The High Court Annex in Banjul, presided over by Justice Akinbiyi, admitted a downloaded audio recording of an interrogation session as evidence in the civil suit brought by Yahya Beray Jammeh and two others against the Gambia Armed Forces and two other defendants, ruling that the recording was properly pleaded, sufficiently relevant, and admissible under the Evidence Act.
Justice Sonia Akimbiyi’s ruling came from an objection by counsel for the plaintiff, S.K. Jobe, who challenged the defence’s attempt to tender the recording through its fifth defence witness, DW5, during a virtual hearing of that witness’s evidence.
The case was brought by Yahya Beray Jammeh, Abdoulie Jarjue and Yaya Jammeh against the Gambia Armed Forces, the Ministry of Defence and the Attorney General for fundamental rights over wrongful conviction and forced retirement
The recording at the centre of the ruling forms part of the evidence in the constitutional and fundamental rights lawsuit brought before the High Court by three former soldiers. The action, filed under Sections 19 and 33 of the 1997 Constitution, Order 27 of the Rules of the High Court, and the inherent jurisdiction of the court, names the Gambia Armed Forces as first defendant, the Ministry of Defence as second defendant, and the Attorney General as third defendant.
According to the Statement of Claim filed by the plaintiffs’ Counsel, Sheriff Kumba Jobe, all three plaintiffs were career soldiers with long and previously unblemished service records.
The first plaintiff, Yahya Beray Jammeh, joined the Gambia Armed Forces in May 2006, while the second and third plaintiffs, Abdoulie Jarjue and Yaya Jammeh, were both enlisted in September 1995 and rose to the rank of lieutenant over more than two decades of service.
The plaintiffs say that in 2017, false allegations were made against them, accusing them of plotting to overthrow the democratically elected government of President Adama Barrow. The first and third plaintiffs were arrested on 22 July 2017, and the second plaintiff on 7 July 2017.
They were detained and investigated from July 2017 until 17 November 2017, when they were arraigned before the General Court Martial on charges including treason and mutiny, without ever being granted bail.
The Statement of Claim alleges that throughout this period, the plaintiffs were held for more than 72 hours without being brought before a court, denied access to family visits, and not informed of their right to consult a lawyer.
They pleaded not guilty when arraigned, but on 24 May 2019, the General Court Martial convicted and sentenced them, also ordering their dismissal from the Gambia Armed Forces with disgrace. The Defendants are said to have acted on that order and terminated the plaintiffs’ service.
On 21 December 2020, the Court of Appeal unanimously acquitted and discharged the plaintiffs on all counts, quashing their convictions and sentences. The plaintiffs say that despite this, their attempts to be reinstated into the Gambia Armed Forces were unsuccessful.
By letters dated 5 August 2021, the Ministry of Defence instead informed them that the President and Commander-in-Chief had reinstated and then immediately retired them from the force.
The plaintiffs contend that this forced retirement was unreasonable and discriminatory, arguing it was triggered solely by the same arrest, prosecution and conviction for which they had already been acquitted.
They further allege that co-accused soldiers who were similarly charged but acquitted by the General Court Martial were not retired and remain in active service, amounting to unequal treatment. The Statement of Claim says the ordeal caused the plaintiffs and their families physical, psychological and economic suffering over more than three years.
The plaintiffs are seeking a declarations from the High Court: that their pre-trial detention without being brought to court within 72 hours violated Section 19 of the Constitution and corresponding provisions of the African Charter on Human and Peoples’ Rights, the International Covenant on Civil and Political Rights, and the Universal Declaration of Human Rights; that their arrest, detention and prosecution without sufficient evidence was unlawful and arbitrary; that their compulsory retirement was based on the quashed conviction; and that the retirement decision was discriminatory under Section 33 of the Constitution.
In terms of remedies, the plaintiffs are asking the court to order the defendants and the Government of The Gambia to jointly and severally pay D15,000,000 (fifteen million dalasis) in general damages and compensation, alongside D200,000 (two hundred thousand dalasis) in legal and administrative costs, plus further orders and costs as the court deems fit.
It is against the backdrop that the evidentiary ruling on the admissibility of DW5’s interrogation recording takes on significance, as the defence appears to be relying on records from the original 2017 investigation to resist the plaintiffs’ claims.
Counsel Jobe challenges the admissibility of the recording. First, he argued that the flash drive sought to be tendered within the statutory definition of a “document” under Section 2 of the Evidence Act, making the original recording, not a downloaded copy, the primary document that must be presented. He submitted that, in law, it is the primary document that is admissible.
Second, Jobe argued that while the Evidence Act provides for the admission of secondary evidence, only a certified true copy qualifies under that provision.
Third, he contended that because the content originated from a State investigation, the recording constituted a public document, and only a certified true copy of such a document would be admissible.
Fourth, and most technically, he invoked Section 22 of the Evidence Act, which governs computer-generated evidence, arguing that its conditions had not been satisfied in relation to the recording.
Counsel Jobe further submitted that the recording had not come from the custody of any State institution and that the witness had not demonstrated authority to keep a public document, rendering its accuracy, authenticity, and reliability seriously compromised. He urged the court to reject the tender.
In reply, Counsel A.A. Wakawa for the defence grounded his submissions on the general admissibility framework in Section 3 of the Evidence Act, which provides that all evidence sufficiently relevant to an issue before the court is admissible. He pointed out that the witness had pleaded the recording on grounds of relevance.
On the secondary evidence point, Counsel Wakawa cited Section 98(2), which provides that where a document is executed in the counterpart, each part constitutes primary evidence and Section 99(b), which classifies copies made from the original and compared against it as secondary evidence.
He also invoked Section 101, which allows secondary evidence to be admitted where the original is in the possession of the adverse party or where it is lost or not retrievable.
Counsel Wakawa challenged the characterisation of the recording as computer-generated evidence, arguing that the objection on that ground was misconceived. He submitted that computer-generated evidence, properly defined, refers only to calculations or outputs derived from computer processes, not audio recordings.
He further argued that even if Section 22 were applicable, his client had complied with it. In support, he cited the Nigerian authority of Oluwarotimi Akeredolu SAN & Anor v. Rahman O. Mimiko & Ors (2013) LPELR 20532 (CA), which holds that compliance with Sections 22 and 99(b) and (c) is sufficient to admit and prove electronically generated evidence. He also relied on Dickson v. Sylvas & Ors (2016) LPELR.
On the custody question, Counsel Wakawa submitted that DW5 was an officer of the Gambia Armed Forces at the time the recording was made and had kept it in safe custody until his resignation, noting that the witness was a Captain who had since retired. He further drew the court’s attention to the persuasive authority in State v. Ousainou Bojang & Ors on the definition of computer-generated evidence.
Justice Akimbiyi, in her findings, noted that there was no dispute between the parties that the recording was both pleaded and relevant; the contest was solely on admissibility. She surveyed the relevant statutory framework at length.
Justice Akinbiyi reproduced the full text of Section 22(1) and (2) of the Evidence Act, which provides that a statement in a document procured by a computer is admissible subject to conditions relating to the computer’s regular use, the regular supply of information to it, its proper operation during the material period, and the derivation of the statement from that information.
Justice Akimbiyi also set out Section 99’s categories of secondary evidence, including certified copies, mechanically reproduced copies compared with the original, and counterparts and noted that Section 100(C) permits secondary evidence to be tendered when the original has been destroyed or lost, and all possible searches for it have proved fruitless.
Justice Akinbiyi observed that the prosecution, referring to the defence in context, had tendered the recording through DW5, who had taken care to lay the proper evidentiary foundation as required under Section 22, detailing step by step the manner in which the recording was obtained and attesting to the authenticity and dedication of the computer system used in its generation.
Justice Akinbiyi further found that counsel for the defence had complied with Sections 99(b) and (c) as regards secondary evidence, and aligned with the Akeredolu authority that such compliance is sufficient to prove electronically generated evidence.
Justice Akimbiyi did note one outstanding concern: Section 100(C) conditions the tender of secondary evidence on the primary evidence being destroyed or lost and all possible searches having been made for it to no avail. While Justice Akinbiyi found the point to be worrisome, she ultimately concluded that it was sufficient for admissibility purposes as evaluated on the materials before her.
On that basis, Justice Akinbiyi found the recording to be pleaded, relevant, and admissible. The objection of Counsel S.K. Jobe. was discountenanced, and the recording was admitted and marked as Exhibit AWW. Justice Akimbiyi indicated that further findings would be made at the judgment stage.
