High Court in Banjul presided over by Justice Ebrima Jaiteh has discharged four
former officials of the Gambia National Petroleum Company (GNPC) after the
court declared that there is complete lack of diligence by the State in
prosecuting the matter.
The accused persons: Nfansu Fatty, Karamo Fatty, Ensa Colley and Lamin Gibba were charged with six (6) counts of criminal offences including conspiracy to commit felony, stealing by persons in public service, Neglect of official duties, Fraudulent false accounting and Economic Crime contrary to the laws of The Gambia, 2009 Revised.
The prosecution alleged that Nfansu Fatty, Karamo Fatty and Ensa Colley on or about the 12th December, 2015 at Bundung in the Kanifing Municipality conspired to commit a felony to wit: fraudulently and without claim of right took Twenty Million Dalasis (GMD 20,000,000.) worth of fuel belonging to the Gambia National Petroleum Company.
The prosecution further alleged that Nfansu Fatty, Karamo Fatty and Ensa Colley on the said date, place being employed with Gambia National Petroleum Company fraudulently and without claim of right took the said sum of Twenty Million Dalasis worth of fuel belonging to GNPC.
The prosecution also alleged that Lamin Gibba on the said date and place, whilst being employed as downstream coordinator willfully neglected his official duties by failing to collect the fuel remotes at Bundung and Abuko which remotes were use to siphon fuel from the pumps.
The prosecution alleged that Nfansu Fatty on the said date and place, whilst employed as a public servant with intent to defraud falsified Gambia National Petroleum Company’s receipt in favour of one Modou Njie.
The prosecution also alleged that Nfansu Fatty, Karamo Fatty, Ensa Colley and Lamin Gibba on the said date and place being public officers willfully caused financial loss to the tune of Twenty Million Dalasis (GMD20,000,000) to Gambia National Petroleum Company being the value of fuel fraudulently taken from the said GNPC.
In his ruling the trial Judge disclosed that since the bill of indictment was filed on the 31st May, 2016, the prosecution was unable to call a single witness.
Justice Jaiteh further disclosed that the accused persons were never arraigned because Ensa Colley and Lamin Gibba were not traced and after that it had been adjournments after adjournments at the instance of the prosecution.
The trial judge lamented the fact that the prosecution applied unethical practices including changing counsel for the State at will and which counsel for the State rather than proceeding with the case; hold brief without mandate or personal conduct to carry on with the case.
He said the State in this case has degenerated from prosecuting to persecuting and the court would no longer tolerate such practices.
Justice Jaiteh disclosed that the failure of the State to commence prosecution has violated the constitutional right of the accused persons under Section 24(1) (b) of the 1997 Constitution, which states that “when proceedings are commenced for the determination or existence of any civil right or obligation, the case shall be afforded full hearing within a reasonable time”.
Justice Jaiteh further disclosed that in this case, since the filing of the bill of indictment against the accused persons, the State has been unable to proceed with the case and the accused persons are therefore not afforded a fair hearing within a reasonable time as envisaged by the 1997 Constitution.
The trial judge cited section 24 (3) of the 1997 Constitution which touches on the presumption of innocence of accused persons until proven guilty or pleading guilty.
The trial judge pointed out that he was not persuaded by the reasons advanced by State counsel, K. Mbye seeking for an adjournment which other counsels have been making.
Justice Jaiteh said State counsel Mbye is not the person conducting the matter and does not have the case file and was never briefed by the counsel in personal conduct of the case.
Justice Jaiteh remarked that State Counsel Mbye’s reason for an adjournment was not good and compelling and he was not persuaded by it.
The trial judge cited Section 6(1) of the High Court Practice Direction 1 of 2013 which states: “No adjournment shall be entertained except in very compelling circumstances and in the exercise of the court’s discretion”.
Justice Ebrima Jaiteh after refusing the adjournment sought by the State declared that the accused persons are entitled to their freedom as there is lack of diligence by the State in prosecuting the case.
He therefore struck out the case for lack of diligent prosecution and the accused persons were discharged.