By Yankuba Jallow
Justice Aminata Saho-Ceesay of the Banjul High Court has on the 23rd November 2018, put down all criminal charges preferred against Lawyer Bory S. Touray and Lawyer Cherno Marenah, the Solicitor General of The Gambia.
The two lawyers were charged on four (4) counts at the Banjul Magistrates Court (BMC). The charges were; making documents without authority, conspiracy to commit misdemeanour, obtaining registration by false pretence and neglect of official duty. Lamin Trawally, the complainant filed a private criminal prosecution against these lawyers at the BMC in relation to a registration of a deed of gift in the year 2012. Trawally’s complaint is that his name was attached at the back of five deeds of gift without his authority.
Lawyers Touray and Marenah made an application to the High Court (which has supervisory jurisdiction over the BMC) for an order of certiorari; relying on section 23 of the Courts Act and Section 133 of the 1997 Constitution, thus makes provision for the High Court to have a supervisory jurisdiction over lower courts.
In their prayers, the lawyers sought for the High Court to grant an order of certiorari to be issued in order to quash the criminal charge sheet against them at the BMC. On the second prayer, the appellants (the lawyers) made an application for the High Court to grant an order to prohibit the BMC and any other magistrates’ courts to proceed to hear the case involving them and Lamin Trawally. Finally, they sought for the High Court to grant an order of stay of prosecution.
Both the lawyers and Lamin Trawally filed before the Court 35-paragraph affidavit in support of their case.
In her judgment delivered on the 23rd November 2018, Justice Aminata Saho-Ceesay held that the Magistrate who had instituted charges (in the private criminal prosecution) against the two lawyers at the BMC was subjective, unwritten, unpronounced and unjudicial.
She said the Trial Magistrate (name withheld) could not properly issue the summons and the charge sheet without first of all making determination, on record that she was satisfied that prima facie, the commission of an offence had been disclosed and that the complaint is not frivolous or vexatious. She relied on the provisions of section 69 (4) of the Criminal Procedure Code; that the trial Magistrate should have satisfied herself whether a prima facie case, a commission of an offence has been disclosed and most importantly, that the complaint is not frivolous or vexatious.
The High Court Judge resolved all the prayers in favour of the applicants (lawyers). The High Court ordered that no Magistrates Court in the Gambia should hear the private criminal prosecution between Lamin Trawally against the Lawyers in relation to the charges.
Readers will recall that, these Lawyers were charged at the Banjul Magistrates Court following a complaint tabled by Trawally before the Principal Magistrate (as she then was) who instituted four criminal charges against the two Lawyers.
The Lawyers did not take their plea before the Magistrates Court and they made an application before the High Court for it to exercise its supervisory jurisdiction to quash the criminal charge sheet preferred on them. Their application was successful and now they were freed from the criminal charges.
Trawally has filed in a notice of appeal before the Gambia Court of Appeal on Tuesday the 4th December 2018.
