When the case was called on Monday at the Banjul High Court, state counsels, P Gomez, A. Jobe, M Sowe and Saho announced their appearance for the state, while Lawyer Camara together with Fatoumatta Jallow appeared for the accused person.
State Counsel P. Gomez, who was responding to the submission made by defence counsel, Lawyer Camara, on the need for the court to set aside its July 7, ruling said: “My Lord, this honourable court shouldn’t set aside its ruling of the 7th of July 2022 because it will be a very grave waste of the court’s time. Again, the stay of execution of the order of the 7th of July 2022 is unknown to law and it will further delay this trial which has already been substantially delayed by the action of the defendant of the applicant.”
“My lord, we will also argue and show the court as to how the defence has continuously delayed the trial and now seemingly shifting the blame to the state. They are the cause of the delay,” he told the court.
“My Lord, the law is very clear on technicality raised in such circumstances that courts are now more akin to doing substantial justice and the substance of the case before my lord is guilt or innocence of the accused person. Therefore, the mistake of putting the word ‘applicant’ instead of respondent should be deemed a mere technicality.”
“My lord, what we have in the affidavit in support of the motion filed by the applicant is that several paragraphs of the affidavit violate provisions of Evidence Act. My lord Paragraph 8, 9, 10 and 11 as disposed by the accused person himself who doesn’t give the scope of any information whatsoever as to how he got the information,” he said, while referring the court to Section 89 of the Evidence Act which talks about affidavit.
“My lord the defendant stated in paragraph 9 that since the 13th of July 2022, no blood extraction has been done on Baby Muhammed. My lord there is no way the deponent will have certain knowledge of the state statement because the court can take judicial notice that the deponent is still in confinement. We have equally in our affidavit in opposition denied the said paragraph and thus refer this court to paragraph 7 sub paragraph (b) of the affidavit in opposition.”
- Gomez informed the court that the grounds and reasons as to why the court should set aside it orders are very clear, saying; “This are when the order is made for lack of jurisdiction; when an order is made base on fraud; when an order is made out if error of procedures irregularities,” he stated.
“When the court made the order, the state clearly started executing the order and so it is common knowledge that the DNA sample of Baby Muhammed, which the defence allegedly said that ‘we don’t take’ or at its best was not done in their presence was in fact in Dakar because of complications.”
“My lord the defence failed to outline to this court as to whether the court lacked the jurisdiction to give the order or whether the order was obtained by fraudulent means or whether the court made procedural errors.”
“We therefore submit that the order of 7th July was made without errors; without fraud and the court has the jurisdiction of dealing with such or similar orders. The question that should be asked is whether the court can set aside its order in a criminal trial. We argued that the application is best suited for a civil trial. In fact, application of such nature will only waste the court’s times in arriving at a just determination and a speedy trial and fair trial as enshrined in the constitution of The Gambia”
He said if the court was to grant the application, the defence should have put tangible grounds to support its stay of execution. “We conclude by saying that the application before my lord is an abuse of the court process and it’s clearly calculated not allowing this proceeding to continue there by wasting the court times.”
“The court should therefore, not set aside its ruling delivered on the 7th of July on grounds that my lord delivered the ruling lawfully.”
The lead counsel for the defence, Lawyer Lamin Camara in his response, urged the court to set aside the July 7 ruling on the grounds that the state counsels failed to convince the court as to why the said ruling should be maintained.
The case has now been adjourned to Wednesday for the presiding judge to rule on the motion dated 18th of July, which is seeking the court to set aside the July 7th ruling of the Bundung High Court.
