6 May 2013

Gambia: High Court Affirms Magistrate Court's Decision

Justice Edrissa .F. Mbai of the High Court in Banjul has affirmed the decision of the Kanifing Magistrates' Court in a criminal appeal case involving the inspector general of police and one Lamin (Shabba) Danso, and advised that the complainant, Diana Van Weert, seek a civil action against the respondent, Lamin (Shabba) Danso in the court of law.

Justice Edrissa F. Mbai made these declaration whilst delivering judgment last Thursday in a criminal appeal case involving the inspector general of police and the said Lamin (Shabba) Danso. The respondent, Lamin Shabba Danso was acquitted and discharged by the Kanifing Magistrates' Court on two counts of obtaining money by false pretence, and theft.

Lamin Shabba Danso was alleged to have, on or about the month of February to April 2010 in Fajara and diverse places, intent to defraud, fraudulently obtained from Diana Van Weert the sum of one hundred and twenty-nine thousand Dalasis (D129,000) with the representation that he will buy a plot of land and fence it for her in Brufut, which representation he knew to be false at the time of making such.

The respondent, Lamin Shabba Danso was also alleged to have, on or about the months of February to April 2010 in Fajara and diverse places, converted the ownership of three vehicles: one Audi 56, one 190 Mercedes Benz and one BMW X-5, by registering them in his name at the Licensing Department. After such conversion, he did pledge the Audi 56 and the BMW X-5 to Abdou Nyang Mendy and Ousainou Geroge respectively, and wrongly sold the Benz 190 to one Mater George, knowing such vehicles were financed by Diana Van Weert for a joint business at the Tourism Development Area (TDA).

The respondent, Lamin Shabba Danso (the accused at the court below) was acquitted and discharged on the 16th April 2012 on both counts and the decision of the said magistrates' court was then appealed against.

The grounds of appeal contain the following:

a) The judgment is unreasonable and cannot be supported having regards to the evidence on records.

b) The learned magistrate erred in law when he failed to act on the uncontroverted and unchallenged evidence.

c) The learned magistrate erred when he erroneously held on page 6 of his judgment that "one is led to believe that lovers, especially Europeans, do make expensive gifts of cars, landed properties, to name a few, to their partners".

d) The learned magistrate erred on the facts and in law when he held on page 6 of his judgment that "there is a lot of doubt in the prosecution's case".

e) The learned magistrate erred in law when he held on page 7 of the records that" as a rule or document which is made where legal proceedings are pending or anticipated is not admissible as evidence.

f) The learned magistrate erred on the facts and in law when he held on page 7 of the judgment t hat "the testimony of such witnesses is contradictory and irreconcilable (as in the instant case), it will be illogical to accept and believe the evidence of such witnesses".

g) The learned magistrate erred on the facts and in law when he on page 8 of the judgment that "it is difficult to glean evidence from the records in support of count one."

The relief sought from the High Court were:

a) An order setting aside the finding and judgment of the trial court and instead, entering a verdict of conviction on the counts on the charge sheet.

b) A consequential order releasing the three cars (Exhibit P3) to PW1 (Diana Van Weert), who is the rightful owner.

The High Court judge in his verdict said that having gone through both the record of proceedings as well as the appellant's brief of argument, he is of the view that this action ought to have been brought by a way of a civil suit rather than by prosecution. The High Court judge further said that the entire transaction is surely civil and nothing criminal. The judge disclosed that there is evidence that the complainant (Drana Van Weert) did send some money to the respondent, Lamin Shabba Danso, whilst she was abroad, to be used in a particular way but how much is not clear.

Justice Mbai quoted the complainant's testimony stating that "some time between February to April 2010, I decided to buy a compound, I sent some money to the accused to buy me a car. I am involved in several tourism projects; the first time I sent him money it was in the amount of D150, 000 (one hundred and fifty thousand Dalasis).

Justice Mbai also quoted the complainant's testimony on page 6 of the record of proceedings as: "I discussed with the accused some time in April regarding how and when he should sell the cars and what he should do after he sold the cars. I gave the accused written instruction and he signed signifying his acceptance of it.

The presiding judge revealed that by virtue of this agreement the complainant and the respondent entered into an agreement which removes the possibility of any criminal action should there be a breach of the said agreement. The presiding judge further revealed that the fact that the respondent (Shabba) may not act within the written instructions given by the complainant (Diana Van Weert) could not make his conduct criminal.

The judge stated that he does not see how the prosecution of this case would be in the public interest.

According to the judge, I also fail to understand why the complainant is so recalcitrant in proceeding with this appeal rather than instituting as advised by the trial magistrate when delivering his judgment at the court below on the 16th April 2012.

Finally, having considered all the issues raised in this appeal I hold that the trial magistrate acted properly by acquitting and discharging the respondent on both counts. I hold further that the case ought not to have been prosecuted in the first place because the whole transition is purely civil, which the complainant could still pursue as advised by the trial magistrate if she is still interested.

Justice Mbai disclosed that it is trite law that unless the discretion exercised by the trial judge would lead to a miscarriage of justice such decision ought not to be disturbed. The judge said that though the counsel for the appellant expressed an opinion that this case will determine the image of the tourism industry in the country, yet he (the judge) despite not doubting the many contributions of the tourism industry in the country, the economy of The Gambia does not solely depend on tourism, and above all irrespective of the personalities involved in a given case the courts should refuse settling a bad precedent.

Justice Mbai revealed that a court should therefore not be swayed by the whims and caprices of a recalcitrant litigant who has failed or outrightly refused to take the proper course of action to get a remedy, instead instituted a criminal action when the proper and the only remedy available to her is by way of civil action.

The judge further stated that since no miscarriage of justice is caused the decision of the trial magistrate ought not to be disturbed he averred that the appeal lacked merit, as there was no basis for prosecution in the first place because the transaction between the complainant and the respondent (which has got nothing to do with whether they were ever married or not), is purely a civil matter on all scores.

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