Lawyer Argues Vigorously to Avoid Soldier From Entering Witness Box

By Mamadou Dem

Barrister Sheriff K Jobe in his no case to answer filed on behalf sergeant Babucarr Njie of the Gambia Armed Forces (GAF) made strong arguments to prevent the accused from opening his defence in a single count charge of going armed in public.

Lawyer Jobe in his arguments noted that his client is charged with one count of criminal offence namely, going armed in public contrary to Section 79 of the Criminal Code, Revised Laws of The Gambia, 2009.

According to the particulars of offence Babucarr Njie on the 10thof February, 2017 in the city of Banjul, Republic of the Gambia,  was found armed with a Helwan Pistol with eight live rounds without lawful occasion in such a manner as to cause terror to members of the public, thereby committed an offence.

When the accused person was arraigned before the court, a plea of not guilty was entered, thus resting the onus on the prosecution to prove the guilt of the accused person beyond reasonable doubt for the offence charged.

The prosecution in an attempt to establish the guilt of the accused person called five witnesses and tendered exhibits. The said witnesses were Inspector Jally MI Senghore of the Major Crime Unit, Gambia Police Force (GPF), Inspector Abdoulie Bojang, Ebrima Fatty, Bubacarr Bah and Nfamara Kambi.

The defence argued that prosecution’s first witness, Jally M.I Senghore testified that on the 10th day of February 2017, he obtained the voluntary and cautionary statements from the accused person. The prosecution applied to tender the said statements, but the defence objected to its admissibility, thereby prompting the court to order for a Voir dire (trial within trial). At the end of the voir dire, both statements were rejected and marked accordingly.

In cross-examination, PW1 explicitly admitted in court that the only thing he knew about the case was that he obtained the voluntarily and cautionary statements which were rejected by the court and nothing more.  “Therefore, this witness’s evidence is of no help to the prosecution in proving its case against the accused person,” he opined.

Arguing further, counsel Jobe argued that the next prosecution witness Abdoulie Bojang testified that he’s a Police officer attached to the Police Intervention Unit (PIU). He said PW2 claimed to have recognized the accused person that on the 10thof February, 2017, he was supervising his men at the King Fahd Mosque and two of his officers were at the main gate screening and he was standing beside them.

PW2 further stated that the accused came and wanted to enter between him and the ECOMIG Soldier and they asked him where he was going to and demanded him to open his bag. He said when he opened the bag they saw a riffle inside the bag. Then he (Pw2) and the ECOMIG Soldier took the accused person to their base inside the mosque.

The Prosecution tendered a bag which was admitted and marked as exhibit. “Under cross-examination, this witness’s evidence was successfully challenged, controverted or discredited by the Defence,” argued counsel Jobe.

According to Njie’s attorney PW2 in fact contradicted himself and proved to be unreliable because it was very glaring to everyone in the court that his entire evidence was cooked up and was nothing but lies.  He said the witness admitted among other things that he was able to achieve his mandates as crowd controller at the King Fahd Mosque and the alleged act of the accused did not in any way disturb the free and peaceful movement of the public. That he was never terrorized by the accused, that nobody or a member of the public was terrorized by the accused.

The third prosecution witness Ebrima Fatty who lives in New Yundum and a civil servant under the Office of the President as logistic officer recalled that on the 10th of February, 2017 he was at Kairaba Beach Hotel preparing to go for Friday Prayers with the Presidential convoy to Banjul, King Fahd mosque and unknown persons including the accused person came to ask for lift. He said the vehicle was full with people and in fact it was overloaded.

The defence submitted that under cross-examination, Fatty’s evidence was also successfully challenged, controverted or discredited by the Defence. It was established by the defence that the witness was lying about his status as a civil servant. “He contradicted himself for saying the vehicle was overloaded and more importantly, his evidence in fact contradicted the evidence of PW2 as PW2 told the court that the accused person was arrested by him and the ECOMIG Soldier at the main entrance,” Jobe pointed out.

He remarked, “PW3 said the accused was arrested by his friend and he was arrested inside the mosque. This discrepancy goes to establish that both witnesses are unreliable and their evidence is an attempt to manufacture falsehood to secure illegal convictions of the accused person.

With regards to the fourth prosecution witness, Babucarr Bah who received a directive in the form of a letter at the Defence Headquarters in Banjul on the 17th of February, 2017 to conduct a ballistic examination on the said gun recovered from the accused. The said examination was conducted to ascertain its workability and service worthiness which was confirmed by the witness.

However, the defence is of the view that PW4’s testimony has also been discredited as he fails to reveal under who’s name the said gun was license, who owns the gun and ammunition; and that he did not know whether the gun and ammunition he carried out ballistic examination were the said alleged gun and weapons found in the accused person possession. It is also important for this court to note that the witness categorically admitted that there are many similar guns and ammunition in the Gambia Armed Forces.”

He added, “We submit therefore, there is no piece of evidence in this witness’s testimony (Pw4) connecting the accused person to the gun and weapons he conducted examination on (i.e exhibit B)”.

The defence submitted that the fifth prosecution witness Nfamara Kambi under cross-examination was conspicuous to everyone that the witness was lying to the court and his entire evidence was false. Fortunately, his evidence was successfully challenged, controverted or discredited and rendered the evidence highly questionable and unsafe for any reasonable court to place reliance on it”.

Issue for Determination

The defence is of the view that the sole issue for determination is whether the prosecution has established a Prima facie case against the accused enough for him to enter a defence. Assording to him, it is the law that a No Case to answer Submission can succeed in circumstances where the prosecution has failed to establish a prima facie case against an accused person. And to determine whether a prima facie case has been made out by the prosecution, the only question that the court will consider is whether upon the totality of evidence before the court there is a ground to proceed with the case, he added.

According to counsel, as a matter of practice and law, a submission of a no case to answer may properly be made and upheld in circumstances such as when there has been no evidence to prove essential elements in the alleged offence, when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.

At this juncture the defence referred to the case of The State against Mambury Njie where the High Court held that “ To make out a prima facie case, against the accused, the prosecution must lead admissible evidence to establish all the above ingredients without an exception and it is only then that a prima facie case could be said to have been made against the accused.”

“It is our submission that based on the above case laws, and the evidence adduced by the prosecution, there is no doubt that this is a clear case in which the learned Magistrate should uphold the no case submission and return a verdict of acquittal,” Jobe submitted.

He said the essential ingredients of the offence for which his client stand charged have not been proved by the prosecution. The evidence of the prosecution in its entirety does not or failed to prove the essential ingredients under Section 79 of the Criminal Code. He added that in order to secure conviction under Section 79 of the CC, the prosecution must prove that the accused person went armed in public without lawful occasion and in a manner that causes terror to any person.

“In the instant case, there is no evidence to establish that the accused person was illegally in possession of the arm (i.e. Pistol) and that he has cause terror to anybody,” he argued.

Conclusion

The Defence finally submitted that the prosecution has failed woefully to establish a prima facie case against the accused sufficient enough to warrant him to enter his defence. He added that the elements of the offence have not been proven: in that the prosecution, has not established that the accused person was unlawfully armed in a manner that has caused terror to anybody or the public.

“The lack of evidence linking the accused person to the charge before the court is fatal to the prosecution’s case. Under these circumstances and many more, if the accused person is asked to take the stand he will be compelled to prove his innocence in the face of insufficient evidence against him,” Jobe concluded