Defense
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.
