By Mamadou Dem
The Banjul Magistrates’ Court presided over by Magistrate Dawda Jallow yesterday 1st December, 2014 acquitted and discharged erstwhile Permanent Secretary, Ministry of Youth and Sports, Mr. Mambanyick Njie, after he found him not guilty to a single count charge of ‘Giving False Information,’ contrary to Section 114 of the Criminal Code.However the court discovered that the then GFA executive issued out over a million dalasi as personal loans to their staff and according to their own auditors, out of 24 recipients of this loans, only two application forms could be produced which even bear no repayment periods.
The accused was arraigned before the said court on the 5th of November, 2012 and his trial lasted for two years.
During the course of the trial, the prosecution called six witnesses and tendered three exhibits while the accused testified as a lone witness and tendered fifteen exhibits ranging from audit reports, Newspaper report and receipts respectively.
Mr. Njie was alleged in the particulars of offence that on or about 1st day of March, 2012 in the city of Banjul, whilst serving as Permanent Secretary, Ministry of Youth and Sports, he petitioned the office of the President to wit: the Ex GFA (Gambia Football Association) Executives were engaged in financial malpractices and never gave a thorough account of the imprests given to them for international marches and therefore sought approval to dissolve the said GFA Executive, an information he knew to be false or does not believe to be true thereby committed an offence.
Delivering the judgment, the presiding Magistrate stated that the accused is charged under Section 114 of the Criminal Code which states that “Whoever gives to public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to likely that he will thereby cause such public servant (a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given, were known to him; or (b) To use the lawful power of such public servant to the injury or annoyance of any person shall be guilty of the offence.
According to the Magistrate, the prosecution needs to prove all the elements of the offence stated above beyond reasonable doubt in order to secure a conviction; adding that the prosecution needs to show through its evidence “that the accused gave information to a public servant, that the information so given is false and that the accused knows or believes the information to be false.”
The trial Magistrate opined that there is no doubt that the accused did give information contained in a letter (exhibit A) which was addressed to the Secretary General, Office of the President. “This court takes judicial notice that the Secretary General is the head of the civil service and as such is a public servant. “Issue one is therefore resolved in favour of prosecution,” said the Magistrate.
The magistrate outlines further that exhibit A is a long letter but from the particulars of offence on the charge sheet, prosecution was only interested on the allegation of financial malpractices and non-retirement of imprests. He added that exhibit B was the investigative report compiled by the panel of police investigators and it made references to several appendices but none of them were attached to exhibit B as it were tendered.
“The investigative report had made several conclusions which are crucially relevant to the determination of this case in particular those relating to the statements of Bakary Dahaba (Pw3) and Omar Sompo Ceesay (Pw6) and to support each conclusion, the panel referred the readers of the report to appendices that are nowhere to be seen,” he asserted.
“I deemed and hold the same as a fact that exhibit B as it is presented before this court is an incomplete report for that reason, that all the appendices referred to therein were not tendered with the report,” said the magistrate. He said it is obvious that if a report makes reference to some form of evidence, such evidence should be produced with the report otherwise the report is incomplete.
“The absence of those appendices has made exhibit B (investigation report) so manifestly unreliable that no court of law can safely rely on its conclusion,” he stressed.
The trial magistrate further said having reproduced all testimonies of the prosecution witnesses, it can be clearly seen that there is at least one instance where an official of the GFA (Pw3) received an imprest of 500 euros in respect of which a payment and a handwritten receipt of the recipient were tendered as exhibits.
“The accused tried further to prove before this court that there has indeed been some financial malpractices by the then GFA Executive to give credence to his petition and in that regard freed himself from the charge in this trial,” declared the Magistrate.
According to him, PW6, Mr. Omar Sompo Ceesay contradicted himself on record regarding how many players and officials he went with to Portugal, but he admitted that 6 players whose allowances were given to him did not turn up.
The magistrate said, “Prosecution did not offer any explanation as to what happened to that sum of 1,200 euros that was meant for the 6 players who never made it to Portugal.”
Principal Magistrate Jallow further went on to say that the “Evidence before this court shows that over one million dalasis has been issued out by the executive of the then GFA as personal loans to the staff and according to their own auditors, out of 24 recipients of this loan, only two application forms could be produced which even bear no repayment periods.”
“PW3 while being cross examined also told this court that he did receive the loan but he never applied for it in writing nor did he do it orally,” he continued.
According to the Magistrate, ‘Malpractice’ has been defined by Black’s Law Dictionary as ‘an instance of negligence or incompetence on the part of the professional’. He said “Clearly where any system or management allows the issuance of huge sums of money as loans without any clear cut procedures on how to access and repay such loans, such system /management cannot safe itself from being regarded as negligent.”
Magistrate Jallow made reference to Article 54.1 of the GFA Constitution and added that it is not in dispute that the then GFA had not held annual general meetings for 2009, 2010 and 2011 respectively. He said it is the accused person’s defence that expenditure done during these periods were done without authority and the court agrees with that argument since the forum vested with the legal authority to authorise the budget was not called upon to do so. Prosecution did not provide this court with any evidence to show that there is any other valid authority for this purpose, he said.
“I therefore resolved the second issue in favour of the accused in that the content of the petition letter (exhibit A) is not entirely false,” said the Magistrate.
The Presiding magistrate reveals that the letter that form the subject of this charge was written by the accused in his official capacity as the Permanent Secretary Ministry of Youth and Sports and it is also his defence that the content in the letter represent the views of the Ministry and not his personal views.
Magistrate Jallow noted that “Neither the panel of investigators nor the prosecution call anyone from the said Ministry to confirm or deny that statement.” He then cited section 156 (1) of the Evidence Act 1994.
In conclusion, the trial Magistrate pointed out that the court is convinced that unless prosecution can show clearly that the accused had acted in bad faith, which has not been proven, the law sees his authorship of exhibit A as merely carrying out his official duty. “There is nothing in the prosecution evidence to show that the accused has any personal motive to write exhibit A. Therefore, the necessary mens rea has not been established,” he opined.
He concluded, “In light of all the above, it is my holding that prosecution did not discharge its legal burden of proof to the required legal standard set under section 114 of the Evidence Act, 1994. Consequently, the accused is accordingly acquitted and discharged.”
By Mamadou Dem