HIGH COURT'S FULL RULING IN YANKUBA TOURAY'S MURDER TRIAL

IN THE SUPERIOR COURTS OF THE GAMBIA

IN THE HIGH COURT OF THE GAMBIA

         Criminal Case No.: HC/365/19/CR/067/AO

 BETWEEN:

 

THE STATE............................................................COMPLAINANT

 

AND

 

YANKUBA TOURAY......................................ACCUSED PERSON

 

CASE CALLED ON 10^th JUNE 2020

 

BEFORE HIS LORDSHIP HON. JUSTICE EBRIMA JAITEH

 

PARTIES: - Accused person – Present

 

APPEARANCES:

-        Principals State Counsel A.M. Yusuf, K. Tah, State Counsel M.B. Sowe and A. A. Saho for the State

-        Counsel A. Sissoho for the Accused – Present

 

 

RULING

The Accused person is charged on a single count of Murder contrary to section 187 of the Criminal Code, Cap 10, Volume 3, laws of The Gambia 2009. The particulars of offence alleged is that the accused sometime in the month of June 1995 at Kololi in the West Coast Region of The Gambia within the jurisdiction of this Honourable Court and with malice aforethought caused the death of one Ousman Koro Ceesay by beating him with a pestle-like object and other dangerous weapons thereby committed an offence.

The prosecution called nine (9) witnesses and tendered exhibits inclusive of an autopsy report. At the end of the prosecution’s case, the Defence opted and made oral arguments on a submission of no case to answer.

 

Counsel for the Defence A. Sissoho in his brief argument submitted that the prosecution had failed to make a prima facie case against the Accused person to require him to enter his defence. Additionally, Defence Counsel argued that the prosecution had failed to prove the ingredient of the offence charged which is the actus reus of murder that there is no evidence that Ousman Koro Ceesay is dead and no weapon, stick or knife was tendered into evidence as an exhibit by the prosecution. It is Defence Counsel’s argument that the actus reus has not been established as required by law and thus relied on statute and several case laws and argued that the accused should be acquitted and discharged on a submission of no case to answer.

 

The Principal State Counsel A. M. Yusuf in responding to the arguments on the no case submission argued that section 166 of the Criminal Procedure Code is applicable only to the Subordinate Courts. It is, therefore, his submission that that provision of section 166 of the Criminal Procedure Code cannot be invoked in the High Court. The Principal State Counsel Yusuf urged the court to look at section 208 of the Criminal Procedure Code, as it is the proper law to invoke a nocase submission at the High Court. Counsel Yusuf also argued that the prosecution had indeed established a prima facie case against the Accused person and relying on several authorities urged the court to discountenance the submission of no case. Counsel finally urged the court to call upon the accused person to enter his defence.

 

In reply on points of law, Defence Counsel argued that section 208 is a general power of the court and that section 166 of the Criminal Procedure Code applies both to the High Court and the Subordinate Courts.

 

I have carefully listened to the oral arguments on the issue of no case submission. However, I agree with Principal State Counsel A. M. Yusuf that Section 166 of the Criminal Procedure Code, which is under Part V deals with “procedures in trial before the Subordinate Courts”. It is my considered opinion that there is only one issue for determination, which is whether the accused person has a case to answer. In as much as I have looked at the testimony, and the argument of the defence counsel in details in order to ensure fairness, I will only limit my comments, my observations, and my findings to the law as it relates to a no case submission in The Gambia. The starting point is Part VII of the Criminal Procedure Code dealing with procedure in trials before the High Court. Section 208 of the Criminal Procedure Code provides that:

          “Subject to the provisions of this Code, the practice of the High Court in its criminal jurisdiction shall be assimilated as nearly as circumstances will admit to the practice of her Majesty’s High Court of Justice in its criminal jurisdiction and of Courts of Oyer and Terminer and General Goal Delivery in England”.

By this provision, this court is entitled to use any procedure applicable in the High Court of Justice in England under similar circumstances subject to the provisions of the Criminal Procedure Code. Pursuant to this provision, it has been a common practice within this jurisdiction to make submissions of no case to answer under the circumstances applicable in England as established by Lord Chief Justice Parker in the Practice Note issued in that regard by the Queens Bench Division in (1962) 1 ALL ER 448 as follows:

“A submission that there is no case to answer may properly be made and upheld:

a)    When there has been no evidence to prove an essential element of the alleged charge; or

b)   When the evidence adduced by the prosecution has been so discredited as a result of cross examination or is so manifestly unreliable that no reasonable court could convict on it”.

I hereby find and hold that the practice of submission of no case to answer is known to the High Court in this jurisdiction and is widely used pursuant to Section 208 of the Criminal Procedure Code and the Practice Note of Lord Chief Justice Parker as applicable in England. The law on no case submission in this jurisdiction is also govern by Section 238 of the Criminal Procedure Code, Cap 10:01, Volume III, Revised Laws of The Gambia 2009 provides thus “when The evidence of the witnesses for the prosecution has been concluded and the statement or evidence (if any) of the accused person has been given in evidence, the court, if it considers that there is no evidence that the accused person or any one of several accused persons committed the offence, shall, after hearing the counsel for the prosecution and for the defence, record the finding of not guilty” (emphasis added). In any event, let me hasten to say that a submission of no case to answer is also a common law procedure, which may be applicable to some cases. A no case submission has been defined in the case of IGABELE v THE STATE [2005] 1 NCC on page 61 to mean, “… that there is no evidence on which the court would convict even if the court believed the evidence of the prosecution…”(Emphasis added). In the instance case, the prosecution having concluded their evidence and close the case of the prosecution, the defence argued that the prosecution has not provided any evidence to sustain the charge that would safely lead to the conviction of the Accused Person hence their submission of no case to answer. It is on this basis that this ruling is being read.

Nonetheless, in the instance case, I need not deal with the credibility or not of the witness adduced by the prosecution or on the weight of their evidence. The question I have to determine is whether the evidence produced by the prosecution has been discredited in cross-examination or whether the evidence adduced is manifestly unreliable that it would not be safe to convict. It was held in the case of CEESAY v COMMISSIONER OF POLICE [1960-1993] GLR on page 111, that “the effect of a successful submission of no case was to protect the accused from going into the witness box where he might be compelled to make damaging admissions; it might also prevent the prosecution from making good deficiencies in its own evidence by cross-examining the other witnesses for the defence. A submission of no case to answer could only be justified if the case for the prosecution had obviously collapsed when it would be a waste of time of the court to hear it further. A submission of no case was also a powerful reinforcement of the right of the accused to silence conferred upon by him by law…” (Emphasis added). The question is has the prosecution produced evidence to support an allegation on the offence charged? Has the prosecution establish a prima facie case against the accused persons. In the case of GODWIN CHIANUGO v STATE [2006] 1CLPR on page 71 it was held that a prima facie case “…only means that there is a ground for proceeding…but a prima facie case is not the same as proof which comes later when the court has to find whether the accused is guilty or not guilty…and the evidence discloses a prima facie case when it is sufficient to prove the case against the accused…” (Emphasis added). Similarly, “a prima facie case is said to exist when there is evidence sufficient enough to support the allegation made in the absence of further evidence rebutting same…” (See IGABELE v THE STATE [2005] 1 NCC on page 64), also in the same case if IGABELE as cited supra has outline when a no case submission would be held to be where:

1)   “There was no evidence to prove an essential element of the alleged offence, and

2)   The evidence adduces has been so discredited as a result of cross-examination.

3)   The evidence is so manifestly unreliable that no reasonable tribunal can safely convict on it and, further if, however, a reasonable tribunal can convict on evidence so far led, there is case for the accused to answer…”(emphasis added).

The question I ask is that has the prosecution produced evidence to support an allegation on the offence charged and to that I must hasten to answer yes. Without wishing to go into evidence or facts of the case, I believe the evidence adduced by the prosecution is such that it requires some explanation from the Accused person of what actually happened at his house in Kololi on the fateful day in question. I must state clearly that the prosecution has adduced direct and circumstantial evidence before this Honourable Court linking the Accused Person to this case. Therefore, a prima facie case has been made out against the Accused person and the argument on the submission of no case to answer lacks merit and is hereby dismissed. The Accused person is now called upon to open his defence.