisted on using a non designated area as a taxi garage thereby causing private and public nuisance as if there are no laws or regulations governing this country.
“I have no doubt that a taxi garage has tremendous public benefit, however, that benefit must be exercised in accordance with the law and not at the expense and detriment of other persons. From the evidence placed before this court, I am convinced and persuaded that the constant noise, pollution, and obstruction of the applicant and his family at their private home by the 1st respondent and his drivers amount to a violation of the fundamental right of privacy of the applicant under section 23 (1) of the 1997 Constitution and I therefore resolves same in favour of the applicant, ” Hon. Justice Jaiteh said.
Hon. Justice Jaiteh ruled that the drivers’ conduct constituted private nuisance, as it caused excessive noise from their engine hooting. He also found that this amounted to common nuisance, as the area was not designated as a taxi garage.
Justice Jaiteh said that for common nuisance to be established, Mr. Sosseh was required to have lodged a complaint with the Police Mobile Traffic. The fact that they visited the scene but did nothing amounted to neglect of duty on their part.
However, Justice Jaiteh also said that Mr. Beran Malick Sosseh should have lodged his complaint with the Inspector General of Police and the Attorney General for prosecution. As he did not do this, the authorities could not be faulted.
Ultimately, Justice Jaiteh agreed with Mr. Sosseh that the drivers’ conduct constituted public nuisance, which is a crime under section 160 of the Criminal Code.
“From the totality of the evidence placed before this court, the application has merit and is hereby granted as follows; It is hereby declared that the setting up of taxi garage in front of the applicant’s (Mr. Sosseh) compound is unlawful; it is hereby declared that the conduct of the 1st respondent amounts to a violation of the fundamental right of privacy of the applicant; It is hereby declared that the noise and the foul odour generated by the 1st respondent at the garage amounts to a nuisance; The forth relief is dismissed as the 2nd and 3rd respondents did not neglect or omit to carry out their official duty;
“The 1st respondent and all the drivers at the Kanifing Estate garage are hereby ordered to relocate to the designated taxi garage at Kanfing and Jeswang with immediate effect; the 1st respondent and any of the drivers found at the illegal taxi garage at Kanifing Estate should be arrested by Inspector General of Police, charged and prosecuted under section 160 of the criminal code, Cap. 10:01, volume 3. Laws of the Gambia; The judgement shall be served on the Attorney General and the Inspector General of Police for enforcement of Order; Cost of D100, 000.00 is awarded in favour of the applicant (Mr. Sosseh) against the 1st respondent (drivers) as compensation for the violation of his right to privacy of his home, ” Hon. Justice Jaiteh delivered his judgment.