Jan 20, 2010, 4:24 PM
Lamin S. Camara counsel for Ebrima Sawaneh, Pap Saine, Sarata Jabbi Dibba, Pa Madou Faal, Abubacarr Saidykhan and Bai Emil Touray, journalists standing trial on charges ranging from seditious publications; conspiracy to published seditious publication and criminal defamation, yesterday made a "no case to answer" submission on behalf of his clients.
However, his submission was overruled by the presiding Judge, Justice Emanuel Fagbenle and ordered for the accused persons to enter their defence.
In his submission, Counsel Camara submitted that the accused persons are charged with five counts of conspiracy to publish seditious publication, publishing seditious publication and criminal defamation.
He submitted that prosecution premises on three witnesses who are all state security agents and noted that prosecution have failed to make a prima facie case.
He submitted that for a 'no case' submission to succeed, three requirements must succeed. That is, the elements or ingredients were not proven by the prosecution and in that the prosecution failed to prove the actus reus and the mens rea. Secondly the evidence by the prosecution was thoroughly discredited and thirdly the evidence proven by the state is unreliable tfor no reasonable court to convict an accused person. He, at that juncture, referred the court to Nigerian criminal law, All Nigerian Law Report and the Queen's Bench Division.
Counsel Camara submitted that having regard to this, have the prosecution made a prima facie case? "I respectfully submitted that they have not".
Camara further submitted that the prosecution called PW1 and tendered exhibits A to L and PW1 testified and tendered exhibit A (the Foroyaa) and Exhibit B (the Point newspaper) containing the alleged seditious publication in addition to the cautionary statements of some of the accused persons, with the exception of the sixth accused Sam Sarr which specifically said he took in the present of other witnesses and read it to them.
He expressed that thus, it is obvious from the exhibits tendered that PW1 tendering of the exhibits is inaccurate and exhibit C to H was obtained with no security officer present and it is clear that none of the security officers read the statements.
Counsel Camara submitted that PW1's evidence is really unsafe for the court to rely on it which is clear from exhibit C to H that none of the security officers signed the cautionary statements and it is incorrect to say PW1 read the cautionary statements.
Counsel Camara submitted that PW2 testified and said he arrested the sixth accused person and in the process arrested the 5th accused, Abubacarr Saidykhan, when he attempted to take photo of the security agents that came to effect the arrest. He submitted that the 5th accused made no incriminating offence. Mr. Camara submitted that PW2 professed his opinion with regards to the content of exhibit A (Foroyaa Newspaper) and said his opinion implies the alleged seditious implication means and quoted PW2 who ealier said "the President and his government has a hand in the killing of Deyda Hydara" but failed to show where that is in the statement. He therefore submitted that there is no such publication contain in both Foroyaa and the Point newspapers as this witness have not shown the alleged offences.
Camara submitted that it is try law that he who alleges must prove. He added that the court could not go on a voyage to put flesh on the skeleton of prosecution evidence. He submitted that the prosecution have all the need to prove their case.
He adduced that an important clue of the witness' statement mentioned that he was present when the cautionary statements were taken except for the sixth accused person Sam Sarr. He adduced the witness said he was also present when the cautionary statements were read to the accused persons which was never said by PW1.
Counsel also submitted that there came inconsistency in PW1 and PW3 and PW3 admitting under cross-examination that there is no name of a security officer who purportedly took the cautionary statements and further to that there is no evidence that the accused persons confessed to be members of Gambia Press Union in their cautionary statements and having various link to the alleged seditious publication.
Counsel Camara further submitted PW3 finally admitted that such statements were not contain in exhibit C to H. He added that the evidences of this witness is inconsistent with PW1 to a very material particular and also inconsistent to the evidence of PW2 who arrested Abubacarr Saidykhan the 5th accused who was arrested for taking a photo, which made the evidence of the prosecution unreliable and inconsistent, hence they have been totally discredited.
Counsel Camara submitted that PW3 tendered exhibit I, J, K and L, which he said were obtained from their various e-mail inboxes of the accused persons and wrote their names on the mail that contain the seditious publication.
Counsel Camara submitted that PW3 failed to prove to the court where the seditious publication is contained in the e-mail addresses then copied and attached the various publications to exhibit L and was asked whether the e-mail addresses of any of the accused persons amount to publication, which he replied in the negative.
Counsel Camara submitted that PW3 tendered exhibits A and B (Foroyaa and the Point newspaper respectively) and showed the court two different paragraphs contained in exhibit A and B and said they formed the basis of his opinion. Camara submitted that these two paragraphs are different and the meanings are two different things. "I submitted that a mere production of exhibit A and B does not suffice a prima facie case," he added that "the prosecution must go the extra mile to prove the seditious intent of the publication" adding that the test applied is a reasonable mind differ from person to person and he submitted it is obvious that the reasonable is any one who can sit at the 'ataya' vous and open a copy of Daily observer, Foroyaa and the Point or the common mind in his garden that is reasonable standard.
Counsel Camara submitted that the opinion of the witnesses are immaterial, and added that the icing of the cake was when PW3 said, "my opinion is not important." He submitted that why then rendering his opinion? Counsel Camara stated that it is tried law, and then read the particulars of count one before the court, submitting that PW1 and PW3 have not laid any evidence on count one. He added that even one ingredient have not been proven and there is no evidence that these accused persons are members of the GPU and the court have to be certain on what to do and it is only evidence that can help the court.
He submitted that counts one and four, that is conspiracy charges, and the rest of the charges does not prove the evidence of conspiracy. He submitted that it is try law that conspiracy is the meeting of the mind for illegal enterprise and submitted that no evidence have been laid for the meeting of the minds for illegal publication.
Counsel Camara stated that the only influence brought before the court is erroneous that is, "because they are journalist and therefore they are members of the GPU" which is incorrect and at best circumstantial.
He stated count 5 is on criminal defamation and none of the witnesses said clearly that anybody has been defamed before this court and the estimation of any person or thing have been reduced. He submitted that the prosecution did not make a prima facie case and the three conditions have not been met.
At this juncture he referred the court to the State versus Yusupha Dukureh, which states that "mere suspicion and simply and circumstantial evidence is not enough for a prima facie case". Camara further referred the court to Ubanatu against the Commissioner of Police, the Law Report of Nigeria and the Obiter dicta of the Supreme Court of Nigeria, which he read before the court. He submitted that, "having regard the evidence before the court, the prosecution have failed to make a prima facie case as in Mensah and other versus the Republic in 1979 Ghana law report, at the High Court of Ghana and the matter before the court is seditious which is the written material and not outside to determine the seditious intent and other circumstance must be considered".
That is the public feeling, and the explanation of the appellant must be considered. He submitted that the court to acquit and discharge the accused persons for the prosecution dismal failure to prove a prima facie case.
For his part, the sixth accused, Sam Sarr , who is representing himself, submitted that the prosecution have not adduced enough evidence to make a prima facie case and that the evidence adduced must be adequate and must prove every element of the charge.
He submitted that the evidence of the prosecution failed to prove to the court that "I have any intent to defame the President of the Gambia or the Government of the Gambia" which is required of any charges relating to libel. He submitted that the prosecution had also failed to prove that the publication has been done with intent to bring into hatred or content or excite disaffection against the person of the president or the Government of The Gambia.
He stated that the Prosecution had failed to prove to the court that he had conspired with any of the accused persons or others at large to publish any defamatory or libelous matter. He stated that it is the duty of the prosecution to prove their case beyond any reasonable doubt and their evidence adduced must be only sufficient to call an accused person to enter his defence or rebut the allegation.
Mr. Sarr stated that as submitted by counsel of other accused persons even a single element has not proven a prima facie case and submitted for him to be acquitted and discharged by the court.
Replying to the 'No case' submission, Richard N Chenge submitted that they had made a prima facie case, and that the question of credibility does not arise at all and it is the court that shall look at evidence whether or not it is contradictory. He added that once the prosecution have given material evidence it is the court to decide whether to go or leave which he said is only known at the end of a case. DPP submitted that whether the court might believe it or not, the prosecution has proven the ingredients, since the evidence of PW2 and PW3 is to establish that the accused are members of the GPU and made a publication in the Point and Foroyaa. He stated that any objections from the defence that the accused are not members of GPU was not only adduced by the defence but in the exhibit tendered in court.
DPP referred the court to exhibit K which he said indicates that all the accused persons are members of the GPU. He submitted that the statements are clear that they are members of the GPU. He stated that "in fact Emil Touray the 7th accused, in exhibit L gave his address as in the statement as GPU". DPP added that thereby "admitted to be a member". Director of public Prosecution further submitted in exhibit E that Sarata Jabbi Dibba admitted to being a member of GPU and adduced that Sarata Jabbi Dibba said that Ndey Tapha Sosseh had informed her of her reaction to the interview made by the president as she adviced her to drop it since it may lead to problems.
Richard Chenge submitted that Pap Saine the second accused person, stated in exhibit D that he Pap Saine authorised the publication. He stated that exhibit D mentioned Pa Modou Faal as the treasurer of GPU and the statement in the internet shows that all the accused persons are members of GPU.
He further submitted that the statement tendered were never objected and described the objection as medicine after death for admissibility. He stated that it is tried law that a person cannot approbate and probate. He submitted that PW1 and PW3 only said why they arrested the accused persons.
He submitted that the issue is one of intent that is the mens rea. He stated that even the devil does not know the mind of the person. He added if from the publication which stated the Government cannot be exonorated is an allegation of murder which he said even the deaf persons can attest to the seditious publication. DPP submitted that the prosecution have proven more than a prima facie case and urged the court to reject the 'no case' submission.
Defence objected to the reply made by the prosecution arguing that prosecution missed the point on the authority of Menseh. Camara submitted that defence have made objections to the cautionary statement by objecting to the admissibility of the statement and not the vague content of the statement.
Thirdly, Camara stated mere publication is not enough as the law of the land requires that mens rea must be proven and otherwise will amount for the accused to prove their innocence, and urged the court to uphold the no case submission.
Sam Sarr cited section 51 sub section-(2) of the CPC which says evidence of his conduct and circumstance must be proven.
The court ruled against the no case submission and acquitted and discharged the 5th accused person Abubacarr Saidykhan whose action was only taking pictures of the security officers and not conspiring or making seditious publication as brought in the charges.
At this juncture the defence made an application for the court to provide them with its ruling as they intend to appeal to the Court of Appeal but the court overruled the application arguing that there is no such motion before the court and the court will proceed hearing the case, as the charges are alleged criminal charges.
In the circumstances, defence called Ebrima Sawaneh, the first accused, to open his defence and his testimony follows in the next publication.