The Court said it is a computer generated evidence and therefore, must satisfy the rules of admissibility contained in the Evidence Act.
The defamation trial involving Abubacar Jawara (businessman) against Momodou Sabally (politician) proceeded before the High Court Annex in Banjul on Tuesday, 17th January 2023.
The business tycoon, Abubacar Jawara sued Momodou Sabally, the Campaign Manager for the United Democratic Party claiming the sum of eight million dalasis for statements made against him. Jawara, who is the Chief Executive Officer of the Gambia Angola China Holding (GACH), asked the court to order Sabally, a former Presidential Affairs Minister, Secretary-General and Head of Civil Service to make an unreserved apology to him.
The case came before Justice Bakre of the high court. Lawyer Ida Drammeh appeared for Momodou Sabally while Lawyer Abdoulie Fatty appeared for Momodou Sabally.
Lawyer Drammeh informed the court that she had received Sabally’s statement of defence containing 43 paragraphs. She stated that she will be challenging the statement of defence as some of the paragraphs are unnecessary and long. She submitted that some of them should be struck out.
Justice Bakre said he did not read the statement of defence yet, but he mentioned that lawyers should not mystify things. The Judge says such statements should only contain facts and law. He suggested to Lawyer Fatty to reconsider the statement or the court may strike out some of the provisions when necessary.
The presiding Judge suggested to the lawyer asked Fatty if he would reconsider his statement of defence or if he (the judge) would strike out some paragraphs when he deems it unnecessary.
In his response, Lawyer Abdoulie Fatty said he was familiar with court processes as he argued that the law provides that a statement has to contain facts. He submitted that the matter before the court is defamation arguing that Sabally has the right to file his defence anyhow as far as it is factual. Fatty pointed out that defamation is serious and they have to be careful in what they present in their defence.
At this point, Lawyer Ida Drammeh informed the court that she will formally apply to challenge some of the paragraphs contained in the statement of defence.
Justice Bakre asked the two parties to enter a pre-trial hearing. Counsel Drammeh informed the court that they have eight (8) documents that they wished to tender in the case including a warning letter to Momodou Sabally, WhatsApp audios, a printout of Facebook postings and the transcriptions of the audio in English.
Lawyer Fatty informed the court that they will be objecting to evidence the plaintiff is relying on.
Lawyer Drammeh tendered a warning letter dated 01st February 2021 written by Lawyer Neneh Cham to Momodou Sabally. Lawyer Fatty did not object to the admissibility of the document and it was admitted into the records and marked as exhibit PF1.
Senior Lawyer Drammeh went on to inform the court that they have four (4) audios with their transcriptions in the English language that she wants to tender. Copies of the transcription of each of the audios were given to the defendant’s lawyers and the judge.
The first audio amongst the four was played in the court and a man named Saibo Hydara was heard in the audio threatening Jawara if he tries to sue Momodou Sabally in court and claim to expose his criminal activities. Lawyer Fatty objected to its admissibility. The court upheld the objection and rejected the audio for not fulfilling the requirements of sections 22, 23 and 25 of the Evidence Act referring to computer-generated evidence. The Judge ruled that the audio should have been accompanied by a certificate.
However, the audio transcription of the audio was admitted and marked as PF2 while the audio of the Whatsapp voice note was rejected.
The remainder of the audio and other documents would be tendered during the hearing and the court will decide on their admissibility.