Jan 20, 2010, 3:38 PM
The Banjul Magistrates’ Court presided over by Magistrate Lamin Mbai, yesterday dismissed the no-case submission filed by Abdoulie Tambedou, former Managing Director of the Gambia Ports Authority (GPA), and ordered him to open his defence in the ongoing false information trial involving him.
Delivering his ruling, the trial magistrate stated that the defence in their brief on the no-case submission relied heavily on the Nigerian case of Ibeziako versus Commissioner of Police 1963 in which the court held that “for a no-case-to-answer submission to succeed, three regiments must be met i.e. the prosecution must have failed to prove both elements/ingredients of the offence, that is, the meansrea and actus reus; the evidence of the prosecution must have been thoroughly discredited under cross-examination that no reasonable tribunal would convict any accused persons; and the prosecution witnesses’ evidence must be so incredible that it would be unable for any reasonable tribunal to convict on it.
Senior Magistrate Mbai indicated that on the false information charge in count one, the accused stated in his letter to the Secretary General Office of the President, exhibit “P1”, that he was nearly run down by car at the ports premises by one Lamin Sanyang, who was also PW2 in the case.
However, he continued, PW2 had denied in his testimony that this never happened.
He added that PW2 denied categorically having any confrontation or using any abusive language directed towards the accused person.
“Now, in order for the accused to deny that allegation as the truth of the matter, he needed to lead evidence or call witnesses to disprove the above allegations made by PW2,” said senior Magistrate Mbai.
According to the Magistrate, PW1, the investigating Police Officer (IPO) of the case also stated that while investigating the case, the accused person was confronted together with PW2 and other witnesses who could not attest to what the accused person alleged transpired between him and the second prosecution witness.
He said count two also stated that the accused person wrote a letter to the Office of the President that he actually informed his predecessor, Momodou Lamin Gibba, of the problems he had with his alleged relatives and associates in which he ( the accused) distanced himself from their actions, information he knew to be false at the time.
“Again when the said Momodou Lamin Gibba, “PW6”, was called to testify, not only did he deny having that conversation with the accused, but he was not even cross-examined on the allegations made by the accused in his letter exhibit “P1”, said the magistrate.
“I believed for the accused to discredit the evidence of PW6, he needed to swear on oath and give his side of the story,” the magistrate continued.
He said the particulars of offence on count three stated that the accused, sometime in August 2012 wrote a letter to the Office of the President, stating that if he had taken action against Lamin Sanyang and Ebou Gibba, the duo would definitely write to the President’s Office complaining of tribalism, information he knew to be false at the time.
Magistrate Mbai went further to state that the third prosecution witness, Ebou Gibba, had said nothing in his testimony to deal with tribalism.
“Nowhere during cross-examination was a question put to him about whether he has been reprimanded or censored about his tribe, or being reprimanded for his tribal affiliations concerning his work or duties” said Magistrate Mbai.
He added that there was no evidence to show that tribe had played any part in the day-to-day operations of the GPA, and the accused by making that reference in his letter was tantamount to putting the cart before the horse.
“To prove the contrary, the accused person needed to testify and give evidence under oath,” said the magistrate.
The magistrate concluded that the accused person have a case-to-answer at this point, adding that he did not want at this stage to go into the merits of the case, but the court would make its conclusions at the end of the case base on the evidence before it.
He said he did not think at this stage the evidence of the prosecution witnesses have been completely discredited by cross-examination of defence counsel.
“I also believe the prosecution witnesses in so far as their testimonies recorded are credible at this stage unless discredited by defence witnesses, whose testimony is yet to be heard or tested through cross-examination,” he said.
“From all the above, therefore, I will dismiss the application of no-case submission by defence, and ask the defendant to enter into his defence,” the magistrate declared.
Defence counsel Edward Singhateh then applied for a copy of ruling as he may appeal against the decision of the lower court.
The case was adjourned to 11 December 2013.