The Point (Banjul)

29 January 2013

Gambia: NDEA Pa Mbye Acquitted and Discharged, As Foday Barry Has Case to Answer

The Banjul Magistrates' Court yesterday discharged and acquitted Pa Habibu Mbye, from crime management coordinator of the National Drug Enforcement Agency (NDEA) of the charge preferred against him.

However, Alh Foday Barry, former director of intelligence and investigation at the NDEA, was told that he has a case-to-answer on count 5 and 6 respectively, out of the six counts preferred against him.

This followed a ruling delivered by acting Principal Magistrate Dawda Jallow, following a no-case-to-answer submission made by their defence counsel, Ouzma.

It would be recalled that Alh Foday Barry and Pa Habbibu, Mbye, both senior officers of the NDEA, were being tried for conspiracy to commit felony, theft, abuse of office, making false documents and uttering false documents before the Banjul Magistrates' Court.

Delivering the ruling, the trial magistrate stated that the accused persons were properly arraigned before the court on 24 August 2012 and charged with three counts of conspiracy to commit a felony, theft and neglect of official duty.

He pointed out that on 26 November 2012, the charges were amended and increased to six counts of conspiracy to commit a felony and stealing.

He said the accused persons were jointly charged only on count one, whereas the remaining five counts were against the 1st accused person.

Magistrate Jallow further added that both accused persons denied the charges, and at the close of the prosecution's case, the defence counsel decided to make a no-case-to-answer submission, which formed the basis of the ruling.

He stated that section 166 of the CPC provides that if at the close of the evidence in support of the charges its appears to the court that a case was not made out against the accused person sufficiently to require him or her to make a defense, the court shall as to that particular charge, acquit him or her.

He cited the Gambia Court of Appeal case which held that the effect of a successful submission of no-case-to-answer was to protect the accused from going into the witness box where he might be compelled to make a damaging admission.

Magistrate Jallow pointed out that it might also prevent the prosecution from making good deficiencies in its own evidence, by cross-examining the other witnesses for the defence.

He also cited a court decision which held that in an application for a no-case-to answer, what needed to be considered was whether the evidence produced by the prosecution had been discredited in cross-examination or whether the evidence adduced was manifestly unreliable that it would not be safe to convict.

He pointed out that the summary of the prosecution evidence indicated the evidence of PW1, Lamin K Janneh, who works at the fraud squad of the Gambia Police Force and served on the panel of investigators that investigated the two accused persons.

PW1 told the court that he cautioned the 1st accused before the cautionary statement was obtained from him in the presence of an independent witness, the magistrate said.

He added that PW1 further told the court that the said cautionary statement of the first accused was admitted through PW1 and marked as an exhibit.

He said under cross-examination PW1 told the court that the purpose of investigation was in relation to the money recovered from Danquah but the said Danquah was never called as a witness.

He added PW2, Ali Sillah obtained the cautionary statement of the 2nd accused and same was admitted through him and marked as an exhibit.

PW3 Lamin Cham, head of the panel, also told the court he investigated the two accused persons.

The trial magistrate added that PW3 further told the court that it was on 1st October 2012 that he was ordered to institute a panel to investigate the case, adding that PW3 further told the court that the cautionary statements were obtained in his presence.

He said PW 3 said he requested for the old file wherein reference was made to the statements and the documents, further stating that the said investigation report was produced and submitted to the prosecution unit and admitted and mark as an exhibit.

Still delivering the ruling, the magistrate stated that PW3 under cross-examination told the court that he was ordered to investigate whether or not the under statement of the actual amount seized from Danquah amounted to stealing, adding that the panel never met Danquah.

PW4, Ousman Drammeh, said he was arrested along with Robert Danquah in Danquah's hotel room, and at that time of the arrest he just completed selling a laptop to Danquah who paid him D12,000 which was in a black bag, he said.

He said according to PW4, he was left in the 1st accused person's office upon arrival at Holgam, who asked for 200,000 Euros for Danquah to have bail. However, Danquah never paid the amount, and later escaped from custody.

PW5, Robert Danquah said NDEA operatives found him in his hotel room and conducted a search before arresting him, adding that PW5 further told the court that some money given to him by one Carlos Arango which was meant for legal fees of the accused persons in the 2 tonnes drug case was seized.

He added that he was kept at the NDEA for 5 weeks incommunicado before he decided to escape from custody, stating that he was later arrested in Ghana, put before the court and subsequently extradited to The Gambia.

Under cross-examination, PW5 said he could not remember the sum of money that he received from Carlos nor could he remember what was in his possession.

He added that PW5 told the court that the officers that came into his hotel had his money, but could not tell if the accused were among them.

"I would now have to evaluate the above prosecution evidence to ascertain to what extent does it support the charges preferred," the magistrate stated.

Count one which was conspiracy is defined as " A conspiracy consist not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act or to do a lawful act by unlawful means."

None of the five prosecution witnesses had said anything touching on conspiracy, he added.

"I 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, and in the absence of such evidence no conviction can be possible," the magistrate stated.

On count two, the 1st accused was charged with stealing D230,000 from one Robert Danquad, an inmate at Mile2 prisons, he added.

The offence of stealing is defined under Section 245 of the criminal code as: "A person who fraudulently and without claim of rights 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."

"From the above, it is clear that stealing must either involve taking or converting property belonging to another with the fraudulent intent. To constitute a 'taking' it is not necessary for the accused to take thing completely into his physical possession, he will be deemed to have taken a thing if he moves it or causes it to move. In any case taking must involve some movement of a thing even slightly. On the other hand conversion involves two concurrent elements; dealing with goods in a manner inconsistent with the right of the person entitled to them and an intention in so doing to deny that person's right or to assert a right which is inconsistent with such right."

Starting with the element of taking, he added, there was no evidence to show in what manner the money was found in the safe. It has not been made clear whether the sum of D230,000 was found separated from the rest of the money or they were found together. Therefore the prosecution's evidence was deficient to support the actus reus of taking.

He said regarding conversion, given that the safe wherein the money was kept was under the control of two people, the 1st accused and another person, none of whom could access the safe in the absence of the other, and in the absence of any evidence to show that the 1st accused had at any time accessed the safe alone.

"I 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 stated.

Count 3 and 4, the 1st accused was charged with making and uttering of false documents with respect to an affidavit he allegedly swore to.

"I have noticed from the record of court proceedings that the court had rejected the said affidavit in a ruling delivered on 5 November. The effect of rejecting a document means the said document is not before the court, and same could not be considered in any decision. As such, 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," Magistrate Jallow ruled.

He said in count 5, it was alleged that the 1st accused abused his office by demanding 200,000 Euros from Robert Danquah through one Ousman Drammeh.

"I am satisfied with the prosecution evidence regarding this charge, and would not say much in that regard," Magistrate Jallow said.

On count 6, the magistrate went on, it was alleged that the 1st accused stole an amount of D12,000 and a Toshiba laptop belonging to one Ousman Drammeh.

"Having discussed the elements of the offence of theft, I will only adopt same herein and proceed to determine whether there is any evidence to sustain this charge," he stated.

"It is not in dispute from the evidence of PW4 and PW5 that, at the time of the arrest, PW4 was in possession of a black bag containing D12,000 being proceeds of the sale of a laptop to PW5," he added.

He said PW4 stated that his bag was left in the 1st accused person's office, while he was taken away to be detained.

It is clear from the evidence before that at the time of the arrest, the sale of the laptop, when Ousman Drammeh was the seller and Robert Danquah the buyer, was completed.

He said PW4, Ousman Drammeh himself, told this court that he sold a laptop to Danquah, and not many laptops.

Magistrate Jallow further ruled that Ousman Drammeh admitted under cross-examination that at the time he was arrested, the laptop was no longer his because he had already received the purchase price paid to him by Danquah, and in essence the laptop belonged to Danquah at the material time of the arrest.

Although, the magistrate added, in the summarised statement of Alh Bakary Gassama, reference was made to two laptops, notwithstanding. Mr Gassama has stated that the two laptops, amongst other articles, were initially surrendered to the Ministry of Justice following a court order to forfeit them, but a later directive dated 23rd August was issued for the said articles to be returned to the NDEA, which was done.

He said Mr Gassama revealed that he was the one who received the articles on behalf of the NDEA, and the money was put into the agency's account at the Central Bank on 28 August 2012.

Neither did Mr Gassama reveal in exhibit B where the remaining articles are nor did any other prosecution evidence state their whereabouts.

"The court cannot presume that the laptop is with the 1st accused, it must be proven by evidence. It is my reasoned belief that the charge of stealing a laptop is not sustainable from the totality of the prosecution evidence," he ruled.

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, he stated.

"Where no prima facie case has been made out by the prosecution in a charge against an accused, 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 that well established principle of law," he said.

Consequently, the 1st and 2nd accused persons are acquitted and discharged on count 1.

The 1st accused is acquitted and discharged on count 2, 3 and 4.

The first accused is to enter his defence with respect to count 5 being the charge of abuse of office and count 6 being theft, but with respect to the sum of D12,000.

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