Child offender freed by the High Court

Friday, March 09, 2018

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.

Author: Bruce Asemota