By Rohey Jadama
Justice Ottaba of the Special Criminal Division of the Banjul high court has yesterday 10 October, 2016 adjourned the case of Mr. Sarjo Jallow, the Deputy Minister of Foreign Affairs, who have been detained for 1 month now, for ruling.
Lawyer Antouman A.B Gaye, defence counsel, filed a motion seeking for an order to unconditionally release the applicant from NIA headquarters in Banjul on bail.
When the case was called, State Counsel A. Mendy argued that the deponent did not state in the affidavit how he got the information he deposed to. He added that the deponent did not tell the court how he got into contact with the applicant. Therefore, he went on, the affidavit is just mere information that was given to the deponent.
He continued “Therefore, I submit that this affidavit is defective because it did not disclose the source of the facts that were deposed to in this case. In the absence of any affidavit the motion is worthless.”
Replying on points of law, Lawyer Gaye submitted that when a deponent deposes to an affidavit, he deposes to facts that are within his knowledge. This, according to Barrister Gaye, is the primary consideration.
“It is within your personal knowledge so it needs no source when you are deposing to information that has come to you,” said Counsel Gaye.
He further refers the court to sections 89-92 of the Evidence Act and cited several authorities to support his arguments.
Defence counsel Gaye further argued that there is no counter affidavit from the prosecution. He maintained that in the absence of any counter affidavit, the affidavit in support of the motion remains unchallenged and it stands.
He said at the last adjourned date, state counsel Jobe argued that section 99 of the criminal procedure code (CPC) does not apply because there is no charge before the court. He told the court that they concur that there is no charge but that does not make section 99 of the CPC irrelevant.
“We have included it in this application as an anticipatory measure because many a times when the prosecution is served with such an application they rushed to court and file charges in which section 99 becomes operative. I finally pray that your lordship grant this application,” submitted Lawyer Gaye.
At this juncture, Justice Otaba adjourned the case till Monday 17 October, 2016 at 10:30am for ruling.