Monday, May 10, 2021

Kanifing Court to Rule on Musa Yalli Bachilly’s Application for Stay Of Proceeding

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By Kebba Secka

The Judgment that was expected in the case between Inspector General of Police (IGP) and Secretary General of Gambia Action Party (GAP), Musa Yalli Bachilly, did not take place on 4th May, 2021.

His defense counsel, Ibrahima Kijera, made an application for a stay of proceeding at the High Court, following the court’s ruling to enter into a judgment on 4th May, 2021.

The prayers (request) sought in the application were; arrest of judgment (prevent passing of a judgment), application for a stay of proceedings (alternatively) and any other order, the court deem necessary.

The defence’s motion dated 3rd May, 2021 was received by the court on 4th May, 2021. When the case was called before Magistrate Isatou Janneh Njie, the defence counsel began with an apologetic comment on his conduct before the court on the last adjourned date.

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“First and foremost, I wish to apologise to the court for the misunderstanding that happened to me,’’ said defense counsel Kijera. He said he was frustrated and overwhelmed.

Superintendent Almamo Manga represented the Inspector General of Police.

The motion, which is supported with a 10 paragraph affidavit, is backed under section 245 of the criminal procedure code, cap 10, volume iii revised laws of the Gambia 2009.

The defence lawyer said he relied on all the paragraphs in the motion, but most importantly paragraphs three to ten (3-10). He referred the court to the colonial era matter in the case of Joke and Faye v Commissioner case number (8) of 1960.

He said in that case, ample time was granted for the accused person to engage the services of a lawyer to prepare for the defense. He also cited the case of Antouman Banna v Ocean Bay.

According to him, if an averment of affidavit is not opposed to by the prosecution, it should be deemed admitted, arguing that the prosecution did not oppose the affidavit in writing.

He made the argument after the prosecution was asked by the court whether they would like time to reply to the said affidavit which the prosecution also received on 4th May 2021.

The prosecution said it would not need to reply, instead, it would enjoin the court to proceed and enter into a judgment. Manga told the court that the application by the defence counsel to arrest the judgment is incompetent, but the defence objected to it, arguing that prosecution cannot reply to the application orally but in writing.

At that juncture, the presiding magistrate ruled to allow the prosecution to proceed with his arguments.

The prosecution said: “This application by counsel is not competent. To arrest the judgment of this court is one of the defence appeal (prayers) and section 245 is very clear on that.’’

He continued, the same section outlined what ought to be done by the defence which was not complied. He said the arguments of the defence on the issue of arresting the judgment was not substantiated with reasonable facts and thereby urged the court to disregard the application.

About the stay of proceeding, the prosecution said the court cannot stay its own proceedings unless it received an order from a superior court to stay the proceedings. He said since the case was a criminal matter, the court cannot adjourn it more than two weeks. But the defence argued that the time bound for granting adjournment is a practice directive and not the law.

The defence finally urged the court to grant it opportunity to be heard, accept the application for a stay of proceeding and any other order the court finds necessary. The matter was adjourned to 26 May, 2021 at 2pm for ruling.

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