By Rohey Jadama
Barrister Combeh Gaye, the attorney for Mrs. Tina Faal has on 16 August, 2016 told a lower court in Banjul that the detention of her client after being granted bail by the court is unlawful.
Counsel Gaye made this submission before Principal Magistrate Omar Cham of Banjul Magistrates’ Court.
The former NAM is standing trial on three counts of Conspiracy, Obtaining goods by false pretence and Theft. She however, denied culpability of the charges levied against her.
Continuing her submission, Lawyer Gaye said the continuous detention of her client is a gross violation of her constitutional right.
She continued: “I wish to inform this court that I was instructed by my client that she was arrested and detained at Mile Two Prisons since 8th August, 2016 and she remained in detention till today, in fact she is coming from Mile Two”.
She drew the court’s attention to the fact that her client was granted bail on the 28 July, 2016 with certain conditions and that she is aware she fulfilled those conditions. She said two Gambian sureties entered into recognizant and deposited valid documents in their names to the registrar of the court.
“Furthermore, I’m not aware of fresh charges or order/detention to Mile Two by this court. Therefore, it is my respectful submission that her detention is unlawful and a gross violation of her constitutional right”, Lawyer Gaye argued.
She further submitted that in the absence of any reason for her detention, she is applying for her client’s previous bail to continue and she be released from Mile Two.
Responding to the defence counsel, Inspector S. Sanyang told the court that the story of the defence is news to him as a prosecutor in the matter. He added that he who asserts that something happened must prove that it has happened.
He further told the court that the burden is on the defence counsel to prove that her client is under detention. This invoked murmuring in the court room by the family members and sympathisers and the Magistrate had to yell “order”.
Prosecutor Sanyang further told the court that it is not to his knowledge that Madam Faal is detained. He said the only thing he knows is that the matter was adjourned till 16 August 2016 and the prosecution is ready to proceed with the case.
Replying to prosecutor Sanyang, Counsel Gaye said the fact that the prosecution did not know or is not aware that the accused is under detention should not stop the court from making orders for her previous bail to continue.
“I have no business with what he is saying because he chooses not to know about her detention. The court can renew its previous bail. If the court is minded as a court of law and equity the court may hear evidence directly from the accused and the court may also allow a stand down for the prosecutor to go and verify from his office so that this court can do justice in this case,” submitted Lawyer Gaye.
However, Principal Magistrate Cham said this is a simple matter because the court granted the accused bail earlier and that there is no need to make any order again. He said it is trite that court orders must be obeyed.
Madam Gaye added, “This court must ensure that its orders are obeyed and respected and this court must remind those people about that”.
However, the trial Magistrate said the high court has the original jurisdiction to hear this application because it involves fundamental human rights as per the 1997 constitution. He said the court has granted bail to the accused. “What orders am I going to make?” questioned the Magistrate. He further said the proper venue for the application is at the high court.
“With all due respect I disagree with you, this court even though is a subordinate court can make an order for its previous order to be obeyed”, said Defence Counsel Gaye.
In his ruling Principal Magistrate Cham said he had listened to both sides. He said the defence submitted that the accused is under detention despite being granted bail after having fulfilled the bail conditions. He said it is trite law that court orders are meant to be obeyed. He said if the accused has fulfilled the bail conditions she is supposed to be on bail.
At this juncture, Prosecutor Sanyang told the court that he had a witness in court.
Ebou Badjie, a native of Gunjur Kombo South, testified as the first prosecution witness and told the court that he is an Assistant Registrar at the Registrar General’s office at the Ministry of Justice.
He further told the court that he works at the office of the Registrar of Deeds under the Registrar General’s department .
When the witness was asked whether he recognized the accused person, he responded in the negative, but, he was quick to add that they do register power of attorney from the general public.
“On the 28 April, 2014 did you register any power of attorney with serial number 196/2014volB3PA?” asked the prosecutor. “No instead the document was registered on the 7 May, 2014.”
Prosecutor added, “This power of attorney with serial number 196/2014 under whose name is it registered?” However, before the witness could answer, Defence Counsel Gaye objected and argued that the document is not produced and tendered before the court. This prompted Prosecutor Sanyang to reframe his question.
Responding to a question from the prosecution, PW1 told the court that if all the conditions are fulfilled they accept the document and make their entry and forward it to the Registrar General’s office.
At this juncture, the prosecution applied for an adjournment to enable him to produce the power of attorney document which they intend to tender in court.
Counsel Gaye did not object to the application for an adjournment , however, she applied for the defence to serve them with all the documents the prosecution intends to rely on for them to prepare for their defence as per section 24(3) (c) of the 1997 constitution which, according to her guarantees right to fair trial. She said the documents are necessary to avoid trial by ambush.
At this stage, the trial magistrate adjourned the case till Thursday 18 August, 2016 at 11:30 for continuation of the testimony of PW1.