Saturday, October 24, 2020

FULL RULING ON YANKUBA TOURAY’S APPLICATION FOR HIS WITNESSES TO TESTIFY VIDE ‘REMOTE HEARING’ THE SUPERIOR COURTS OF THE GAMBIA

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IN THE HIGH COURT OF THE GAMBIA
Criminal Case No.: HC/365/19/CR/067/AO

BETWEEN:

THE STATE…………………………..COMPLAINANT / RESPONDENT

AND

YANKUBA TOURAY…………..ACCUSED PERSON / APPLICANT

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CASE CALLED ON 20th JULY 2020

BEFORE HIS LORDSHIP HON. JUSTICE EBRIMA JAITEH

PARTIES: – Accused person – Present

APPEARANCES:
• Principals State Counsel A.M. Yusuf – Present
• Counsel A. Sissohor for the Accused – Present

RULING
By a motion on notice dated and filed on the 15th day of June 2020, Counsel Abdulai Sissohor seeks for the following orders from this Honourable Court:

1. An Order granting leave to the Defence witnesses namely Mamie Minteh Touray, Bakary Minteh and Mariama Minteh to give their oral testimonies in this case vide “remote hearing” pursuant to Direction Number: 3 of 2020 (Made pursuant to section 143 of the Constitution of the Republic of The Gambia, 1997).

2. An order directing the Judicial Secretary to make the necessary arrangements with the IT Department of the Judiciary to provide the necessary equipment’s and machineries for the hearing of the witnesses remotely.

3. Such further or other Orders as this Honourable Court shall deem fit.

The motion on notice is supported by a 19-paragraphed affidavit sworn to by one Muhammed Sissohor, a Legal Clerk in the office of Abdoulai Sissohor Chambers of Number: 25 Independence Drive, Banjul, The Gambia. The Respondent was served with the motion on notice but did not file an affidavit in opposition. The Respondent’s Counsel did not file an affidavit in opposition but opposes the application on points of law. It was held in the case of STATE v ABDOULIE CONTEH (2002-2008) 150 GLR VOL. 1 HOLDING 32 AND 33 AT PAGE 160, where it was held at 32 that:

“a party on whom an affidavit is served, need not file an affidavit in opposition or in reply thereto:
1. If he or she intends to rely on the facts in the affidavit served on him as true and other records of the Court in the substantive case as a whole; or
2. If the affidavit served on him contain facts that are self contradictory and unreliable, or
3. If he or she intends to oppose the application only on ground of law alone…
It was held at 33 the mere fact that a party did not file an affidavit in opposition of a motion served on him should not be taken to mean that he has conceded to the application”.

I hold the strong view that the failure to file an affidavit in opposition does not mean the party consented to the facts deposed to if the opposing party intends to oppose the application on grounds of law and this I shall hold as a fact. In our instant case, the Respondent opposes the application on grounds of law and facts.

In moving his motion paper, Counsel Sissohor for the Applicant brought his application pursuant to paragraphs 5 and 6 of Direction Number 3 of 2020. It is the submission of Counsel Sissohor that Paragraph 9 of Direction 3 of 2020 gives this Court the power to choose any of the cases to be heard on virtual hearing. Counsel Sisshor argued that the intended witnesses lives in England and one of the witness lives in Dakar, Senegal and because of travel expenses, WHO guidelines, and mandatory quarantine for persons entering in The Gambia, it would be time consuming and there is no certainty that the Coronavirus would be over any sooner and this Court can take judicial notice of the State of Public Emergency in The Gambia. Counsel Sissohor urged this Court to grant the prayers sought on the motion paper in the interest of justice.

In responding on points of law, the Principal State Counsel for the State, A. M. Yusuf submitted that the application of this nature is at the discretion of the court, but cautioned that the discretion should be exercised within the ambits of the law. Counsel Yusuf urged this Court to take into cognizance of Direction Number 3 of 2020, which allows Court to conduct remote hearing in certain cases and argued that Paragraph 6 of Direction 3 of 2020 subjected itself to paragraph 9 of Direction 3 of 2020. It is the submission of Counsel Yusuf that the prayer sought is to allow witnesses for the Defence to give oral testimonies in this case via through remote hearing cannot be said to be within the contemplation of Paragraph 9 of Direction 3 of 2020. Counsel Yusuf argued that the application offends the clear provision of section 24 of the 1997 Constitution of The Gambia, which mandated that all trials shall be held in public and this case does not fall under the exceptions under section 24 of the 1997 Constitution of The Gambia. It is the submission of Counsel Yusuf that Practice Direction and Regulation are made pursuant to the provision of a Statute and in the case of conflict, a Statute shall prevail and that Statute are made pursuant to a provision of the Constitution and any conflict between a Statute and the Constitution, the Constitution prevails. Counsel Yusuf argued that a Practice Direction cannot override the provision of a Statute and thus urged this Court not to grant the prayers sought on the motion on notice.

In replying on points on of law, Counsel Sissohor submitted that a Statute overrides a Practice Direction and a Regulation argued that the Court has the sole discretion as per Paragraph 9 of Direction 3 of 2020. Counsel Sissohor further submitted that section 24 of the Constitution would not be infringed, as virtual hearing would be a public hearing.

I have listened very carefully to both arguments for and against the motion with great interest. For the proper determination of the substantive application, there is only one issue and that is:

1. Whether it is appropriate to hear the oral testimonies of Mamie Minteh Touray, Bakary Minteh and Mariama Minteh vide remote hearing pursuant to Direction Number 3 of 2020?

With regards to this lone issue as to whether it is appropriate to hear the oral testimonies of Mamie Minteh Touray, Bakary Minteh and Mariama Minteh vide remote hearing pursuant to Direction Number 3 of 2020 is the crux of this application. This application is specifically made pursuant to Paragraphs 5 and 6 of Direction 3 of 2020, which provides as follows:
“Paragraph 5. Remote Court hearing may be conducted without the physical appearance of the parties, Counsel and members of the public.

Paragraph 6. Each Court shall subject to paragraph 9 of this Direction identify and priorotise emergency matters.”
I must say that paragraph 5 (supra) made it clear remote court hearing may be conducted without the physical appearance of parties, Counsel and the members of the public and this is necessitated due to the COVID-19 (Corona Virus) pandemic to safeguards the health and safety of the public and court personnel while continuing to conduct court business. It must be noted that legislation must be read as a whole and not in isolation. In the case of Edward Graham v Lucy Mensah [2002 – 2008] GLR VOL. 1, page 22 at holding 13, it provides as follows: “the Statutes of a state on any subject area should be read together as a single code.” In applying this principle of law to our instant case is that Direction 3 of 2020 shall be read together as a whole and therefore Paragraph 6 of 3 Direction of 2020 (supra) has subordinated itself to Paragraph 9 of Direction 3 of 2020. What this means is that Paragraph 6 of Direction 3 of 2020 shall be governed and controlled by paragraph 9 of Direction 3 of 2020. Before proceeding to Paragraph 9, it is important to look at Paragraphs 7 and 8 of Direction 3 of 2020, which deals with emergency matters and appropriate matters for the use of virtual court hearings. Paragraph 7 of Direction 3 of 2020 provides that: “Virtual Court hearing shall be limited to emergency matters and other appropriate matters at the discretion of the Court.” Case that falls under emergency matters are provided by Paragraph 8 of Direction 3 of 2020, which states that: “Emergency matters shall include but not limited to the following:
a) Bail applications;
b) Emergency child protection and custody applications;
c) Ex-parte restraining orders.

Paragraph 9 of Direction 3 of 2020 provides non-emergency matters that are appropriate for remote hearing shall include but are not limited to the following:

a) “Minor criminal offences triable by the Subordinate Courts
b) All civil and criminal appeals;
c) Application for judicial review;
d) Inter-parties applications;
e) Originating motions and summons,
f) Petitions;
g) Orders for parties to file written addresses;
h) Adoption of addresses, and
i) Pronouncement of rulings and judgments.”

It is worthy to emphasis that emergency matters and non- emergency matters that are contemplated under Direction 3 of 2020 does not in my view include the offence of Murder. The principle of “Ejusdem Generis” provides that where particular words are followed by general words, unless there is something to show that a wider sense was intended, the general words are limited to the same kind as the particular words. See the case of Oktie – Eboh v Mamager (2004) 18 NWLR (Pt. 905 at 242 at page 282 paras C-D per Edozie JSC. In as much as Paragraph 7 of Direction 3 of 2020 gives this Court the discretion to hear virtual court hearings, that discretion is limited to emergency matters and other appropriate matters as provided under paragraphs 8 and 9 (supra). I must state clearly that on the principle of exercise of discretion was dealt with by The Gambia Supreme Court Case of: ALHAJI MOMODOU JOBE –v- ALH. ABDOULIE DANDEH NJIE [2010 – 2012] GSCLR, page 88, Holdings 3 thereof:

“The exercise of discretion of a court can only be proper if it is judicial and judicious: judicial because it is in accordance with the law; judicious because it is based on some reason borne out by the facts before the court. An exercise of discretion not based on any reason cannot be judicious and therefore cannot be proper. Such a decision resulting from such exercise is certainly arbitrary and baseless. (Per Agim CJ, at page 106 read in context).”

In view of the fact that the Accused is charged with the offence of murder contrary to section 187 of the Criminal Code, and the current application before this Honourable Court is to permit the defence witnesses, namely: Mamie Minteh Touray, Bakary Minteh and Mariama Minteh to give their evidence in chief and be cross-examined and re-examined by “remote hearing” does not in my view fall under the emergency and appropriate matters contemplated by the drafters of Direction 3 of 2020. I hold the strong view that bail applications, emergency child protection and ex-parte restraining orders does not fall under the same category with murder and therefore Murder is not an emergency matter which is appropriate for virtual court hearing and this I shall hold as a fact. I must point out that section 24 (2) of the 1997 Constitution provides that “all proceedings of every Court and proceedings relating to the determination of the existence or extent of civil rights or obligations before any other authority including the announcement of the decision of the court or other authority, shall be held in public” and murder is not provided under the proviso. I must re-state that cross-examination is a right that can be equated with the right of fair hearing and limitation associated with video link cannot be over emphasis. In the case of CAMPAIGN MASTER (UK) LTD v FORTY-TWO INTERNATIONAL PTY LTD (NO 3) [2009] FCA 1306, the Court had this to say:

“I share the concerns expressed by Spender J in World Netscape and by Stone J in Dorajay about the limitation on the effectiveness of Video link arrangements as a means of taking oral evidence. I am particularly troubled by the prospect (or possibility) that the cross-examination of an important witness might be rendered less effective by the limitations of video link technology or the absence of the witness from the courtroom. Although the days are gone when witnesses are expected to feel any sense of intimidation as an aid to telling the truth, there is no doubt in my mind that the requirement to give evidence on oath or affirmation in the (general) solemn atmosphere of a courtroom in the presence of a judge and to answer questions in cross-examination in the presence also of prospect that the witness will remain conscious of the nature and solemnity of the occasion and his or her obligations. It affords the cross-examiner some reassurance that the gravity and immediacy of the moment, and of the supervising presence of the judge, are not lost on the witness and the cross-examination is not thereby rendered any less effective, to the possible prejudice of the cross-examining party. It provides the Court with a more satisfactory environment in which to assess the nature, quality and reliability of responses by a witness, both to questions and to the overall situation presented by the necessity to give evidence in court. To my mind there remains, even in the modern context, a certain “chemistry” in oral interchanges in a courtroom, whether between a judge and counsel (or other representative) or between cross-examiner and witness. I would not wish too lightly to deprive a cross-examiner of that traditional forensic element in the exchange although, as the cases and with respect to individual witnesses. Notwithstanding the increased availability and use of video link technology, in my view, a case must be made out for the use of video link evidence if it is opposed by an affected party. I do not share the view expressed by Katz J. My own view, I think the weigh of authority, is to the contrary.”
The authority cited above is in my humble opinion highlighting the limitations and fundamental issues associated with effectiveness of video link arrangements as a means of taking oral evidence and how cross-examination of an important witness might be rendered less effective and I am convinced by these arguments.

From the foregoing reasons, I reached the conclusion that the oral testimonies of Mamie Minteh Touray, Bakary Minteh and Mariama Minteh cannot be heard vide remote hearing. Accordingly, this application is hereby dismissed.

____________________________
HON. JUSTICE EBRIMA JAITEH
(PRESIDING JUDGE)
20th JULY 2020

ISSUED AT BANJUL UNDER THE SEAL; OF THE COURT ANDTHE HAND OF THE PRESIDING JUDGE THIS 20TH JULY 2020

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