By Mamadou Dem
Principal Magistrate Dawda Jallow of the Banjul Magistrates’ Court
yesterday adjourned the ‘Abuse of Office’ trial involving Dr. Njogu
Bah, erstwhile Secretary General, Head of the Civil Service and
Presidential Affairs Minister for ruling.This development arose after a tense argument between the prosecution
and the defence regarding a particular question asked by the defence
under re-examination.
Prior to the above decision lawyer Mboge in re-examining, the accused
told him that he testified in court that the length of services of
Mr. Dibba depends on his experience. “Can you tell this court what you
mean by it depends?”
At that juncture, state counsel Mansour Jobe quickly interjected and
raised objection to the question. He argued that the purpose of
re-examination is to clear ambiguity. “We submitted that there is no
ambiguity to the answer he gave in respect to Mr. Dibba,” argued Jobe.
He added that since the answer was already given by the witness and
there is no ambiguity which he intended to clarify. “In law
re-examination is very trite,” said Jobe.
He continued: “Allowing this particular question will be a clear
violation of Section 192 Sub Section (3) of the Evidence Act. Since
there is no ambiguity, we urge the court to disallow the question,” he
submitted.
Replying to the objection, Barrister Mboge submitted that the
objection is misconceived in its entirety because the section cited by
the prosecution did not even mention the word ambiguity.
“I urged the court to overrule the objection and allow the witness to
answer the question,” appealed Mboge.
Replying on points of law, counsel Jobe referred the court to section
3 of the Evidence Act; adding that allowing the witness to answer the
defence question will contravene the said section.
The trial Magistrate upheld the objection and disallowed the question
asked by the defence.
Further re-examining the accused, his attorney said as then secretary
general were you capable of influencing any decision and his answer
when undergoing cross-examination was ‘some probably.’
“Can you explain to the court what you mean by some probably?”
Before the witness responded to the question, the prosecutor stood up
and objected to the question. He argued that the purpose of
re-examination is not to give new evidence or further elaborate on
evidence already given. “The purpose of re-examination is only to
clear ambiguity,” he insisted.
Further arguing on this issue, counsel Jobe said in the alternative,
where the defence want to solicit new evidence he can only do so by
soliciting leave from the court as per section 192 of the Evidence
Act. The defence therefore he said were constrained in bringing new
evidence.
Countering the submissions made by the state, counsel Mboge insisted
that the section referred to by the state does not refer to clarifying
ambiguity but instead it refers to explanation of matters in
cross-examination. “The question asked is fit and proper under
re-examination it is not limited to what the prosecution is interested
in but what is relevant to the court,” Mboge expounded.
According to Mboge the answer given by his client under cross-
examination needs explanation to the court because the question was a
material one which need a clear cut answer.
On the issue of bringing new evidence, the defence insisted that they
were not selecting fresh evidence as alleged by the prosecution;
adding that even if fresh matters are introduced under re-examination
the court shall accord them with the opportunity to cross-examined.
“So I urge Your Worship once again to overrule the objection and allow
the question,” submitted Mboge.
Replying on points of law, Barrister Jobe referred the court to a
decision held by Gambia’s Appeal Court in the case of ‘Lousi Mensa
against Edward Graham. He added that the fact that section 192 does
not contain the word ambiguous does not give counsel free right to ask
any question under re-examination otherwise no proceedings will come
to an end. Counsel then referred the court to Hassan B Jallow’s book
(The Law of Evidence) at page 173 and submitted that the question that
was put to the accused during cross examination which he answered does
not give any ambiguity.
He finally submitted that re-examination should be confined only on
ambiguous matters and not on doubt.
A question regarding the ability of PS Dibba as ambassador was refused
by the court and consequently, the matter was adjourned till 16th of
this month for ruling.]]>
