High Court presided over by Justice Ebrima Jaiteh has dismissed a motion on
notice filed by the legal counsel to Mohammed Fadlahllah’s trading as Cabana’s
Beach Bar and Restaurant seeking that the plaintiff’s witnesses be
cross-examined via Skype or by such other similar means of communication at the
cost of plaintiff.
Justice Ebrima Jaiteh made this decision in the civil suit between Mohammed Fadlahllah and Jean Pierre Ishac premised on the fact that the plaintiff’s witnesses reside outside the jurisdiction and are not available to come to The Gambia on or before June 2019 to give evidence.
Mohammed Fadlahllah’s counsel submitted that it would be in the interest of justice for the two witnesses to be cross-examined via Skype or by such means of communication. He argued that this method of giving evidence has been used by the Commission of Inquiry into ex-president Yahya A.J.J. Jammeh and close associates recently where witnesses were abroad and could not physically be present in court.
In his ruling, Justice Jaiteh disclosed that the law governing cross-examination of witness in the Gambia is provided in Rules of the High Court Order 35 Amending Rule 3 (3) & (4) of the High Court (Amendment) Rules 2013.
Justice Jaiteh asserted that by virtue of sub-rules 3 and 4 of Order 35 as amended, it thus makes it mandatory for witnesses to be called and be made available for cross-examination.
The trial judge said it is clear from the averments of paragraphs 5 and 6 in the applicant’s affidavit in support that the plaintiff and his witnesses cannot be available for cross-examination before June 2019 because they reside outside the jurisdiction.
Justice Jaiteh stated that the rules of the High Court imposes a legal duty on a party in a civil trial to make available his or her witnesses for cross-examination, failure of which the affidavit of such witnesses shall cease to have effect as part of the evidence in the case and shall be expunged from the records.
Justice Jaiteh held that if Mohammed Fadlallah and Elena Nedyalkova are not made available for cross-examination; their affidavits shall cease to have effect in the trial and shall be expunged from the records.
He declared that the process of using Skype or Video trial is not recognised in The Gambia court system and he does not believe that a party’s failure to make his witnesses available to the court is a violation of the principle of fair hearing.
He pointed out that since the rules of the High Court do not provide for video link arrangements as a means of cross-examination of witnesses, the application cannot be granted.
Justice Jaiteh stated that the applicant has a legal duty under the rules of the High Court to make available his witnesses for cross-examination and therefore refused the application for Skype or Video trial.