Joe,
Reading this cross-examinations, one has the feeling that Malick Njai was on
trial. Although I am not as wise as these lawyer guys, but I simply cannot
understand why the PP (and the Judge)  allowed Malick Njai to be treated as
if he were "in the dock". Baba Jobe is the culprit here. Baba Jobe is the
one who imported goods and tried to use his political standing to bypass all
legal procedures. Baba Jobe is the "Sachakat" in court. Why should the court
spend so much time on the integrity of a witness who is testifying against
such a criminal?
There is something definitely rotten in the state of the Gambia.

Prince

----- Original Message -----
From: "Joe Sambou" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Friday, February 06, 2004 11:16 PM
Subject: BABA JOBE'S TRIAL - Part 9


BABA JOBE'S TRIAL

Part 9

In the last issue we ended with the examination-in-chief of Mr Mboge, the
former Director General of Customs. We now proceed with his
cross-examination by Mr Jobarteh.

Cross-Examination of Mr. Mboge By Mr Jobarteh

Q: Did any of your staff complain about such an irregular way of taking out
goods?
A: Yes, the principal collector at Banjul seaport complained on several
occasions that even in the night sometimes he will be called at home that
YDE was off loading a cargo.

Q: Was this normal for other importers?
A: No.

Q: Why?
A: I do not know.

Q: Do you know why your officers were not preventing that irregularity in
collecting goods?
A: I have said here that the principal collector has on several occasions
complained that they encounter a lot of problems with most of the
importation of YDE. That they would start collecting goods without the
knowledge of customs and each time I call Baba to make available to us all
the entries. I also try to explain to him the correct customs procedures of
claiming goods and all the time he would say that he is trying to see with
the higher authorities to regularize things.

Cross-Examination By Jobarteh

Q: Mr. Mboge, will you be surprised to know that Exhibits O and P (duty
waivers) are from the defence and exhibited here?
A: Yes.

Q: So your comment would not be founded on them?
A: Yes.

\Q: Would you also be surprised that the copies were later found in your
former department files?
A: Yes.

Q: Since they were found in your files and the fact that you did not see
them that, is not a problem of YDE?
A: It should be the problem of YDE because they are the importers.

Q: Mr. Mboge, where a correspondence is sent to you from your state
department how would that be the problem of YDE for its lack of reaching
you?
A: It is the problem of YDE

Q: Is it not the responsibility of the SoS finance to give duty waivers?
A: Yes.

Q: And government can waive duties on any goods it deems fit?
A: Yes, that is correct.

Q: Is it also that same government that knows why they issue YDE with duty
waivers?
A: Yes, in as much as government has powers but customs too have its
procedures.

Q: Mr. Mboge, is it correct that the powers to release goods with or without
discretion is within the powers of the DG?
A: Yes, that is correct.

Q: Is it correct that other sister agencies play a role in goods delivery?
A: Yes.

Q: Is it possible that any importer or an agent can take out goods without
the knowledge of those officers on the ground?
A: No.

Q: Did Mr. Jobe ever tell you that he had been acting in the way he had been
because of disregard for your authority?
A: No.

Q: Mr. Mboge, you were actually convinced that Mr. Jobe was going to produce
all the necessary waivers?
A: In September 2003 I can remember calling Mr. Jobe in my office to make
available all duty waivers or pay. He had promised that where he was not
able to produce all the waivers, then he would pay.

Q: Is it correct that YDE had at no time showed refusal to pay?
A: As I have said, at any time Mr. Jobe is contacted on the matter he would
say he was planning to bring all documents. Then in September 2003 he said
that if he is unable to have duty waivers he would come up with plans to
pay.

Q: Is it correct that all the manifests left open will be found in the
internal audit section as outstanding duties?
A: Here I have to give an explanation, it would be difficult since all the
documents such as entry forms and invoices are absent.

Q: And as a result all that is said to have been outstanding for YDE can be
open to negotiation to pay?
A: Yes.

Q: Have you ever negotiated for the payment of D8 million in the presence of
one Veronic Edwards in which a payment of D500,000 was executed?

A: I cannot remember.

Q: Can you tell the court customs procedure on duty waivers?
A: When they come from finance to the customs and let's say they deal with
the core of customs procedure we attach the applicant's application and
invoice to it. Then it is sent to the seaport for examination, where a
certificate is attached and then goods are delivered. After this the
documents are sent to the internal audit for filing.

Q: What do you do with a duty waiver before that procedure is executed?
A: When they come we make sure it contains the entry showing the importer,
the description of goods and there is attached an entry form indicating the
title of the duty waiver, date, quantity of goods and it must show why the
goods are exempted from payment of duty.

Q: Would a mere issuance of a duty waiver without customs completing the
acceptance procedure hold, so that duty is waived?

A: No, since the manifest will still be open.

Q: Do you know how many duty waivers finance issued in this case?
A: No.

Q: Does the importer have the duty to inform you of duty waivers?
A: Yes, but finance sends all duty waivers to us.

Q: Shown Exhibits O and P and asked if he had seen them before?
A: No.

Q: In customs how do you show that a duty waiver is accepted?
A: Reference of the entry form and manifest number has to be quoted on the
face

The final witness, Mr. Malick Njai, the Senior Collector at the Banjul
Seaport during the time the transactions occurred, was now called to
testify.

Evidence of Malick Njai

Q: Your names are?

A: Malick Njai.

Q: Where do you live?

A: Kanifing Estate.

Q: Occupation?

A: At the moment I am not working. My services have been terminated.

Q: When?

A: 26TH September 2003.

Q: What position?

A: Senior Collector

Q: Posting?

A: Banjul Seaport.

Q: How long did you hold the position?

A: Over three(3) years.

Q: How long have you been with customs?

A: 27years and 10months.

Q: Do you know the first accused?

A: Yes.

Q: Who is he.

A: Hon. Baba Jobe.

Q: How do you know him?

A: He is a politician and businessman running YDE and he comes to collect
the imported goods for YDE.

Q: For how long?

A: Since 2001.

Q: What type of goods?

A: Imported e.g., Rice, sugar, flour, cooking-oil and onions.

Q: For who?

A: YDE.

Q: Has he been paying for duties?

A: No.

Q: How comes he was not paying for duties?

A: At the beginning Mr. Jobe came to the port with his clerks. They had no
single entry forms and no other customs documents. The juniors brought it to
my notice. Then he had already loaded his trucks and some of them had left
the port. When I asked the officers they said Mr. Jobe had no documents that
could allow them to attend to him. I tried to contact Mr. Jobe but because
some of the trucks had already left I was not able to talk to him. I then
contacted the Director General at the time, Mr. Mboge if he was aware and he
said no. He advised that we should not allow any of the goods to go out.
Then later when Mr. Jobe came in again, the second day I asked for his
documents on the consignment. He told me that they are being prepared and
that when they are ready he will bring them. I allowed him since the
offloading of the cargo was going to take 5 days. After I realized that he
was not complying, I stopped the loading and the trucks from leaving the
port.

When he came he asked me . I said by procedure the goods should not leave
the port without documents that would ensure duty payment. Then Mr. Jobe
started to threaten me by saying that if I don't mind I would lose my job. I
then called the DG who asked me to allow him and he will bring the document,
which I did.

Q: Did he bring them?

A: Yes.

Q: How many times was this happening?

A: Many times.

Q: Can you give examples?

A: There was an instance when he went to the gate to dispatch all his trucks
saying the officials did not allow him and he would see the higher
authorities. I must say that Mr. Jobe has no regard for the customs
procedure.

Q: What are your duties as Senior Collector at the Seaport?

A: To see to it that goods are collected when all the required documents are
produced to ensure duty payment.

Q: How are goods delivered by direct delivery?

A: The single entry form has to be completed and attached to the application
of the importer and the approved of DG before goods are released.

Q: Did they ever produce such documents?

A: No.

Q: Were they able to produce cargo manifest?

A: No, because single entry forms were not completed at the time.

Q: How were your relations with the first accused?

A: Not cordial. It reached a time he bypassed me and talked to the DG and
when he comes to the port to collect his goods when I ask him he will tell
me talk to your DG.

Q: Can you remember some of his threats?

A: He had told me on many occasions that I was too small to stand in his
way.

Q: Did you tell your boss

A: Yes.

Q: What had he said on it?

A: He had asked me to take care of him ; that any time he comes to collect
his goods and does not have the documents that I should refer it to his
office.

Q: Were you ever shown any duty waiver for YDE?

A: No.

Q: Why were the customs officials not able to put the situation under
control even at the point of lack of proper documents?

A: Because Mr. Jobe later sidelined us and instead of dealing with us on the
ground at the port he was dealing with the Director.

At this stage the DPP showed the witness copies of letters from Finance and
a letter from Customs which was enquiring about duty waivers. The one from
Finance was showing confirmation that they were from them. The DPP applied
to tender them. Mr. Gomez objected on the grounds that the documents do not
form part of the list of exhibits that were to be tendered. The DPP for his
part claimed that investigations in a criminal trial are an onward process
until judgement. The DPP had cited the rule of procedure 175 on substantial
justice while Mr. Gomez relied on section 24 of the Evidence Act. The trial
judge in his ruling overruled the objection on the stand of the DPP.

Q: What are they?

A: One is letter from the Customs and the other from Finance.



CROSS EXAMINATION OF MALICK NJAI BY LAWYER JOBARTEH

Q: Mr. Njai, when were you first appointed Customs Officer?

A: In November 1975.

Q: Were your services ever terminated?

A: Yes, in 1995, I was suspended.

Q: Was that the only time?

A: Yes, my lord.

Q: I put it to you Mr. Njai that you are very good in fabricating stories I
will tell you why.

A: No, Sir.

Q: Can you tell the court why you were suspended in1995?

A: I do not know. All I know is that I was given a form by the Assets
Commission of Enquiry to fill which I misplaced but was later filled.

Q: Is it not correct that you later appeared before the commission of
enquiry.

A: Yes, after for six months.

Q: Is it not correct that you were found liable to have been living a life
which was above your earning capacity and as such all your assets were
frozen? Councel Jorbateh added in fact you are very corrupt?

A: Not true, my lord.

The DPP at this point raised an objection that the issue of a commission
report has no connection to the case at hand; that if Counsel Jobarteh wants
to make it an issue a proper foundation had to be laid. He cited sections 79
and 101 subsection (2) of the Evidence Act, noting that the report of the
commission is a court record and therefore if the defence wants the court to
see it the best they can do is to refer the court to it during their
address. Counsel Jobarteh in his reply submitted that the citation by the
DPP are irrelevant; that in fact section 79 which was cited by the DPP if
anything is in their interest. As Jobarteh tried to read the section trial
judge intervened by overruling the question and advised Mr. Jobarteh to
reframe his question.

Q: Is it also correct that you also appeared before the commission on the
former Auditor General's Report 1994-1998.

A: Yes.

Q: What was the conclusion of that commission on you?

A: I was to be transferred to another department.

Q: And what else?

A: Witness silent, followed by general laughter in the court room.

Counsel Jobarteh again put it to the witness, Malick Njai, that the
conclusion was that he be transferred to another department or demoted.
Secondly, that Mr. Njai was termed as incompetent and highly corrupt.

The DPP again rose to object. The trial judge overruled the question . The
leader of the defence team indicated that the action of lawyer Jobarteh is
due to the way the witness concluded his evidence in chief, which Mr. Gomez
said was very defamatory.

Q: Mr. Njai, is it not correct that there was more to ordering your transfer
than there was for your demotion?

A: Yes, but if I may add the action on report of the commission was as a
result of a junior officer who had mismanaged counterfoils at the Airport at
the time.

Q: May I put it to you despite what you have just said, the commission had
labelled you as an incompetent officer.

A: No.

Q: After the Assets Commission, did anything happen to you?

A: Nothing.

Q: Were your assets not frozen?

A: No, my lord.

Q: Mr. Njai, is it not correct that you were written to come up with payment
plans so as to have your assets?

A: Yes, I was written to and my assets were returned but there no indication
of payment plans.

Q: How many assets were frozen from you?

A: My compound at Kanifing Estate and two plots?

Q: Mr. Njai, is it because of your desire of living above your earnings,
which you could not have from Baba Jobe and their agents that is why you
lead an evidence of fabrication?

A: That is not correct.

Q: Did you ever carry out any transactions on YDE?

A: Yes.

Q: Why then did you say YDE never produced customs documents and that the
first accused, Baba Jobe had no regard for customs regulations?

A: I did not say that.

Lawyer Jobarteh remarked very good. Shown exhibits B and W and asked if YDE
had not complied with the customs regulations.

A: Yes, they did but added that they did not contain the contain the
signature of the Principal Collector.

Q: Who approved that direct delivery?

A: The DG.

Further shown exhibit Y in which Mr. Njai himself minuted inspect and
deliver, on which the DG first approved and asked is that your writing?

A: Yes, but this was in 2002. We are talking about 2001.

Further shown exhibit Y2 in which the witness repeated the same remarks and
asked, did you not write that too?

A: Yes.

Q: Which year was that?

A: 2001.

Q: Could all these happen after and during delivery?

A: No.

Q: Mr. Njai, I put it to you that your claim of threats on you by Baba Jobe
are mere fabrications?

A: Not correct.

Q: Mr. Njai, on the pose of threat against you at the port where there not
police officers, ports security officers, Army officers, and the personnels
posted to the port like you?

A: Yes, they were.

Q: And all the gates were manned by those security units?

A: Yes.

Q: Mr. Njai, who is Baba Jobe on the face of the earth to disregard all
those security units and forcefully carry out goods without being
interrupted?

A: As for us, security officers we were never satisfied with the way he did
things.

Q: But in any case, is it correct that cargoes cannot leave the port yard
without pass.

A: Yes.

Q: Who issues the pass.

A: The ports.

Q: Is it not correct that the gate pass is issued after all necessary
transactions are carried out?

A: No, as soon as the port duty is collected.

Q: Did you ever report the threats of Baba against you to any of those
members of the different security units?

A: No.

Q: What about to your line ministry of finance?

A: No.

Q: Did you ever make a written report to the Director General?

A: No.

Q: Finally, Mr. Njai you are very good in fabricating stories?

A: Not correct.

Cross examination by Edu Gomez

Q: Mr. Njai, were you terminated or dismissed?

A: I was terminated.

Q: Is it not correct that the way you lead your evidence is for you to get
back to your job?

A: No.

Q: Were you not aware of rice being ordered into the country by the AFPRC
government during the two year transition period?

A: Not to my knowledge.

Q: I put it to you Mr. Njai that contrary to what you said , you were
dealing with Buba Senghore and Buba Baldeh and not Baba Jobe in person?

A: Like I said Baba Jobe comes to the port with his clerks including Buba
Senghore. For Buba Baldeh he came into the issue first at the latter part of
2003. But Baba sometimes came along and when he makes all the necessary
arrangement that is the time Buba Senghore alone would come instead of with
Baba Jobe.

Cross examination by L. K. Mboge

Q: Mr. Njai, in your evidence in chief you told the court that YDE had never
paid customs duties for the goods they imported. Would you term this alleged
unpaid duties as outstanding?

A: Yes, it is correct. It is outstanding.

Q: Is it correct that YDE could not have taken goods out of the port without
the customs' acknowledgement?

A: Yes. I didn't say that they clear their goods without customs'
acknowledgement. What I said is that they clear YDE goods without customs
documents.

Q: Were you the only customs officer at the port.

A: No.

Q: So is it not possible that other officials could deal with them without
your knowledge?

A: Yes.

Q: Where is your office at the port?

A: The container garage at the dockyard in the same compound without a
fence.

Q: Is it possible to know what is happening at the seaport?

A: There is no fence. It is all one compound.

Q: How many times did you have an encounter with the first accused?

A: I cannot remember.

Question repeated. The DPP intervened by saying he said he cannot remember.
The trial judge said ok now it is the court asking the witness. How many
times or at least how many times.

A: At least a dozen times.

Q: I put it to you that all your encounters were with the clearing agents
and other agents of YDE and not Baba Jobe in person?

A: Not correct.

Q: I put it to you Mr. Njai that on your claim that Baba Jobe comes to the
port to clear YDE goods without dealing with you is not correct?

A: It is correct.

At this stage, the prosecution rest its case. The case was then adjourned
till today for the defence to present their case.

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