By Mamadou Dem
The Banjul Magistrates’ Court presided over by Principal Magistrate Hillary Abeke on Monday, 21 July, 2014 acquitted and discharged Abdoulie Tambedou, the former Managing Director of the Gambia Ports Authority (GPA) on the four counts charges of “Giving False Information to a Public Servant” contrary to Section 114 of the Criminal Procedure Code.
Delivering the judgement in a congested court room on behalf of Magistrate Lamin Mbye, the trial Magistrate noted that in proving its case, the prosecution has called seven witnesses and tendered five exhibits while the accused testified as a lone witness in his defence and tendered one exhibit.
“I will look at all the prosecution witnesses individually in order to determine whether there is sufficient evidence to substantiate the charges against the accused person,” said the magistrate.
According to the trial magistrate, the first prosecution witness, Modou Sowe, admitted during cross examination that their investigations could not prove if the accused person believed in the veracity of what he had told them. “This clearly showed me that he did not fully understand the issues at stake or the purpose of the investigation he was conducting,” he said.
He added that an investigation into any criminal matter is to find sufficient proof to show that a crime is committed and substantiate the allegations against the accused person. “If that could not be done conclusively, then why prosecute?” he enquired.
Magistrate Mbaye stated in his judgment that in exhibit P2, the police investigation report, it is indicated that witnesses were called to verify the accused person’s allegations that he was nearly run down by “Pw2,” Lamin Sanyang, yet the said investigation cannot conclusively say whether what the accused alleged was true or not.
“It is trite law that since any person who is charged with an offence is presumed innocent until the contrary is proved (see Section 24 (3) of the 1997 Constitution), it therefore, means that the burden of proof in criminal cases in both senses of the term lies on the prosecution throughout the case,” stated the magistrate.
He added that the legal burden in criminal cases never shifts and it is always for the prosecution to convince the court that the accused person is guilty of the offence he/she has been charged with.
For the prosecution’s second witness, Lamin s Sanyang, he continued, it was recorded by the court that he was sitting inside the courtroom when PW1 was testifying before the court, adding that the defence made an objection to the witness’ evidence which the court promised to deal with in its judgement.
“I, not being the magistrate at the trial cannot conclude how much weight I can give the said witness’s evidence if any. I will therefore not consider the said witness’s evidence at all,” said the magistrate.
As for the third prosecution witness, Ebou Gibba, the Head of Intelligence Unit at the Gambia Ports Authority, the magistrate stated that according to his evidence he contradicted himself when he said he started having problems with the accused person when he caught one Ansumana Sillah with a 20 litres gallon of gasoil and another agent with 3 bags of sugar, the accused came to his office and took the said sugar and some of his guards to the police station.
According to the magistrate, it is clear from the evidence before the court that the accused person as the then managing Director of GPA was the person in charge of the entire administration of the ports including its staff and Ebou Gibba. He continued that the current Managing Director of the Gambia Ports Authority, Lamin Gibba, testified as the sixth prosecution witness and informed the court that he received some police officers in his office who asked him to confirm whether his predecessor (the accused) had some problems with some members of staff at the GPA who were alleged to be Gibba’s relatives and that he has discussed those problems with the accused.
He said in the statement of PW6, he indicated that he could not remember discussing those problems with the accused and that PW7 testified that when he was invited by the police, he told them that he knew nothing about the case.
The accused, continued the magistrate, testified as a lone witness and informed the court that he was appointed as director in April 2011, adding that he denied the charges preferred against him and maintained that the information he gave in exhibit ‘P1’ was true. “He confirmed in his testimony that he had spoken to ‘PW6’ and his wife Haddy Jack. He informed the court that he had also spoken to the then Secretary General, Mr. Njogu Bah, about the problems he (Tambedou) had at the time and Mr. Bah asked him to put his complaint in writing. The minutes of the discussions the accused had with Mr. Bah was admitted as exhibit ‘DE1,” he stated.
“The prosecution should sufficiently provide enough evidence to prove without doubt that the information the accused person gave the secretary general and contained in exhibit ‘P5’ was false.
Section 147 of the Evidence Act states that “where a person is accused of any offence the burden of proving the existence of circumstance bringing the case within any exception or from, or qualification to, the operation of the law creating the offence with which he is charged upon such person.
“The burden of proof placed by this part upon an accused person charged with a criminal offence shall be deemed to be discharged if the court is satisfied by the evidence given by the prosecution, whether on cross examination or otherwise that such circumstances in fact exist.”
“I am also tempted to agree with defence counsel that the allegations contained in count two were not substantiated by any evidence,” said magistrate Abeke.
The magistrate further noted that “where the witness called by the prosecution gives inconsistent or contradictory evidence on a material point, the court has no duty to, and cannot choose the accuracy of one against the other. They could neither accept no reject one against the other without laying proper foundation to that effect.””
He added “Thus where there are such contradictions and inconsistencies in the evidence before the court as in the instant case, such as to cast reasonable doubt upon the guilt of the accused person, such accused person should be given the benefit of the doubt and not convicted on the basis of such unreliable evidence.”
The magistrate stated that by merely telling an investigation panel your version of the story cannot in any stretch of the imagination amount to giving false information to a public officer in any case, adding that the role of the panel was to investigate the alleged false information. He stated that the tone of the report and what is contained in exhibit ‘P2’ together with the oral evidence of some of the witnesses appears to him that the panel only took Lamin Sanyang’s word as against the accused person’s.
“Having regard to the totality of the evidence before the court in support of the charges against the accused person, I hold the view that the prosecution did not sufficiently prove its case against the accused person beyond all reasonable doubt. The accused person is therefore acquitted and discharged accordingly as no prima facie case has been made against him,” concluded Magistrate Abeke.