By Rohey Jadama
Lawyer Ousainou Darboe, counsel for the appellant, Lasana Jobarbeh,Lasana Jobarteh
filed a petition at the high court before Justice Amadi of the Special
Criminal Division.
When the case was called, the counsel for the appellant informed the
Court that he has filed the petition of appeal on 6t August 2014,adding that it is evident that no objection has been made to the
competence of the appeal.
Lawyer Darboe told the Court that what the motion seeks is to
regularize the affidavit in support. He said the motion is supported
by a 6 paragraph affidavit and a 3 paragraph affidavit in opposition.
He said paragraph two of the affidavit in support is deposed to
by the certificate copy of the notice of appeal and is denied by paragraph
3A of the affidavit in opposition and that the objection states that
the date when the appeal was filed was not disclosed.
The counsel for the appellant said paragraph 3D also states that there
is no proof of filing the notice of appeal which is not correct
because the date of filing is at the back of the file. He said
paragraph E of the affidavit in opposition states that the petition of
appeal is incomplete.
He further argued that paragraph 4 of the affidavit in support
indicated that they have proved that the judgment was not available at
the time the appeal was filed. He said the petition of appeal and
paragraph 3F of the affidavit in opposition are in agreement that the
appellant was convicted on the 10th of July 2014 and that the appeal
was filed within time which is the 6th of August 2014 and that the state
is denying that it was not within time.
The counsel said the application is necessary because Section 275 of
the Criminal Procedure Code provides that every appeal should be
available in the form of a petition presented by the appellant or his
counsel. He said it is at the discretion of the court to allow an
appellant to file a petition without attaching the notice of judgment
to the notice of appeal. “I urged your lordship to grant the
application,” he said.
In response, the Director of Public Prosecution (DPP), Hadi Saleh
Barkum said they are objecting to the application in that they have
filed an affidavit of opposition of 4 paragraphs. He said a motion
cannot stand without an affidavit. He said a careful look at the
affidavit in support of the motion particularly in paragraph 2, 3, 4,
and 5 is against the provision of section 92 of the Evidence Act.
The DPP added that the reasonable particulars of the informants, time,
place and circumstance of the information in these paragraphs 2, 3, 4,
and 5 are non compliance with the section. He said since these
paragraphs are non compliance then there is no affidavit in support of
the motion.
He said he is submitting that the motion cannot go on definite account
of paragraph 1 and 6 when there is no affidavit in support of the
motion. He said the paragraphs cannot stand and there is
no substantial reason given as to why the compliance of section 275
could not be possible.
DPP Barkum said the appellant did not advance any reason why he did
not have the judgment and did not show any efforts he made to get the
judgment. He said sufficient reasons were not given as to why they did
not attach the judgment.
DPP added that the date of filing is not known because what the
appellant filed is not a competent appeal by virtue of Section 275. He
said taking all this into account; the court will be left with no other
option than throw away the application by dismissing it.
The case was adjourned to 22nd January 2015 for ruling on the application.