By Yankuba Jallow
The criminal appeal case of ex-local government minister Yankuba Touray have on Monday proceeded before the Gambia Court of Appeal.
Touray wants the court to set-aside the whole judgment of the high court against him. The ex-military captain was convicted of murder and sentenced to death by way of hanging. He was found guilty of murdering his colleague cabinet minister, Ousman Koro Ceesay, who was assigned with the portfolio of Finance.
Touray is challenging the decision of the high court on eight grounds.
When the case was called on Monday, Lawyer Abdoulai Sisohor appeared for Yankuba Touray while Senior State Counsel Muhammed B. Sowe represented the State.
Justice N. Salla-Wadda, the President of the Court of Appeal informed the two lawyers that the supplementary recordings (which were the missing files in the record of proceedings) were served on the court in the morning. Lawyer Sisohor told her that service was effected since last week Tuesday on him and Counsel Sowe.
“The court received copies this morning,” the Judge said.
Both Counsels Sisohor and Sowe indicated that they are satisfied with the records of proceedings.
Lawyer Sisohor requested for the court to make an order for the briefs to be filed.
“How long do you need to file your brief?” asked Justice Salla-Wadda.
“28 days, my lady,” Sisohor answered.
“In the event you need to file a reply on points of law?” the Judge further asked.
“I need 7 days,” Sisohor said.
“Mr Sowe?” the Judge asked.
“We will also take 28 days to file our brief,” Counsel Sowe said.
The Court granted all their requests and ordered as follows: Yankuba Touray is given 28 days which shall expire on the 28th July 2022 and one extra day is given to effect service, the State is given 28 days which shall expire on the 25th August 2022 and one extra day is given for service on the parties and Lawyer Sisohor is given extra 7 days which shall expire on the 5th September 2022 to file a reply on points of law, when necessary,.
The case is adjourned to the 10th October 2022 for the adoption of the briefs. After the adoption of the briefs, a date will be set for judgment.
Readers will recall that Mr Touray was on the 14th July 2021 sentenced to death by the high court by means of hanging after he was found guilty of the murder of former Minister of Finance, Ousman Koro Ceesay in 1995 at his residence in Kololi by beating him with a pestle like object and other dangerous weapons.
Touray, a former cabinet minister under the military reign in the Gambia in 1994-1996 was convicted of murder by the high court, which he is now challenging before the Court of Appeal. The ex-military captain wants the Court of Appeal to acquit and discharge him of the offence.
It is his case that the high court judge misdirected himself on the facts which led to his wrongful conviction based on unreliable, inconsistent and uncorroborated statements of Alagie Kanyi. Touray said the high court judge failed to take into account admission of Alagie Kanyi.
On Monday, 6 June 2022 the case came, for the first time, before the Gambia Court of Appeal. The three judges hearing the appeal case are Justices Na-Ceesay Sallah-Wadda, Haddy Cecilia Roche and Basiru V.P. Mahoney.
On ground one of the appeal, Touray said Justice Ebrima Jaiteh of the high court failed to properly evaluate the evidence adduced by the prosecution before coming up with his decision.
On the particulars of the error, Touray said, except Alagie Kanyi (prosecution witness six), none of the prosecution witnesses (oral testimonies) or documentary evidence adduced before the high court shows or prove that his acts and/or omissions caused the death of Ousman Koro Ceesay. He said there was no charge of accessory before and/or after the facts that his acts and/or omissions caused the death of Ousman Koro Ceesay. He added there was no charge or charges of conspiracy levied against him and others for the alleged death of Ousman Koro Ceesay.
On the second ground of appeal, Touray said high court judge, Justice Jaiteh was wrong in law when he held in his judgment that “from the evidence, I therefore hold as fact that Alagie Kanji is an accomplice to the murder of Ousman Koro Ceesay and is therefore competent”
Touray said he was charged and tried with Alagie Kanyi with the single charge of murder of Ousman Koro Ceesay. He added that Edward Singhatey, Peter Singhatey, BK Jatta, Tumbul Tamba, Pa Alieu Gomez, himself and Alagie Kanyi were not charged and tried together for conspiracy to murder, accessory before and after the facts to commit murder. Touray said Alagie Kanyi did plead guilty to the charge in relation to the death of Ousman Koro Ceesay. He said Alagie Kanyi’s testimony was not corroborated at trial by the prosecution.
“The oral testimony of PW6 (Alagie Kanyi) is inconsistent with the evidence of all the other witnesses,” Touray said.
On ground three of the appeal, Touray said Alagie Kanyi’s testimony was unreliable, inconsistent and uncorroborated. He added that the high court judge misdirected himself on the facts and wrongly convicted him.
On the particulars of the error, Yankuba Touray said Alagie Kanyi made several statements, and his written and oral statements before the high court and TRRC were inconsistent. Touray said Exhibit D6, which is a certified true copy of the witness statement of Alagie Kanyi dated 7th March 2019 was inconsistent with his oral evidence under cross-examination. Touray said Exhibit D8, the official manuscript of Alagie Kanyi at the TRRC dated 28th February 2019 is also inconsistent with his testimony at trial. Touray emphasized that Exhibit D5, which was certified copy of the record of proceedings in the case of The State versus Yankuba Touray and Fatoumata Jahumpa Ceesay, whereby Alagie Kanyi admitted making false allegation against him and Fatoumata Jahumpa Ceesay. Touray said the high court judge failed to evaluate the evidence adduced under cross-examination.
On ground four, Yankuba Touray said the high court judge was wrong when he mentioned in his judgement that “from the foregoing reasons, the above pieces of evidence and circumstances clearly show that the Accused Person was involved in beating the deceased (Ousman Koro Ceesay) with a pestle at his residence. It is also clear from the evidence that after the Deceased was struck with a pestle his body was placed in his official car………..It is apparent that the above evidence that the Accused Person took part in the crime of killing Ousman Koro Ceesay by hitting him with a pestle, he has also taken part in the scheme to dispose of the body of the Deceased by burning the body beyond recognition with a view to concealing the crime.”
On the particulars of the error, Touray said the high court judge failed to take into account the charge he was facing. He said Exhibits P3 and P3A clearly showed the cause of death of Ousman Koro Ceesay adding prosecution witness five stated in evidence that the Fire Service commissioned a report of the said accident and this report was not tendered in evidence by the prosecution. He added that there was no direct or circumstantial evidence produced at the trial to show or prove that his act or omission caused Ousman Koro Ceesay’s death.
He said Ensa Mendy (PW2), Amat Jangum (PW3) and Alagie Kanyi (PW6) all admitted under cross-examination that he did not cause the death of Ousman Koro Ceesay.
He said the high court judge failed to take into account the following admitted facts by Alagie Kanyi and other witnesses under cross-examination: Alagie Kanyi admitted under cross-examination that he was dropped off at his residence between 6 pm and 7 pm while Ensa Mendy (PW2) and Prosecution Witness 4 both admitted under cross-examination that Alagie Kanyi was not at his residence at this time; that Kanyi’s testimony was not true. Touray said Ensa Mendy and Prosecution Witness 4 informed the court that they returned to his residence between 8 pm and 10 pm arguing that it was not practicably possible for Kanyi to be at his residence at this time. He said both Defence Witnesses 1 and 2 testified that they were at home from 6 pm to 1 am adding this piece of evidence was not challenged or uncontroverted under cross-examination. He said the high court judge’s reliance on the evidence of Prosecution Witnesses 5 and 6 to corroborate the evidence of Prosecution Witness does not borne out the testimony adduced at trial. He added that PW5 admitted under cross-examination that he was not part of the investigation team and all the steps he took to investigate the alleged crime was done on a frolic of his own and he did not report his finding to the Inspector General of Police at the time.
On Ground Five of the Appeal, Yankuba Touray said the high court judge was wrong in law when he held that “the evidence led by the prosecution show that there was high scheme conspiracy hatched by Edward Singhatey, Peter Singhatey and the Accused (Yankuba Touray) to kill the Deceased.”
On the particulars of the error, Yankuba Touray said he was the only one charged and that there was no charge of conspiracy against the persons mentioned above. He stressed that Edward Singhatey, Peter Singhatey, Pa Alieu Gomez, BK Jatta and Tumbul Tamba were not co-accused persons or parties in the case. Touray said the said findings are in breach of the principles of natural justice.
Touray said both prosecution witnesses 2 and 4 admitted under cross-examination that they went with him to the State House around 7 pm where they left him and returned to his residence. Touray pointed out that both Prosecution Witnesses 2 and 3 corroborated the fact that he was at the State House at the material time Alagie Kanyi allegedly said they “Edward Singhatey, Peter Singhatey, Tumbul Tamba, Pa Alieu Gomez, BK Jatta and Yankuba Touray) met at Yankuba Touray’s residence.
On Ground 6, Yankuba Touray said the high court judge misdirected hismelf when he held that “the circumstances of this case clearly proves that the Accused Person (Yankuba Touray) with his co-conspirators burnt the body of the Deceased in order to cover their heinous crime of their colleague State Minister.”
Touray said the high court judge failed to avert his mind to the fact that he was charged alone for the death of Ousman Koro Ceesay. There is no charge of conspiracy against him and others for the death of Ousman Koro Ceesay. He said both Prosecution Witnesses 5 and 6 confirmed under cross-examination that they were not part of the team that investigated the alleged death of Ousman Koro Ceesay. He stressed that there was no evidence led to prove that there was an agreement between him, Edward Singhatey, Peter Singhatey and others to commit an unlawful act of killing Ousman Koro Ceesay.
“The Prosecution did not prefer a charge of conspiracy against Edward Singhatey, Peter Singhatey, the Appellant (Yankuba Touray) and others, and to make such as specific finding fact, is contrary to the Constitution and breach of the principles of natural justice,” Touray said.
Yankuba Touray said Pa Habib Mbye’s evidence was discredited under cross-examination and he further admitted his alleged investigation was for his benefit and it was not official or sanctioned by the office of the Inspector General of Police.
On Ground 7, Touray said the trial judge misdirected himself when he held that “from the above authority, the circumstances of this case clearly show the intention of the Accused Person was to cause the death of the Deceased. Firstly, the Accused Person began to put his intention into action when he ensured that his residence is empty he instructed his guards to go on a patrol to the beach; and he instructed Lamin Ndure, his official driver to take his family members to the residence of Edward Singhatey on the pretext that there was a party at the said residence …………………………..secondly, the evidence of Pa Habib M’baye shows that he received information during investigation that the Accused Person blocked the vehicle of the Deceased at the Airport.”
Yankuba Touray said both Defence Witnesses 1 and 2 (his wife and her sister who were staying with him) gave credible evidence that they did not go to Edward Singhatey’s house for a party as alleged and the said piece of evidence remained unchallenged and uncontroverted. He added that the high court failed to appreciate the evidence solicited from Defence Witnesses 1 and 2 to rebut the allegation of the prosecution’s case that, they went for a party at Edward Singhatey’s house. He said the high court failed to act on the evidence of Defence Witnesses 1 and 2 which support his innocence that he did not kill Ousman Koro Ceesay. He reitereated that the evidence of Pa Habib M’baye was discredited under cross-examination and he finally agreed that he was acting a frolic of his own and his findings were not submitted to the Inspector General of Police.
On Ground 8, which is the final ground of appeal, Yankuba Touray said the high court judge misdirected himself on the facts when he stated “I have reached the conclusion that the Accused has failed to establish the defense of alibi as required by law. I therefore hold as a fact that the Accused Person is not entitled to the defense of alibi put forward in this case and is hereby rejected as it lacks merit and not tenable.”
On the particulars of the error, Yankuba Touray said the prosecution led evidence through Ensa Mendy (PW2) and Lamin Ndure (PW4) and they categorically created the said alibi on his behalf in their evidence. Touray said he has the right to silence under the Constitution of the Gambia adding he has no duty in law to provide any information and/or statements to the police in relation to the death of Ousman Koro Ceesay.
He said both Prosecution witnesses 5 and 6 also confirmed in evidence that he went to see off the then Chairman of the AFPRC military government at the Banjul International Airport. He said Amat Jangum also confirmed in evidence that he (Yankuba Touray) was at State House.