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Court Says Some Paragraphs In Sainabou Mbye, 2 Others’ Affidavit Are “Unjustified” By Law

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Sainabou Mbye, Cherno Mbye, and Kibili Dambelly going to the High Court on 11th August 2022



By Landing Ceesay 

Justice Sidi K. Jobarteh of the High Court of the Gambia said on Thursday that some paragraphs in Sainabou Mbye and 2 Others’ Affidavit are “unjustified” by law.

The accused persons (Sainabou Mbye, Cherno Mbye, and Kibili Dambelly) filed an application for the court to grant them bail unconditionally, since the State is yet to file an indictment against them. 

In her ruling on the bail application, Justice Jobarteh said the law on affidavit evidence is that no extraneous matter should be in an affidavit. 

“Section 90 of the Evidence Act states that an affidavit shall not contain extraneous matter by way of objection, prayer, or legal argument, or conclusion. However, grounds of belief can be stated in an affidavit,” she said. 

Justice Jobarteh said Section 91 of the Evidence Act stipulates that when a witness deposes to his or her belief in a matter of fact, and his or her belief is derived from a source other than his or her own personal knowledge, he or she shall set forth explicit the facts and circumstances forming the ground for his or her belief.

Justice Jobarteh further said that the Prosecution contends that paragraphs 13, 17, 18 and 24 of the affidavit in support of the summons, and 15 and 16 of the additional affidavit of the applicants are not facts, but arguments and should be accordingly struck out. 

She said the counsel for the applicants referred the Court to the case of Abdoulie Conteh and the State and argued that the court should frown at technicalities in processes and do substantial justice. 

Justice Jobarteh said she carefully went through the averments in the affidavits of the applicants and that it is without a doubt that legal arguments have been raised. 

“When a law is specific and made it mandatory for a prescribed form and mode to be used in processes, same should be followed without deviation. Section 90 of the Evidence Act is clear, unambiguous and the word “shall” is used as to the exclusion of legal arguments in affidavits. The legal arguments raised in the averments of the Applicants’ affidavits are therefore unjustified by law. 

“I, therefore, rule issue one in favour of the prosecution and strike out paragraphs 13 (b) (c) and (d), 17, 18 and 24 of the Affidavit in support of the originating summons. 

Paragraphs 15 and 16 of the additional Affidavit of the summons are also struck out. Aside from the paragraphs highlighted by the State counsel, the court has carefully perused through all the averments in the affidavits and I hold paragraphs 14 (b) (c) and 15 of the affidavit in support of the originating summons to be in contravention of Section 90 of the Evidence Act and they are hereby struck out,” she ruled. 

Justice Jobarteh further ruled that Paragraphs 5, 6, and 8 of the affidavit in reply does not also comply with the rules of affidavit evidence and there are also struck out. 

The 3 accused persons, ex-wife of remanded Bob Keita Sainabou Mbye, Cherno Mbye, and Kibili Dambelly are charged with manslaughter contrary to section 186 of Criminal Code Cap: 10.01 Vol.III, Laws of the Gambia 2009.

The particulars of the offence stated that Sainabou Mbye, Cherno Mbye, and Kibili Dambelly on or about the 3rd day of July 2022, at Kanifing and diverse places in the Republic of the Gambia, by unlawful act or omission, amounting to culpable negligence, left one Muhammad Mbye, a two-year-old boy resident of Brusubi inside a car which caused his death, thereby committed an offence.

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