Friday, October 22, 2010

In Peters Trial: Defence Counsel No-Case Submission Over-ruled


Magistrate Ordered Accused to Enter Defence

Banjul, The Gambia (TNBES) Principal Magistrate Kayode Olajubutu of the Kanifing Magistrates’ Court on Wednesday 3rd March, 2010 over-ruled the no-case submission of the defence counsel of the United Democratic Party (UDP) Campaign Manager Mr. Femi Peters.

Defence Counsel, Ousainou Darboe during the previous sitting submitted a no-case to answer for Peters, the accused who is standing trial on Two Counts of control of procession and using a loud-speaker at a rally held at Ebony Junction, Serrekunda Central without a permit from the IGP.

Delivering his ruling after quoting both the defence counsel and the prosecution, Principal Magistrate Kayode ruled that the accused was the master minder of the rally and he was the one who signed the application and
made a follow up to confirm whether the application is approved, arguing that UDP is not in nature a person.

Kayode noted that the application was signed by the accused as the campaign manager and the application was to hold a rally and the used of public address system. He stated that the mere fact that the accused was not using the public address system will not convince the court that the accused did not used the public address system.

After considering the submission of the defence counsel and the reply of the prosecution and his evidences, Kayode therefore over-ruled the defence counsel’s submission and ordered the defence counsel to open his
defence.

Earlier on, Lawyer Darboe in his no-case submission told the court that the evidence that has been adduced in the case particularly that of the fourth prosecution witness shows the accused was not on trial. “It is the
Constitution of The Gambia and survival of democracy that are on trial,” he told the court.

Darboe submitted that after the prosecution had called their witness, the defence considered that no prima-facie evidence had been adduced by the prosecution to warrant the accused to enter his defence.

He argued that on Count One, the accused was charge with control of procession contrary to section 5 (5A) and holding a political rally. The accused was also charged with using a loud-speaker on Count Two.

The senior defence counsel said that a no-case submission must be upheld when an essential element charge has not been proven or if the evidence has been so manifested that no reasonable tribunal could convict on
that. Lawyer Darboe referred the court to the evidence of the first prosecution witness, who in his evidence said that he received information that UDP was holding a rally at the Ebony Junction and upon his arrival at the rally he found the accused person sitting down.

“Where was the procession taking place?” Darboe asked. He stated that under cross examination PW1 admitted that it was the UDP who was holding the rally and not the accused. Darboe indicated that exhibit A is an application for permit by UDP to hold a rally at Ebony junction on the 24th October, 2009 and copied to Independent Electoral Commission.

He said at the back of the application there is a minute to the IGP as thus, “UDP is requesting for a permit to use a public address system at a rally.” “Femi Peters did not apply for any permit; it was the UDP that applied for it. It is my submission that there is not only a lack of evidence to support the statement of offence of procession, but the particulars of offence which must support the statement of offence is completely at variance, but there is also no support that Femi Peters has applied for a permit,” Darboe argued.

Indeed the evidence of PW1, 2 and 3 all stated that it was UDP that held the rally and not the accused person, Darboe says.

Responding to the submission made by the defence counsel, the Prosecuting Officer Inspector Kebba Fadara also submitted that PW1 and 2 evidence corroborated adding that PW2 indicated that there was a procession
that a group of people escorting a car. Fadara added that PW3 also did say that there was a procession of a group of people escorting a vehicle. Inspector Fadara told the court that all the witnesses were not showed a permit to hold a rally. He further added that PW4 told the Court that there was an application by the UDP to hold a rally and it was signed by the accused person.

He said the defence did not dispute this fact. PW4 added that the accused went back to make a follow up whether the application is approved. According to him the prosecution witness said that there was a rally
and there was the use of a public address system. VOL:2 ISSN:119

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