Defence lawyer, Lamin Mboge, made the application as he continued his cross-examination of the state witness Lamin Ceesay, who told the court that the statement of Dawda Fadera was in the custody of the state.
Njogu Bah who was also minister responsible for presidential affairs, is being tried on a charge of abuse of office for posting one Jainaba Jobarteh as The Gambia’s representative to the United Nations during his tenure as the secretary general. Bah denied the charge.
Continuing his cross-examination of the state witness, Mboge asked him: “Can you produce the statement of Dawda Fadera, permanent secretary at Personnel Management Office?” The witness replied that the said statement was in the file of the prosecution and at that point counsel applied to the court for the prosecution to produce the said witness statement for the purpose of cross-examination. But the DPP Bakum objected to the application citing authorities from the Evidence Act to back up his objection.
He argued that the counsel did not “lay a proper foundation” that could warrant the prosecution to produce the statement. The DPP contended that the witness should not have been asked as he was not in possession of the statement.
But Lawyer Mboge said it was the duty of both the defence and prosecution to produce evidences before the court for the purpose of justice and fair trial. He recalled that he had earlier made an application for the statements of the witnesses to be provided to the defence, but the statement of Dawda Fadera was not copied for reasons, he said, best known to the prosecution.
“This is a court of summary jurisdiction and we do not need further notice to be filed. The section cited by the prosecution cannot be applied at this point. The prosecution can only object to the reproduction of a statement when it is against the interest of the state or public. This witness has confirmed that the said statement is in the file and even when the prosecution is objecting on the ground of public interest or the state, the court should determine whether the document should be produced. Your worship, it is a trite law that it is not in the best interest of justice and public interest to refuse to produce a document that is material, relevant and intended to assist the court to arrive at a just conclusion in this case,” counsel explained while citing relevant law authorities to back up his submission and urged the court to dismiss the objection raised by the DPP. Replying on points of law, the DPP argued that section 225 of the Evidence Act cited by the defence was not at the instant of any party rather the said section gave power to the court to order for the production of statements. Lawyer Mboge at that point stood up to apply for adjournment in order to enable the court to make a ruling which was upheld by the trial magistrate. Hearing resumes April 7.
By Baba Sillah
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