The Basse High Court presided over by Justice Landing M. Sanneh has freed one Mamadou Saidou Jallow who was previously convicted by the Basse Magistrate’s Court of stealing 3 million CFA.
At the lower court, Mamadou Saidou Jallow was charged with stealing contrary to section 252 of the Criminal Code of the Gambia. He pleaded not guilty and the prosecution called five witnesses who all testified in the case and tendered a police investigative report, whereas Jallow testified in Defence and called one other witness who also testified in the case.
Momodou Yaya Jallow, the complainant, said he gave Mamadou Saidou Jallow (the appellant) an amount of 3 million CFA at his shop which he never returned. The appellant was convicted for stealing by the trial magistrate placing heavy reliance on the uncontroverted evidence of the complainant.
On the 9th December 2020, Lawyer Malick H.B. Jallow filed an appeal against the judgement of the trial magistrate in Basse, Omar Jabang, dated 16th September 2020, based on two grounds of appeal.
The first ground of appeal was that the trial magistrate erred in law when he held that the prosecution has proved their case beyond reasonable doubt. Lawyer Jallow contended that the evidence of all the prosecution witnesses did not prove any fraudulent activity on the part of Mamadou Saidou Jallow (Appellant).
Barrister Jallow argued that the evidence of the witnesses of the complainant did not prove if the appellant received money from the complainant. He maintained that the evidence of the appellant and witnesses proved that the appellant did not receive monies claimed by the complainant. Finally, Lawyer Jallow submitted that in the circumstance, the evidence presented by the prosecution in the case did not meet the required threshold to obtain criminal conviction.
The second ground of appeal was that the judgement of the Magistrate was erroneous.
Jallow submitted that the evidence adduced before the trial court never disclosed the offence of stealing as encapsulated in section 252 of the Criminal Code. Lawyer Jallow argued that stealing is a crime of specific intent, adding that before conviction could be secured against an accused person, an intention to permanently deprive the owner coupled with fraud and dishonesty must be clearly manifested by the accused person.
He cited the case of Badjie versus The State (1995/96) and submitted that there must be evidence of appropriation before one is convicted of stealing and in this case, it was not proven.
Lawyer Jallow argued that as per section 2 of the Debtors Act which prohibits contractual obligation default payment of money arising there from arrest and imprisonment of person. He submitted that indebtedness should not be equated to stealing under the circumstance of the case.
He submitted that from the totality of evidence adduced at the lower court, there was no sufficient evidence to support the conviction of the appellant (Mamadou Saidou Jallow). He asked the court to acquit and discharge the appellant for lack of evidence to support the conviction.
For their part, the State formulated two issues for determination – whether the petition was filed within prescribed time and whether the court has jurisdiction to entertain the appeal.
The State (Respondents) argued that the appellant did not comply with section 274 of the Criminal Code as the appeal should only be entertained within 30 days of the order or sentence appealed against. The respondent argued that the appeal was brought 3 to 4 months after the judgement. The prosecution submitted that the court lack jurisdiction to hear the appeal.
In his judgement dated 28th April 2021, Justice Sanneh held that the appellant himself initially filed an appeal 4 days after the judgement – on the 20th September 2020. He held that on the 24th November 2020 when the appeal came up, Lawyer Malick Jallow sought leave from the court for the notice of appeal to be amended and the court ordered for a substituted service to be made by Lawyer Jallow.
“I do not agree with the State/Respondent Counsel’s that the appellant’s appeal was filed out of time. Rather it is my considered view that the appellant himself filed his appeal on time even well before his counsel’s intervention to do so on his behalf,” the Judge said.
On whether the prosecution has proved its case beyond reasonable doubt, the Judge said it is a principle of law that in order to prove the offence of stealing, there must be cogent evidence that the property in question was stolen in the first place.
Justice Sanneh said the position of the law does not necessarily mean that all or any piece of evidence that is not challenged by the opposing party will be deemed as admission to that effect. The judge said such piece of evidence must be credible at the first place by all standards as regard to its existence. He said such piece of evidence, even though not challenged by the opposing side, must weigh probative value or must be cogent to establish an existence or non-existence of a particular fact (s) for the court to rely upon it in any proceedings more so in a criminal trial.
The Court set-aside the judgement of the lower court as it held that the evidence of all the witnesses of prosecution did not prove any fraudulent intent on the part of the appellant. He also held that the evidence of the prosecution witnesses did not prove if the appellant received money from the complainant. Finally, the judge held that the evidence of the appellant himself and his witnesses prove that the appellant did not receive monies claimed from the complainant.
The Judge held that the conviction and sentence were unreasonable; adding the evidence adduced by the prosecution did not prove the elements of the offence of stealing. He set-aside the judgement of the Magistrate and proceeded to acquit and discharged Mamadou Saidou Jallow.
