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toubab1020

12311 Posts

Posted - 20 Sep 2010 : 17:04:09

More from the D.O.

http://observer.gm/africa/gambia/article/justice-jobarteh-queries-lower-courts-decision

Snippet
"He pointed out that the trial magistrate should have addressed his mind to (a) the wordings of the section which can be seen as commas, and conjunctions such as the word "or" as it is a trite law that commas, colons, conjunction, and etc used in sections, subsections and paragraphs of enactments are disjunctive and can and ought to be read in isolation."

That's clear enough isnt it ? how could the magistrate in the lower court be confused !!

Justice Jobarteh queries lower court's decision
Africa � Gambia
Monday, September 20, 2010
Justice Lamin AMS Jobarteh of the High Court in Banjul has stated that the ruling of the Bundung Magistrates Court presided over by senior Magistrate Kayode Olajubutu in overruling the no-case submission filed on behalf of one Ousman Williams should be set aside for lack of a proper exercise of judicial discretion.

The appellant, Ousman Williams had been charged with the offence of being in possession of firearms without authority contrary to Section 8 of the Arms and Ammunition Act Cap 21:01 Volume 11, Laws of The Gambia, 1990. The appellant however filed an appeal against the ruling of the lower court on the no-case submission by the defence counsel, which was overruled. The appellant was alleged to have been found in possession of firearms.

Justice Jobarteh in his judgment, said the record of proceedings however shows that what was tendered as an exhibit were ammunitions; namely four life rounds. Justice Jobarteh disclosed that both the prosecution and the court ought to have been quick to see that the appellant was facing a wrong charge which in the interest of justice is embarrassing and offends against the rules of framing of charges as contained in Section 113 (b)(i) of the Criminal Procedure Code.

Justice Jobarteh revealed that a careful perusal of Section 8 of the Arms and Ammunitions Act Cap 12:01 Volume 11, whether or not the provision is exhaustive, it should have been constructed in line with the charge before the lower court.

He pointed out that the trial magistrate should have addressed his mind to (a) the wordings of the section which can be seen as commas, and conjunctions such as the word "or" as it is a trite law that commas, colons, conjunction, and etc used in sections, subsections and paragraphs of enactments are disjunctive and can and ought to be read in isolation.

Justice Jobarteh explained that words such as phrases or sentences that have been separated by the use of such commas, colons and conjunctions can stand alone and by themselves. The presiding judge further explained that since the prosecution chooses firearms instead of ammunitions, it cannot expect the court to interpret that to mean otherwise.

Justice Jobarteh pointed out that the word ammunition cannot be said to mean the same as firearms since the definition section is very clear and unambiguous. He referred to the case of R V Galbraith as a guiding principle in cases of no case submission and noted that the trial magistrate ought to have averted his mind to that. He then revealed that in the case of R V Galbraith it stated that the charge being in possession of firearms, when it was ammunitions that were tendered in evidence, then it calls for no other issue but to stop the case, acquit and discharge the appellant. He ought to have known at that point that once the case proceeds to defence, at the end of it all, it would be unsafe or unsatisfactory to convict the accused, as the evidence does not support the charge.

Justice Jobarteh disclosed that it was wrong for the trial court to have held that the four boys that were found at the premises in Nema Kunku where the bullets were allegedly found are not material witnesses for the prosecution. "How he came to such a conclusion is not borne out by the record of proceedings," Justice Jobarteh queried.

"Assuming without conceding that that was the case, the prosecution ought to have made them available to the defence which is in-line with the authority of Mballow versus the State (1997-2001) Gambia Law Report, Page 3," Justice Jobarteh added and disclosed that in the said authority, the then Chief Justice Omosun remarked: "The prosecution is duty bound to place before the trial court all available evidence. However, this does not mean that a whole host of witnesses must be called upon on the same point; if there is a vital point in issue and there is one witness whose evidence would settle it one way or the other, that witness ought to be called."

He further said a similar principle is also stated in the case of Marena versus The State where in the court of appeal said thus: - "It is the duty of the prosecution to call all material witnesses present at the commission of a crime or else make them available to the defence for cross-examination. Whether a witness is material in a particular case depends on the peculiar facts of the case, the issues for trial and the role and knowledge of the witness in question."

Similarly, he also reiterated that in the case of Tetteh versus The Republic, (2001-2002) SC GLR 854, it was stated that whether or not a witness was a material witness, would depend on the quality and content of the evidence he was expected to offer in relation to the case on trial. The witness would be deemed to be material if the evidence expected from him was deemed to be so vital as to be capable of clearly resolving one way or the other an important and decisive issue of facts in controversy.

Justice Jobarteh disclosed that the evidence of the four boys would certainly have had an impact on the facts of the case to the extent that where it is accepted as true which he imagined would have been the case, and then if it had been the case, it would have given the court the opportunity to come to a conclusion that was different from the decision it had taken.

Justice Jobarteh disclosed that from the records of proceedings, it was revealed that PW1 clearly stated under cross-examination that no bullets were found in the appellant's house and that the bullets were found in the house of the four boys. The presiding judge, said he was deeply troubled with such a revelation that the magistrate closed his eyes to it and yet overruled the no-case submission filed on behalf of the appellant. Justice Jobarteh further said he found it disturbing to read from the records the following revelations (evidence):

a) PW1 said, "no bullets were found in the 1st accused house, we found the bullets in the house of the four boys".

b) PW1 could not recall the date of the search when the bullets were found and

c) That having already held that there is a difference in handwriting contained in exhibit P2 and DE2 and concluding that the difference may have been a result of irregular handwriting, which in his view was wrong.

Justice Jobarteh disclosed that the trial magistrate made statements which cannot be substantiated legally, pointing out that such statements could bring a lot to one's mind. He then disclosed that the magistrate ought to have stopped the case in the light of the evidence that was adduced before the court and grant the application on a no-case submission, as the evidence is one of a tenuous character in the light of their inherent weakness or vagueness and the inconsistencies it contained, noting that no reasonable tribunal can safely or satisfactorily convict the appellant on such evidences.

The presiding judge, Justice Lamin AMS Jobarteh however held that the order of the trial magistrate, Kayodeh Olajubutu in overruling the no-case submission should and ought to be set aside for lack of a proper exercise of judicial discretion. The appellant, Ousman Williams was acquitted and discharged accordingly.
Author: by Sidiq Asemota

"Simple is good" & I strongly dislike politics. You cannot defend the indefensible.

Kitabul Arerr

Gambia
645 Posts

Posted - 20 Sep 2010 : 23:34:34

lol, toubab1020, this reminds me of:
Bill Clinton and the Meaning of "Is".
"It depends on what the meaning of the word 'is' is. If the-if he-if 'is' means is and never has been, that is not-that is one thing. If it means there is none, that was a completely true statement....Now, if someone had asked me on that day, are you having any kind of sexual relations with Ms. Lewinsky, that is, asked me a question in the present tense, I would have said no. And it would have been completely true....................................................................................lol!"
http://www.slate.com/id/1000162/