By Yankuba Jallow
The Banjul High Court presided over by Justice Kumba Sillah will today the 28th day of March 2018, deliver ruling on the contention raised by the Defense Lawyers for Yankuba Badjie and Sheikh Omar Jeng, over the Notice of Additional Witness.
The prosecution filed in a notice of additional witness to the list of substantive witnesses but the two Defense Lawyers argued that the Notice is prejudicial.
Lawyer Emmanuel E Chime, continuing his contention, told the High Court that the Notice of Additional Witness is prejudicial to the Defense team. He said this was borne out of the fact that Seedy Saidy Bah was before the Court and gave withdrawal statement. Citing Section 234 of the Criminal Procedure Code (CPC), Lawyer Chime said the Marginal Note (Heading) stated “Additional Witnesses to the Prosecution”.
He submitted that the Marginal notes in law, cannot supersede the content of Section 234 of the CPC and referred the Court to a text book authority regarding the definition of additional witness. Chime submitted that the content of Section 234 of the CPC’s intention is that only one witness can be called.
He argued that the time of the Court will continue to be eaten when it allows the prosecution to be bringing additional witnesses at any time they wish during the trial. Lawyer Ibrahim Jallow for the third accused person associated himself with the submission of Lawyer E Chime; that the State has already conducted investigation in the case and the Court ruled earlier that the prosecution should avail all necessary materials to the defense for them to prepare themselves adequately. He said the furnishing of materials to the defense by the prosecution in piecemeal, can also occasion miscarriage of justice and based his argument on many case laws including that of Okek v The State (2016) LPER, where the Court held that the witness has the duty to tell the police as much as they know of a crime at the earliest opportunity, in order for them to be seen as witness of truth. He told the Court that it must be careful in accepting delayed evidence, when no satisfactory explanation is given; that the said Notice of Additional Witness was filed and written after ten witnesses have testified adding that this cannot be law. He relied on the case of John Magdonald v HMA [2010] HCJACA at page 45 and certain other cases.
In his counter argument, Lawyer Antouman AB Gaye, the lead prosecutor said the defense is attempting to get the Court to prevent the prosecution from presenting its evidence in its entirety. Lawyer Gaye reminded the Court that both the 13th of October 2017 and 29th of January 2018, there were Notices of Additional Witness which were never objected to by the defense; that this is not the first time they are filing Notice of Additional Witness; that the role of the prosecution is totally different from that of the defense. He said the trial system in criminal matters in the Gambia is proving beyond reasonable doubt and that is what the prosecution has sought to do.
“Our role is to present a case to the Court. There is no power or authority from any Court or Judge to prevent the prosecution from presenting our evidence. No limit to the number of witnesses that we (the prosecution) are allowed to call”, he said.
He referred the Court to some textbook authorities where his arguments were supported especially, the Criminal Litigation in Nigeria.
On his argument on Section 234 of the CPC, Lawyer Gaye said the provision of Section 3 (3) of the Interpretation Act stated a singular word can include a plural and also a plural can include a singular. He argued that Section 2 of the Interpretation Act provides that the Act is applicable to all Acts of the National Assembly of the Gambia.
On reply on points of Law, Lawyer Chime said the prosecution has relied on decided cases in the 18th century which he stated, have no binding legal effect but only persuasive. He further referred the Court to Gambian reported cases in the Law reports.
“The additional witnesses are disabled legally to give evidence in this matter” he concluded.
The case is set for ruling today at 1pm and for further hearing.
