By Landing Ceesay
Justice Ebrima Jaiteh, of the High Court of The Gambia, has dismissed the objection raised by Counsel Lamin A. Ceesay, the lead attorney for Abdoulaye Thiam in his civil lawsuit against Aisha Fatty.
During the previous court session, Counsel LS Camara commenced cross-examining Mr. Bocar Dia, a witness for the Plaintiff, who testified that Abdoulaye Thiam entrusted him with gold ornaments/jewelry to deliver to the first defendant, Aisha Fatty.
In the course of cross-examination, Counsel LS Camara inquired whether Mr. Dia declared the gold ornaments/jewelry to customs upon entering The Gambia.
“Mr. Dia, did you ever clear these gold ornaments/jewelry at the entry of the Gambia to the Customs Officers?” Counsel LS Camara asked Mr. Dia.
However, prior to the witness providing an answer, Counsel Lamin A. Ceesay, the attorney representing Abdoulaye Thiam (the Plaintiff), objected to the question.
The ruling is based on the objection raised by Counsel L. A. Ceesay, acting for the Plaintiff (Abdoulaye Thiam), arguing that the question posed by Counsel Lamin. S. Camara, representing the 1st defendant (Aisha Fatty), could potentially incriminate the witness if responded to.
Counsel L. S. Camara contested the objection, asserting that the case in question is civil rather than criminal, and thus the rule regarding self-incrimination differs in this context. Counsel further argued that the question carries implications related to taxation.
Counsel LS Camara referred the Court to section 165 (c) of the Evidence Act, 1994, in support of their argument.
Having heard the submissions of both parties, Hon. Justice Jaiteh delivered his ruling and overruled the objection.
“I have listened very carefully to the objection raised by learned Counsel for the Plaintiff and the counter objection from defense counsel. For proper determination of this objection, there is only one issue and that is: Whether the witness is bound to answer the question. The privilege against self-incrimination is deeply rooted in the law that it is incapable of being uprooted,” Hon. Justice Jaiteh said.
Honorable Justice Jaiteh also referenced several case law precedents within the Common Law jurisdiction.
He emphasized that the Court of Equity reaffirmed the privilege against self-incrimination concerning discovery or responding to interrogatories.
Furthermore, Justice Jaiteh stated that the legal principle regarding self-incrimination is firmly established in the Common Law jurisdiction and is regulated by section 178 of the Evidence Act, 1994.
He said the Evidence Act provided that: “A person is not bound to answer a question if the answer to it would in the opinion of the court, have a tendency to expose the witness or the wife or husband of the witness to a criminal charge, or to any penalty or forfeiture which the court regards as reasonably likely to be preferred or sued for.”
Justice Jaiteh explained that according to the Evidence Act, a person accused of an offense and called to testify under section 164 must answer questions during cross-examination, even if the answers could incriminate them regarding the charged offense.
He continued by noting that the Evidence Act also specifies that an individual cannot refuse to answer a question solely because the answer might reveal a debt owed or civil liability, whether initiated by the State or any other party.
Justice Jaiteh emphasized that based on the statute, a witness cannot be compelled to provide information that could incriminate themselves, their spouse, or their partner in any criminal matter or subject them to penalties or forfeitures, except as permitted under section 178(a) or (b) of the Evidence Act or any other relevant law.
Furthermore, he pointed out that section 178(b) of the Evidence Act confirms that a person cannot avoid answering a question simply because the answer might indicate a debt owed or civil liability, regardless of whether the claim is brought by the State or another party.
“In our instant case, the question asked is Whether the witness ever declared these jewelry at the point of entry into the Gambia to the Customs and Exercise. The answer to this question is either yes or no and if the witness answers yes, then the Gambia Revenue Authority may become interested in the matter for tax purposes and may institute a suit to recover tax.
“Under the provision, the witness is not excused from answering the question even if he is going to be exposed to a civil suit by the state to recover their tax. What is apparent is that section 178 of the Evidence Act is not absolute rather it has subjected itself to two provisions and the second provision does not excuse the Witness from answering the question regardless of whether the witness will be liable to a civil suit by the State,” Hon. Justice Jaiteh said.
Hon. Justice Jaiteh said it is his view that the witness is bound to answer the question, notwithstanding that it would expose the witness to a civil suit by the State.
“From the foregoing reasons, I hereby resolve the issue in favor of the defense, and the witness is hereby ordered to answer the
question,” Hon. Justice Jaiteh ruled.
In response to the inquiry presented to him, the witness informed the court that he had not declared the gold to customs upon entering The Gambia.
Subsequently, Counsel LS. Camara queried the witness about any documentation concerning gold ornaments or jewelry, to which the witness replied that he had not come across any such documentation.
Regarding Omar Bella, the individual who authored his affidavit, the witness acknowledged familiarity with a person named Mr. Jallow.
The witness affirmed his acquaintance with Muhammed Jallow, situated in Dakar, Senegal.
The proceedings were then adjourned until March 6th, 2024.