Counsel Abdoulie Sissoho, is representing Yankuba Touray in a murder case
before Justice Ebrima Jaiteh at the High Court in Banjul. On the 4th November
2019, he urged the court to issue a bench warrant for the arrest of Baba Galleh
Jallow, Executive Secretary of the TRRC, for failing to appear in court.
Counsel Sissoho told the court that he was making this application following a subpoena which was issued pursuant to Section 221 of the Evidence Act. He stated that an affidavit of service was served to Baba Galleh Jallow, noting that he has not appeared in court neither has he informed the court as to why he did not appear.
He further argued that a subpoena is a command by law and failure to pay heed to the command, the court has the duty to act. He said that Baba Galleh Jallow should appear in court to show cause as to why he should not be cited for contempt.
The state counsel, A.M. Yusuf, told the court that that was a criminal trial. He argued that Section 233 to 237 highlights the procedure to be followed by the court in regard to the conduct of the case of the prosecution. He noted that the prosecution witness is on cross-examination stage, citing Sections 238,239 and 240 of the CPC. “Taking the provision into consideration, we have led the witness to testify. Now it is for the defense to cross-examine him. Before any witness is called, the prosecution witness must be dispensed with” he told the court.
He stated that from the face of the summons, Baba Galleh Jallow is coming to testify to all he knows. He cited Sections 117 of the CPC to support his argument. “The defense counsel assumes that the summons is in pursuant to Section 221 of the CPC. If the witness (Baba Galleh Jallow) is just to come and tender the statement of the witness, the summons cannot stand,” he submitted. He urged the court to discontinue the summons, which said something else. He also urged the defense counsel to cross-examine the witness, asking for cost against the defense counsel.
Counsel Sissoho further stated that with due respect to the prosecutor, his (prosecutor’s) arguments were misconceived. He stated that on both faces of the summons, it is indicated that Baba Galleh Jallow should appear to produce documents at trial, adding that it means that he should come and produce only documents. He argued that the subpoena was proper and was in order pursuant to Section 221 of the CPC. He submitted that since the prosecution witness said he made a statement at the TRRC, Baba Galleh Jallow should produce the said statement.
At this juncture, the presiding judge said he would make a ruling on the 11th November, 2019.
Under cross-examination, Counsel Sissoho asked the witness, Ensa Mendy, whether it was not true that he made a statement dated 2nd July, 2019, regarding the case. He answered in the positive. He was again asked whether it was not also true that on the 5th July, 2019, he made a written statement regarding the case. He replied in the affirmative.
He was asked whether it was not true that his oral statement at the TRRC on the 28th March, 2019, and his written statements on the 2nd July, 2019, and 5th July, 2019, were all different.
A.M. Yusuf objected to the question. He argued that it was not the witness to say whether the statements were inconsistent or were at variance. He said that it was for the court to decide that. “If the witness answers the question, he will implicate himself. By virtue of Section 178 of the Evidence Act, the witness should not be forced to incriminate himself,” he told the court. He urged the court not to allow the witness to answer the question.
Counsel Sissoho replied that the objection of the prosecution was misconceived, but the judge ruled that the statements were not before the court. He said that the defense could not refer to the said statements. He did not allow the question.
Hearing continues on the 11th November, 2019.