3 January 2018

Gambia: High Court Affirms Magistrate's Court Decision

The High Court in Banjul presided over by Justice Oleidi Uduma recently dismissed the criminal appeal case involving one Gibril Faal.

The appellant filed an appeal against the conviction and sentence passed on him by Magistrate M.L.K. Bojang of Kanifing Magistrates' Court.

Gibril Faal was arraigned before the said court on 28 November 2013 on two counts charge, and the prosecution alleged on count one that the appellant on 14 October 2013 at about 1400 hours, in Kanifing South in the Kanifing Municipality broke and entered the dwelling house of one Mustapha Barrow with intent to commit a felony.

In count two, the prosecution alleged that the appellant on 14 October 2013 at about 1400 hours, in Kanifing South in the Kanifing Municipality stole from the dwelling house of Mustapha Barrow the following items:- A DVD Mark Samsung valued at D3500, A Seizer(Shisha) Smoking Pipe valued at D2500, A play station valued at D3500, seven game controllers valued at D2100, Internet hub valued at D1200, Gamtel Jamano phone valued at D1800, A gold necklace valued at D450, An I-Pad valued at D7500, A 3G Qcell line valued at D3000, Flash Drive valued at D800, Digital camera valued at D 2500, Memory Stick value unknown and a travelling bag with documents value unknown.

She said the appellant pleaded not guilty to the charges and upon his not guilty plea, the prosecution led evidence and tendered exhibits, adding that the appellant testified on his own behalf and at the conclusion of trial, the appellant was convicted on count 1 and sentenced to three years imprisonment.

On count II, the appellant was sentenced to three years imprisonment to run concurrently and was ordered to pay the sum of D46, 350 to the complainant, which amount was the equivalent of the total amount lost by the complainant.

The court also ordered that exhibits A and A1 (Video camera and Shishar pipe) should be returned to the complainant.

It was against the conviction and sentence that the appellant through his counsel filed a Notice of Appeal on 23 September 2015.

The appellant urged the court to set aside the judgment of the Kanifing Magistrates' Court and to acquit and discharge the appellant on both counts.

The judge disclosed that the appellant's Counsel, A. Fatty in the 20 page brief of argument did not raise any issue but canvassed on the four grounds of appeal and came to the conclusion that the appellant's brief of argument has exposed serious errors in law as well as serious procedural irregularities that raised proper questions over the legitimacy of the conviction of the accused on count one and the subsequent sentences passed on him in respect of both counts even though he was not convicted on count two.

He concluded that the accused was convicted without any evidence to support the conviction, thus rendering the appellant conviction unsafe. The appellant's counsel urged the court to set aside or quash the entire judgment, conviction and sentence and consequently discharge and acquit the appellant on both counts.

The state respondent in the 11 page respondent's Brief of Argument urged the court to discountenance the appellant summary of evidence, adding that the state respondent did not formulate any issues from the grounds of appeal but proffered argument in line with the appellant's style of argument.

Justice Uduma revealed that the court formulated two issues arising from the four grounds of appeal canvassed by both the appellant and the respondent.

The Appellate Judge said she agrees with the Respondent's Counsel and so held that it was the finding of the trial magistrate that Exhibit A & A1 was necessary for the determination of the case.

The Appellate Judge noted that State respondent's Counsel stated that it was glaringly clear that appellant after admitting to the fact he accepted the charge as levied on him and went on to disclose under cross-examination how he stole a digital camera and further went on to establish that he entered the house of the complainant through a window.

Justice Uduma further noted that going through the records of proceeding; the appellant admitted to the fact that he accepted the charge levied on him and under cross-examination he disclosed he stole a digital camera from Muhamadou Saho with the intention of selling it.

Besides, according to the Records of Proceedings some of the items listed were recovered from his house.

On the issue of reliance on circumstantial evidence, the Appellate Judge said she agreed with the state respondent that circumstantial evidence is as good as direct evidence as provided for in Section 14 (b) of the Evidence Act.

And that there was a sufficient evidential fact deduced from the testimonies of the prosecution witnesses and even the appellant during trial which inference could be safely drawn that the appellant was the perpetrator of the crime charged.

Justice Uduma disclosed that the trial magistrate was right to have convicted the appellant on the two count charges and it was trite that the High Court has the powers to interfere with the decision of the trial court.

She pointed out that the court would not interfere with the decision of the lower court unless such decision was not exercised judicially and judiciously, adding that the duty of the Appellate court was to see whether or not there was evidence which the trial court acted and once there was such evidence the Appellate Court must not intervene, citing the case of Batch Faye vs the State.

The Appellate Judge said she did not agree with the Appellant's Counsel that the appellant was denied fair hearing and that the trial magistrate erred in convicting the Appellant for the 2 counts charge of house breaking and stealing.

Justice Oleidi Uduma accordingly dismissed the appeal and affirmed the conviction and sentence passed by the lower court.

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