By Yankuba Jallow / Nelson Manneh
The Banjul High Court presided over by Justice Aminata Saho-Ceesay, is set to deliver a ruling on 29th June 2018, in the application suit made by Lawyer Bory S. Touray on his behalf and that of the Solicitor General Chernor Marenah, seeking for the High Court to quash the charge sheet against them at the Banjul Magistrates Court. The duo who are aggrieved with the decision of the Magistrates Court to prosecute them, filed an application at the High Court presided over by Justice Aminata Saho-Ceesay seeking an order for a stay of prosecution at the Lower Court, pending the outcome of the case at the High Court.
The charges faced are obtaining registration by false pretense, making documents without authority, neglect of official duty and conspiracy to commit a misdemeanour.
Lawyer Touray filed an application for the charge sheet to be quashed at the High Court, where the Solicitor General of the Gambia, Cherno Marena and himself are the applicants, whilst Mr. Lamin Trawally is the Second Respondent.
Lamin Trawally, on Monday the 23rd April 2018, continued with his reply in his case against the Solicitor General and Lawyer Bory S. Touray.
Mr. Trawally on the last adjournment, began his reply to Lawyer Bory S. Touray’s submission on his own behalf as well as the Solicitor General.
Continuing his reply, Trawally said the information in the applicants (the two lawyers) affidavit, was not relevant to the issue at the heart of the private prosecution, and the matter before the Magistrates’ Court was simple.
Trawally continued that Kebba Sanyang, a Lawyer to Alieu Sonko, spoke to Cherno Marena and Borry Touray prior to the registration asking them not to register the documents; that anything done by the support staff of a Lawyer is the same; whether the support staff of Borry Touray or he himself submitted the documents, is the same;
that Borry Touray in his affidavit, submitted at the Court of Appeal in paragraphs 32, 33 and 34, confirms that Kebba Sanyang asked them not to register the said documents.
‘‘My Lord, there is nothing in all the judgments of the High Court and Court of Appeal that says the names of Lamin Trawally on the certificate of registration was lawful. What is before the High Court and the Court of Appeal is a civil dispute between the parties, to set aside the agreement and share the properties. I didn’t submit the documents to the Registrar General’s office and was at no time aware that the documents were registered in my name until at the Court of Appeal. I believe this application by the Applicants, is geared towards avoiding accountability for their conduct, and the Magistrate Court has jurisdiction to hear the matter as by Section 69 (3) of the Criminal Procedure Cod. If the applicants can go to the High Court for the Magistrate Court to be accountable, they should be willing to be accountable themselves. He who comes to equity must come with clean hands,’’ Trawally said.
He continued: ‘‘The criminal charges against the applicants are found in the Criminal Code and by virtue of section 3 (1) of the Criminal Procedure Code, “all offences under the code shall be enquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. They are charged according to the criminal code and the method of instituting criminal proceedings is by virtue of Section 69 (3) of the CPC, which due process was followed, who are they not to be prosecuted in accordance with the dictates of the Law? The applicants misled the Court by not showing what the charges are, against them. This kind of motion has no legal basis,’’ Trawally posited.
Trawally argued that the applicants are misleading the Courts as there is nowhere in Section 69 subsection (4), of the CPC, for a Magistrate to make ruling for a ‘‘prima facie’’, as submitted by Counsel Touray.
“Section 69 Subsection (4) of the CPC put the responsibility of a ‘‘prima facie’’ entirely in the hands of the Magistrate. There is no rule for the Magistrate to make a ruling on such a case,” Trawally said.
He said all the affidavits he tendered were not mere arguments but these are based on the dictates of the Law.
He said the office of the Registrar General is created by Law; that it is the Act which makes provision for the public registering of Deeds in the Gambia and that it explains the mode of acknowledgement before registration.
“My Lord, both Cherno Marena and Borry S Touray, didn’t adhere to the dictates of Section 10 of Chapter 57:01 of The Lands and Registration of Deeds Act, Volume 8, Laws of the Gambia 2009. On the mode of acknowledgement for the registration of deeds, which states that “an instrument or a will executed after the date when this Act comes into operation, shall before being registered, be acknowledged by the vendor, donor, mortgagor, lessor, or other person conveying, mortgaging, charging or demising the land, or by some person authorized by him or her to acknowledge it, or proved upon oath by one or more of the subscribing witnesses to have been duly executed, which oath the Registrar is hereby empowered to administer, such proof or acknowledgement being made. In light of this Law and considering the case, the deeds of gifts ought to have been acknowledged by both donors before registration, or by both Solicitors of the donors. In this case, both donors were represented by different solicitors and the acknowledgement of one solicitor is not enough for the approval of registration as it is a requirement that the acknowledgement of Alieu Sonko be obtained, or subscribing witnesses to swear to an oath before the Registrar General and not otherwise. I am the subscribing witness as far as this matter is concerned and I didn’t swear to an oath before the Registrar General, and my names are used to authenticate a document without my consent,” he said. He continued that the motion of the applicants is misleading in the sense that, it is against three respondents: 1. The Exparte Clerk of the Banjul Magistrate Court; 2. Lamin Trawally and 3. The Attorney General; that since the commencement of the motion, he is the only one coming to the High Court and replying to the affidavits and it is him whose rights have been infringed. The issue of the Exparte Clerk of the Banjul Magistrates Court is abuse of process by virtue of Section 49 (1-4) of the Courts Act for Non-Liability to suit of officers acting judicially and Section 123 of the 1997 Constitution’s immunity from suit; that the Law on private criminal prosecution has nothing to do with the Exparte Clerk of the Banjul Magistrate Court.
“My Lord, by virtue of Section 164 of the CPC, for the accused persons to be called upon to plead, is the dictate of the Law governing criminal procedure, and the applicant’s motion is not known to Law. The procedure known to the Law as to objection to a criminal charge, is spelt out under Section 161(A) of the CPC, as: “an objection to a charge for any formal defect on the face thereof, shall be taken immediately after the charge has been read over the accused person and not later. The applicants are yet to plead to the charge and the charge was not read for them to object to it,” he said.
At this juncture, the Judge told Mr. Trawally that he was taking a lot of time and she was not going to adjourn the matter. Mr. Trawally replied that he will try to summarise his statements as much as he could.
Trawally said the statements of Lawyer Kebba Sanyang is sufficient proof and by virtue of Section 10 of Chapter 57:01 of The Lands and Registration of Deeds Act, Volume 8, Laws of the Gambia, the applicants have a case to answer.
Trawally concluded by praying to the honorable Court to strike out the motion with heavy cost on the applicants and make an order for the continuation of the private criminal prosecution in pursuant of his constitutional rights and prayed for the Court to throw out their suit because it has no basis of Law.
