By Yankuba Jallow
A high court judge said for an arrest to be lawful, the arresting officer must have had a belief of the person’s commission of an offence and must have had reasonable grounds for entertaining that belief.
Justice Aminata Saho-Ceesay said the exercise by the Police of the power of arrest is then discretionary, but they must exercise that power reasonable.
She stated this in the case of one Adama Faal against one Mr Bernard York, Sulayman Jatta, Corporal Bah, Buba Baldeh, Inspector General of Police and the Attorney. Faal invoked the original jurisdiction of the High Court under Section 132(1)(6) of the Constitution to interpret and enforce the fundamental rights and freedoms provided in section 18 to 33 and section 36 (5). Section 19 of the Constitution enumerates the rights of a person accused of a commission of a crime. It guarantees the individual the right to personal liberty and freedom from arbitrary arrest and detention.
She said it follows that there is no gainsaying that the authorities may deprive an individual of their liberty, but the law must sanction such deprivation. A person(s) that robs an individual of such freedom must follow the procedures set down by law, she added. According to her, there is no doubt whatsoever that the right to personal liberty is a fundamental and inalienable right of every citizen of The Republic of The Gambia. She held that the Constitution and other laws, including the Police Act, empower the Police to maintain law and order. The Ground nom also empowers them to arrest and detain persons who are reasonably suspected of having committed a crime or about to commit a crime. However, the Police must exercise this power to arrest and detain with caution and in consonance with the law having due regard to the individual’s fundamental rights, she said.
She maintained that the protection of the individual from oppression and abuse by the Police and other law enforcement agencies is of significant interest in a free society.
She said Section 19 (1) of the Constitution stipulates that no one shall be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established by law.
She said: “Article 6 of the African Charter on Human and People’s Rights (ACHPR) similarly provides that every individual shall have the right to liberty and his person’s security. No one may be deprived of his freedom except for reasons and conditions previously laid down by law.”
In this case of Adama Faal, he was arrested and detained for a land matter by the police who were forcing him by way of intimidation to give up two of his landed properties to one Bernard York. The facts are that Faal and Mr York were business partners who bought several properties in their joint names.
Faal on the 11 September 2020 brought an action against the police seeking declaration that his arrest by the police on Tuesday, 8thSeptember 2020 at Ebo-Town was unlawful and a contravention of section 19 of the Constitution which provides for the right to personal liberty.
Faal, a carpenter said 13 years ago, he entered a carpentry business partnership with one Bernard York on the basis that Mr York would provide the finances for the setting up of the carpentry business. In contrast, Faal carried out the carpentry works. And thereon, anything acquired would be shared equally between them.
Faal and York jointly purchased land in Tanji in 2010 and built a carpentry workshop with two rooms where Faal resided with his family. Tools sent by Mr York and tools already owned by Faal were used to equip the workshop. Faal carried out the carpentry work while York remained in the United Kingdom and occasionally came to the Gambia.
Faal claimed that between 2012 and 2016, he purchased two other properties in Tanji and another in Brufut in their joint name. Faal said York then requested the transfer of one of the properties situated in Tanji to his son’s and the son of York’s name. Faal said he handed the original title to Mr York who requested for them. Faal said at the moment he only has the photocopies.
Faal said in November 2017 Mr York threatened to kill him, in consequence of which Faal reported the matter to the Tujereng Police Station. He said he withdrew the complaint, but Mr York continued to stay in the property in Tanji so unbearable that he had to move back to his family compound in Ebo-Town.
Faal further claimed that on the 17th August 2020, he was called via telephone by a police officer at Tujereng Police Station, inviting him to the Station the following day on a complaint lodged by Mr York.
Faal said he found Mr York at the Tujereng Station, adding the complaint was that he (Faal) has possession of the original copies of his property documents. Faal said he informed the police that the properties belong to both himself and Mr York.
Faal informed the court he was asked to return the following day with original copies, but he informed them that the original copies were with his lawyer. Faal left and did not return.
By a letter dated 13th November 2017, Faal caused his lawyer to write to Mr York demanding that he desists from his unruly behaviour and misconduct against him which was also copied to the Inspector General of Police.
Faal’s Mysterious Arrest
Faal said he was arrested on the 8th September 2020 at the Ebo-Town Police Station when he went to visit someone who was under police custody. He claimed that he was detained at the said station by Buba Baldeh, the officer-in-charge under the instruction of Sulayman Jatta, the Station Officer at Tujereng Police Station who asked him to arrest Faal whenever he sees him.
Faal said he was detained at 6 pm while waiting to be picked by the Tujereng police only to be released at 10 pm when they failed to pick him up. Faal detailed that at 10:50 pm, while at home, Sulayman Jatta, the Station Officer at Tujereng arrived at his family compound with Mr York, in the presence of his family, arrested him on the pretext that he was going to be taken to the Tujereng station and detained.
Faal claomed that he was put inside a motor vehicle and taken to the Brusubi Police Station, still under the company of Mr York. He was detained and placed inside a small cell containing 13 other persons without regard to the Covid-19 pandemic health and safety guidelines and made to sleep on the bare dirty floor.
At around 9 am the following day, he said he was put in handcuffs and taken to Tujereng station, adding all this happened while he was not told the reason for his arrest and detention. He alleged that he was not given food to eat and water to drink during the course of his detention.
Faal said the cuffs were not removed from his hands despite his demand for their removal as it was injuring his wrists. He added that his hands continued to stay in handcuffs even under interrogation by Sulayman Jatta at his office who continued to deny him food and water.
Faal further stated that he has not committed any crime and the matter relating to the said properties in the joint names of himself and Mr York is civil, which was well known to the police. He said he was not charged with any offence or arraigned before a court for any alleged crime.
Faal alleged that his arrest and detention was a means of intimidating him to submit the documents of title, knowing fully well that he has not committed any criminal offence. He added he was released on bail on the 9th September 2020 at 4 pm and was asked to report to the Tujereng Police Station the following day at 10 am. He told the court that he is still under bail.
He said when he reported on the 10th September to Tujereng station, after another interrogation, a CID police officer called Faal’s Lawyer requesting the Lawyer to produce the documents of title. The Lawyer indicated to him that this was a civil matter and that Mr York had copies of the said documents and that since he was the complainant, he should produce the same. The officer said he was not interested in what the lawyer was saying and demanded that she deliver the said documents. Lawyer Rachel Y. Mendy refused, maintaining that the ownership of the properties has nothing to do with the Police and that Mr York should seek remedy in the civil courts.
Faal claimed that as consequence of the unlawful acts of Mr York, his carpentry business which he depends on to feed his wife, children, and his extended family, has been brought to a halt. This resulted in the loss of income as the said business is the only means of livelihood for himself and his family. Faal said the said arrest and detention caused him
humiliation, disgrace, ridicule and contempt.
Faal claimed that on 11th September 2020, the police and Mr York caused him to accompany some CID Officers to all the properties to carry out measurements.
Following their return to the Tujereng Police Station, Faal said the CID Officers asked him to relinquish his rights to two of the properties in Tanji, including the one
housing the carpentry workshop and his residence. They proposed that he retain the other undeveloped property, which is also situated at Tanji, which would be transferred in his sole name, but he refused the same.
The Arguments of the Defendants
Mr York did not take part in the proceedings of the case. However, it was the case of the other respondents (police and Attorney General) that the arrest and detention of Mr York was on suspicion of stealing, adding the Police released him on 9th September 2020.
It was also their case that the following day, the 10th day of September 2020, the Police obtained Faal’s cautionary and voluntary statements. Sulayman Jatta alleged that the police officers informed Mr Faal of the offence he allegedly committed during his detention. Jatta said while the Police were questioning him at any of the police stations, they never denied food, drink or access to his Lawyer. The Respondents submitted that the Applicant was lawfully arrested and detained for investigation on suspicion of the alleged commission of an offence and that they released him within 24 hours.
The Respondents (the police) admitted to the fact that they arrested Mr Faal on the 8th September 2020. The court said it was their duty to justify the arrest of Mr Faal. The Police admitted that on the 17th August 2020, Mr York lodged a criminal complaint of seizure of land title documents by Mr Faal at the Tujereng Police Station. On the same day, a text message was sent to Faal inviting him to answer the complaint. On 19th August 2020, the Applicant voluntarily honoured the invitation and was informed of the substance of the allegations and was told to return the next day. The Applicant failed to return as promised and was only apprehended at Ebo Town Police Station on 8th September 2020 and conveyed to Brusubi Police Station, where the Police detained him overnight. Following the investigation, during the day, the police said Mr Faal was released within 24 hours of his arrest. He was further invited to report to the Police Station the next day, which he did and provided a voluntary and cautionary statement.
The Police argued that the following factors informed their decision to arrest Mr Faal, hence, the existence of reasonable suspicion for arrest and detention. The first reason was the complaint by Mr York, the second reason was the admission that he had the original copies of the leases, which Mr York alleged he converted and the lack of cooperation from Mr Faal in not honouring the police invitation on 18th August 2020 that sought to investigate the complaint.
The Judge said however, there is no evidence before her of a complaint made by Mr York. She said the police did not produce any document or proof of the complaint by Mr York. She added that the police also failed to call any witnesses to verify Mr York’s complaint.
She said the second ground also lacks merit because Mr Faal’s admission to having the original copies of the documents in his possession cannot attribute theft to him.
She said the third ground does not justify the foundation for probable cause as Mr Faal had already told the Police that the documents were with his Lawyer and that the matter was civil in nature.
She said the reasons given by the police as the basis for the arrest do not establish reasonable suspicion for the arrest and detention of Mr Faal.
She said upon receiving the complaint, the Police should have made further investigations into the truth of the complaint. She also held that the Police should have taken Mr Faal’s statement from the moment he was invited to the Station and not after the arrest and detention. The Police ought to have also called witnesses who may know both the Applicant and the 1″ Respondent since the two are business partners and related by marriage.
“In my considered view, further investigations would have not only established a reasonable suspicion, but also determined whether the Police were acting ultra vires,” she said.
The Judge said the police failed to establish that they carried out any preliminary investigation, which led them to reasonably suspect that the Applicant had stolen properties belonging to Mr York before they arrested him.
I must say that the mere fact an allegation is made against a person does not justify his arrest and detention. To justify such an arrest, the allegation must be founded on reosonable grounds.
Upon scrutiny, the Judge said it is evident that they are registered in the joint names of Mr Faal and Mr York. The Judge found and held that the act of the police was calculted to deprive Mr Faal of his stake in the properties favouring Mr York. She said the police had no right to determine which properties belong to Mr York and which ones were to be retained by Mr Faam.
“That, in my view, amounts to adjudication and not an investigation,” she held.
The Judge said the Police have usurped the adjudicatory functions and powers of the courts to settle disputes between persons who are business partners.
To protect property, prevent and detect crime, apprehend offenders and enforce all laws and regulations, they are charged with enforcing according to section 4 of the Police Act.
She said the police acted beyond their mandate by dealing with a land dispute, which was wholly civil and thus acted
ultra vires. She said the unlawful acts of the police are apparent since they have not charged him with any offence.
Section 4 of the Police Act provides for the duties of the Police to include the prevention and detection of crime, apprehension of offenders, the preservotion of law and order, amongst others. It does not include undue interference in the private affairs of citizens.
She held that Mr York who activated such improper use of power by the police is just as liable as they are.
She held that Mr Faal’s arrest was unlawrul and contrary to Section 19 of the
Constitution of The Gambia 1997. She also held that Mr Faal’s detention by the police was unlawful.
“In my judgment, these arrests and detentions of the Applicant were charades to intimidate him in submitting the documents and relinquishing his interest in the prproperties in issue,” the Judge said.
She declared that the arrest of Mr Faal by the police initiated or caused by Mr Yorl on Tuesday, the 8th day of September 2020
at Ebo Town in the Kanifing Municipality of the Gambia is unlawful and inconsistent
with and/ or in contravention of Section 19 of the Constitution of the Gambia.
She also made a declaration that the detention of Mr Faal since Tuesday the 8th day of September 2020 is unlawful and unconstitutional in that the said detention is inconsistent with and/or in contravention of Section 19 of the Constitution of the Gambia.
She ordered for the unconditional release of Mr Faal and all conditions and recognisances entered be discharged or released forthwith.
She relied on section 19 (6) of the 1997
Constitution which clearly states that “Any person who is unlawfully arrested or detained by any other person shal be entitled to compensation from that other person or from any other person or authority on whose behalf that other person was acting.”
She orderer that the police and Mr York to jointly and severally pay compensation by way of aggravated damages to Mr York in the sum of D150,000.00 (one hundred and fifty thousand dalasis) .by reason of his unlawful arrest and detention.
