Published in FOROYAA of 14-17 June, 1999
HIGH COURT JUDGE ORDERS THE RELEASE OF SHYNGLE NYASSI
On Tuesday, 25 May, 1999, Momodou Lamin Nyassi alias Shyngle Nyassi was
abducted from his home and subsequent to our investigation, we were informed
by the authorities that, Mr Nyassi was not in the custody of the security
forces. This gave his abduction a clear criminal characteristic.
Furthermore, on Monday, 7 June, 1999, a writ of habeas corpus was filed at
the High Court by Wassa Janneh of Brikama seeking the immediate release of
Shyngle Nyassi from unlawful detention. This application was abortive as
the court ruled that Wassa Janneh was not the appropriate applicant and
consequently struck out the application.
On Friday, 11 June, 1999, a second writ of habeas corpus in respect of the
unlawful detention of Momodou Lamin Nyassi (Shyngle Nyassi) was again filed
at the High Court in Banjul against the Director General of the NIA, the
Inspector General of Police, the Attorney General and the Secretary of State
for the Interior, this time by the wife of Shyngle Nyassi, Tuty Badjie and
his daughter Hawa Nyassi.
The application was for the production of Shyngle Nyassi from detention
forthwith. The affidavit of 15 pages supporting the writ accused the
defendants of conspiracy and abduction of the detainee.
PROCEEDING OF 11 JUNE 1999
The presiding judge was Justice Yahya. The applicants were represented by
Lawyers Ousainou Darboe and Mariama Denton, while the defendants were
represented by Mr M.F. Lana, Mr Wowo Joseph and Mr Yacub.
MR DARBOE'S SUBMISSION
In his submission, Mr Ousainou Darboe applied to the court for one Sukuta
Jammeh, a senior detective of the NIA to be called in order to be cross
examined. He told the court that Mr Sukuta Jammeh had that morning of 11
June 1999 served on him a counter affidavit.
In making the application for Sukuta Jammeh to be called, he relied on Order
25, Rule 24 of Schedule II of the Rules of the High Court which states: +ACI-In
addition to or in lieu of affidavits the court may, if it thinks it
expedient, examine any witness viva voce, or receive documents in evidence,
and may summon any person to attend to produce documents before it or to be
examined or cross examined before it in like manner as at the hearing of a
suit.+ACI-
Mr Darboe noted that paragraphs 7 and 8 of the affidavit of Shyngle Nyassi's
family affidavit contains the statement of one Tata Camara, the chair woman
of Janjanbureh UDP branch who was released from detention on 30 May, 1999.
According to the said paragraphs, Tata gave information that she saw Shyngle
Nyassi with a bucket on his way to fetch water in the morning of 30 May,
1999.
Mr Sukuta Jammeh, in paragraph 6 of his affidavit, Mr Darboe noted, refuted
the allegations of Tata Camara that she saw Shyngle Nyassi at the NIA. Mr
Darboe also relied on the Evidence Act in his application.
MR LANA'S SUBMISSION
In opposition to the application, the leading counsel for the defendants, Mr
Lana submitted that the application be struck out because paragraphs 7 and 8
of the applicants' affidavit are hearsay. He emphasised that Tata Camara was
not before the court. He said further that the application had not
established any case and that there was no need to call anybody just to be
cross examined.
THE REPLY
In the reply cited, Part 5 of the Evidence Act 1994, in particular sections
91 and 92.
RULING
The presiding judge, Justice Yahya, made a ruling on the application by Mr
Darboe for Mr Sukuta Jammeh to be called to give oral evidence.
In the ruling, he noted that the fact that paragraph 6 of Sukuta Jammeh's
affidavit is opposed to paragraphs 7 and 8 of the family's affidavit, he
went on to say that the application was perfectly in order. He said,
therefore, that it would be very difficult to reconcile the two affidavits
without calling for Sukuta Jammeh to give oral evidence. He, therefore,
ruled that Sukuta Jammeh be called to give oral evidence. He consequently
ordered that Sukuta Jammeh appear in court within 15 minutes to be cross
examined.
APPLICATION TO CALL OTHER WITNESSES
After the ruling, Mr Lana also applied to the court for Tuty Badjie and Hawa
Nyassi to be called in the witness box.
The presiding judge sought Mr Dartboe's opinion and he said that he had no
objection to that application. He, however, further applied for Tuty Badjie
and Hawa Nyassi to be first examined. In response, Mr Darboe argued that
they were the applicants and the law requires them to cross examine first.
The presiding judge concurred.
At this point, the court stood down for fifteen minutes to enable Sukuta
Jammeh to give evidence.
CROSS EXAMINATION OF SUKUTA JAMMEH
Q: Your names are Sukuta Jammeh?
A: Yes.
Q: And you are a senior detective NIA?
A: I am a senior detective of an agency.
Mr Darboe complained of lack of direct answers to his questions and the
judge warned the witness. Cross examination continued:
Q: And you are a senior detective of the NIA?
A: Yes.
Showing Mr Jammeh his affidavit, Mr Darboe asked:
Q: Are you the one who swore to this affidavit?
A: Yes.
Q: You have contact with everybody arrested and brought to the NIA?
A: All those brought to the section where I work.
The presiding judge intervened to say: Look Mr Jammeh, we know that there
are various sections in the NIA+ADs- in which one do you work?
A: I work in the Investigation Section.
Mr Darboe continued:
Q: Are there other sections?
A: Yes.
Q: What about those brought to your section?
A: Anybody who is arrested and brought to my section.
Q: Have you been to Janjanbureh between August 1996 and 24 May, +AGA-1999?
A+ADs- I have never ever in my life been to Janjanbureh.
Q: Who is the chairwoman in Janjanbureh?
A: Tata Camara.
At this stage, the witness was given the affidavit of the applicants and
asked to read paragraphs 7 and 8 which he did. He was then given his own
affidavit and asked to read paragraph 6 which he also did. He was then asked
whether what was stated in paragraphs 7 and 8 were untrue.
A: I do not deny them.
Q: Do you know the leader of the UDP?
A: Yes.
Q: Do you know his residence?
A: Yes.
Q: Where is it?
A: Kairaba Avenue.
Q: Did you visit his residence on 30 May....
A: No, I was not there on that date.
RE-EXAMINATION
Q: Did you say anybody who is arrested and brought to the NIA is brought to
your section/
A: Yes.
Q: Was Momodou Lamin Nyassi ever arrested by the NIA and brought to your
section?
A: Not to my knowledge.
When the presiding judge repeated the question, he said 'no'.
No more witnesses were cross examined and both counsels proceeded to argue
their cases.
MR DARBOE'S SUBMISSION
Mr Darboe said that the applicants came to the court under section 17, 19
and 37 of the Constitution+ADs- that a fifteen page affidavit sworn to by the
family - his wife Tuty Badjie and his daughter Hawa Nyassi - supporting the
application alleges that it is the four defendants who jointly abducted
Shyngle Nyassi and is under their custody to be released forthwith.
Mr Darboe went further to say that Decree No. 45, which establishes the NIA
stipulates that it is the Director General of the NIA who is given
recognition and not Sukuta Jammeh who is only a senior detective. He also
said that section 191 (2) had also recognised the same. He then pointed out
that Sukuta Jammeh in his testimony did not deny paragraphs 7 and 8 which he
denied in paragraph 6 of his affidavit. He finally submitted that the
abduction of Shyngle Nyassi was illegal and unconstitutional and that the
court should make an immediate order for his release by the defendants.
MR LANA'S SUBMISSION
Mr Lana noted that the applicants indicated in paragraphs 2 and 3 of their
affidavit that about 1.30 a.m. on 24 May 1999, some unknown people abducted
Shyngle Nyassi and took him away. He noted that whoever must have done the
act are serious criminals.
He cited section 144 (1) of the Evidence Act and pointed out that the
applicants have to prove beyond reasonable doubt who the abductors are. He
further cited section 37 (5) of the Constitution and section 16 of Decree 45
and submitted that the applicants only made an early report to the police
but that when they got the information from Tata Camara they did not even
bother to make a report to the NIA.
He called for the striking out of the application for lack of proper
procedure.
At this stage, the matter was stood down till 5.30 p.m. for ruling.
RULING
In his ruling, the presiding judge said that the names of the three
defendants - Inspector General of Police, Attorney general and Secretary of
State for the Interior should be struck out of the case as the applicants
did not produce any evidence of their connection of the said abduction and
detention of Shyngle Nyassi. He said further that the mere fact that Tata
Camara who was a detainee at the NIA said she saw Shyngle Nyassi at the NIA
on 30 May, 1999 cannot be denied.
He noted that people do not go to the NIA for social reasons+ADs- that the
evidence of Sukuta Jammeh had gone to confirm that because he did not deny
paragraphs 7 and 8, but only said that only people who are arrested and
brought to his section are the ones he had connection with, there was the
possibility of his presence at the NIA not yet ready to be arraigned before
his section.
He said that the only man who is mandated by Decree No. 45 and section 191
of the Constitution is the only one who can answer the question of Mr
Nyassi's presence at the NIA.
Section 191 (1) of the Constitution stipulates +ACI-There shall be a National
Intelligence Agency which shall be under the command of the President.+ACI-
He said that section 230 and 231 of the Constitution cited by Mr Lana are
not the issue+ADs- that the issue is constitutional as relied on by the
applicants in section 19 of the Constitution. He said he is with the
conviction that Shyngle Nyassi is at the NIA and he immediately ordered for
his release forthwith. He said that the best way would have been to arraign
him before the law.
In his concluding remarks, Justice Yahya called on civil servants to desist
from taking the law into their own hands. He said that it is such which
easily turns society into disarray which is not in the interest of any
citizen+ADs- that those serving the state should all try at all time to fear the
Almighty God and do their duties in the interest of all which guarantees
peace and stability for all of us+ADs- that it is only this way that we can turn
this world into a heaven.
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