By Kebba Jeffang
The judge of this court, Justice Ikpala, is sitting as an appeal judge, following the appeal of the Caliph General against the Lower Court’s refusal to refer a constitutional matter to the Supreme Court for decision. Upon the appeal of the defence, the lower court – Brikama Magistrates’ Court – decided to proceed with the trial of the Caliph General. This prompted the defence to file a motion for the high court to order the lower court to stay the proceedings. This motion was heard on Tuesday, 11th November, 2014.
Hearing of the motion proceeded without the first appellant, Sheikh Muhideen Hydara, the Caliph General in court due to sickness. The second appellant Alkalo Buyeh Touray was in Court and attracted the attention of a lot of curious onlookers during the proceedings.
When the matter was called, the state was represented by Lawyer Alieu Jallow whilst Lawyer Antouman Gaye appeared for the appellants.
The defence counsel informed the court that his first client (Muhideen Hydara) was absent due to his ill-health condition. He went on to show the court the medical certificate of the appellant.
The defence counsel told the court that they have filed two summons on motions that are pending before the court, one of which is dated 17th day of September, 2014.
In moving the motion, he said the summons dated 17th September, 2014 is praying for stay of proceedings at the Lower Court pending the hearing of the appeal. He said the summons is supported by fourteen paragraphs sworn to by Mariama Bah, a legal assistant at Maribantang Chambers.
He recalled that during the proceedings at the Brikama Magistrates’ Court, after the evidence of the first prosecution witness, they had applied for the Lower Court to stay proceedings and refer the matter to the Supreme Court that has the proper jurisdiction for interpretation. He added that this application was turned down by the magistrate on the basis that his court has power to hear the case.
“The magistrate queried that he will not stay the matter from proceeding until he receives an order from this court. This appeal filed is an important one for the constitutional rights of the appellants and that Section 127 of the 1997 Constitution states clearly that it is duty bound on the Lower Court to stay proceedings while an appeal has been filed at the higher court. The Constitution made it prudent on any Lower Court to stay proceedings without even giving it any discretion,” submitted Lawyer Gaye.
He submitted that “the appellants are charged with two counts including ‘disobedience to a lawful order.’ The charge sheet is not an Exhibit before this court but it has been incorporated in the motion of appeal. Section 25 (c) of the 1997 Constitution of The Gambia guarantees “freedom to practise any religion and to manifest such practice. In the absence of any counter affidavit, I urge this court to order the Brikama Magistrates’ Court to stay proceedings on the matter. I urge the court to grant this application,” Lawyer Antouman Gaye emphasized.
In reply to the submission, State counsel A. Jallow said the state has responded with a three paragraph affidavit in opposition to the summons filed on the 21st of October, 2014.
He said they intend to rely on all the affidavits, adding that the application of stay of proceedings does not distort any substantive law for which the court should grant and pass the case to the Supreme Court for interpretation.
“Since jurisdiction is not an issue in the Lower Court, I shall rest my argument on the referral of the case. Section 127 of the Constitution is not merely talking about the accused person’s constitutional rights but has to be based on a condition of ambiguity for interpretation. The reason for the appeal is to delay the proceedings at the Lower Court,” said State counsel.
However, the trial judge reminded the state counsel that the motion before him is not praying for the referral of the matter but the stay of proceedings.
The state counsel continued by adding that there is no substantial circumstance to warrant a stay of proceedings at the Lower Court.
In replying to the state counsel’s objection, Lawyer Gaye said the responding argument touched on the substantive appeal which is not yet before the court, therefore his argument is irrelevant. He finally urged the court to grant the application for a stay of proceedings at the Lower Court.
The matter at this juncture was adjourned till the 3rd December, 2014 at 10am for ruling on the application.