By Mamadou Dem Magistrate Dawda Jallow of the Banjul Magistrates’ Court yesterday overruled the defence in the ongoing criminal trial involving Lang Conteh, erstwhile Managing Director of Kanilai Family Farm. His ruling was based on lawyer Mboges request for the court to disallow the prosecution from calling further witnesses. His Worship said this is “unsustainable in law and therefore discountenanced.” Mr. Conteh is standing trial on a single count of “Theft,” contrary to the laws of the Gambia. The particulars of offence alleged that the accused sometimes in 2012-2013 respectively, in the city of Banjul, stole the sum of “one million five hundred and thirty eight thousand eight hundred and four dalasis ninety-five bututs (D1,538,804.95), the property of Kanilai Family Farm, thereby committed an offence. He denied any wrong doing. In his ruling, the trial Magistrate recalled that towards the end of the proceedings of Tuesday 16th December 2014 counsel for the accused made a submission urging the court not to allow the prosecution to continue providing the contents of a document by oral evidence. He said Mr. Conteh’s attorney argued that all the witnesses so far have their evidence contained in exhibit B which is already before the court. He said counsel described the calling of further prosecution witnesses whose statements were in exhibit B (Investigation Report) as not only contrary to law but an act of duplicity and waste of time. Prosecution in response relied on the same section cited by the defence (79 of the Evidence Act) and section 144 of the said Act. According to the court, Prosecution response is premised mainly on two points; that exhibit B is a summary of the statements given to the police by the witnesses and that it is not for counsel to tell them which witness to call. According to the Magistrate, Section 79 of the Evidence Act, 1994 states that ‘all facts, except the contents of documents, may be proved by oral evidence.’ He said this section has been read together with section 138 of the said Act and interpreted by the Gambia Court of Appeal to be based on the common law principle known as “The parrol Evidence Rule’ which he said forbids the giving of verbal evidence in proof of a written agreement. The presiding Magistrate further ruled that Exhibit B is a report and as such, the court believes that any witness statement referred to remains hearsay unless such a witness is brought before the court to confirm or otherwise the statement attributed to him or her. “Clearly therefore, Section 79 may have been misconstrued by counsel for the accused because it does not support the assertion that once an investigative report is tendered and admitted in court, it will be unlawful and duplication for prosecution to call the witnesses whose statements are contained in such a report to testify in court,” said the Magistrate. He said the Gambia court of Appeal in Marena vs The State, state as thus: “It is the duty of the prosecution to call all material witnesses present at the commission of crime or else make them available to the defence for cross-examination.” “I agree with prosecution that in the conduct of their case, they could not be told how many witness or witnesses to call and the number of witnesses they should call. Counsel request for this court to disallow prosecution from calling further witnesses is unsustainable in law and therefore discountenanced,” declared the Magistrate. After the ruling, Police Prosecutor, Sub-Inspector Alpha Badjie applied for an adjournment as his witness was absent from court. Consequently, the matter was adjourned to 3rd February, 2014 for continuation of hearing. ]]>
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