26/07/2022
THE STATE VS BUBUCARR KEITA ON THE 25th JULY 2022 DEBATE ON THE MOTION.
The Judge MS Jallow entered the courtroom at 12:18 and the clerk announced the case State vs Bubacarr Bob Keita.
The state prosecution team led by Patrick Gomez announced himself alongside Alasanna Jobe, MB Sowe, and A. A Saho, while Lamin LS. Camera announced himself alongside F. Jallow for the accused person.
Lawyer Lamin S. Camera continues his submission from the last adjourned at Bundung court where he submitted that he who comes to equity must come with clean hands. He said having regard to the circumstances of the case, the State cannot object to the Defence application on the ground of non-compliance. He added that the State obtained a court order on the 7th of July but failed to comply with it.
He referred the court to paragraph 7(f) of the Affidavit in opposition filed by the prosecution indicating that the State has the discretion to file an indictment, he said it is very clear from the averment contained in the Affidavit filed by the prosecution that they are investigating for over a year and nine months. It is after 1 year and 9 months after the State came to know that DNA evidence was deemed essential for the determination of the case.
"This is a good 32 months when the State knew DNA evidence was essential and they did not conduct it". He asked
"In our criminal justice system, you do not arrest then charge, remand and then investigate. Everything begins with a thorough investigation before arrest, charge, and remand". He explained.
Lawyer Camara argued that the averments contained in the affidavit in support (filed by the Defence) and the affidavit in reply (also filed by the Defence) furnished the court with enough reasons to set aside its own orders dated the 7th July 2022.
The Affidavit in Opposition did not indicate the possibility of conducting a DNA examination within a reasonable time and has not demonstrated anywhere as to how a DNA examination will be conducted, where, and how long it will be conducted. I am saying this referring to the Affidavit in-Opposition, out of an abundance of caution; My submission is that there is no affidavit in opposition before this court and I refer you to paragraph 2 of the affidavit in opposition. It reads:
"I Mariama Bah, I am the deponent herein. She purportedly swore to the affidavit for and on behalf of Bubacarr Keita. She is a legal clerk at the AG chambers. But there is no evidence to show she has any authority to swear to such on behalf of Bubacarr Keita. This affidavit is seriously defective and I enjoined for this court to throw it out".
"We respectfully enjoined my lord to look at paragraphs 23,24,25,26,36,39,40,41,42,43,44 & 45. There is an ongoing appeal against the order of July 2022 as referred to as paragraph 32 of the affidavit of support. The said notice of appeal is marked exhibit BK 2. The notice contains 6 grounds for appeal. All grounds contain substantial questions of law that must be addressed by this court".
"Finally my lord, I respectfully pray that this Hon. court grants prayers 1& 2 of the motion and set aside the order of the 7th of July 2022 and order the applicant to open defense immediately. This my lord is in the interest of justice having regard for the checkered circumstances of this case".
You don’t seek for a court order and go to sleep while the accused languishes in Mile 2 and a contempt nor (one who is in contempt of the court order) cannot be seen to be benefiting from his contempt unless he is purged. This application has merit and is not in any way meant to waste the court’s time but on the contrary, it is meant to facilitate and expedite this case. And if anything is meant to derail and waste the court’s time it is this so-called affidavit in opposition which my lord is sworn to without the authority of the person it is alleged to be representing. We respectfully enjoined my lord to grant this application considering prayers 1 & 2. As the court pleases.
The state counsel Patrick Gomez’s Submissions:
“Mariama Bah, a legal clerk at the Attorney General’s Chambers swore to the 22-paragraph Affidavit in Opposition. The State is relying on all the averments therein contained. We will argue on four main points:
1. Several paragraphs of the Affidavit in Support violate provisions of the Evidence Act
2. This honorable court should not set aside its ruling dated the 7th July 2022 because it will be a grave waste of the Court’s time
3 An order staying the ex*****on of the orders dated 7th July 2022 will delay this trial which has been delayed substantially by the actions of the Defence
4. We will argue to show this Court as to how the Defence has continuously delayed the trial and now, seemingly, shifting the blame on the State, when they (Defence) are the cause of the delay.
"It is surprising that the Defence would raise that Mariama Bah, a legal clerk at the Attorney General’s Chambers swore to and on behalf of Baboucar Keita, the Applicant and therefore, the Court should regard the Application on those grounds. The law is very clear on technicalities raised in such circumstances. Courts are now appeased to do substantial justice and the substance of the case before my Lord is the guilt or innocence of the Accused Person".
The mistake of putting Applicant instead of Respondent should be deemed as a mere technicality instead of law. Lawyer Gomez relied on the case of the Independent Electoral Commission (IEC) and the National Alliance for Democracy and Development (NADD).
Several paragraphs of the Applicant’s Affidavit in Support violate provisions of the Evidence Act. Paragraphs 8,9,10 and 11 as deposed to by the Applicant (Baboucar Keita) himself, do not give this Court information as to how he got that information. Lawyer Gomez relied on section 89 of the Evidence Act which talks about Affidavits. The paragraph states no blood extraction was done on the baby (name withheld) of blessed memory.
There is no way that the Deponent (Bob Keita) would have a certain knowledge of the said statement because the Court can take judicial notice of the fact that the Deponent is still in confinement. We deny the said paragraph.
Paragraph 12 of the Affidavit in Support of the motion violates section 90 of the Evidence Act. The said law prohibits any affidavit from containing extraneous matter by way of legal argument or conclusion.
Lawyer Gomez pointed out that Bob Keita is saying any extraction of the blood of the late child has to be done by an independent or neutral person who does not have an interest in this case.
That is a legal argument. It is not a factual argument. The Deponent (Bob Keita) wouldn’t have known the legal requirement of taking DNA because he is not a lawyer. This type of argument can only be made at the address stage.
Paragraph 13 is equally a legal argument and so the Court should not rely on the said paragraph. The same applies to paragraphs 14 of the Affidavit in Support as well. The same applies to paragraphs 17,18,19,20,21,22,23 to 33 of the Affidavit in Support. All of these contain legal arguments contrary to the Evidence Act.
It is a very defective affidavit. It is defective at its inception. It contains legal arguments and objections contrary to the Evidence Act. I place particular interest in Paragraph 33 of the Affidavit in Support. The Deponent (Bob Keita) states that a DNA examination should have been conducted during the investigation stage before proceeding to indict the Accused Person or the Applicant herein.
The Applicant (Bob Keita) has stated severally that requesting DNA during trial is not proper and therefore accused the prosecution of wasting the Court’s time for requesting for DNA examination.
We have porous the Criminal Procedure Code in its entirety and the Constitution of The Gambia, but nowhere did it ever state that all evidence must be gathered before an indictment is filed. That’s wrong. That’s entirely wrong. It is even settled that going by the dictates of the Criminal Procedure Code (CPC), section 234, even an additional list of witnesses and evidence can be filed at any stage of the prosecution’s case.
The law allows for the calling and the re-calling of witnesses for the just determination of a case even if parties close their case. We challenge them to tell us where the law is regarding what they deposed to in paragraph 33 [on the line that] you should conduct a DNA before an indictment is filed. That’s certainly wrong.
Lawyer Gomez said the Defence accused the prosecution of wasting the court’s time and has come up with a number of days they have calculated regarding how the State wasted the Court’s time.
“My Lord, what they will not tell this Court is how they continuously refused the request of the State. This is evident by the letters we have written to the Defence in respect of the privacy of the Accused Person (Bob Keita). The first letter dated 29th April 2021 and there was a follow-up on the 14th of June 2021. All these letters were not honored by the Defence.”
Lawyer Gomez read the content of both letters in court for the hearing the Court.
“Looking at the averments in the Affidavit in-Opposition, more particularly these two letters the State diligently wrote to the Defence at a time when the State only called two witnesses as opposed to now when the State called eight witnesses. Everyone should ask himself/herself who is wasting the Court’s time.”
Gomez said if the Defence granted them an opportunity to conduct the DNA examination, the case would be done by now. To make matters worse regarding the delay occasioned by the Defence, the State has failed to get the Defence to accept DNA examination since 2021.
The State applied for a DNA examination by way of motion on notice for the court to grant the State to conduct a DNA examination. My lord, even this application was opposed by the Defence on grounds that it would violate the privacy of the Accused Person. That was calculated to waste the Court's time and delay the trial. My Lord, the Court granted the application.
This brings us to our second main submission which is the premise of the first prayer on the notice of motion filed by the Applicant. Thay this court should set aside its ruling dated 7th July 2022 for want of compliance (meaning for failing to comply). My Lord, this is not a game for lucky people.
The prayer in paragraph one of the notice of motion is not supported by any law and that is the more reason did not cite any law supporting their prayer one. It is unheard of for an order to be set aside for want of compliance. That is not the law in The Gambia. My Lord, if this Court has the power to set aside its order, the grounds and reasons as to why the Court has to set aside its order are very clear.
Number one is when the order is made for want of jurisdiction. Number two is when an order is made based on fraud. Number three is when an order is made put to an error or procedural irregularity.
My Lord, want of compliance is not part of the grounds to set aside orders. My Lord, if a party is said to have not complied with an order, the very legal instrument is court orders are not made in a vacuum. And so, the only logical conclusion is that that same party (which is not the case in this case) must comply with the order. When the Court in fact made the order, the State clearly started executing the order and so it is common knowledge that the DNA sample of the baby Muhammed, which the Defence alleged that we did not take and at its best, was not done in their presence, was in fact in Dakar because of complications.
All that been said by the Defence to warrant the Court to set aside its order, the Defence failed to outline to this Court as to whether the Court has jurisdiction to give the order or whether the order was obtained by fraudulent means, or whether the Court made procedural errors. My Lord, on all these three categories, the Defence failed to tell us how they fit in, in any of those.
My Lord, we submit that the order was made without error, without fraud and the Court has jurisdiction in delivering such or similar orders. My Lord, the question that needs to be asked is whether this Court can set aside its orders in a criminal trial. We argue that this application is best suited for a civil trial. That it is in the interest of justice that trials of this nature must come to an end there must be an end to litigation. That application of this nature would only waste the Court’s time in arriving at a just determination and a speedy trial and a fair trial as enshrined in the Constitution of the Gambia, section 24.
My Lord, I refer this Court to the case of Leon Khan versus Regina where the Court outlined the nature of existence of procedural and fairness meant that the Applicant did not have an opportunity to cross-examine the witnesses or to advance evidence in his or her Defence or to make submissions or analyzing evidence before the court.
We conclude by saying, that the Defence would have an opportunity to cross-examine any piece of evidence before the Court and would have the chance to put up a Defence. My Lord, there is nothing that stops the Defence from conducting their own DNA.
Lawyer Lamin S. Camara for the Defence objected saying that is not contained in the prosecution's averments adding they cannot argue on things that are not contained there.
Lawyer P. Gomez, My Lord, we are arguing on paragraph 14 of their (Defence's) own affidavit in support which talks about trust. So, we are within our right in our argument. Also, paragraph 7(g) of the affidavit in opposition clearly outlined what we are arguing on.
Lawyer Lamin S. Camara, what my learned friend in paragraph (g) is not correct.
Court: Justice Momodou S.M. Jallow ruled in favor of the prosecution (Lawyer Gomez) while he overruled the objection by the Defence (Lawyer Camara).
Patrick Gomez for the State proceeded with his submissions. We will now move to our final argument with respect to stay if ex*****on. We start by saying stay of ex*****on is unknown to the law as well because it will defeat the entire purpose of a fair hearing and speedy trial. In fact, assuming without conceding that a court can stay ex*****on in a criminal trial, the grounds upon which a court can grant a stay of ex*****on have not been met.
My Lord, in the case of Martins and Nicannar the Court outlined certain grounds in which a court may consider in granting a stay of ex*****on and one of the grounds is whether the applicant has a high chance of succeeding on appeal. Whether the applicant succeeds on appeal, it will be highly prejudicial to the rights of the Accused Person. And that is to say, whether the Appellant can enjoin the fruit of the judgment on appeal.
My Lord, it is clear that the Appellant will have no chance of succeeding on appeal because the Court delivered the ruling of the 7th July with absolute jurisdiction without error and without fraudulent means. Therefore, the ground upon which the stay and setting-aside as prayed by the Defendant (Bob Keita) cannot be sustained.
My Lord, if the Court is to grant this application, the Defence should have put forward tangible- convincing grounds to support the same. We conclude by saying that the application before My Lord is an abuse of the court process clearly calculated not to allow this proceeding to continue. Thereby wasting the Court's time. To support our argument for abuse of process, a party cannot apply for an order to set aside a ruling and at the same time make an application to the Court of Appeal for the same ruling to be set aside. And so, the Defence must make up their mind for either the matter to be set-aside or for them to appeal.
We make the following prayers:
The Court should disregard the argument of Mariama Bah on her argument that the deponent for the Applicant and treat the same ad as a mere technicality. In the same light to hold that the Affidavit in-support by the Defence is defective and so, should not be relied upon by this honorable Court.
This court should not set aside its ruling delivered on the 7th July 2022. On the ground that this honorable Court in its infinite wisdom delivered the ruling lawful.
This court should not stay its ruling delivered on the 7th July 2022 because to do so will occasion a miscarriage of justice and delay this trial.
Counsel Lamin S. Camara’s Reply on Points of Law on lawyer Gomez's argument.
My Learned friend cited IEC versus NADD to the effect that this honorable court overlooked the fatal error on the Affidavit in opposition sworn to on behalf of the Applicant Babucar Keita. My Lord, that is not a technicality. It goes to the competence of the affidavit in its entirety. The Respondent has the chance to amend and re-swear in line with section 88 of the Evidence Act. Their affidavit is of no moment. This court should completely disregard every averment contained in the affidavit in opposition for being totally incompetent.
My Lord, the learned counsel for the prosecution stated that the deponent of the affidavit in support did show how he get the knowledge of paragraphs 8 to 11. Paragraph 89 of the Evidence Act is definitely in our favor. Paragraphs 2, 3, and 45 of the affidavit in support are crystal clear with respect to the averments. Paragraph 45 states that “I made this statement to the best of my knowledge, information and belief". That is the requirement of section 89 of the Evidence Act.
My Lord, the Evidence Act does not require a deponent to name the source of information when the information is from his personal knowledge. My Lord can look at sections 89 and 91 of the Evidence Act. Therefore, that argument is completely erroneous.
My Learned friend also argued that paragraphs 12 to 22 are legal arguments but he has woefully failed to demonstrate how they are legal arguments. What are their legal arguments?
My Lord, a legal argument is an argument in support of a legal principle, not a factual averment.
My Lord, my learned friend said the Constitution and the Criminal Procedure Code did not say all evidence must be gathered before trial and I, therefore, challenge them to show me that law.
Let’s look at Sections 175B and 175B of the Criminal Procedure Code. Lawyer Camara read the two sections. He read both sections.
An obligation has been put on the prosecution to put in all your evidence that you intend to rely upon. It is absolutely clear that there is a law to that. It can be married to section 24 of the Constitution. I refer you to sections 24 (a) and (b). It emphasises trial within a reasonable time.
From 11 November 2019 to 16 December 2021 when the motion requesting for DNA was made, that’s 16 months and you turn around and say the Defence is wasting time?
Courts don’t make orders in a vacuum. That’s correct.
The order of the 7th July was sought by the Respondent (State). The State failed to comply with the said orders. The State admitted to this in paragraph 7 (b) of their own affidavit.
Ultimately, my learned friend cited Leon Khan versus Regina and Martins versus Leanna.
My Learned friend failed to give the jurisdiction of the courts. I will give you a case from our jurisdiction here (in The Gambia). I will refer this Court to the case of Asset Management and Recovery Commission (AMRC) and 2 Others versus Beninla Able Thomas as personal representative of the late David Able Thomas, also we refer you to the case of Pa Sankung Bojang versus Lamin Bojang. Both are decisions of the Gambia Court of Appeal and both are on stay of ex*****on. We will give my Lord copies.
My Learned friend argued that setting aside is not possible in this case. I refer this Court to the practice and procedure of the Supreme Court, Court of Appeal, and High Court of Nigeria. [It is an authority or book]. The Court has inherent powers to set aside its own orders.
At this point, the Judge MS Jallow adjourned the case to Wednesday. Justice Momodou S.M. Jallow of the Bundung High Court will on Wednesday, 27th July 2022 deliver his ruling in the matter of the State and Babucar Keita alias Bob Keita.
The ruling will be whether to set aside its ruling dated 7th July 2022 for a DNA examination order to be conducted on Bob Keita, Pa Modou Johm, and Baby M or the court will maintain its ruling.
Also, he will rule on the request by the Defence Counsel Lamin S. Camara for the trial to stay pending the hearing and determination of the appeal before the Gambia Court of Appeal. There is a pending appeal regarding the high court order for DNA to be conducted on Bob Keita.
