14 November 2012

Gambia: Two Former NDEA Officials Freed

The Principal Magistrate of the Brikama Magistrates' Court, Hilary Abeke acquitted and discharged two former NDEA officials, Jerreh Jarju and Samba Camara of all five charges preferred against them.

The duo were arraigned on five count charge of official corruption, public officers receiving property to show favour, abuse of office, conspiracy to commit misdemeanor and destroying evidence contrary to the Criminal Code of the Laws of The Gambia.

Handing down the court's ruling on the submission of a no case to answer opted by the defence, Principal Magistrate Hilary Abeke disclosed that the duo were arraigned before the said court on the 26th August 2010 and they pleaded not guilty to all the five counts. He said that the case commenced full trial on the 31st August 2010 when the prosecution opened its case.

Magistrate Abeke further disclosed that the prosecution called five witnesses and tendered exhibits to support its case. He said at the close of the prosecution's case, both defence counsel for the accused persons opted to enter a no case to answer. Abeke further said Lawyer L.S Camara, counsel for the 2nd accused Samba Camara filed a written argument of a no case to answer, whilst Lawyer Kebba Sanyang, the counsel for the 1st accused Jerreh Jarju made an oral submission, prompting the prosecutor, Chief Inspector L. Touray to reply accordingly.

Magistrate Abeke averred that having carefully evaluated the arguments of all the parties, he found count five most interesting, which says destroying evidence contrary to Section 101 of the Criminal Code Cap 10, Vol III, Laws of The Gambia. He pointed out that under count five, the particulars stated that the 1st accused Jerreh Jarju in the month of May 2010 at Sibanor, willfully and unlawfully destroyed 12 bundles of cannabis sativa commonly known as 'yamba' knowing that the said cannabis may be required as evidence in judicial proceedings.

Magistrate Abeke revealed that it is interesting to note that from the prosecution's evidence on record, PW6 Mbye Njie, then director of Operation at the NDEA in answer to questions posed to him during his evidence-in-chief on the 17th August 2011 said that 11 bundles of cannabis found in possession of one Nabi Jarju were in Banjul at the NDEA headquarters.

Magistrate Abeke further revealed that PW6 Mbye Njie had also told the court that he was directed by his boss, the executive director of the NDEA to go and see and/or for a fact finding mission, but he went to the family of Nabi Jarju and introduced himself as director of Operation of NDEA and demanded for D11, 000 from the family of Nabi Jarju which he brought to his office for the purpose of exhibit.

Magistrate Abeke queried that the 11 bundles of cannabis were in Banjul at the NDEA headquarters, the said Nabi Jarju's cautionary and voluntary statements were obtained and even though he accepted the charge, he was never charged nor arraigned before the court, but was turned as a potential witness to the police.

Magistrate Abeke stated that the law of equity says that he who comes in equity must come with clean hands and that no one can take advantage of his own wrong "Nollus Commodum capere potes de injuria sua propria". He pointed out that in a submission of a no case to answer, courts are not normally concerned with the issue of the credibility of witnesses but where the evidence of a star witness like PW6 Mbye Njie's evidence is so manifestly unreliable, it would be unsafe to overrule a submission and continue with a trial that will in the final analysis, father on the rock of credibility.

Abeke said the court is strongly convinced that the evidence adduced by the prosecution as a matter of fact does not disclose the necessary minimum evidence establishing the facts of the offence they are charged with. He cited Section 166 of the Criminal Procedure Code, Cap 12:01, Laws of The Gambia 2009 and other authorities from Commonwealth Countries, which held that if at the close of evidence in support of the charge, it appears to the court that a case is not made out against the accused persons sufficiently to require him to make a defence, the court shall as to that particular charge acquit him.

Magistrate Abeke further cited other cases and authorities, amongst which were the case of Mariama Taal Versus Inspector General of Police (unreported) and the State Versus ANM Ousainou Darboe and others criminal case No 14/2000 (unreported) which held that "if there is no evidence that the crime alleged has been committed by the defendants, there is no difficulty, he the Judge will of course stop the case".

Consequently relying on the said authorities, Magistrate Abeke however upheld the no case to answer by the defence and ruled that Jerreh Jarju and Samba Camara have no case to answer and they were accordingly acquitted and discharged.

Meanwhile, Magistrate Hilary Abeke however ordered that the then director of Operation of NDEA Mbye Njie should return Exhibit i.e the sum of D11, 000 to the family of Nabi Jarju, which he demanded from them to be used as exhibit.

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