25 February 2013

Gambia: High Court Affirms Magistrates' Court Decision

The High Court in Banjul, presided over by Justice Edrissa F. Mbai has dismissed the appeal filed by one Alieu B.M John against the state.

The appellant, Alieu B.M John, was convicted and sentenced by the Kanifing Magistrates' Court, presided over by Sheriff Tabally on seven counts out of an eleven-count charge on the 15th December 2011.

The appellant was charged with the following: Three counts of forgery, contrary to Section 322 of the Criminal Code, three counts of making a document without authority contrary Section 332 of the Criminal Code, three counts of uttering a document without authority contrary to Section 338 of the Criminal Code, one count of stealing contrary to Section 252 of the Criminal Code and one count of obtaining goods by false pretence contrary to Section 288 of the Criminal Code Cap 10 Vol III Laws of The Gambia 1990.

Dissatisfied with the decision, the appellant, Alieu B.M John filed a petition of appeal and grounds of appeal on the 19th December 2011.

The grounds of appeal are as follows:

1) That the court was wrong to hold and find that the appellant sent an email to Whynot Limited when there was no such evidence recorded by the court.

2) That the judgement is wrong both in law and on the facts and cannot be supported having regard to the evidence.

3) That the compensation ordered by the Magistrates' Court to be paid to the complainant under Section 145 of the Criminal Procedure Code was wrong in law and on the facts because there was no evidence that the complainant suffered any loss at all or to the extent awarded by the court.

Delivering judgement, Justice Mbai pointed out that four issues arose for determination in the said appeal. 1) Did the appellant contact Whynot Limited whether by email or by telephone or both to order spare parts using the name of the complainant (Alhagie M.B Jagne).

2) Did the appellant obtain the consent of the complainant prior to using his name to order spare parts from Whynot Limited?

3) Was the compensation ordered justified?

4) Is there any miscarriage of justice caused based on the record of proceedings and the sentence passed?

On issue one, Justice Edrissa F. Mbai disclosed that it is not in any doubt that the appellant did use the name of the complainant (Alhagie M.B Jagne) to request for the supply of spare parts from Whynot Limited.

Mbai further disclosed that the appellant has admitted this as fact in his cautionary statement to the police dated 1st April 2008. He added that the complainant in his testimony stated that he confronted the appellant when he became aware that the appellant was impersonating him by doing business with Whynot Limited.

Justice Mbai revealed that the facts of the case indicated that though the appellant was using the complainant's name without his knowledge or consent, but he was at the same time using his personal mobile phone number (number withheld) speaking to Whynot Limited purporting to be the complainant. Mbai at this point said this was clearly impersonation even though the appellant was strangely was not charged with that offence, adding that though the appellant claim he later informed the complainant about his (complainant's) name, there is no evidence before the court to accept that as fact.

Justice Mbai also stated that the conduct of the appellant was executed in secrecy with a dishonest motive to bring personal financial gain exclusively for himself. He added that the explanation given by the appellant as being the reason why he was using the complainant's name rather than his own name is unsatisfactory.

The judge further disclosed that the deceptive conduct of the appellant no doubt misled Whynot Limited in dealing with the appellant believing they were dealing with the complainant. He cited Section 318 of the Criminal Code, saying it defined forgery as "making of a false document wit intend to defraud or deceive", adding that the email sent by the appellant purporting to be the complainant clearly falls within this definition.

Justice Mbai further cited that in Smith and Hogan 11th Edition at Page 870, the authors stated thus "to constitute a forgery the hand of Jacob must purport to be the hand of Esau".

The judge noted that in Blackstone's Criminal Practice 1995 on paragraph B6.32 it was held that: "it must be proved that the accused intended both that the instrument would be accepted as genuine and that someone would therefore act to his own or another's prejudice. It s a specific intent, recklessness or foresight will not suffice (Garcia (1988) Crim LR 115)".

On issue two, Justice Mbai disclosed that the ground of appeal is incompetent in that it is not specific. He pointed out that a ground of appeal should deal with a specific issue in the appeal to enable the court determine the issue. He said it is not enough to say a decision is wrong without going further to explain why.

The judge further pointed out that the facts of the case amply revealed that there is no evidence in this appeal that remotely suggest that the appellant sought the consent of the complainant first before using his name to transact with Whynot Limited. He noted that it is not a defence the appellant can rely on to say the complainant gave him his consent or that he was aware of his dealing with Whynot Limited in the absence of any proof.

On the third issue, Justice Mbai pointed out that the issue of compensation in a criminal case is discretionary, adding that the key words are the person to be compensated "has suffered material or personal injury in consequence of the offence committed". He noted that the onus is on the complainant to proof the loss he has suffered and it is not the role of the court to act as 'Father Christmas'.

Justice Mbai further disclosed that there is no evidence to establish that the complainant neither suffered material loss nor personal injury, which is in consequence of the offence committed by the appellant. The judge further said that the mere fact that the complainant's name was used by the appellant without his consent cannot be translated to amount to causing personal injury to his character.

He also disclosed that similarly if the complainant holds the view that he has lost his reputation because he was taken to court by Whynot Limited it is for him to prove so.

Justice Edrissa F. Mbai therefore revealed that he holds the view that the compensation order made is without any justification and was hereby set aside. He said that he is satisfied that no miscarriage of justice was caused either at the trial proceedings or on sentencing.

The appeal was however dismissed and the compensation order set aside accordingly.

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