Oleidi U. Uduma of the High Court in Banjul recently acquitted and discharged
one Alpha Omar Jallow, a convicted drug trafficker
Delivering judgment, the Appellate Judge disclosed that Alpha Omar Jallow was convicted on single count of drug trafficking and sentenced to 10 (ten years imprisonment) and a fine of D1,000,000.00 (One million dalasis) in default, payment of the fine to serve extra two (2) years by the Banjul Magistrate’s Court in November, 2014.
Justice Uduma said Alpha Omar Jallow was dissatisfied with the conviction and sentence and he filed a notice of appeal to the High Court.
She revealed that Alpha Omar Jallow was unrepresented by a Lawyer both in the trial court and in the Appellant court adding that he argued his case orally before the High Court.
Justice Uduma disclosed that the said court made about 10(ten) orders to the Registrar of Banjul Magistrate court between 2014 to 2018 to produce the record of proceedings, the charge sheet and all the exhibits used by the court in trial of the appellant but to no avail.
She further disclosed that the state Respondent was also served with 6 hearing notices to appear before the court to defend the suit but to no avail.
She noted that the Registrar of the Banjul Magistrates’ Court refused and failed to make the record of proceedings, the charge sheet, and exhibits available to the court.
She disclosed that the State/ Respondent has refused and failed to appear in the court to defend the appeal and she remarked that the court has no better option than to rely on the plea of not guilty entered by the trial court and the testimonies of the Appellant in the court.
Justice Uduma said the court relies on the provision of Schedule 2 Order 53 rule 17 and 18 of the High court rule Vol II Cap 6.01 of the Laws of The Gambia and noted that Order 53 Rule 17 provides that the High Court shall have power to give judgment and make any order which ought to have been made and to make such further or other orders as the case may require.
She explained that these powers may be exercised by the court notwithstanding that the appellant may have asked that part or all of the decision may be reversed or varied and may be exercised in favour of all or any of the Respondent or parties.
She further explained that Order 53 Rule 18 provides that the High Court shall have power in the event of there being no record of appeal or an insufficient record of appeal before it to hear and determine the appeal or any other evidence or statement or what occurred in the court below which the High Court may deem sufficient.
Justice Uduma revealed that in the instant case there was neither record of proceeding nor charge sheet or exhibit or judgment to show what transpired in the Magistrate Court and the State Respondent did not help matters as they refused to appear in court to defend the suit after series of hearing notices.
Justice Uduma averred that the only evidence available to the court was the testimony of the Appellant that he was travelling to visit his in-laws with some bananas and with some stick of cigarettes and a lighter in his pocket and that the police alleged that the bag containing cannabis belongs to him because he was with a lighter and cigarettes.
The Appellate Judge further averred that it was on the charge that he was convicted and sentenced and since there was no other evidence before the court to contradict the evidence of the Appellant the court has no better option than to revisit the judgment of the Banjul Magistrate Court delivered on the 27th November 2014.
She pointed out that the High Court is a court of record and should go by the records available to the court adding that it is more judicious and justifiable that the court should do justice to a case and give credence to it, especially where life is at stake besides there is nothing to prove contrary to the evidence of the Appellant.
Justice Oleidi Uduma therefore declared that she has no better option than to discharge the Appellant and order that he should be released from Prison Custody with immediate effect.