By Kemeseng Sanneh
Second Prosecution Witness , Ousman Gibba of the Special Investigation Unit of the police testified that he confirmed that the person speaking in the audio played in the courtroom was speaking Mandinka, a language he’s fluent in.
When Commissioner Sanneh asked the witness about the content of the audio, Lawyer B.S. Touray objected. Lawyer Bory Touray argued that the witness should only provide evidence on the content of the document.
Lawyer Bory Touray stated that the witness is being directed to provide evidence regarding the content of the audio, which essentially requires him to comment on the document’s content. He added that the document is in the Mandinka language and the witness has implied that certain portions of the document or the entire audio must be presented to the court in the Mandinka language.
Lawyer Bory Touray argued that if the court were to allow this line of questioning, they would be obligated to seek the translation of the document into Mandinka and then into English, adding that should they proceed with that approach, they would be receiving the content of the audio before its official translation and submission of the translated version to the court.
Lawyer Bory Touray further argued that when a document is translated from one language to English, it must be certified by the translator and validated for admission into evidence.
Lawyer Bory Touray suggested that the appropriate course of action for the prosecution, if the witness is crucial to their case and wishes to address the document’s content, it would be to translate it and present the translated version for consideration which would then allow the witness to speak on the content.
Lawyer Bory Touray contented that should the process be allowed to continue, the defence may claim prejudice as the witness, being a prosecution witness and a police officer, could potentially misrepresent the meaning of words or phrases, with no opportunity for effective cross-examination to rectify such misunderstanding.
Lawyer Bory Touray said hence, the witness’s status as an IPO is irrelevant, and court procedures must be adhered to. He cited an ongoing case of Alagie Madike Ceesay and others vs. Sheikh Tijan Hydara and others at The Gambia Supreme Court. He also draws the court’s attention to the Nigerian Supreme Court cases of Ojengbede v Esan 2002 FWLR PT 90 PG 1406. Lawson v Afani continental company NL 2002 FWLR PT 109 PG 1736.
In response, Commissioner Sanneh asserted that Lawyer Touray had slept over his right. Commissioner Sanneh argued that the audio in question, marked as exhibit A was played in open court in the Mandinka language. The Investigating Police Officer (IPO) who testified indicates his fluency in Mandinka and his communication with the accused in that language, to which lawyer Bory Touray did not object.
Commissioner Sanneh said the witness said the audio was explicitly in Mandinka, and the witness was set to explain its contents in that language and they will have another witness, who would transcribe from English to Mandinka in due course.
Commissioner Sanneh said the case lawyer Touray refers to is an ongoing/ incomplete case and therefore cannot be relied upon while the case in Nigeria cited cannot hold binding authority in the case. He referred the court to sections 97 and 98 of the Evidence Act.
Sanneh urged the court to disregard the objection raised by Lawyer Touray and allow the witness to continue his evidence.
Replying on points of law, lawyer Touray said sections 97 and 98 which the prosecution referred to have to do with proof of evidence in document form.
In his ruling, Principal Magistrate Krubally acknowledged the objections raised by the accused’s lawyer, but ultimately allowed the witness to proceed with his testimony. Magistrate Krubally said the witness being the IPO, it was deemed acceptable for him to explain the contents of the audio in either Mandinka or English without prejudice effect in the case.
“Therefore, the defence is accordingly overruled and the witness can continue his evidence. The reasons for such will be given in my judgement later,” Magistrate Krubally ruled.
“Since you have listened to the audio, can you tell the court what you understand from it?,” Commissioner Sanneh requested.
The witness, PW2, proceeded to explain that in the audio, the accused, Ebrima Dibba, made derogatory statements towards the president. He added, “I’m Ebrima Dibba am here to respond to the president’s speech he is clueless and knows nothing and I will make him know something if he knows nothing which he said in Mandinka ‘Presidan sondomo mamfuta, toleywlong’,”.
He testified that when Dibba was confronted with the audio and asked, he confirmed the words in English and Mandinka as his own and signed a statement to that effect.
He further testified that the audio was transferred from his phone to ASP Mamberry Touray’s phone, which is attached to the police IT Unit for the audio to be downloaded onto a flash drive.
Subsequently, he sent the audio through his office to the Ministry of Justice for transcription at the national transcription office to have a certified version of the audio.
Commissioner Sanneh: You know your number and the number of Mberry Touray.
Witness: Yes, I know the numbers, but for security reasons, I can write it down.
The Court instructed the witness to write the numbers down and serve them both to the defence and court and the witness complied.
Commissioner Sanneh: Did you obtain a statement from the accused, and where is it?
Witness: The statement I obtained from the accused is in the prosecution’s case file.
Cross-examination by Lawyer Bory Touray
Lawyer Borry S. Touray: Before this incident have you ever known the accused?
Witness: Yes.
Lawyer Borry S. Touray: But you have never interacted with him via phone right?
Witness: we haven’t
Lawyer Borry S. Touray: The conversation you had with the accused while he was in detention, was that reduced to writing?
Witness: It was not a signed one, but we took jottings.
Lawyer Touray: If you are asked to produce those jottings will you be able to do so?
Witness: No, I cannot.
Lawyer Borry Touray: So you don’t have any complete records of writing during your conversation with the accused right?
Witness: I have a complete record of the conversation I had with the accused.
Witness: I am not referring to the cautionary statement. I mean the conversations you had with him.
Lawyer Borry Touray: Those jottings you don’t keep them.
Witness: I don’t keep them.
Lawyer Borry Touray: Is therefore correct that you don’t have complete records of conversation with him?
Witness: That is incorrect.
The Case is adjourned to Tuesday 6th August 2024 at 10:00
