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Momodou
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 Posted - 14 Nov 2014 : 12:30:52
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Supreme Court frees Batch Samba Fye
By Sidiq Asemota
The Daily Observer: Published on Friday, November 14, 2014
The Supreme Court of The Gambia, the country’s apex court Thursday, 13th November,2014 in a landmark judgment, ordered that Batch Samba Fye, a death row- prisoner, who had been in incarceration for the past eleven years at the Mile II prisons be released immediately.
The constitutional court, which comprises of the Chief Justice of The Gambia, Honourable Justice Ali Nawaz Chowhan, Justice S.B.S.Janneh, Justice Ade Renner-Thomas, Justice Raymond Sock and Justice N.O.Onnoghen arrived at a unanimous decision that Batch Samba Fye becomes a freeman and be given another chance in life after living behind bars for eleven years.
In a lead judgment read by Justice N.O.Onnoghen, which described the conviction and sentence of Batch Samba Fye by the trial court as very regrettable noted that the trial court only accepted the prosecutions own version to convict the appellant without giving due consideration to evidence to support the charge.
It could be recalled that Batch Samba Fye was convicted and sentenced to death by the High Court in Banjul, presided over by Justice M.A.Paul in December 2004, after he was found guilty for unlawfully causing the death of Malick John alias Njok, by stabbing him with a knife around the Senegambia Area on the 6th December,2003.
Batch Samba Fye, who was aggrieved with the High Court’s decision filed an appeal challenging the said court decision at The Gambia Court of Appeal, which eventually gave a decision at ratio 2 to 1, as one of the Court of Appeal judges dissented raising the issue of provocation, self–defence and the recovery of two knives at the scene where the fight took place.
In yesterday’s judgment, Justice N.O.Onnoghen disclosed that he had carefully perused the record of the proceedings from the lower courts and the materials placed before the Apex court.
The Supreme Court judge averred that nine prosecution witnesses gave evidence in support of the prosecution’s case and several exhibits were also tendered by the prosecution including Batch Samba Fye’s cautionary and voluntary statements,and a broken blade of a knife found in the deceased body during the autopsy.
The erudite supreme court judge narrated the events leading to the fight between the deceased and Batch Samba Fye, the altercation at Wow Night Club before the security guard at the said night club asked the duo to leave the night club and fight outside.
Justice N.O.Onnoghen disclosed that the appellant counsel, lawyer Ida D.Drammeh in the appellant briefs, formulated six issues for determination, whilst the State formulated two issues before the Supreme Court for determination.
Justice Onnoghen however said that in resolving the impasse, he had adopted to examine the case on merits; namely the cause of death of the deceased and whether the appellant, Batch Samba Fye was entitled to self-defence at all in the circumstances leading to the death of the deceased.
The Supreme court judge pointed out that to prove a murder charge, the prosecution must establish that there was malice, aforethought intention to commit the act, that the principles of ‘actus-rea’ is necessary.
He pointed out that there was no eye-witness who saw the appellant stabbed the deceased and that is not enough to prove that the act of the accused caused the death of the deceased.
The judge then chronicled the evidence adduced by the prosecution witnesses and the remarks made by the trial judge while delivering judgment, noting that the trial judge also acknowledged the fact that there was no eye –witness to the stabbing of the deceased; that when the appellant launched an attack on the deceased, the deceased defended himself with his hands and the deceased then struck the appellant with a broken bottle which the deceased still held after they were being separated.
Justice Onnoghen said that it was not in dispute that there was a fight, noting that there were two versions about the two knives recovered at the crime scene raising strong doubt about the prosecution’s case.
He further said that the question is whether the lower court was right to convict the appellant,Batch Samba Fye ?
He maintained that where there is any doubt,it should be resolved in favour of the accused and that it is the argument of the appellant’s counsel that the lower courts failed to consider the defence provocation and self-defence.
He also said that from the records it is evident that the deceased started the fight and that at the time they were separated [from fighting], the deceased was still armed with a broken bottle.
Justice Onnoghen disclosed that the trial court failed to adequately and properly evaluate the evidences, particularly the evidence of prosecution witness number five (5) and the accused.
To this end, he said the trial court strictly rejected appellant Batch Samba Fye’s version of self –defence and provocation, and accepted the prosecution’s version and convicted and sentenced Batch Samba Fye.
The Supreme Court judge cited plethora of authorities and cases in criminal jurisprudence and noted that the conviction and sentence of the lower court, therefore set aside and found Batch Samba Fye not guilty of the murder of Malick John alias Njok and was accordingly acquitted and discharged.
Soon after the court made the pronouncement of Batch Samba Fye’s released, the appellant himself busted into tears and was joined by his relatives, friends and some lawyers, who were present to congratulate him with their eyes glittering with tears of joy.
The Honourable Chief Justice, Ali Nawaz Chowhan, after the courtroom had calmed down advised and urged Batch Samba Fye to promise the Court that he is going to correct the error of his past.
Samba Batch Fye was then led away by two prison warders out of the courtroom en-route to Mile II, where he had spent the past eleven years behind walls to get his belongings and go back to his house.
Source: Daily Observer
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Supreme Court frees Batch Samba Fye
