By Mamadou Dem
Barrister Lamin Mboge, yesterday 8 September, 2015 urged the lower court in Banjul, presided over by Principal Magistrate Momodou S.M Jallow to dismiss a question put to his client, Lang Conteh while under cross-examination by the Inspector General of Police.
Continuing with the cross-examination of the witness, sub-Inspector Badjie asked the witness whether after his forceful retirement in 2003 he appeared before a Commission of Enquiry headed by Justice Paul as he then was, to which Mr. Conteh responded in the affirmative.
Prior to answering to the above question, Mr. Conteh’s attorney Lamin Mboge interjected and raised an objection to the question asked by the prosecution. He said in as much as the sky is the limit in cross-examination, every question asked must be relevant and within the limits of the law. The issue of commission of enquiry never arises in the whole of their case, he contended.
According to the defence, section 202 of the Evidence Act stipulates that questions that are allowed under cross-examination are specified. He said the question asked by the prosecution does not fall within the ambit of section 202 of the said Act.
Further trying to persuade the court, Barrister Mboge cited section 165 of the same Act and argued that the appearance of the accused before a commission of enquiry has no bearing or is of no relevance to the charge before the court. He said section 203 of Hassan B Jallow’ book empowers the court to allow or refuse questions solicited under cross-examination. “The prosecution has not laid any foundation on record to show that this question is intended to injure the character of the witness,” he submitted. He added that section 5 of the Evidence Act which talks about “Evidence of Facts in Issue” has made it very clear that the court may exclude evidence of facts which though relevant or deem to be relevant to the issue and that issue is a charge of ‘theft’ which allegedly occurred in 2012-2013.
Barrister Mboge described the question asked by the prosecution to be too remote; adding that the commission is dead and buried. “I urge the court to disallow the question because it is not relevant at all to the charge before the court,” he submitted.
Reacting to the defence submission, police prosecutor Badjie submitted that they were relying on section 192 Sub section (2) of the Evidence Act; adding that the issue of character was revealed by the witness himself on the 14 May, 2015 by telling the court who he was. He also referred the court to section 69 sub (2) (b) of the said Act.
“When a witness testifies and gave evidence it is the role of the prosecution under section 69 (2) (b) to discredit such piece of evidence. We pray for the court to allow the question,” Badjie submitted.
Replying on points of law, Lawyer Mboge insisted that section 69 is applicable only where the accused or witness has given evidence of his good character and the same thing applies to section 192 subs (2). He said the evidence given by his client was based on his qualifications and experience and not his character.
Upon listening to both parties, the presiding magistrate ruled that the question asked by the prosecution is a valid one. He therefore urged the witness to answer it. The case continues on 21 of this month and 5 October, 2015.