Defence counsel B. S. Touray, who represented Babylon Alkalo and 13 others, Monday appealed against the no-case submission ruling by Principal Magistrate Dayoh M. Small Dago of the Brikama Magistrates’ Court.
In his appeal, counsel stated that the accused persons were arraigned on four counts of arson, willful damage to property, criminal trespass, and conspiracy to commit felony.
The accused are Lamin B. Jarju, Saikou Ceesay, Saikou Sulayman Drammeh, Burama Badjie, Ebrima Gassama, Modou Lamin Conteh, Alhajie Manneh, Sulayman Colley, Kebba Njie, Buba Gaye, Ebrima Bah, Sarjo Sohna, Modou Lamin Jallow and Modou Demba.
He said the particulars of offence on count one stated that Lamin B. Jarju and 13 others on 20 February 2013, at Makumbaya village, Kombo North, conspired and set fire on 275 cashew trees valued at D75,000 being property of one Francis Mendy, thereby committed an offence.
Count two stated that the accused persons on 20 February 2013 at Makumbaya village, Kombo North, jointly and intentionally damaged 275 cashew trees valued at D75,000 being the property of Francis Mendy without lawful permission.
Count three stated that the accused persons on 20 February 2013, at Makumbaya village, Kombo North, jointly entered the cashew farm of Francis Mendy with intent to intimidate/insult or annoy the said Francis Mendy, thereby committed an offense.
Count four stated that the accused persons on 20 February 2013, at Makumbaya village, Kombo North, jointly conspired to commit felony.
He said the learned magistrate erred in law when he ordered the appellants to open their defense in violation of section 166 of the Criminal Code Procedure when there was no prima facie case made against the accused persons.
Counsel Touray further argued that if the trial magistrate had properly averted his mind to the serious areas of contradiction in the prosecution’s story (which has not been reconciled) the only ultimate decision he would have reached was to acquit and discharge all the accused persons.
He said the learned trial magistrate erred in law when he ordered the appellants to open their defense in violation of section 166 when there is no prima facie case made out against the accused persons.
He added that the evidence presented by the prosecution had been so manifestly discredited by way of cross-examinations that no reasonable tribunal could safely rely on as the complainant himself had admitted under cross-examination that he cut down the trees for use as firewood.
He said the evidence elicited during the trial was materially at variance with the evidence at the locus, which had not been reconciled and the same was at variance with the particulars of offence in the charge sheet.
He therefore humbly prayed that the ruling on the no-case submission be set aside and they be acquitted and discharged.
Meanwhile, the court had ordered the accused persons to be taken to court at 10am or before that on every sitting of the court, which starts at 9am.
He said the order should be served to the director of prisons, the IGP and the deputy IGP in all matters concerning Babylon cases at Brikama court.