By Landing Ceesay
Judge Ebrima Jaiteh of The Gambia’s High Court ordered Mrs. Aji Fama Taal-Gaye, once Aisha Fatty’s close friend, to testify as a witness for Abdoulaye Thiam in his lawsuit against her.
On November 15th, 2023, Mr. Thiam’s lawyer, Counsel Lamin A. Ceesay, filed a motion requesting the court to summon Mrs. Taal-Gaye. This motion, filed on the 7th, sought permission for her to appear before the court and provide any information relevant to the case against Ms. Fatty and the Inspector General of Police (listed as the second defendant).
Supporting the motion was a sworn twelve-paragraph affidavit, dated November 15th, 2023, by Ousman Mbye, a clerk at Solie Law Chambers.
Aisha Fatty, the first defendant, objected to the application and submitted a sworn affidavit opposing it. The affidavit, which she personally signed, consisted of 23 paragraphs and was dated November 29, 2023.
The court subsequently directed that written arguments be filed, exchanged, and finalized.
In his brief, the applicant, Abdoulaye Thiam, presented a single question for the court to decide: whether this situation justifies the court granting the reliefs sought in the motion before it.
Abdoulaye Thiam’s attorney, Counsel L.A. Ceesay, argued that the court has the authority to grant the application under Order 23 Rule 7 of the High Court (Amendment) Rules 2013.
Counsel Ceesay emphasized that his client relies on numerous case law authorities within the jurisdiction and section 24(1) of the 1997 Constitution of The Gambia, urging the court to grant the application.
In her arguments, Aisha Fatty framed the issue of whether the court holds the authority to approve the application.
Aisha Fatty’s Lawyer, Counsel Lamin S. Camara, asserted that the court lacks jurisdiction to approve the application, citing Order 23 Rule 7 of the High Court (Amendment) Rules 2013.
Counsel LS Camara further contended that much of the information presented is hearsay and therefore inadmissible, also alleging violations of sections 91 and 92 of the Evidence Act, 1994.
He informed the court that the proposed witness evidence was provided in bad faith, urging the court to reject the application and impose significant costs.
In his ruling on the motion, Hon. Justice Jaiteh confirmed reviewing the motion paper, supporting affidavit, affidavit in opposition, and the briefs submitted by counsels for both the Applicant (Abdoulaye Thiam) and Respondent (Aisha Fatty).
Hon. Justice Jaiteh noted Counsel LS Camara’s invocation of sections 91 and 92 of the Evidence Act regarding paragraphs 7(a) and (b) of the affidavit in support of the motion, labeling them as second-hand hearsay and therefore inadmissible.
“I have looked at paragraphs 7(a)&(b) of the supporting affidavit and, in my view, are not second-hand hearsay and the preliminary objection is overruled. The said averments are proper and in order and sections 91 and 92 of the Evidence Act have not been violated, and this I shall hold as fact. Therefore, the issue of non-compliance of sections 91 and 92 of the Evidence Act lacks merit and is hereby dismissed,” Hon. Justice Jaiteh ruled.
Honourable Justice Jaiteh noted that both Abdoulaye Thiam and Aisha Fatty each presented an issue. However, he expressed a preference for the issue put forth by Abdoulaye Thiam, while indicating his intention to address the matter raised by Aisha Fatty.
Subsequently, Honourable Justice Jaiteh embraced the issue articulated by Abdoulaye Thiam, namely, whether the Court should grant permission to the Plaintiff to summon Mrs. Aji Fama Taal-Gaye to testify in court regarding all relevant matters pertaining to the case.
Honourable Justice Jaiteh emphasized that the request to summon Mrs. Aji Fama Taal-Gaye for testimony in the trial is made under Order 23 Rule 7 of the High Court (Amendment) Rules 2013. This rule grants the court the authority, upon application, to permit either the plaintiff or defendant to call upon a witness to provide relevant information pertaining to the case.
Justice Jaiteh underscored the broad discretion bestowed upon a judge by this provision, enabling them to authorize the summoning of witnesses as deemed necessary for the elucidation of the case and the pursuit of justice.
Furthermore, Justice Jaiteh asserted that the court possesses the jurisdiction to consider such applications. Consequently, the objection raised by the 1st defendant (Aisha Fatty) regarding the validity of the application is deemed unsubstantiated and hereby dismissed.
“I have perused the supporting affidavit, particularly paragraphs 7 that Mrs. Fama Taal is a friend to the 1st Defendant and bought some gold, the subject matter of this suit from the 1st Defendant and at paragraph 8 thus averred that the said Aji Fama Taal -Gaye is necessary and will be immensely helpful to the court to resolve issues in controversy between the parties herein.
“The Respondent (Aisha Fatty) denies paragraph 7 to the extent that Aji Fama Taal-Gaye does not know absolutely anything about the matter before the court and there is bad blood between her and Aji Fama Taal-Gaye. However, the 1st Defendant (Aisha Fatty) averred that she sold her personal gold chain and earrings to Aji Fama Taal-Gaye and because of this admission, it is therefore necessary to call Aji Fama Taal-Gaye as a witness in this trial to testify all that she knows about this suit because she bought gold from the 1st Defendant,” Hon. Justice Jaiteh said.
Honourable Justice Jaiteh emphasized that gold constitutes a pivotal aspect of the lawsuit’s core subject matter. He firmly believes that summoning Aji Fama Taal-Gaye as a witness would serve the cause of justice by aiding the court in effectively addressing the contentious matters between the involved parties. This standpoint he unequivocally affirms as factual.
“I must emphasize that the application to summon Mrs. Fama Taal-Gaye is proper under the Circumstances and lawful and, in my view, it is not prejudicial to the 1st Defendant (Aisha Fatty). The 1st Defence would also have sufficient time to cross-examine Mrs. Fama Taal–Gaye upon being Summon to give evidence. I am of the fervent view that the 1st Defendant Would not be prejudiced or cause injustice to her,” Hon. Justice Jaiteh ruled.
Honourable Justice Jaiteh emphasized that courts serve the purpose of resolving disputes rather than enforcing discipline. He highlighted that the authority to summon a witness is not granted as a gesture of favour or grace but as a necessary step in adjudicating contentious matters.
“I therefore resolve this lone issue to the effect that it would be in the interest of Justice to summon Mrs. Fama Taal Gaye as a witness in this trial. For these reasons, I am satisfied that the application has merit, and accordingly and pursuant to Order 23 Rule 7 of the High Court (Amendment) Rules 2013, it is hereby ordered as follows:
“That leave is granted to the Plaintiff to summons Mrs. Aji Fama Taal-Gaye to depose to an affidavit of witness statement and appear before this court to testify all that she knows about this suit herein; That the Plaintiff is directed to file and serve the Defendants with the affidavit of witness statement of Aji Fama Taal-Gaye within 7 days of this order,” Hon. Justice Jaiteh delivered his ruling on the motion.