Meanwhile, the defense counsel, Francis B Kaifala made a ‘No case Submission’ based on the point that the prosecution failed to prove their case as evidence before the court is insufficient to indict his client to high court.
Addressing the court on the ‘No case Submission’, F B Kaifala argued that the matter before the court concerns the infringement of public morality and even at the stage of preliminary investigation the prosecution has the burden to prove that they have sufficient evidence to prove each of the elements in respect of the offences for which the accused person was being investigated.
Defense counsel said the prosecution has failed to prove their case because evidence before the court does not substantiate their claim, noting that his first point to justify his claims was that there is a difference between what is stated in the affidavit and exhibit annexed to the affidavit, maintaining that his client swore that he was divorced. “The prosecution has not brought before the court any evidence to controvert that fact, that is, the accused did divorced, what they did was to contradict their own case.”
He said the court noted that exhibit N1-11 presented in court does not state anything about divorce as it was confirmed by PW3 during cross examination and that is the very order the prosecution relies on, he noted.
He also mentioned that the prosecution presented to the court M150-M13, an order from the USA which does not state anything about divorce which PW3 confirmed during cross examination, noting that prosecution relied on the order as their case against the accused.
“My client made an oral submission pronouncement.” He told the court that the prosecution did not provide the court with any transcript from Will country court in the USA and this creates doubts in prosecution’s case and therefore urged the Magistrate to discharge the matter.
He cited the 37th edition of Archibald Criminal pleading evidence and practice which clearly set out the premises of bigamy, stressing that there is no evidence before the court with regards the identity of the parties, that is, Alie Kabba and Edith Clime Kabba, stating that prosecution should have identified her either by person or photograph and also the celebration of the first marriage. He also notified the court that prosecution failed to ascertain the validity of the first marriage, whether the time of the second marriage between Diana and Alie Kabba, the first marriage was subsistent.
The elements of bigamy, according Archibald, was not proven in court and exhibit N1-200, he continued, is not all the records of Will country court and certain significant documents are omitted in the one submitted as exhibit. He also told the court that the time the accused was charged the investigation was inconclusive and the accused was not given ample time to provide relevant document relating to the charges.
However, the prosecution led by police prosecutor ASP Tommy Zizier objected to the discharge of the matter but urged Magistrate Wurie to commit it to high court.
With the assistant of associate prosecutor, Fatmata Sorie, Zizier argued that prosecution discharged evidence via witnesses and exhibits and the element before the court is clear that the accused was married to his former wife at the time he was marrying the complainant.
The matter continues on 20th January 2016.