IN THE HIGH COURT OF THE GAMBIA
Criminal Case No.: HC/365/19/CR/067/AO
THE STATE…………………………..COMPLAINANT / RESPONDENT
YANKUBA TOURAY…………..ACCUSED PERSON / APPLICANT
CASE CALLED ON 13th JULY 2020
BEFORE HIS LORDSHIP HON. JUSTICE EBRIMA JAITEH
PARTIES: – Accused person – Present
– Principals State Counsel A.M. Yusuf – Present
– Counsel A. Sissoho for the Accused – Present
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. A subpoena be issued to the Judicial Secretary to produce the file docket of Coroner of Brikama in the West Coast Region, The Gambia in relation to the death of Ousman Koro Ceesay in the year 1995.
2. A subpoena be issued to The Executive Director, The Truth, Reconciliation and Reparations Commission (TRRC), Dunes Hotel, Palma Rima Area, Kololi, In the Kombo Saint Mary’s Division, Gambia to produce the following documents: –
a. The official transcripts of the oral testimony of Edward Singhateh in connect to the death of Ousman Koro Ceesay.
b. Affidavit (s) and /or the written Statement(s) of Edward Singhateh in connection to the death of Ousman Koro Ceesay tendered and marked as an exhibit in the proceedings of The Truth, Reconciliation and Reparations Commission (TRRC).
3. Such further or other Orders as this Honourable Court shall deem fit.
The motion on notice is supported by a 20-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 support 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 sections 220 and 221 of the Evidence Act and sections 241 of the Criminal Procedure Code. Counsel for the Applicant relies on all the paragraphs of the supporting affidavit particularly paragraphs 5, 6, 7, 8, 9, 10…16, 17, 18 and 19 and submitted that there is no affidavit in opposition to the affidavit in support, which stands unchallenged or uncontroverted. Counsel relies on the case of Antoine Banna v Ocean View Resort & others and the State v Abdoulie Conteh. Counsel for the Applicant urged this Court to sign the subpoena so that the Judicial Secretary can produce the said file to the court. With regards to the second prayer on the motion paper, Counsel Sissohor submitted that without the production of the documents from the TRRC, would caused great hardship to the Defence and would deny the constitutional right of the defence.
In opposing the motion on notice, Counsel for the Respondent submitted that with regards to the first prayer which is to subpoena the Judicial Secretary to produce the file docket of Coroner of Brikama is not tenable on the grounds that there was no investigation pertaining to this case as provided in the testimonies of Pa Habibou Mbye and Muhammeh Bojang before this Court. The Respondent’s Counsel thus refers this Court to section 5 of Coroner’s Act, Cap. 7:04, Volume 2 Laws of The Gambia and submitted that it is only after police investigation that a Coroner inquest can be conducted and since there was no investigation, there is no Coroner file docket in Brikama and the granting of prayer one would be an exercise in futility. Counsel for the Respondent further refers this Court to section 4(1) of the Coroners Act and presupposes that a Coroner can direct for post mortem to be carried out before an inquiry is commenced. Counsel for the Respondent argued that Exhibit P3 does not state that there was a Coroner inquiry and thus assumed without conceding that there was Coroner Inquest, the Applicant has not provided enough particulars for the Judicial Secretary to produce the Coroner file of Brikama as contained in the first prayer of the application. The Respondent’s Counsel submitted that paragraph 7 of the affidavit in support is incorrect and thus relies on section 3 of the Coroners Act and urged this Honourable Court not to rely on paragraph 7 of the affidavit in support.
With regards to prayer two of the motion paper, it is the submission of the Respondent’s Counsel that the testimony of Edward Singhateh before the TRRC is irrelevant and would be an exercise in futility as the Prosecution would not have the opportunity to cross-examine the said Edward Singhateh. The Respondent’s Counsel draws the Court’s attention to similar application was made and statements of witnesses before the TRRC were produced and admitted into evidence and the makers of the statements were in court and were cross-examined on the said statements. The Respondent’s Counsel urged this Honourable Court to apply the same principle. The Respondent’s Counsel submitted that paragraph 14 of the affidavit in support contravenes sections 89, 91, and 92 of the Evidence Act as the source of the information was not disclosed and therefore urged this Court to expunged paragraph 14 from the affidavit in support. Counsel for the Respondent argued that paragraph 6 of the affidavit has not supporting attachment and if the Court is minded to accept paragraph 6 without supporting attachment, thus urged this Court to rely on the evidence of Pw5 and Pw7 in the record of proceedings and apply the same principle. Counsel For the Respondent relies on the Gamstar Insurance Company Ltd v Musa Joof (Civil Appeal No. 01/2003). The Respondent’s Counsel urged this Honourable Court not to grant the prayers sought paper for the reasons stated above.
In replying on points of law, the Applicant’s Counsel submitted that the Gamstar Insurance Company Ltd v Musa Joof (supra) is misapplied and misconceived regarding affidavit evidence hence the case was about Order 2 rule 7 of the High Court Rules of the Second Schedule. Counsel for the Applicant argued that the Respondent’s submission that paragraph 6 of the affidavit in support being secondary evidence is also misconceived. Counsel for he Applicant refers this Court to the case of Lang Conteh & Others v T. K. Motor (2002 to 2008) 1GLR at page 19 and the case of Antoine Banna v Ocean View Resort (2002-2008) 1 GLR and submitted that facts not challenged are deemed as admitted. Counsel for the Applicant relies on Order 24, rules 23 and 27 of the High Court Rules of the Second Schedule. Counsel argued that paragraph 14 does not offend sections 88, 89, 91 and 92 of the Evidence Act 1994. Counsel for the Applicant submitted that Coroner is not a court of law like the High Court or Subordinate Court where processes are filed to invoke the jurisdiction of the Court and thus refers to sections 3, 4 and 5 of the Coroners Act. Counsel for the Applicant argued that the Chief Justice appoints Magistrates under Coroners Act.
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 are two issues and they are as follows:
1. Whether the Judicial Secretary is in possession of the file docket of Coroner of Brikama in the West Coast Region, The Gambia in relation to the death of Ousman Koro Ceesay in the year 1995?
2. Whether the tendering into evidence before this Honourable Court the official transcripts of oral testimony, affidavit(s) and or the written Statement(s) of Edward Singhateh in connection to the death of Ousman Koro Ceesay tendered and marked as an exhibit in the proceedings of the TRRC be admissible in evidence before this Court without calling the said Edward Singhateh as a witness in this case?
With regards to the first issue as to whether the Judicial Secretary is in possession of the file docket of Coroner of Brikama in the West Coast Region, The Gambia in relation to the death of Ousman Koro Ceesay in the year 1995 is fundamental in determination of this application before this Honourable Court. At this juncture it is important to define the word Coroner and according to The Tenth Edition of the Black’s Law Dictionary defines Coroner at page 414 to mean “A public official whose duty is to investigate the causes and circumstances of any death that occurs suddenly, suspiciously, or violently.” It is therefore worthy to emphasis that in order to resolve this first issue to explore as to how a Coroner is appointed and section 3 of the Coroners Act is very useful as it deals with the appointment of Coroners in The Gambia. To be specific section 3(1)(2) (3) of the Coroners Act, Cap. 7:04, Volume 2, laws of The Gambia 2009 thus provides as follows:
(1) “A Magistrate of First Class shall be the Coroner for the City of Banjul and Kanifing Municipality and in the Regions, the Governor and the Deputy Governor of a Region shall be a Coroner for that Region.
(2) The President may appoint any other person, either generally or in regard to any particular case, to be a Deputy Coroner, who shall only act in the event of the absence, sickness or incapacity of a Coroner and, shall, whilst so acting have all the powers of a Coroner.
(3) A deputy Coroner shall be removable from office at the discretion of the president.”
It follows from the wordings of section 3 (supra) that for the City of Banjul and Kanifing, a Magistrate of a First Class shall be the Coroner, and whereas the Governor and Deputy Governor shall be the Coroner for the other Regions of The Gambia. In the case of Hon. Halifa Sallah & 3 Others v Clerk of the National Assembly & 2 Others (2002-2008) GLR Vol. 1 at 229 at holding 13 deals with the attitude of Court to interpretation of Statutes and it was held that “the well established rule is that where the wordings of a statute to be interpreted is simple and devoid of complexities, they should be given their ordinary meaning and implication.” I must categorically state that section 3 of the Coroners Act (supra) is very clear and free from ambiguity and complexities. It is therefore apparent on the face of section 3 of the Coroners Act, that the Coroner for Brikama, West Coast Region of The Gambia is the Governor and the Deputy Governor and not a Magistrate of First Class. The President may appoint any person to be a Deputy Coroner and while acting, thus have all the powers of a Coroner and the said Deputy Coroner can only be remove from office at the discretion of the President. The powers of the Coroner at inquiry is govern by section 9 of the Coroners Act (supra) and section 9(6) of the Coroners Act (supra) thus provides that “At the termination of the inquiry, the Coroner shall forthwith transmit the proceedings or a certified copy thereof to the Chief Justice.” What this means is that once a Coroner inquest is terminated, the proceedings shall immediately be forwarded to the office of the Chief Justice who has the power to review the record of proceedings for the purpose of satisfying himself or herself as to the correctness, legality or propriety of any find or verdict and as to the regularity of the proceedings. Therefore, all record of proceedings of Coroner Inquest in The Gambia are lodged with the Chief Justice and the Judicial Secretary as per section 143 (2) of the Constitution is mandated to be responsible to the Chief Justice for the performance of his or her duties. I have perused the averments contained in the supporting affidavit particularly paragraphs 6, 7, 8, 9 and 10 and the said paragraphs are hereby reproduced below:
“6. That Exhibit P3 (photocopy of the Autopsy report) and Exhibit P3A (original copy of the Autopsy report) discloses that the said Autopsy Report was commissioned as a result of the instructions of the Coroner of Brikama, in the West Coast Region, The Gambia in June 1995.
7. That I am informed by Counsel Abdoulai Sissohor and which I verily believe the same to be true that Coroners are appointed by the Chief Justice of The Gambia.
8. That I am further informed by Counsel Abdulai Sissohor and which I verily believe the same to be true all correspondence between the office of the Chief Justice and Coroner(s) are in custody of the office of the Judicial Secretary.
9. That I am further informed by Counsel Abdulai Sissohor and which I verily believe the same to be true the file docket of the Coroner in relation to the death of Ousman Koro Ceesay is on the official custody of the Judicial Secretary and Accused is in need of the said file to defend the single charge of murder preferred against him in this case.
10. That the subpoena addressed to the Judicial Secretary is for the production file docket of Coroner of Brikama in the West Coast Region, The Gambia in relation to the death of Ousman Koro Ceesay in the year 1995.”
The Respondent challenged paragraph 7 above for being incorrect and relies on section 3 of the Coroners Act (supra) and I agree that the Chief Justice does not appoint Coroners as provided under section 3 of the Coroners Act and this I shall hold as a fact. However paragraphs 6, 8, 9, and 10 of the affidavit have not been challenged or controverted in form or shape and I do not see any extraneous matter by way of objection, prayer, legal argument or conclusion. I see on the contrary factual statements thus complying with sections 88, 89, 91 and 92 of the Evidence Act, 1994. The argument whether there was an investigation into the death of Ousman Koro Ceesay or not would be determined by the production of the record of proceedings of the Coroner Inquest, if it exist and it is therefore a relevant piece of evidence in determining a fundamental issue in controversy. From the foregoing reasons and considering the fact that record of proceedings of all Coroners in The Gambia are lodged with the Hon. Chief Justice and the Judicial Secretary is responsible to assist the Chief Justice with his or her functions, I therefore reach the conclusion that the Judicial Secretary should be in possession of the file docket of Coroner of Brikama in the West Coast Region, The Gambia in relation to the death of Ousman Koro Ceesay in the year 1995. Accordingly, I hereby resolve this first issue in favour of the Defence.
With regards to the second issues as to whether the tendering into evidence before this Honourable Court the official transcripts of oral testimony, affidavit(s) and or the written Statement(s) of Edward Singhateh in connection to the death of Ousman Koro Ceesay tendered and marked as an exhibit in the proceedings of the TRRC be admissible in evidence before this Court without calling the said Edward Singhateh as a witness in this case is a matter of practice and procedure. In practice which is in tandem with the law, an order on a witness in a criminal trial to either come and testify is technically called a witness summons, while a similar order on him in a civil trial is called a subpoena – either ad testificandum or duces tecum. It is important to note that a subpoena is a court process commanding any person to attend court and produce a document or give evidence before it. In our instant case, the Defence is seeking for a subpoena deces tecum, which is to summons The Executive Secretary of the TRRC to attend this court and produce specific documents such as the official transcripts of the oral testimony, affidavit (s) and /or the written Statement(s) of Edward Singhateh in connection to the death of Ousman Koro Ceesay tendered and marked as an exhibit in the proceedings of the TRRC. What this means is that the Executive Secretary of the TRRC is to be subpoenaed to tender specific documents and need not to be sworn because he does not become a witness by the mere fact that he produces specific documents and cannot be cross-examined by the prosecution on those specific documents so produced. The question is ask myself is what will be the purpose of procuring these documents from the TRRC when Edward Singhateh will not be called as a witness in this trial to give evidence in chief and be cross-examined on these documents from the TRRC? In my view, if Edward Singhateh cannot be presented to this Court as a witness and be cross-examined on his evidence and these documents, then the purpose of producing these documents will amount to an exercise in futility. It is trite that a subpoena cannot be use for fishing evidence and to borrow the words of Niki Tobi JSC of Nigeria:
“Litigation is not the children’s game of hide and seek. It is not a game of smartness. It is not a game of artifice or cunning display of a smart conduct design to overreach or outsmart the adverse party. On the contrary, litigation is a decent, open and not deceitful process of making and defending claims in a court of law. The art and craft of even the most litigious person does not allow him to set a trap with a bait to lure the adverse party, as if he is a fish. That should be left to the fisherman or the keeper of an aquarium; not the courts” (emphasis mine).
I must state that cross-examination is a right that can be equated with the right of fair hearing, denial of which will annul the proceedings without mush ado. It is also a weapon, which a party employs, to not only put his case across, but also to demolish his opponent’s case and cast a credibility problem on such witness and his case. As a matter of good practice, it would be prudent and fair for Edward Singhateh to mount the witness box lead evidence and the Defence can then make the necessary application to subpoena the said documents from the TRRC and the prosecution will not be prejudiced as they will have the opportunity to cross-examined the Edward Singhateh these documents. In the case of Ensa Mendy (Pw2) and Alagie Kanyi (Pw6) testified before the TRRC and were called as witnesses before this Honourable Court and they gave evidence and their testimonies from the TRRC were produced before this Honorable Court and they were cross-examined by the other party and I belief in the interest of fair trial, the same procedure should be followed, whereby Edward Singhateh should be called as a witness and the Defence can then apply to subpoena these specific documents where he will be cross-examined on the said documents. By granting the second prayer whilst the Prosecution would not be able to cross-examine Edward Singhateh on the said documents would in my view be grossly prejudicial to the prosecution and it may render this trial a nullity, which this Court would not tolerate. From the foregoing reasons, the application to subpoena the Executive Secretary of the TRRC to produce these specific documents without calling Edward Singhateh to take the witness stand is premature and I hereby resolve this second issue in favour of the prosecution.
In view of the above, the motion on notice filed on the 15th of June 2020 partly succeeds: prayer one is hereby granted as prayed and prayer two is hereby refused and accordingly struck out for being premature.
HON. JUSTICE EBRIMA JAITEH
13th JULY 2020
ISSUED AT BANJUL UNDER THE SEAL; OF THE COURT ANDTHE HAND OF THE PRESIDING JUDGE THIS 13TH JULY 2020