Magistrate threatens to strike out obscenity case

Friday, October 06, 2017

Presiding Magistrate Omar Jabang of the Brusubi Magistrates’ Court has warned that, if the prosecution fails to carry out the order of the court to furnish the defence with exhibits and witness statements before 16 October 2017, the court will strike out the matter for ‘want of diligent prosecution.’

Magistrate Jabang’s declaration came in the wake of a ruling he delivered yesterday, following an application made by Lawyer L.K. Mboge for the prosecution to furnish the defence with the exhibits and witness statements he wishes to rely on in the court.

It would be recalled that Momodou Basiru Saidykhan, Sarjo Singhateh and Alagie Kujabi are standing trial on two counts of libel and assault, causing actual bodily harm.

The prosecution alleged in count one that the accused persons on 22 August 2017 at Bijilo, jointly took and published a naked video of one Malang Sidibeh in a derogatory, contemptuous and insulting manner to his personality.

The prosecution in count two alleged that the accused persons on 22 August 2017, at Bijilo, jointly assaulted Malang Sidibeh, by beating him all over his body and caused him injuries.

The court had earlier ordered the prosecution to furnish the defence with the exhibits and witness statements.

When the matter came up, defence counsel, L.K. Mboge informed the court that the prosecution has still not complied with the order of the court.

Counsel said the prosecution’s refusal is ‘contemptuous in nature’ and has constrained him to continue with the cross-examination of PW1.

He said the documents are relevant to the preparation of their defence, pursuant to Section 24 of the Constitution,

In his reply, prosecutor ASP Singhateh said their action was not deliberate, but it was as a result of the current erratic electricity problem in the country.

He said since the last adjournment date, the counsel for the defence has not called on them to request for the documents.

He said they wanted to provide the documents, but they are frustrated by NAWEC.

In his ruling, the presiding magistrate stated that he has ordered the prosecution to provide the defence with exhibits and witness statements he wishes to rely on; that has been since 11 September 2017, pursuant to Section 24 of the Constitution.

He said since the prosecution has still not furnished the defence with the documents, adding that the order requiring the prosecution to provide the documents on which they would rely was made by the court and not by the defence, he had to take a decision.

Magistrate Jabang said the order of the court was not made in vacuum and non compliance with the order of court attracts heavy and grievous consequences.

The court went further to state that, if there is anyone to disobey the orders of the court, the law enforcement officers should be the last persons to do so.

If they are seen not to be executing or carrying out the order of the court, then who will take the court seriously, he quizzed.

Magistrate Jabang said the electricity problem, which is as a result of NAWEC rehabilitation exercise could not be an excuse, assuming that if the court takes the excuse, how long shall the court wait for those machines to be fixed, in order to facilitate the photocopying of the documents.

“Let me say straight away that a recalcitrant party to a case who refuses to comply with the order of the court cannot seek in aid and assistance of the court to exercise its discretion in its favour,” he stated.

He stressed that the matter could not proceed in the face of blatant disobedience of the order of the court after three consecutive adjournments.

The case continues on 16 October 2017, for cross-examination of PW1.

Author: Bruce Asemota