By Kebba Jeffang & Rohey Jadama
Dayoh M. Small Dago, the Principal Magistrate of Brikama Magistrate Court, on Thursday, August 28, 2014convicted Lamin Bakary Jarju, the “Alkalo” of Babylon, and two others while acquitting and discharging the 10 other accused persons.
He made this decision before a crowded courtroom.
Lamin B. Jarju, Sarjo Sohna and Amadou Lamin Jallow, the 1st accused, 11th accused and 12th accused persons respectively were found guilty and handed a fourteen months jail term each on count one and of which one year has to be deducted to compensate for the time spent in detention. The trial magistrate fined each of the three accused persons to pay Fifteen Thousand Dalasi (D15, 000) on count two or else to serve one year in jail with hard labour. On count three, the accused persons were each fined to pay Fifteen Thousand Dalasi (D15, 000) or in default to serve one year in jail with hard labour. The three accused persons were each fined to pay the sum of Twenty Thousand Dalasi (D20, 000) on count four or in default to serve one year in jail. The convicted persons were asked to compensate the complainant with the sum of Sixty Thousand Dalasi (D60, 000) in default to serve three years in jail. The trial magistrate ruled that all the jail terms will be served concurrently in case the convicts fail to pay the above amount.
When the matter was called, Chief Inspector Bubacarr Camara appeared for the state whilst Lawyer Borry S. Touray represented all the accused persons.
Principal Magistrate Small Dago said thirteen accused persons were charged with four counts ranging from arson, unlawful damage to property, criminal trespass and conspiracy to commit felony.
He said the particulars of offence on count one stated that Lamin B. Jarju and other accused persons on the 20th February, 2013 at Makumbaya village in the Kombo North West Coast Region, conspired and burnt two 275 cashew trees on Francis Mendy’s farm, thereby commit an offence.
He said on count two, the particulars of offence stated that the same people at the same place and time, jointly and intentionally conspired to cut 275 cashew trees belonging to Francis Mendy and thereby committed an offence.
On count three, the particulars of offence stated that the same people at the same time and place, jointly entered Francis Mendy’s cashew farm, assaulted and annoyed him, thereby committed an offence.
The particulars of offence on count four stated that the same people, the same time and place jointly conspired to commit felony.
He said all the accused persons pleaded not guilty to charges preferred against them.
The trial magistrate said the prosecution has called six witnesses and tendered one exhibit while fourteen defence witnesses testified including accused persons themselves and tendered seven exhibits during the trial.
The Principal Magistrate added that the first prosecution witness Valentine Ndeki told the court that he was at the farm when he was met by Lamin Jarju, the 1st accused, Pa Jassey, who is not part of the accused persons, Nuha Saidykhan, at large, Sarjo Sohna and Amadou Lamin Jallow. He said the people instructed him to leave the land to avoid trouble. He said that was the time they went to give statement at the police. He said he saw these people cutting cashew trees. He said Francis then gave a statement to the police.
He said PW2 Francis Mendy, in his testimony, said he was at his farm on the 20th day of February, 2013 when Lamin Jarju and his men met him. He said he confronted them on why they cut the trees. He added that he saw them setting fire. He said the matter was then reported to the police and that it was 275 cashew trees that were cut. He also tendered land transfer document as Exhibit.
He said PW3 Badara Ceesay said he was with Valentine Ndeki and Francis Mendy at Francis’ farm on the day. He said he escorted the complainant to the police station and he attested to the fact that 275 cashew trees were cut.
He said Nuha L. Jarju, PW4, also said he can recall the 20th of March, 2013. He said the witness has mentioned Lamin Jarju, Pa Jassey, Sarjo Sohna as present.
He added that PW5 Abou Sarr also mentioned the same names and confirmed that there are others not in court.
He also recalled the testimony of the sixth prosecution witness Baboucarr Jammeh. He said Jammeh identified some accused persons, but added that others are at large.
Magistrate Small Dago pointed out that it was at this stage that the defence applied for a locus visit which was granted. He said PW1 and PW2 have identified two lands during the visit in which both parties were present as well as court staff. He said counsel Touray also applied for a no case to answer submission and was granted. He said this was later ruled out and the accused persons were asked to enter their defence.
He said Lamin Jarju in his defence told the court that he only know the complainant in court and have denied all charges against him. He said the first accused said he has never given any statement at any police station in the West Co0ast Region in relation to this matter on the 20th February, 2013, 20th March, 2013 and 28th February, 2013 as stated by different prosecution witnesses. He said Jarju also asserted that Babylon belongs to the Jarju Kunda family. He added that the 1st accused person also explained how he was arrested, beaten and was dragged out without underwear as well as having access to his wives.
He said DW2, DW3, DW4, DW5, DW6, DW7, DW8, DW9, DW10, DW11, DW12, DW13and DW14 all have their evidences in different circumstances during their arrest but have all agreed that they were arrested just because they know the Alkalo. He said they all denied the charges against them.
“I have looked at all the charges and I must say for the prosecution to secure conviction against the accused persons, they must establish that the accused persons have willfully and unlawfully set fire on any standing tree or shrubs whether natural or cultivated one; they must willfully and unlawfully damage any property belonging to a complainant; they must have entered into the land with intent to insult, assault or any other intent to harm the complainant and finally the prosecution must prove that the accused persons have conspired to do any crime that can amount to felony,” said Principal Magistrate Small Dago.
The trial magistrate added, “I must say at this juncture that all the counts are not farfetched from each other. At this point, I have averted myself with the charge and prosecution witnesses’ testimonies to ascertain whether or not the true identification of the accused persons or other witnesses. It is a duty of the prosecution to reveal the identity of the accused persons and there should be no contradiction or differences in their testimonies. PW1 has identified accused person one, Pa Jassey, who is not among the accused persons, Nuha Saidykhan (at large), PW3 identified Pa Jassey, who is not part of the list, and some accused persons. He mentioned some names of people who are not even before this court.”
He said there is no consistency of identity of the accused persons by different prosecution witnesses. He added that it is only the name of Lamin B. Jarju, Sarjo Sohna and Amadou Lamin Jallow that were identified with other accused persons that are not in the court.
“I shall therefore acquit and discharge the second accused, third accused, fourth accused, fifth accused, sixth accused, seventh accused, eight accused, ninth accused tenth accused and thirteen accused persons, since prosecution could not prove that they are part of the case by not mentioning any evidence against them,” ruled Principal Magistrate Small Dago.
As for the three who are found guilty, Lamin B. Jarju, Sarjo Sohna and Amadou Lamin Jallow, the magistrate said there is no direct evidence to suggest that they have conspired. He added that Valentine Ndeki is material evidence in the case and he testified that Lamin was there to ask them to leave to avoid any trouble. He said PW2 also said it is Pa Jassey and Lamin who ordered the youths to set fire on the cashew trees. He said PW3 also made the same statement. He said PW4 said he has seen the 1st, 11th and 12th accused persons cutting the trees. He said at least there was agreement. He said PW5 said he asked Pa Jassey who ordered them to cut the cashew trees and according to him, Pa responded that Lamin Jarju ordered them to do so.
In his plea of mitigation, Lawyer Borry S. Touray, appealed to the court to temper justice with mercy. He said the offences the convicts are convicted of have all been laid against them in the criminal code Cap 10. He said in that regard, a portion provided for in chapter 6 is very instructive, particularly Section 29(3).
“I urged your worship to exercise your discretion not to hand a custodial sentence due to the following reasons: the accused persons have since the 13th August, 2013 been in remand throughout the trial. Secondly, the first accused person is a large family man with a lot of responsibilities. Both Jarju and the other two convicts are in their prime period of youth. I therefore urged your worship to temper justice with mercy. Additionally, the visit to the locus has confirmed that only 25 cashew trees have been regenerating through the process of nature. If there is any damage at all, it has been regained. I therefore urged that your worship can caution and discharge them without custodial sentence,” pleaded Lawyer Touray.