By Rohey Jadama
Magistrate Omar Jabang of the Banjul Magistrates’ Court yesterday 28 April, 2016 acquitted and discharged Mr. Yusupha Saidy on two counts conspiracy to commit felony and obtaining money by false pretence.
Delivering his ruling on the “No case to answer” filed by Mr. Saidy’s Lawyers, Sheriff M. Tambedou and Loubna Farage, the trial magistrate said the accused was arraigned on the 12 January, 2016 and that the prosecution had called six witnesses and tendered several exhibits in support of its case.
Magistrate Jabang said after the closure of the prosecution’s case, Lawyer Tambedou applied for the court to acquit and discharge the accused because the prosecution did not establish a prima facie case against him.
“Counsel submits that from the charge and evidence before the court a case has not been made out against the accused. He referred the court to the particulars of offences charged and argued that none of the six prosecution witnesses talked about the monies and the metal boxes containing monies alleged therein. He said the only money revealed to court by the prosecution witnesses was exhibits B1 and B2 and they are the D250,000 and the CFA 16,500,000 respectively,” said the trial magistrate.
He said the defence further argued that the witness through whom the said monies were tendered had offered no explanation as to the purpose of the payment of exhibits B1 and B2. “He submits that PW3 even said he doesn’t even know the reason for payment. He finally asked the court to acquit and discharged the accused and return him exhibits B1 and B2 respectively,” he added.
On the reply of the prosecution to the application of the defence, the trial magistrate said ASP Manga, representing the Inspector General of Police, asked the court to order for the accused person to open his defence as a prima facie case has been made out against him. He said the prosecutor argued that the payments of exhibits B1 and B2 were made by the accused to the NIA and that if PW3 who received the payments cannot account for it then the accused should be called to explain and that he relied on section 167 of CPC and asked the court to call on the accused to open his defence.
“The sole issue which stands for determination by this court is whether a case has been made by the prosecution sufficiently requiring the accused to open his defence. Section 166 of the CPC provides thus “If at the close of the evidence in support of the charge, it appears to the court that a case is not made out against the accused person sufficiently to require him or her to make a defence, the court shall , as to that particular charge, acquit him or her”,” said Magistrate Jabang.
He added that if after perusal of the record it appears to the court that there is no evidence sufficiently requiring the accused person to open defence then it is the law that states that he/she must be acquitted by the court. “The principal test therefore as per section 166 of the CPC is whether there has been sufficient case or evidence led by the prosecution to warrant the court to call upon the accused to enter his or her defence,” he added.
Magistrate Jabang said for conspiracy to suffice, two or more persons must agree to prosecute a common purpose, which should be an unlawful purpose. He said “Therefore, for the offence of conspiracy to stand, the prosecution must lead evidence to reveal the following: that there was an agreement between two or more persons to prosecute a common purpose, that the common purpose was unlawful, that the persons commenced or joined the prosecution of the common purpose and that the agreement was by the accused and others.”
The trial magistrate said he has gone through the evidence of all the prosecution witnesses from PW1 to PW6. “None of them mentioned Mr. Bahir, Mr. Seedy Ahmed and Mr. Watara whom the prosecution alleged conspired with the accused person to defraud Omar Faruk Deniz. The prosecution has not led any evidence whatsoever to show to this court that there was an agreement among the aforesaid persons to prosecute a common purpose, which common purpose was unlawful,” he said.
He added that what was so funny is the fact that the said Omar Faruk Deniz never testified in relation to the charge against the accused person herein. He asked where then has the prosecuting officers gotten the courage to arraign before this court the accused in the absence of a crucial witness like the complainant at the police level. “Are they on a fishing expedition? Well this court and all reasonable tribunals are not forums where such prosecution is and can be condone,” he said.
The trial magistrate said Leon Gomez (PW5) said after arresting the accused, they later went to his office and his house for searches and that nothing was found that is a threat to the security of the Gambia. He said the IPO, Lamin Sanneh, testified as PW6 and that he did not tell the court the conclusion of their investigation.
Therefore, he continued, the answer to the question as to whether the accused should be called to make a defence requires a “No” for an answer. “What will the accused be making defence to? A skeletal charge which has not been beefed up to stand by any evidence? This court cannot see the logic and reasoning behind calling the accused to make his defence,” he said.
The magistrate said in light of the above, it is his considered view that the prosecution has fundamentally failed to a superlative degree to make a case sufficiently to require the accused to open his defence. “Therefore, the accused Yusupha Saidy has no case to answer and he is accordingly acquitted and discharged,” concluded Magistrate Jabang.
He further ordered that exhibits B1 and B2 that is the D250, 000 and the 16,500,000 CFA be returned to the accused and further ordered the police to return the accused person his ID card and passport.
