Gambia: Pa Mbye Acquitted, Discharged - Foday Barry to Defend Against Two Counts

The Banjul Magistrates' Court, presided over by Magistrate Dawda Jallow, Monday, 28 January 2013, delivered a ruling on the no-case-to-answer submission filed by Lawyer A Uzoma on behalf of Foday Barry and Pa Habibou Mbye, the former director of Intelligence and Investigation, and the former Crime Management co-ordinator respectively, at the National Drug Enforcement Agency (NDEA).

The accused persons were first arraigned before the said court on the 24th August 2012, charged with three counts of conspiracy to commit felony, theft and neglect of official duty, contrary to Sections 368, 245 and 133 respectively, of the Criminal Code, Cap 10:01, Vol. III, Laws of The Gambia 2009.

On the 26th November 2012, the charges were amended and contained six counts of conspiracy to commit felony, theft, making false document, uttering false documents, abuse of office and another count of theft. The 2nd accused (Pa Mbye) is jointly charged with the 1st accused (Foday Barry) under count one; whereas the remaining 5 counts are all against the 1st accused.

Both accused persons pleaded not guilty to all the charges, which prompted the prosecution to call 5 witnesses to testify in its case in order to prove a prima facie case against the accused persons. After the closure of the prosecution's case, the defence counsel for the accused persons, Lawyer A Uzoma, decided to make a no-case-to-answer submission.

In the court's ruling, it evaluated the evidence adduced by the 5 prosecution witnesses and related it to each count charged against the accused persons, starting with count one, conspiracy to commit felony, which contravenes Section 368 of the Criminal Code. The presiding magistrate however stated that conspiracy is not defined in the country's Criminal Code.He cited Majakodunmi v. R (1952) 14 W.A.C.A. 64, in which the West African Court of Appeal adopted the well-known definition of Willes J. in Mulcathyv. R (1868): as "A conspiracy consists not merely in the intention of two or more people to do an unlawful act or to do a lawful act by unlawful means".

According to him, none of the five prosecution witnesses had said anything about conspiracy and that he perused through the exhibits as well and did not find any evidence showing that the two accused persons had at any one time agreed among themselves to do any unlawful act; that in the absence of such evidence no conviction can be possible.

He said on count two the 1st accused is charged with stealing the sum of D230, 000 from one Robert Danquah, an inmate at the Mile II prisons; that the offence of stealing is defined under Section 245 of the Criminal Code as follows: "A person who fraudulently and without claim of right takes anything capable of being stolen, or fraudulently converts to the use of another person other than the general or special owner thereof anything capable of being stolen, is said to steal the thing".

The magistrate further said that from the above, it is clear that stealing must either involve taking or converting property belonging to another with fraudulent intent and to constitute the act of'taking'. He said it is not necessary for the accused to take the thing completely into his physical possession; that he will be deemed to have taken a thing if he moves it or causes it to move as in any case taking must involve some movement of a thing even slightly.

On the other hand, Magistrate Jallow further disclosed that conversion involves two concurrent elements: (a) dealing with goods in a manner inconsistent with the right of the person entitled to them and (b) an intention in so doing to deny that person's right or to assert a right which is inconsistent with such right.

He said with the element of taking, there is no evidence to show in what manner the money was found in the safe and that it has not been made clear to the court whether the sum of D230, 000 was found separated from the rest of money or they were found together. He said therefore the prosecution's evidence is deficient to support the actus reus of taking.

Further in his ruling, Magistrate Jallow stated that regarding conversion and given that the safe wherein the money was kept was under the control of two people (i.e. 1st accused and another), none of whom can access the safe in the absence of the other. He said in the absence of any evidence to show that the 1st accused had at any time accessed the safe alone the court could not see how he could have converted the said sum of money. "I am satisfied that the ingredients of the offence of stealing of the sum of D230, 000 have not been established by the prosecution to warrant this court to call on the 1st accused to enter a defence," he added.

Jallow also recalled that on Counts 3 and 4, the 1st accused is charged with making and uttering false documents with respect to an affidavit he allegedly swore to, but that the court has noticed from the records of proceedings that this court had rejected the said affidavit in a ruling delivered on the 5th November 2012. He indicated that the effect of rejecting a document means the said document is not before the court and the same could not be considered in any decision.

As such, he added, the two charges of making a false document and uttering false document which all are premised on the said rejected document could not be sustained without the document allegedly falsified being made properly available to the court.

The magistrate further revealed that on count 5, it is alleged that the 1st accused abused his office by demanding 200, 000 Euros from Robert Danquah through one Ousman Drammeh.The court, he said is satisfied with the prosecution's evidence regarding this charge and would not say much in that regard.

On count 6, which alleged that the 1st accused stole an amount of D12, 000 and a Toshiba laptop belonging to one Ousman Drammeh, the magistrate noted that it is not in dispute from the evidence of PW4 and PW5 that at the time of arrest, PW4 was in possession of a black bag containing D12, 000, being proceeds of the sale of a laptop to PW5.

He said PW4 stated that his bag was left in the 1st accused person's office while he was taken away to be detained. However, the judge said it is clear from the evidence that at the time of the arrest the sale of the laptop, wherein Ousman Drammeh (PW4) was the seller and Robert Danquah (PW5), the buyer, was complete.

He further revealed that PW4 admitted in his evidence under cross-examination that at the time he was arrested, the laptop was no longer his because he had already received the money paid to him by PW5 and that in essence the laptop belongs to PW5 at the material time of the arrest. Magistrate Jallow said although in the summarised statement of Alhagie Bakary Gassama, reference was made of two laptops, other articles were initially surrendered to the Ministry of Justice following a court order to forfeit them.

However, Magistrate Jallow said Alhagie Bakary Gassama told the court that a directive, dated 23rd August 2012, was later issued for the said articles to be returned to the NDEA, which was done. He said Gassama further revealed that he received the articles on behalf of the NDEA and the money was paid into the Agency's account at Central Bank on the 28th August 2012.

The said Gassama,the magistrate stated, did not reveal in exhibit B where the remaining articles were, nor did any other prosecution evidence stated anything about their whereabouts. The magistrate further stated that the court presumes that the laptop is with the 1st accused; saying it must be proven by evidence.

In conclusion, Magistrate Jallow disclosed that every accused person is entitled to benefit from Section 24(3)(a) of the Constitution of the Republic of The Gambia, 1997 which provides that: every person who charged with a criminal offence shall be presumed innocent until he or she is proved or has pleaded guilty.

"The right to be presumed innocent presupposes that the prosecution's case must succeed or fail on its own evidence. The principle of presumption of innocence guarantees that the accused is not under any obligation to prove his innocence. Where the prosecution in a charge against an accused has made out no prima facie case, to call on an accused to enter defence will amount to asking him to prove his innocence. This court being a court of justice could not deviate from well-established principle of law," the magistrate said.

Consequently, the 1st and 2nd accused persons were acquitted and discharged on count one, which they were jointly charged. The 1st accused was acquitted and discharged on counts 2, 3 and 4 while he was called upon to open his defence on counts 5 and 6 being the charges of abuse of office and theft with respect to the sum of D12, 000.

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