By Mamadou Dem
Defence counsel Combeh Gaye Coker and the Director of Public Prosecutions (DPP), Hadi Saleh Barkun, yesterday, 10 September, argued over what the position of the law is regarding the ‘reply on points law’ in the ongoing criminal trial invoving Abdoulie Ceesay, the Managing Director of Taranga FM.
The case is before Justice Muhammed Dan Azumi Balarabe of the high court in Banjul.
Following an intense arguments and counter arguments at the latter part of defence counsel’s address, the trial judge adjourned the case for ruling.
During her reply on points of law, barrister Gaye Coker said the DPP in his submission cited the cases of Lang Dibba versus two others as well as former Minister of Finance, Mambury Njie, adding that what the DPP cited in these two cases is not the position of the law. She therefore referred the court to the case of then UDP Treasurer, Amadou Sanneh. She said paragraph six of Dibba’s case is supported by her application for bail, while that of Mr. Sanneh and Njie are contradictory. She urged the court to pick and choose.
“I therefore urge the court not to put any weight on the submission made by the DPP for the applicant not to be admitted to bail. In law, where you admit a bare denial, you are deemed to admit the fact or facts stated,” she submitted.
The defence further drew the attention of the court to the case of the Abdoulie Conteh, the former mayor of Kanifing Municipal Council (KMC), which is reported in the 2002 to 2008 Gambia Law Report as well as the case of Antuwan Banna versus Ocean Bay Resort.
“It is my submission that in respect to advocacy, counsel can make reference to facts which are not considered by the court or brought to the attention of the court. And that will not cause injury to the previous ruling on the bail of the applicant,” she submitted.
Barrister Gaye further argued that in a bail application, counsel can make reference to facts which were not brought to the attention of the court or tribunal that is not in any way the circumstances, adding that there has been changes in circumstance since the previous ruling on the matter which the law also needs to consider. She reminded the court that a lot has happened since the last decision by the court.
Justice Balarabe interjected and told counsel that there must be an end to litigation, adding that the defence has given him the law which he will adopt.
“You have given me the law, I have taken it, you cannot marry it to the facts,” said the presiding judge.
“I will move to the next issue if the court believes that I am venturing into facts,” said Lawyer Gaye.
On the issue of repeat bail application, the defence submitted that the overriding situation is whether there has been a change in circumstances since the last refusal of bail and that the applicant is now committed on trial.
“Reply on points of law is not in any way response to an argument. It is more of a reply to counter affidavit or affidavit in opposition. It is also more of re-examination when an issue is set widely by the applicant and a respond is therefore made by the respondent, there is nothing to reply on points of law,” said the DPP.
DPP Saleh Bakum further argued that all the arguments the defence was making should have been made at the first instance of her application. He said reply on points of law is so trim and does not have to be wide.
DPP finally submitted that counsel needs to confine herself on points of law and not to dwell on any other issue outside the confines of point of law, adding that the submission of counsel was like argument on previous submissions.
Counter replying on the objection raised by the DPP, lawyer Gaye submitted “It is my submission that during the course of reply, to the applicants submission, if the respondent refers to authorities which do not correctly reflect the true position of the law or which are misconceive, then it’s the duty of the applicant to draw the attention of the court to the correct position of the law, then the court will ultimately have a final say.”
The defence counsel further said there is a difference between repeat applications as submitted by the learned DPP. She then urged the court to overrule the objection and allow her to continue the reply on points of law.
Consequently, the case was adjourned to Monday, 14th September, for ruling on the objection raised by the state and probably continuation on the reply of points of law.