According to the Acting Assistant Sheriff Bailiff, Kebba Ousainou Sowe of the Kanifing Magistrates' Court, he arrested Musa Yalli Batchilly, leader of the Gambia Action Party (GAP), on the 19th July, 2021, pursuant to an order of commitment (committal warrant) issued against Musa Yalli Batchilly, who is a judgement debtor in the case between him and one Mariama Joof. The judgement sum is D200,000.
He was being detained at the Kanifing Police Station since the day of his arrest.
The sectary general of Gambia Action Party will be taken for Covid test at the Ministry of Health at the Covid Testing Centre from where he will be taken to Mile 2 Prison following the result of the test.
It could be recalled that Musa Yalli Batchilly presently is involved in a criminal case at the Kanifing Magistrates' Court where he is charged with fraud and obtaining money by false pretence. The prosecution has called so far some witnesses who testified against him.
On the last adjourned date, the prosecution announced the closure of their case. On the said date the defence counsel was not present. However, since the prosecution's case was closed, the court granted a stand down for the accused to communicate with his lawyer whom he said was on his way to the court. The accused informed the court that his lawyer would decide as to what step he would take so that the court would know what to adjourn for.
Upon the case being recalled, the accused told the court that he called his lawyer and he was still in another court at Brikama. He informed the court that he would open his defence and he applied for a date. This was since the 18th March, 2021.
When the case resumed, Counsel Kijera told the court that he was surprised that the matter was for defence but the presiding magistrate, in her ruling, said that what the defence counsel told the court was not something that could be substantiated.
The magistrate further posited that because the matter was adjourned for defence since the 18th March, 2021, the court was of the view that the defence had sufficient time to prepare themselves. She then ruled that the application for adjournment on the grounds given by the defence counsel was refused. She then called upon the accused to proceed with his defence.
Defence Counsel Kijera rose and told the court that under the circumstances, they were not ready to do their defence and that the court may proceed to whatever decision it wished to take. "The court shall proceed to adjourn the matter for judgement," the magistrate ruled.
Defence Counsel Kijera had informed the court that he had filed a motion against the judgement which was supposed to be delivered. He said that he has appealed at the High Court for a stay of proceedings.
The presiding magistrate confirmed that the court had received the motion filed by the defence. Superintendent Manga, who was representing the IGP, rose and said that they were served with the motion and they had no objection. He noted that they would reply on the spot.
Counsel Kijera stood up and told the court that they filed the motion by virtue of Section 245 of the CPC. He posited that the first prayer was to arrest the judgement pending the outcome of the appeal. He adduced that the motion was supported by 10 paragraphs. At this juncture, he cited a case to support his argument. "The court must be patient enough to allow the accused time to conduct his case. The record of the court will show that the accused has never refused to attend the court. I urge the court to stay the proceedings until the determination of the appeal. This is a motion with an affidavit attached," he stated. He further argued that the prosecution had not filed an affidavit in opposition and could not oppose verbally but through an affidavit.
Prosecutor Manga rose and told the court that the case mentioned by the defence in their argument was not relevant to arrest the judgement of the court. "What they asked the court to do falls under the category of the rules of the High Court but not in the subordinate courts. The issue of arresting judgement is not possible in a subordinate court and it is not substantiated by any law. This is a criminal matter. The court cannot stay its own proceedings. It can only be done by the High Court. You cannot adjourn a matter for more than 2 weeks," he argued.
He posited that there must be an appeal at the High Court for stay of proceedings. He further said that they saw a notice of appeal, stating why the appeal must be heard. He argued that there must be evidence to show that there is an appeal, and the court where the appeal has been filed must state that the case should be stayed. "An appeal should have merits. It is not a right to only say that the defence has filed an appeal," he told the court. At this juncture, he cited the case of Amadou Jobe and the State. "I urge the court to refuse the application for a stay of proceedings. Litigation has an end," he declared.
On points of law, Counsel Kijera stated that the accused should be accorded with a fair trial. "He should be allowed to defend himself," he told the court. The matter was adjourned for ruling.
Principal Magistrate Isatou Janneh-Njie, in her ruling, told the court that by notice of motion dated 3rd May, 2021, the accused simply referred to as the applicant sought for the following orders: An order arresting the judgement of the court due to be delivered on the 4th May, 2021, pending the outcome of the appeal; in the alternative to stay proceedings pending the determination of the appeal; further orders that the court deems fit under the circumstances.
She stated that the motion was supported by a 10-paragraph affidavit sworn to by one Amadou Leigh, a legal assistant at Solie Law Chambers, Brusubi 'Turntable', Kombo North District. She posited that the prosecution did not file any affidavit in opposition but opposed same relying on the motion itself and grounds of law. "Relying on the case of Abdoulie Conteh versus The State, I believe the prosecution can do so because it is settled that it is not in every case that a counter affidavit is necessary," she said.
On the face of the motion, she stated, the application was brought pursuant to Section 245 of the Criminal Procedure Code. She adduced that looking at the provisions of the said section she believed it had to do with the first prayer i.e. for an order arresting the judgement of the court. "I have looked at Section 245 of the CPC which deals with 'Motion in arrest of judgement' and to my mind, it is not applicable to the circumstances that gave rise to this application. Thus, the first prayer is not supported by Section 245 of the CPC and same is hereby dismissed for lacking in merit," she went on.
She further posited that she would move to the second prayer which was seeking for the court to stay its proceedings pending the determination of the appeal. She told the court that in looking at the second prayer, she had considered the line of authorities which had highlighted the principles guiding a court in the exercise of its discretion in determining an application for stay of proceedings. The application, she said, was premised on the court's ruling made on the 6th April, 2021, adjourning the mater for judgement. She added that it was against that ruling the accused filed a Notice of Appeal at the High Court seeking for the said ruling to be set aside, as it was against the principles of natural justice and fair hearing.
The presiding magistrate noted that she had averted her mind to the fact that in an application for stay of proceedings pending an appeal, what was sought to be protected was the right to appeal or the appeal as the objective of the order of stay was to prevent the result of the appeal being rendered nugatory or the appeal process being stultified.
She further said that as she had already highlighted, the appeal was against the ruling of the court adjourning the matter for judgement. She noted that the outcome of the appeal would determine the next step to be taken by the court. "That is whether the court is right in adjourning the matter for judgement and can proceed to deliver same or the court is wrong in doing so and should allow the accused to give his defence before proceeding to give judgement. I will not go into the issue of whether the grounds of appeal has merit as that is not within my purview but the court where the appeal is lodged," she told the court.
What was certain, however, she stated, was that if the court proceeded with the matter and deliver judgement, it would surely render the appeal nugatory. She said that it was on this premise that she was minded to grant the application for stay of proceedings pending the outcome of the appeal.
"Accordingly, proceedings in this case are hereby stayed pending the determination of the appeal filed at the High Court, against the ruling of this court delivered on the 6th April, 2021. The defence counsel is urged not to delay but to expedite the said appeal filed at the High Court in order for this matter to be determined," she noted.