Magistrate again over rules Application for stay off proceedings in Caliph General and Co trial Orders PW2 to continue testimony

By Kebba Jeffang

Principal Magistrate Omar Cham of the Brikama Magistrates’ Court on Sheikh Muhideen HydaraWednesday, 15th October, 2014 again overruled the application of the stay off proceedings by the defence in the ongoing trial of Sheikh Muhideen Hydara and Mr. Buyeh Touray, the Caliph General and Alkalo of Darsilami Sangajor respectively.

The trial magistrate ordered for the continuation of the proceedings with the second prosecution witness (PW2) testifying after the defence made an announcement that the return date to the high court is 22 October 2014 and applied for a stay of hearing pending the outcome of the appeal.

When the case was called, Chief Inspector Camara appeared for the state whilst Lawyer Antouman Gaye, the lead counsel, Lawyer Lamin K. Mboge and Lawyer Lamin S. Camara represented the two accused persons.

The trial magistrate first tendered an apology for the push and pull between his orderly and the onlookers regarding the failure to observe court rules and further advised for calm and respect to court rules in order to avoid conflict.

In addressing the Court, Counsel Mboge said he wanted to serve the court with the petition of appeal and the summons of notice which, he added, is fixed for 22 October 2014 at 1pm. He showed the said documents to the Court.

Lawyer Mboge cited Section 127 (2) of the 1997 Constitution of the Gambia which, he said, provides that where any question referred to in paragraphs (a), (b) or (d) of the subsection (1) arises in any proceedings in any other court, that court shall stay its proceedings and refer the matter to the Supreme Court for its determination and that such other court shall give effect to any decision of the Supreme Court in the matter.

Defence counsel Mboge said the petition on its ground one of appeal paragraph 3 (1) and (b) of the particulars of error, it is clearly indicated that the issue before the high court on appeal is the question of interpretation while quoting from the constitution. He said, therefore, the issue here is whether the substantive case falls under the ambit of Section 25 (1c) of the 1997 constitution.

Lawyer Mboge added that since the Court lacks the interpretation jurisdiction of Section 127 (1b) of the Constitution that is “if any question arises for the interpretation or enforcement of any law that was made in excess of powers conferred by this Constitution, the court shall stay off proceedings,” which is a mandatory provision of the Constitution. He said it is prudent for the Court to stay off proceedings and wait for the application.

“I urged this court to take a judicial notice of the summon of the return date. When the high court and the magistrate court are to sit on the same matter at the same time, the lower court out of abundant respect for the high court should wait for the outcome of the appeal. To avoid prejudice of the legal rights of the accused persons, this court should stay off proceeding and shall also note the return date. We want this court to guide itself properly by the provisions of the law and the Constitution,” said Lawyer Mboge.

In response to the submission by the defence, the prosecuting officer CI Camara said he has left everything entirely to the Court.

In his ruling, the trial magistrate rejected the submission based on Section 6 of the Court Act. He said the proceeding can only cease upon an order by the high court or the judge.

“I have no problem of staying off proceedings but that it has to be in line with law,” said the trial magistrate

At this juncture, defence counsel Mboge applied for an adjournment to enable the accused persons to prepare for their defence. He cited Section 24 (3c) of the Constitution, stating that “every person who is charged with a criminal offence shall be given adequate time and facilities for the preparation of his or her defence.”

This application was objected to by the prosecutor on the grounds that his witness lives in a far away place and facilitates his own transportation.

The trial magistrate upheld the prosecution’s objection and allowed the witness to give his testimony.

The witness identified himself as Seedy Gibbam, a resident of Jiramba village in Foni. He said he is the Badge Messenger of Mr. Momodou Lamin Jarju, the Chief of Foni Kansala district. He said he recalled the 28th of July, 2014 when he got something to do with the first accused person, Buyeh Touray, the Alkalo of Darsilameh Sangajor.

The witness told the court that he was called in the night around 10pm to 11pm by the Chief to go to Darsilameh to inform the Alkalo that he had just received an instruction from the government that there should be no prayer on Tuesday, 29th July, 2014. He said he went to the said village to inform the Alkalo but the Alkalo asked him to follow him to the imam’s compound, the late Malign Hydara, and that the imam also referred them to the compound of one of the “Talibeh’s” as he said he was sick. He said they went to the place to deliver the same message to the first accused person, Muhideen Hydara.

“The first accused asked me if I have listened to the radio and I responded that I was listening to the radio but the announcement coincided with the Chief’s call and I could not hear it but that this is the message which the Chief gave me. The first accused then told me that the announcement excluded Foni,” said the witness.

PW2 added that he went back to the Chief to give him the feedback but the Chief asked him to return again to the place in the morning to confirm whether they really prayed. He said the following morning after seeing them praying he went back to inform the Chief.

Gibbam said he has given a statement to that effect at the Kanfenda police station.

Under cross examination by Lawyer Lamin S. Camara, the witness confirmed that he reached Darsilameh around 11pm.

The matter was adjourned to the 6 November, 2014 at 12pm for the continuation of the cross examination by the defence.