By Mamadou Dem The Banjul Magistrates’ Court, yesterday convicted and sentenced Seth Yaw Kandeh and Olufemi Erinle Titus of Ghana and Nigeria respectivelyupon changing their plea of not guilty to guilty based on advice given to them by their counsel. The duo who was standing trial alongside Sait Matty Jaw, a lecturer at Gambia’s highest Institution of learning (UTG) was ordered to each pay a fine of fifty thousand dalasis in all the counts meted against them in default to serve one year imprisonment without hard labour. They were jointly charged with Mr. Jaw on four counts ranging from “conspiracy to commit misdemeanour, failure to register a business and two counts of Disobedience of Statutory Duty, contrary to the laws of the Gambia. However Mr. Jaw maintained his plea of not guilty. Following a ruling by the Magistrate upholding the prosecution’s application for an NIA operative (PW1) to testify in camera, Lamin Mboge counsel for the convicts informed the court that he was appearing in the case for the first time. He said, “I have advised my clients to change their plea which they have accepted.” “I am therefore applying for this court to read the charges to the 2nd and 3rd accused persons accordingly for their fresh plea,” he submitted. Narrating the facts of the case, state counsel Abdourahman Bah informed the court that sometimes in May 2014 while the second accused person was conducting a survey report of collation for Global Organization engaged in data collection, he met up with one Jacob John whom he said put him in contact with the first accused person for them to conduct the survey exercise in The Gambia. According to the prosecutor, the 2nd accused works for Facts International Ghana Limited and was awarded the contract by Gallop to conduct survey in several West African Countries including The Gambia; adding that sometime in November, 2014, the 2nd and 3rd accused persons arrived in the Gambia to conduct the survey exercise. He said prior to their arrival into the country, they already contacted Mr. Jaw. At that juncture, attorney for Mr. Jaw, Mrs. Combeh Gaye Corker quickly intervened and urged the court for the prosecution to limit the facts to the convicts. She added that her client was maintaining his plea of not guilty. Continuing with his submission, the state disclosed to the court that pursuant to the survey exercise, the first accused and the convicts procured some students from the said university and organised a training workshop for the data collection; adding that they were equipped with questionnaires containing 42 questions. “Arrangements were made for these questions to be dispersed throughout the Gambia for the data collection,” he submitted. At that point, the state applied to tender the survey report. Lawyer Mboge, counsel for both convicts said “I need not object to safe the time of the court, I just wish to guide this court, this document will be relevant to the proceedings only when the accused persons deny the charges, then it became the duty of the prosecution to prove.” According to Barrister Mboge, the documents were not relevant as at that moment because there was no duty on the prosecution to prove the allegation meted against the convicts. Combeh Gaye said admission of the said report would be prejudicial to his clients. “So I urge this honourable court to consider the relevance of this document which is the bedrock of admissibility,” she explained. Mrs. Gaye also submitted that it is premature to admit the document at that stage and prejudicial to her client. She therefore opposed its admissibility. The state finally withdrew the application for the court to admit the survey report. The prosecutor further stated that the 2nd and 3rd convicts conducted the workshop to conduct the survey in disregard of the law and on the 5th of November, this year the accused persons were arrested by the National Intelligence Agency (NIA) and investigation was launched where the first accused and the two convicts volunteer to give statements in their own writing. Attempt to tender both voluntary and cautionary statements obtained from the aforesaid persons proved futile because the defence insisted that they were inadmissible; adding that the order of the court on the last adjourned date for the state to furnish them with all statements was flouted. Upon finishing the narration of the facts, both convicts intimated that the facts narrated by the prosecutions were true and correct. The trial Magistrate convicted them based on their plea of guilty and admission of facts presented by the prosecution. Mitigation Plea: In his plea of mitigation, Barrister Mboge submitted that the convicts are first time offenders and are brothers from the sub- region of Ghana and Nigeria respectively. Mr Mboge argued that the accused persons have shown that they were so remorseful that they couldn’t control their emotions. “In order to mitigate for sentence before this court, the convicts have accordingly registered their businesses in this country and regularised everything within the jurisdiction and has therefore satisfied the requirements of count 2, 3 and 4 of the charge sheet” Mboge submitted further that the convicts acted mistakenly for innocent representation that registration was not required of them to conduct the survey. He added that the court has the discretion to impose punishment provided under section 27 of the Criminal Code i.e. Fine, Compensation, Cost for proceedings and sentencing to keep the peace, or under section 29 sub section 3 b of the same Criminal Code also empowered the court with an unfettered discretion to a fine in lieu of custodial sentence which he said is further buttressed by section 34 of the Code. Lawyer for the convicts pointed out to the court that its discretion for proper correction measures is unfettered. He therefore applied to tender the business registration certificates of the convicts. “I urge your worship to exercise your discretion and impose a reasonable fine, tamper justice with mercy to enable my clients enjoy Charismas with their families.” He finally urged the court to consider the nature of the offences. He assumed that giving them the second opportunity will encourage other businessmen to come and invest in the country; adding that the 2nd convict is a sickle cell patient and has not been receiving adequate medical treatment. Speaking as Amicus curiae, Edward Gomez said he was appalled when he visited state Central Prison Mile II during his tenure as Attorney General and Minister of Justice; adding that circumstances at times compel people to act beyond endurance; adding that human beings should be treated with dignity. He appealed to the court not to impose a custodial sentence and Gambia shouldn’t be seen as a xenophobic country. Sentence: Magistrate Samsideen Conteh in passing the sentence on the convicts said “This court will tamper justice with mercy.” He added that the convicts did not waste the time of the court and it would be inhuman to impose a custodial sentence on them. He therefore imposed a fine of 50,000 on each of the accused persons on all the four counts preferred against them in default to serve one year on each of the said counts. The trial Magistrate further ordered for the sentence to run concurrently but if the convicts fail to comply with the sentence for one month then they shall serve a custodial sentence. The case was adjourned till 14 January 2015 to proceed with the trial of Sait Matty Jaw who maintained his plea of not guilty.]]>
