By Yankuba Jallow
The Gambia Supreme Court has dismissed all the grounds of appeal except one of the 10 appeal grounds in the Case involving Justice Wowo and The State.
The Appellant, Joseph Wowo, was charged together with Lamin Jobarteh in the Banjul High Court on 13 counts. Both of them were charged together in count 3 and 4 respectively whilst the Appellant was alone charged in the other counts. The offences they were charged with include; on counts 1 and 5, abuse of office contrary to section 90 of the Criminal Code (CC), on count 2 fraud and breaches of trust by persons employed in the public service contrary to section 112 of the CC, on count 3 conspiracy to defeat justice and interference with witnesses contrary to section 102 of the CC, on count 4, offences relating to judicial proceedings contrary to section 106(1)(d) of the CC, giving false information to public servant contrary to section 114, in counts 6, 7, 8, 9, 10, 11 and 12 and on count 13 false assumption of authority contrary to section 92 of the CC.
On the particulars of the charge are that the Appellant, on or about the 19th November 2013 in Banjul without lawful authority assumed the office and functions and acts of a public nature.
At the time the offences were committed, the Appellant (Justice Wowo) was the substantive President of the Court of Appeal of the Gambia and according to him, sometime in late November, 2012, also Acting Chief Justice of The Gambia.
In the procedural history, on the 9th January 2015, Hon. Justice Nkea of the Banjul High Court delivered a judgment against both Justice Wowo and Lamin Jobarteh on some of the counts. He found the Appellant guilty on counts 1, 2, 3, 4, 6, 7, 8, 9, 10 and 13 of the information. The sentences imposed in respect of these convictions, were as follows: Counts 1 and 2, a fine of D200,000 in respect of each count, and in default thereof, 2 years’ imprisonment. On Count 3, 1 year imprisonment, on Count 4, 3 months imprisonment, on Counts 6, 7, 8, 9 and 10 D500 in respect of each Count, and in default thereof 6 months imprisonment and on Count 13, 2 years imprisonment.
Dissatisfied, Justice Wowo appealed to the Gambia Court of Appeal but his appeal was unanimously dismissed by the Justices of the Court of Appeal. The Justices of the Court of Appeal were Justice Fagbenle, Justice Salla-Wadda and Awa Bah.
Joseph Wowo, appealed to the Supreme Court on the 22nd December 2014 and amended the appeal on the 20th of April 2015 as well as filed a further amended Notice of Appeal on the 19th May 2015.
A ground of the appeal was that the trial Judge, Fagbenle did not have jurisdiction to try and to convict him. Also, the Appellant submitted that the Appeal Court erred in law in upholding the decision of the trial Court on Count 13; that in addition erred in law in holding that Section 132 of the Constitution gives the right to the Lower Court to interpret the provisions of Sections 140 and 5 of the Constitution; that the Learned Justices misdirected themselves on the facts, when they upheld the conviction of the Appellant on Count 1 on the information dated 19th August 2013 in the Lower Court, that they misdirected themselves on the facts, when they upheld the conviction of the Appellant in Count 2; that the Justices of the Court of Appeal misdirected themselves on the facts in upholding the evaluation of the extra judicial statement of the Appellant and the evidence given at the trial Court thereby occasioning a miscarriage of justice and also misdirected themselves when they upheld the evaluation that the Appellant’s petition to the NIA was actuated by malice; that the Court of Appeal misdirected themselves by upholding a wrong evaluation of all the evidence adduced at the trial and thus occasioned a miscarriage of justice and also the decisions are unsupportable having regard to the evidence adduced at the trial; finally that the Justices of the Court of Appeal misdirected themselves when they held that a judge whose contract is not subsisting has jurisdiction to hear and determine a case.
Justice Browne- Marke of the Supreme Court when delivering the Judgement dismissed the Appellant’s appeal against the judgment of the Court of Appeal in respect of Counts 1 to 9 of the Judgment of the High Court and only allowed the appeal on Count 13, where he was acquitted and discharged in respect of that Count.
Hon. Justice Mr. Hassan B. Jallow, the Chief Justice of the Gambia, Hon. Justice Mr. CS Jallow, Q.C, Hon. Justice Mrs. MM Sey and Hon. Justice Mr. OMM Njie, Ag, all agreed to the judgment in unanimity.
In determining issues, the Justices of the Supreme Court held that Justice Nkea of the High Court was and duly a properly appointed Judge of the High Court when the Appellant’s trial commenced. In determining whether Justice Nkea was competent to hear the matter, the Supreme Court relied on Section 141(1) which states “no office of judge shall be abolished while there is a substantive holder thereof”. The Supreme Court held that there was no evidence before the trial Court that Justice Nkea was not the substantive holder of the office of the Judge and his office could not therefore be abolished. On Section 141(2) it reads “subject to the provisions of this section, a judge of a superior court- (a) may retire on pension at any time after attaining the age of 65 years, (b) shall vacate the office of judge on attaining the age of 70 years, and (c) may have his or her appointment terminated by the President in consultation with the Judicial Service Commission.” In the Supreme Court judgment, the Court held that there was no evidence before the trial Court that Justice Nkea had reached the age of 65 years and had requested that he retired from office nor that he had reached the age of 70 years and should have vacated the office of the judge; nor that his services had been terminated by the President pursuant to paragraph (S141(2)(c)).
The Supreme Court also held the allegations of bias on the part of the Trial Judge, made by the Appellant, are likewise, without merit.
Turning to the charges in respect of his letter to the NIA about Mrs. Bensouda, the Supreme Court does not think that there could have been any doubt that his actions were actuated by express malice, and that the Trial Judge of the High Court (Fagbenle) was right to have convicted him of the offences charged in count 6, 7, 8, 9 and 10.