By: Cecilia E.L Mendy
The High Court in Banjul, presided over by Justice Jaiteh, on Monday dismissed an application by the defence seeking witness summonses for five individuals to testify in favour of the accused in an alleged rape case involving Ass Malick Njie.
Counsel M. Sarr represented the state, while F.C. Anyanwu appeared for the accused.
The court ruled on the defence application for the issuance of witness summonses under Section 160 of the Criminal Procedure Act, 2025.
The matter came before the court for continuation of the defence case, particularly for the evidence-in-chief of Defence Witness Two.
At the start of proceedings, defence counsel applied under Section 160 of the Criminal Procedure Act, 2025, for summonses compelling the attendance of Musa Secka, Amadou Kebbeh, Muhammed Lamin Jarju, Ebrima Drammeh, and Ebrahim Luke Silver to testify for the accused.
The prosecution did not oppose the application. However, the court noted that the key issue was whether it should exercise its discretion under Section 160 to compel the attendance of the named individuals.
Citing Section 160, the court explained that it allows issuance of summonses where it appears that a person can give material evidence or possesses relevant documents. However, the court emphasized that this power is not automatic and requires sufficient basis to demonstrate the material relevance of the proposed testimony.
Justice Jaiteh held that the defence failed to provide any explanation of the nature of the evidence expected from each witness or how their testimony related to facts in issue. The court further noted that no supporting facts were presented showing that the individuals possessed relevant documents or other material evidence.
The court also observed that none of the proposed witnesses had given statements to police during investigations. While this alone was not disqualifying, it was considered relevant in assessing whether any connection to the case had been established.
Additionally, the judge noted that the accused himself made no reference to any of the five individuals during his testimony, and their names only emerged at a later stage without factual foundation.
Justice Jaiteh stressed that while an accused has the right to call witnesses in his defence, that right is not absolute and must be balanced against the proper administration of justice and protection of citizens from unnecessary compulsory court attendance.
The court described witness summonses as a coercive power that must be exercised cautiously and only where there is clear indication that the individuals possess material evidence relevant to the case. It warned against using the process as a “fishing expedition.”
The court further stated that the prosecution’s lack of objection did not relieve it of the duty to independently assess whether legal requirements had been met.
Having reviewed the application, the court concluded that it was not satisfied that the named individuals were capable of providing material evidence under Section 160 of the Criminal Procedure Act, 2025, nor that they possessed relevant documents.
The application was therefore refused.
Justice Jaiteh added that the defence may renew the application if it provides sufficient particulars regarding the expected testimony or evidence of the proposed witnesses.
The case has been adjourned to 30 June 2026