Nov 29, 2012, 8:38 AM
When hearing resumed yesterday at the High Court in Banjul, in the treason trial involving Lt. Gen. Lang Tombong Tamba and seven others, the trial judge ordered the Director of Public Prosecutions (DPP), Richard Chenge, to regularise all his documents so as to qualify the documents as official court documents.
Justice Emmanuel Armadi made this ruling after the DPP told the court that he is requesting for another adjournment, so as to serve the defence with another set of bulky documents.
This happened just a day after the DPP served the defence with a voluminous set of documents following a court order made on 16th April 2010.
DPP Chenge's application for another adjournment was vigorously contested by the defence, on the grounds that there is no proper serving and itemisation (of the documents), and that this was purely intended to waste court's time.
Defence Lawyer Pap Cheyassin Secka reacted to the DPP's application by calling for a correction of the procedures used by the DPP, to serve the defence with documents.
"We acknowledge that we were given the document through an unidentified courier, who claimed that he was sent by the DPP to give me a set of documents unceremoniously packed in a plastic bag on Tuesday at 6:30 pm.
"And on Wednesday, I was informed by the counsel, Hawa Sisay Sabally that another set of documents are also in the offing; and this morning we are also given another set of documents."
He told the court that his main objection is simple and short - the rules are clear on the serving of additional evidence to the court. He said the documents must be filed, and if the documents are more than one, they should be numbered and identified.
He argued that this was important, because the registrar will have to enter the documents. As he put it, this is not a technical matter. 'It goes to ensure transparency and a fair hearing,' he stated.
'As things stand, we have no way of knowing whether the documents I received are the same documents in the hands of the prosecution, and whether they are the same documents served to other defence counsel.
'What we need is the DPP to take the documents back and file a notice of intent to adduce further evidence, and attach identifications to all the documents the DPP intends to produce and tender as additional evidence," the counsel submitted.
He also said the documents need to be served through the proceedings of the courts.
"It is only out of courtesy I personally received the documents, that were served, but I did not want to condone a blatantly irregular procedure," he added.
"I submit that the documents are not served to the defence, and not even the court," he declared, adding that "the court should order the DPP to follow the simple procedure known to the law in respect of filing and serving the documents."
Hawa Sisay Sabally told the court that she was served yesterday (Wednesday) at 9:00 am "firstly, with a set of documents with no record." She said a lady just came with a plastic bag to her office andshe insisted that they must know the name of the said girl, who said her name is "Aisha Leigh."
"At 9:30 am she came with another set of documents, but this time with a recording. I sent two letters to the office of the DPP yesterday, and I raised concern and reservations and copy it to the DPP and in effect I have not received any reply.
"I was given a bundle of documents marked 'Sabally'. I am Sisay-Sabally and I take objection to the way my name was spelt, since my name is Hawa Sisay Sabally."
She further submitted that the court should direct the office of the DPP to follow the procedure of legal service.
"We have lost one week, and that is not the normal procedure," she said, adding that in that respect, she also was returning the documents to the DPP.
The DPP in response said, "I am surprised to hear these applications, after the court ordered me to serve all the documents to the defence, following a notice to serve additional documents. He argued that this order must be obeyed, since it surpassed all other laws.
He said the order did not say ?we serve the documents to the registrar of the court, but to the defence. I suppose that is not a waste of time. "The documents are served, and not yet tendered for them to be objected to." At this point, the DPP urged the defence to be patient.
Regarding the way counsel?s name was spelt, the court asked the DPP to apologise to her over the error, which the DPP did.
According to defence lawyer Secka, there was only one notice filed on 13th April 2010, that is, the notice of additional evidence, which he said, is clear and contained only five telephone numbers that are listed in that notice of additional evidence.
"In the additional documents, we are served with 18 additional numbers." Counsel also said that there is an additional telephone company added to the documents, that is, Comium which was not part of the earlier notice.
He further said that serving is a technical word, and that it does not mean merely giving documents.
According to counsel, it means more than giving a document, but includes filing the documents with the registrar.
"When the court order a party to serve a document the court is assured that service can only be effected under a procedure established and recognised by the law, and not putting the documents in a plastic bag."
Counsel Sisay Sabally again stood and further cited a Court of Appeal case involving Abdoulie Conteh, for the court to take reference from in relation to the process of service.
"I am not served, but the documents were dropped at my office," she told the court.
Defence Lawyer Tambedou also submitted that, "were service is effected by the court or bailiff a signature or certificate must be issued by the officer, who served or the bailiff." He then referred the court to order (3) schedule (1) rule (11) in cap (6) of the Criminal Procedure Code.
At this point, the court stated that for any emergency it requires the party to file the documents at the registrar of the High Court, to make the documents an official document, before serving the defence directly.
The DPP then pointed out that despite reactions to all their objections, the defence had accepted the documents.
He argued that the reason for serving extra documents is in respect of the court?s earlier order to serve all documents.
"This is why we served 18 other numbers," he submitted, adding that the defence had been served, and the best thing for them to do is to ask for an adjournment to study the documents.
It was at this stage that counsel Hawa Sisay Sabally told the court that "it seems that the DPP is not ready to proceed,"and she urged the court to progress and limit itself to the notice of additional evidence served.
She further argued that at the last adjournment date, "I thought it was going to be the last adjournment application from the DPP. I am not asking for any adjournment, since either we proceed or the court closes the prosecution case."
Still arguing on the issue of the serving of the documents, counsel Tambedou submitted that service needed to be properly done by filing the documents.
"Ordinarily, I will be in the position to proceed with the documents served on the 13th April 2010. But for the documents I found here today, I cannot proceed with them. Hence I have not finished studying the previous documents that were served of recent by the DPP, precisely the one served last Wednesday."
He, therefore, urged the DPP to put his house in order, after the case has suffered a lot of delay in recent times.
The court in its ruling said that after listening to the arguments made by the parties, the judge agreed with the defence on the area of additional evidence and proper documentation.
He said that a number of documents have been served to the defence, and noted that they have gone far with the documents. Therefore, in light of this, he urged the DPP to regularise his documents, itemise the documents, and file them with the registrar of the court for proper documentation.
The presiding judge further ruled that the documents be taken back for official documentation that is, with a stamp, and then urged the prosecution to amend his notice of additional evidence.
Following the court ruling, Lawyer Tambedou suggested to the court that he and counsel Secka have agreed to return one of the documents that was served yesterday (Thursday) to DPP.
This suggestion did not go down well with the DPP, who instead asked for the whole documents to be returned to him.
However, the court informed the DPP that he is not in a meeting, and that the matter is simple.
"Defence counsel will retain the previously served documents, and return only the newly served documents," said the judge.
Subsequently, the case was adjourned to Tuesday 27th April 2010. The presiding judge ruled that this is the last adjournment on the issue of the documents.