Justice
Oleidi Uduma of High Court in Banjul recently acquitted and discharged a child
offender (name withheld) after the court declared his conviction and sentence
by the Banjul Magistrates’ Court a nullity.
The
appellant filed an appeal against the Judgment of Banjul Magistrate Court
presided over by O. Jabang delivered on the 20th of April, 2016 and he was
convicted on one count charge of possession of prohibited drugs for the purpose
of drug trafficking contrary to Section 43 (4) (e) of the Drug Control Act
2003.
The
appellant was subsequently sentenced to a fine of D1, 000,000.00 in default to
a jail term of 2 years in addition to serving mandatory jail term of 10 years
imprisonment.
Dissatisfied
with the judgment, the appellant lodged an appeal and his counsel filed a
written address whilst the state counsel for respondent did not file any brief
or opposition to the submission of appellant’s counsel.
Justice
Uduma in her judgment disclosed that the record of proceedings showed that the
Birth Certificate of the Appellant shows he was born on the 22nd of March 1999.
She
further disclosed that the provision of section 213 of the Children Act is very
clear as it provides that Children’s Court shall have jurisdiction to hear and
determine all criminal charges against a child except in treason cases and
offence for which a child is jointly charged with an adult.
She
stated that Section 227 (1) among other things provides that when it appears to
a court other than Children’s Court that a person charged before it with an
offence is a child; the court shall remit the case to Children’s Court.
Justice
Uduma explained that it is very clear that it does not include when a child is
charged for treason or the child is jointly charged with an adult. In other
words any court other than children’s court which hears a criminal offence
against a child except in treason or when the child is charged jointly with
adult acted ultra vires.
She
cited Section 227 (1) of the Children’s Act which provides that when it appears
to a court other than a Children’s Court that a person charged before it with
an offence is a child the court shall remit the case to Children’s Court except
where the child is charged with treason or the child is jointly charge with
adult.
Justice
Uduma revealed that having considered the above antecedents and the provisions
of Sections 70, 208, 213 and 227 of the Children Act which concurred with the
appellant counsel that the trial court acted in excess of it jurisdiction since
the court has no jurisdiction when it proceeded to hear and pronounce judgment
in a criminal case against a child which was clear disregard of the provision
of the children’s Act.
The
trial judge therefore declared that the trial of the appellant in the
magistrate court is a nullity because the trial court has no jurisdiction to
hear a criminal case against a child offender.
She
pointed out that the trial court ought to have remitted the case against the
appellant to the Children’s Court being the court vested with jurisdiction by
law to hear cases against a child offender as mandated.
Justice
Uduma remarked that since the court cannot blind its eyes to the miscarriage of
justice occasioned on the appellant by the judgment of the trial court.
She
then set aside the judgment delivered by magistrate court and acquitted and
discharged the appellant.