20 August 2018

Gambia: Court of Law Should Not Condone Commission of Constitutional Wrong - Says Justice Jaiteh

Justice Ebrima Jaiteh of the High Court in Banjul has said that a court of law should not condone the commission by a State of a constitutional wrong nor should it be an accessory after the fact to the commission of unconstitutionality.

Justice Jaiteh made this declaration recently in a judgment delivered in an appeal case filed by one Modou Lamin Ndow and the State.

Justice Jaiteh disclosed that it is incumbent on the Registrar to transmit the notice of appeal to the High Court for onward prosecution.

Justice Jaiteh further disclosed that it was not done, as the case file from the Kanifing Magistrate Court could not be traced.

It is indeed worrying that less than a year after disposal of a case, the case file could not be traced.

Justice Jaiteh disclosed that the court ordered the Registrar of Kanifing Magistrates' Court to provide the court with the judgment and record of proceedings in the case of the appellant at the lower court.

He further disclosed that the Registrar of Kanifing Magistrates' Court was served with the said order but failed to respond to comply with the order of the court.

He averred that the said court on the 6th of February 2018 issued another Court order to the Registrar of Kanifing Magistrates' Court to forward the case file of the appellant from the lower court and the case was then adjourned to the 13th day of February 2018.

He said the case was called on the 13th day of February 2018 and the Registrar of Kanifing Magistrates' Court sent a letter of apology to the said court for not being able to furnish the court with the copy of judgment and record of proceedings in the case of the Appellant at the lower court.

He noted that as a result, the matter was subsequently adjourned to allow the Registrar to search and locate the file.

Justice Jaiteh revealed that from the 13th day of February 2018 to date, the case was adjourned on numerous occasions and the Registrar was unable to trace the file of the appellant from the lower court.

He pointed out that the appellant was convicted and sentenced on the 20th of November 2017 and the appellant filed his appeal on the 24th of November 2017 and the appeal was assigned to the said court on the 19th of December 2017 and the appeal was first mentioned on the 8th of January 2018.

Justice Jaiteh asserted that the appellant is a recent convict and it defeats imagination that a case file concluded on the 20th of November 2017 could not be traced at the Kanifing Magistrates Court.

"How was the appellant convicted if there is no trace of the record of proceedings from the Kanifing Magistrates' Court? These are serious questions and need serious answers." he stated

He remarked that a petition of appeal is a formal complaint against the valid decision of a court and in the absence of such a decision, there cannot be an appeal against what has not been decided against a party.

Justice Jaiteh explained that the right to appeal is a constitutional right for any party who is aggrieved with a judicial decision, adding that the deprivation by a State of an appellant's right to prosecute his appeal in the appellate court and to have the appeal determined on merits by that court is unconstitutional and legally wrong.

He further explained that in the exercise of judicial powers, a court of law should adhere to constitutionality. A court of law should not condone the commission by a State of constitutional wrong nor should it be an accessory after the fact to the commission of unconstitutionality.

Justice Jaiteh stated that in the instant case, the State through the judicial arm had deprived an appellant the means of prosecuting his appeal by not sending the necessary materials from the Kanifing Magistrates' Court to the High Court.

He therefore cautioned that the court would not condone the negligent act of the Registrar of Kanifing Magistrates' Court failure to locate and transmit the record of proceedings from the lower court to this court.

He revealed that the Rules of the High Court are applicable to all cause and matters and to be specific Order 1, rule 1(1) of High Court Rules.

Justice Jaiteh declared that from the totality of the evidence before the court there was no legal basis or evidence for the conviction of the appellant at the Kanifing Magistrates' Court and the appellant was discharged forthwith.

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