The Judge, however, dismissed the said motion dated 18 July 2022 as an abuse of the court processes.
The motion filed by Lawyer Lamin Camara was seeking for the court to set aside its ruling of 7 July 2022.
The presiding judge ruled on the motion dated 18 July 2022, filed by Lawyer Lamin Camara, seeking the court to set aside its ruling of 7th July 2022. He also urged the court to set aside that order on the grounds that it’s unworkable and in the alternative, an order for stay of execution of the court’s order of 7th July 2022 pending the hearing and determination of the appeal at the Courts of Appeal of The Gambia.
When the case was called on Wednesday at the Banjul High Court, state counsels, P. Gomez, A. Jobe and Saho announced their appearance for the state, while Lawyer Camara together with Fatoumatta Jallow appeared for the accused person.
Justice Jallow told the court that senior defence counsel has filed the motion regarding the 18th of July 2022 with a 45 paragraph affidavit.
He added that an attached BK 1 was the court’s ruling being appealed against as notice by the notice of appeal to The Gambia Court of Appeal mark BK 2.
The applicant, he added, was served with the notice of motion and filed their affidavit in opposition to the motion filed on the 20th of July 2022.
The Judge adducted that the 22 paragraph affidavit as attached DNA 1 and DNA 2 are letters to defence counsel requesting for a DNA test on the accused dated 29th of April 2021 and that 14th of June 2021 respectively.
The Judge, while delivering his ruling states that “senior defence counsel filed an affidavit in reply on the 21 of July 2022 and moved this motion on the foregoing with the permission of the court on the same day the 21 of July 2022 which was adjourned to 25 of July 2022 for senior defence counsel to complete his arguments and submission of which upon completion the state responded and senior defence counsel replied on points of law; and the case was adjourned for ruling to be delivered on the 27th of July 2022 of which ruling I am reading to you today.”
The presiding judge further went on to adopt the affidavit in opposition to the motion and attachments request for DNA 1 and 2 and the arguments and submission of the principal state counsel as its own.
“The honourable court has made its orders for the accused person Bubacarr Keita, the toddler blood sample to be drawn while in coma has been deemed satisfactory and could be reliably used for DNA purposes. The court has been further ordered that PW 8, Fatou Ngonneh Mbaye be subjected to DNA a sample being drawn from her and even a hair follicle of the demised toddler will be sufficient to be effect for the DNA examination the requirement order by the court in its order of 7th July 2022.”
“This subset to be carried out by the parties and the order of the 13th of July 2022 and the 18th of July 2022 all to enhance the DNA examination of the individuals require strict compliance with the parties to ensure expeditious hearing of this case is not compromised,” the Judge posited.
“The honourable court retreated that the state has been charged with the responsibility of supervising and coordinating the DNA examination of which defence counsel is required to cooperate in order to ensure that the requirements are timely met. The motion on notice on the foregoing dated 18 July 2022 is ruled to have been an abuse of the court processes. What is expected is for the defence to submit to the DNA.”
Meanwhile, the authorities will extract DNA samples from the toddler in the presence of the concerned parties with a view to ensure transparency in order to certify the defence who should be preparing to make their defence case next term. Therefore, the motion dated 18th July is dismissed as an abuse of the court processes that’s all.”
“We have not gone into the orders but we have made three orders on this DNA. All that we expect is for the state to have undertaken to supervise the conduct of this DNA to be expedited. If for any reason a court gives an order, it expects that order to be carried out. If you are not in agreement with any process, you are free to appeal against that decision. But a court can’t set aside its decision.”
“I have dispensed the going into the orders that were made because even at the time, what we have categorically stated which we expected senior defence counsel to abide by was the fact that be it any motion or any other sought for the purposes of wasting the court’s time will not be entertained and that’s clearly spelt out in the orders of the court of the 13th and the 18th July.”
“So it’s a process that we expected to be complied with and so far so good, we know the state supposedly and presumably the only DNA sample that is yet to be had would be a second sample to be drawn from the toddler.”
“Therefore, we expect the state to expedite that and for senior defence counsel and their representative or any person to be present when that is being conducted. We will grant you an adjournment to next term so that we can proceed with the case.”
Meanwhile, after delivering his ruling, defence counsel Lamin Camara stood up and said: My Lord, I am a bit concerned when my lord said we ought to comply. We complied but we agreed to disagree and it’s our right to do that and we will continue to exercise our rights to disagree as the court pleases.”
For his part, State Counsel P. Gomez, said: “My lord, we are very grateful to the court for the ruling and we really appreciate the court's time in dealing with this matter.”
