BETWEEN:
IGP COMPLAINANT
AND
ALAGIE BOJANG "':"""""' ............1S'ICCUSED
OMAR DARBOE 2ND ACCUSED
OUSMAN SANNEH.. ...........3RD ACCUSED
FODAY DARBOE .4rH ACCUSED
LAMIN JASSEY ..5TH ACCUSSED
AMADOU. S JANNEH .........6T" ACCUSED
APPEARANCES:
SERGEANT 3533 BOBOU IARIU FOR THE rcp
COIINSEL LAMIN I. DARBOE FOR THE ACCUSED PERSONS is absent. ALL
ACCUSED PE.RSONS PRESENT
1 IGP Vs ALAGIE BOJANG AND 5 OTHERS. NO CASE TO ANSWER RULTNG By p. A CHE I p a g e
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RULING ON ANO CASE TO ANSWER SUBMISSION. DETIVERED BY HIS
WORSHIP PETER ADOH CHE Esq ON THURSDAY THE 27rH DAY OF
DECEMBER 2018
INTRODUCTION
The accused person herein, Alagie Bojang, Omar Darbo, Ousman Sanneh,
Foday Darboe, Lamin Jassey, Amadou Scattred fanneh all Gambians citizens.
They are jointly charged on three counts viz;
COUNT ONE
Statement of Offence:
Conspiracy to commit a felony contrary to section 368 of the Criminal Code,
cap 10:01, Vol. 1,11,Laws of the Gambia 2009.
Particulars of Offence :
Alagie Bojang, omar Darboe, ousman Sanneh, Fodayy Darboe, Lamin |assey
Amadou Scattred fanneh, for that you did on or about the 22"a day of March
2018, at the premises of the Golden Lead Import Export Company Limited in
Gunjur, Kombo South District in the West Coast Region of the Republic of the
Gambia, you agreed amongst yourselves to commit a felony wit: willfully
damaging the waste discharge pipes of Golden lead import and export
company limited: thereby committed an offence.
COUNT TWO
Statement of Offence
Criminal trespass, contrary to section 285 IAJ of the criminal code, Cap 10:01,
Vol. 1l-1, Laws of the Gambia 2009.
Particulars of the offence:
Alagie Bojang, omar Darboe, ousman Sanneh, Foday Darboe, Lamin lassey
Amadou Scattred Janneh, for that you did on or about the 22nd day of March
201'8, at the premises of the Golden Lead Import Export Company Limited in
Gunjur, Kombo South District in the West Coast Region of the Republic of the
2 IGP Vs ALAGIE BOJANG AND 5 orHERs. No cAsE To ANswER RULTNG By p. A cHE | :, , r r
Gambia, with the intent to commit a felony wit: intimidating and annoying the
company through its General manager and staff, entered the same company
premises and did intimidated and annoyed the company, General Manager
and staff by removing waste pipes, thereby committed an offence.
COUNT THREE
Statement of Offence:
Willful damage to property, contrary to section 312 (I) of the Criminal Code,
Cap 1-0:01, vol. 111, Laws of the Gambia 2009.
Particulars of offence:
Alagie Bojang, Omar Darboe, Ousman Sanneh, Foday Darboellamin fassey
Amadou Scattred Janneh for that you did on or about the 22"a day of march
20'J,8, at the premises of the Golden Lead Import and Export Company Limited
in Gunjur Kombo South District in the West Coast Region of the Republic of
the Gambia, willfully and unlawfully damaged waste discharge pipes value
fifty thousand united states dollars [$50,000.00), the property of golden lead
import and export company, thereby committed an offence.
At arraignment, the charges were read in English and interpreted to the
accused persons in Mandinka language which they chose to speak and also
understood. They accepted that they understood the charges and pleaded not
guilty.
The prosecution in proving its case against the accused persons led evidence
through five (5J witnesses and tendered a series of Exhibits. At the close of
the prosecution's case Defence Counsel L. Darboe opted to make an
application for a no case to answer submission. The application was
accordingly granted and the parties were given respective time frames within
wnftn to submit their written responses.
3 IGP Vs ALAGIE BOJANG AND 5 OTHERS. NO CASE TO ANSWER RULING BY P. A CHE I I' * g e
I shall summarize the .rriaun.. of the prosecution witnesses below:
PW1- Bakary Darboe
He stated that he is the General Manager of Golden Lead Import and Export
Company Limited in Gunjur, and that the Company processes fish to fish meal
and fish oil. He testified that Golden Lead laid waste pipes from the factory to
the Atlantic sea in Gunjur and discharges its waste waters into the sea.
He testified that the National Environmental Agency commenced criminal
prosecutions against Golden Lead but the case was later withdrawn and the
pipes were not removed. He said that the accused persons, who were not
acting under the Alkalos decision nor the VDC decided to remove Golden
Lead's pipes and disconnecting same. He narrated that he was at the scene
trying to dissuade the perpetrators in vain. The court visited the scene and
saw cemented areas, which according PW1 the cemented areas are where the
pipes were removed. Exhibit A1 to A7 being pictures taken of the alleged
action were admitted through this witness. A document handing over a parcel
of land to 'Golden lead signed by the Alkalo and the VDC was admitted and"
marked as A8. Exhibit 49 being 6 pictures of the removed pipes were also
admitted through pW1
Under cross examination, the witness said he could not remember his date of
appointment as the GM and that he misplaced his appointment letter. He
responded that he only managed local staffs and that he has no files wejre
appointment is kept. He said as General Manager his salary is D8000. Counsel
put it to him that his entire evidence is fabricated. He responded in the
negative. He was interrogated about the damaged pipes he responded that the
damaged pipe was connected and put back into the sea and that he had no
4 IGP vs ALAGIE eolANG alvo i ornens. ruo ceie ro nruiwin nuiilva ev p. e ixi I p , s e
PW2: Ken Mendy.
He is the Assistant Commissioner of WCR. He said he received a call from the
SO of Gunjur police Station that some disgruntled youth from Gunjur were at
the beach site taking out pipes belonging to Golden Lead Company claiming
that it was harmful to their environment. He went to the scene and saw the
youth digging the pipes. He met Amadou Scattred fanneh and they tried to
resolve the tension but it did not pay dividend. Under cross examination he
stated with emphasis that the waste was discharged into the river and not into
the ocean.
PW3- Sutu Keita
He said that he received a call about the incident. When he arrived at the
scene, he met 6th accused person who told him that the youth are disgruntled
because of waste from the Golden Lead company been directed into their sea.
While he was trying to arrive at a consensus, the youth had already removed
the pipes. Under cross examination, he agreed that he recognised the accused
persons on the scene and that they did not enter the premises of Golden Lead.
PW4-Yusupha Saho.
He is the Alkalo of Gunjur he said he was called to go to the beach site that
youths are removing pipes and from a distance he saw some police officers
and a crowd. He did not get close to know what was happening there. He
knows nothing and did not authorize any one.
PWS: Buba E. Sanyang
He is a CID of Gunjur. He narrated that he received a call from his Regional
Cfimg coordinator about the alleged incident. He went to the scene and
tog$th.f with the Deputy Police Commissioner, they invited Amadou Scattred
'Isaih&h and some'others into the fisheries office. After discussions there was a
conipiomise,lbut before they could come out the pipes were already removed.
He then'pr,gifuared a report which was admitted and marked as A10. Under
cross exarfrination, he stated that the accused were not in the premises of
Golden Lead. He confirmed that the edges of the pipes were damaged. He said
5 IGP Vs ATAGIE BOJANG AND 5 OTHERS. NO CASE TO ANSWER RULING BY P. A CHE I P a g C
he will be surprised to know that the same pipes have been put back into the
land.
ISSUE FOR DETERMINATION.
The sole issue which stands out for determination is whether the
prosecution has established a prima facie case against the accused
persons warranting them to open their defense not. .
Section '1,66 of the CPC enjoins this court to evaluate the evidence of the
prosecution after the close of its case to see whether the prosecution has
sufficiently establish a case warranting the accused persons to open their
defense in the absence of which the court can discharge the accused persons.
This issue can be conveniently resolved by examining the ingredients of the
offences at hand in light of the evidence adduced by the prosecution so far.
The defence counsel and the prosecution have filed respective briefs and
articulated the ingredients of the offences. I shall resort to portions of their
respective briefs if need be, as I navigate through this ruling.
It is the case of the prosecution that the accused persons planned, entered the
property of Golden lead and damaged their properties by removing their
waste pipes. Going through the evidence of PWI to PWs the following
questions borne out of evidence shall be highlighted for analysis.
1." Is Golden lead a Registered Company in The Gambia?
2. Did Golden Lead Company have an authorization from NEA to run waste
pipes from the factory into the ocean?
3. Who owns the land that the pipes went through into the sea?
Is there any justification from the Gunjur resident to take out pipes
belonging to Golden Lead?
The answers of these questions, will be a yardstick to determine whether the
accused persons should open their defence or not.
r'. 4j
tiY
6 IGP Vs ALAGIE BOJANG AND 5 OTHERS. NO CASE TO ANSWER RULING BY P. A CHE I II ;I g E
Let me now attempt to answer from the available evidence adduced so far. It
is the case of the prosecution that Golden lead is a registered Company in the
Gambia. Ordinarily one will expect the tendering of documents of
incorporation. The credibility of this company was challenged by the counsel
of the accused as the purported General Manager has no letter of
appointment no files were he kept records, and much more. The testimony of
PWI has greatly put the Company affairs into the limelight. PW1 mentioned in
his testimony of another General Manager, sadly he was not called as the
General Manager who testified, had no clue on how the company is being run.
Assuming but not conceding that Golden Lead is a registered company in the
Gambia, the question that begs for an answer is whether Golden Lead has the
necessary permit to discharge waste in to the sea. Who issued the permit?
Was the procedure properly followed? Any attempt in trying to answer these
questions, shall be on guess work. It is now a well-established principle that
criminal trials should be decided on evidence not on passion or sentiments or
conjectures. See the case of SULEIMAN V. THE STATE (2011) 6 NCC 220. No
proof of any existing permit was produced by the prosecutor.
The impact of waste to the marine environment was not also made known to
this court. It alleged by PW1 that NEA initiated a case against Golden Lead and
Leader withdrew. The High Court is a court of records. Such records were
never brought to the attention of this court. I can therefore safely conclude
that there's no permit from NEA for the pipes to be directed into the ocean.
Even if there was a permit, a scrutiny of the methodology of acquisition
especially with regards to community participation might have cropped up.
The consultation with the community is a condition sine qua non in approving
a permit of this nature. This too is another puncture on the credibility of
Golden Leads Company and the entire case of the prosecution. It is trite law
that the court should not deal with issues not expressly canvassed before it. ,}
With''regards,to the third question, there is overwhelming consensus from all
the prosecution's witnesses that all the accused persons did not enter the
premises of Golden Lead Company. Exhibit AB is the only legal property of
Golden Lead property. The accused persons were outside of the company
7 IGP Vs ALAGIE BOJANG AND 5 OTHERS. NO CASE TO ANSWER RULING BY P. A CHE I P .i .q .:
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property in a land the alleged pipes passed through into the ocean. Evidence
was led as to the acquisition of this land from one Dawda fammeh. Ownership
of the land was in issue during cross examination by the defence, as no
transfer document was produced before this court. Why the said Dawda
fammeh did not testify is best known to the prosecuting team. If the land was
indeed bought as alleged, why was transfer not done as in Exhibit AB? It is a
futile expedition to ascertain criminal trespass without dealing with
ownership. With a proper transfer of ownership, any third party is considered
a trespasser. This was however not the case.
Now is there any justification from the community to remove the pipes?
Venturing into answering this question will be a reversal of the basis of our
criminal justice system as the accused does not have to proof their innocence.
See the case of Sey Vs the State (1995/1996) GR 409. See also the case of
Daboh & Anor v. The State (7977) 5 SC 7970. The burden of proof is on the
prosecution. This burden only shifts apart from other legal exceptions, where
a prima facie case has been established by the prosecution warranting the
accused persons to open their defence.
From the foregoing prosecution owed a duty to establish the guilt of the
accused beyond reasonable doubt. The task is upon them to prefer a charge
based on legal infractions. Did the accused persons violate any law? The
prosecution in his brief quoted a powerful Latinism ?x turpi causa non
oritur actio'. According to him "...the court should not allow a party to a case
before it benefit from his/her own immoral, dishonest, fraudulent and illegal
conduct." He was referring to the accused persons.
A generic interpretation of the Latinism above is that, a plaintiff will be
unable to pursue legal remedy if it arises in connection with his own illegal
act. Simply put, an action cannot emanate from an illegality. This Latinism is a
bullet on the leg of the prosecution himself as it is exactly what the
Prosecution has done.
The prosecution did not lead evidence on the incorporation of the said
company in The Gambia; ownership of the property where the pipes were
laid; authorization from the competent authority to direct the waste into
8 IGP Vs ALAGIE BOJANG AND 5 OTHERS. NO CASE TO ANSWER RULING BY P. A CHE I ' , i
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ocean. If they had done some of these, it could have been a legal justification
to prosecute any infractions that follows.
This is a court of equity and the temple of justice. He who comes to equity
must come with clean hands. You cannot put something on nothing and expect
it to stand. This court of law is not a playground for speculation-. A court acts
on facts and evidence before it. In the case of Queen v. Obiasa (1962) 7 ALL
NLR 657, the court held that where in a criminal matter, a doubt as to a fact
arises on the evidence; such doubt must be resolved in favour of the accused.
This is because a court cannot conjecture on things that are not before it.
In this case the investigation was porous as well as the presentation of
evidence before this court. This is a classic case of shady investigations and an
improper presentation of evidence. The court cannot rely on sketchy
investigations to arrive at a conviction. In the case of BOJANG V THE STATE
(L997-2001) GR at page 103. Chomba P.
"The court has constantly counseled about the need for thorough investigatlons
and also competent presentation of coses before the court. The appellant was
not convlcted on the clearest of evidence. In other words, the prosecution did not
succeed in proving their case against the appellant beyond all reasonable
doubts, He should in the event, have been given the benefit of the doubt and been
acquitted."
fust as properly articulated by my senior brother Chompa P. I will dare not
venture in the light of such shady investigation and improper presentation of
evidence led the accused persons open their defence.
In,cqnclusion, in the case of UBANATU V COMMISSIONER OF POLICE , (7999)
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SC 92 the Supreme Court of Nigeria states that:- "At the close of the
prosecution's case, a trial court should consider whether there is evidence
which will suffice to support the allegation made in the charge and whether
9 IGP Vs ALAGIE BOJANG AND 5 OTHERS. NO CASE TO ANSWER RULING BY P. A CHE I - a g er
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such evidence will stand unless accused produces no evidence to rebut it. If at
the close of prosecution's case, there is no proof of an essential element in the
charge, a nb case submission is made; a trial court ought to uphold the
submission".
On the basis of these, I hold that the prosecution has failed to establish a
prima facie case against the accused persons necessitating them to open their
defence. ALAGIE BOJANG, OMAR DARBOE, OUSMAN SANNEH, FODAY
DARBOE, LAMIN JASSEY, and AMADOU SCATTRED JANNEH, you are
hereby discharged and acquitted forthwith.
This is my ruling
10 IGP Vs ALAGIE BOJANG AND 5 OTHERS. NO CASE TO ANSWER RUUNG BY P. A CHE
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