By Kebba Jeffang
Principal Magistrate Omar Cham of the Brikama Magistrate’s Court, on Monday, 29 September, 2014 ordered for the case involving Sheikh Muhideen Hydara and Buyeh Touray, the Darsilameh Sangajorr Caliph General and “Alkalo,” respectively, to proceed pending the outcome of the defence’s appeal to the high court.
Lawyer Antouman Gaye, the lead counsel, in a crowded courtroom, said they did not make any application before the court but have only informed it that they have filed an appeal at the high court. He said this interjecting the prosecutor, Police Sub Inspector (SI) Ebrima Sarr who attempted to make reply to what he said before the court.
The prosecutor said the defence counsel has applied for a stay off proceeding at the last adjourned date.
However, both the Principal Magistrate and the police prosecutor were of the view that the proceeding was meant to hear the reply from the prosecution on the purported application of stay off proceeding.
“We did not come here last adjourned date to make any application before this court but to inform the court that we have filed an appeal at the high court against the ruling of this court on the stay off proceeding and the referral of the matter to the Supreme Court,” submitted Lawyer Gaye. He said that they have not filed any application that can warrant the prosecution to reply. He further referred the court to his last submission for it to see whether there will be anything like making application.
The Principal Magistrate in reading out his records on Lawyer Gaye’s submission read the following: “As a result of the overruled on our application and the instruction of our client, we have filed an appeal in the High Court. We have also filed a summon in the same court praying that the High Court may order the stay off this the proceedings of this court pending the appeal. Out of respect for this court, we have decided to come today to give that information to the court. Ordinarily, when the counsel speaks from the Bar, there should be no doubt as to what he or she is saying. We have the copies of the appeal and the summons with us that were filed in the High Court.”
At this stage, Lawyer Gaye said there is no application in this that can warrant the prosecution to reply. “Why should we apply for the same thing that has been overruled by the very court?” he asked.
Continuing, the trial magistrate also read out the reply made by the prosecution concerning the submission. He said Sub Inspector Sarr replied that he is not intending to reply to the submission because he is not the actual prosecutor in the case. He said SI Sarr asked for an adjournment of the matter so that the actual prosecutor can reply. He said the reason being that Chief Inspector Lamin Touray is the one handling this matter and he has been transferred to New Yundum police station as the head of the prosecution unit; that the incoming prosecutor who should replace him has not yet arrived; that by the next adjourn date, if the replacement comes, he will reply and that if there is no replacement, then he will devote himself to reply.
At this juncture, prosecutor Sarr told the court he will therefore apply for an adjournment for them to continue with their witnesses on the next adjourn date.
This application was strongly objected to by the Senior Counsel Gaye for being ‘misquoted’, arguing that he has only reminding the court on the last sitting about the well known principles of the law that when a litigant is pursuing his remedy of appealing, nothing should be done by the lower court to jeopardize or interfere with the appeal. “That was what I said,” submitted Gaye.
The defence lawyer said “As a result, I went further to tender the appeal and summons to that court. However, on the 10th September, 2014, Lawyer Mboge has made an application inter alia for this court to stay off the proceedings. As a result, the court made a ruling which we adhered to unless we want to appeal.”
At this juncture, Magistrate Cham indicated that the Court Act allows that a matter can proceed at the lower court pending the result of an appeal at the high court.
However, this was strongly objected to by the defence counsel, who argued that this particular Court Act is only referring to a civil matter and not a criminal case. He said it is not applicable in this circumstance as indicated by the magistrate.
Senior Counsel Gaye referred the magistrate to Section 127 of the Constitution of The Gambia which, he said, is the main law book of the country where all other laws are derived from. He said whatever law that conflicts with the Constitution should be put aside. He said it is in this section that they have based their application on.
Gaye said the trial magistrate should not quote from the Court Act but instead the Constitution. He said he cannot apply before the court twice after being initially rejected. He said he will leave the magistrate to make his ruling.
The trial magistrate said the application made by Mboge which he rejected was a referral and not staying off the proceedings in the case. He said Mr. Gaye submitted that even though he has denied making any application before him, he ruled that the case can proceed pending the outcome of the appeal at the High Court.
Mr. Gaye further said “the trial magistrate ruled on the 10th September, 2014 that the ruling is based on the application by the counsel on behalf of the accused person on the stay off proceedings and referral of the matter at the Supreme Court. Again, your worship is saying is for referral. The record is contradicting itself.”
“In any case, you have a choice to reply and we will pursue their case at the high court even though the Lower Court ruled that they are not staying off hearing pending the outcome,” said Lawyer Gaye.
The trial magistrate said since there is no appeal before the Court, the case can continue to be heard with the prosecution witnesses. He therefore adjourned the matter to 15th October, 2014.