By Kemeseng Sanneh (Kexx)
Banjul High Court judge Francis Achibonga has granted the request by the State to further detain four (4) people who are being detained on money laundering and drug-related offence.
Paulo Djibi and three others were charged with drug charges, money Laundry, and conspiracy at the Kanifing Magistrate’s Court.
They pleaded not guilty to all the fifteen (15) offences and they were granted bail but were still held by the State.
However, the State had earlier applied for an order seeking the high court to suspend the bail order. It was temporarily granted. After this, the prosecution still wanted more time.
The State was represented by Deputy Director of Public Prosecution Abdul Maita Yusuf. Lawyer Lamin S. Camara together with KaddijatouJallow appeared for the 1st to 3rd accused persons while Combeh Gaye appeared for the 4th Accused Persons.
State Counsel Yusuf informed the court that he filed an application on 10 October.
Lawyer Camara, on behalf of the 1st, 2nd and 3rd accused informed the court that they were served with the application on 13 October adding that they have filed a reply on 16 October. Combeh Gaye also confirmed that she was serviced.
After a brief 10-minute recess due to the request of the state counsel to study the reply filed by counsel of the 4th, A.M. Yusuf, informed the court that they had thoroughly reviewed the motion and were ready to proceed.
In presenting the application, Lawyer Yusuf asserted that the investigation is ongoing. He submitted that the accused persons were involved in international criminal activities, and their release could hinder the investigation.
Yusuf also contended that the appeal raised critical issues regarding the jurisdiction of the magistrate and argued that the magistrate’s decision was inconsistent with the law.
At this point, the presiding Judge Francis AAchibongaemphasised that the State was not committed to diligently prosecute the case. The Judge stated that if the State were truly serious about prosecution, they would have submitted the records of appeal to allow the court to make a decision accordingly. Ultimately, the court would have decided on the appeal.
State Counsel Yusuf continued after the interjection of Justice Francis A. Achibonga. Yusuf highlighted the discrepancies in the affidavit sworn by SaikounaDjibi. He specifically pointed out certain paragraphs that violated sections 90, 91, and 92 of the Evidence Act.
He further asserted that if these paragraphs were struck out, there would be no applicable information remaining in the affidavit. A.M. Yusuf proposed the entire affidavit be struck out due to the violations of the law.
Lawyer KaddijatouJallow said the portions of the Evidence Act were not violated. She maintained that the paragraphs should not be struck out. She opposed the State’s application for a stay of execution, arguing that the State had failed to respect the rights of the accused persons who were granted them bail. K. Jallow contended that the release of the accused would not interfere with the investigation.
Additionally, Lawyer Jallow stated that the State had already finished its investigation, leading to the filing of charges against the accused persons. K. Jallow claimed that Exhibit C, which was attached to the motion, demonstrated the court’s order to release the accused. K. Jallow criticized the State for lack of due diligence in the prosecution process citing the time taken to file the appeal. K. Jallow urged the court to dismiss the state’s application.
Counsel Combeh Gaye argued that the Court should consider the fundamental rights of the accused persons and asserted that they would not leave the jurisdiction.
Counsel Gaye criticized the State’s application, stating that an injunction should have been sought instead of a stay of execution.
She also cited section 286 of the Criminal Procedure Code which governs the powers of the court in the exercise of its function. Counsel Gaye further contended that the State has not provided sufficient evidence to support their application. She stated that her client has no intention of fleeing the jurisdiction when granted bail.
She also informed the court that the 4th accused is only charged with one count of conspiracy
In his ruling, Justice Achibongo stated that he had considered the arguments presented by the lawyers and reviewed the affidavits submitted by the parties.
He expressed the opinion that the nature of the charges against the respondents, as well as the bail amount ordered by Magistrate Jabang, along with the ongoing police investigation, indicated that releasing the four while the appeal is pending could potentially impact the investigation.
Furthermore, he noted the bail conditions set by the Magistrate and the gravity of the charges against the respondents.
“There is a significant risk that a person who is granted bail, considering the substantial amount of money they are alleged to have laundered, might abscond and easily refund the illicit funds,” Justice Achibonga said.
Since the appeal challenges the jurisdiction of the trial court to hear the case, Justice Achibongo concluded that it would not be fair to allow the respondents to benefit from the trial court’s decision while the appeal is unresolved.
He said regarding the third and fourth respondents, they are each charged with a single offense of conspiracy, adding that their potential to interfere with the ongoing investigation cannot be overlooked, especially considering that the fourth respondent is not a Gambian citizen.
Given these reasons and the particular circumstances of the case, Justice Achibongo determined that the orders issued by the Magistrate court on 14 September 2023 and 19 September 2023, should be stayed until the appeal is resolved.
The state’s diligence in prosecuting the appeal has been called into question, as the records from the lower court have not been prepared or submitted.
He said considering the urgency of the situation and the state’s responsibility, a mere stay of execution without further conditions would not serve the interests of justice.
“Therefore, the stay of the orders from the Kanifing Magistrate court, as mentioned above, will be granted but subject to specific terms. This order will remain in effect for 14 days, during which the state must ensure that the record of appeal is promptly prepared and transmitted to the court, Justice Achibongo ruled.
The next hearing is scheduled for 31 October 2023, at 12 noon for mention.
