M.S. Jallow of the Kanifing Magistrates’ Court on 28 August, 2019, ruled in
favour of the prosecution in the case involving Alagie Darboe who was charged
with personating a State Intelligence Service employee at the TRRC.
In her ruling, she told the court that the ruling emanated from Defence Counsel B.A.M.O. Badjie’s objection on the grounds that the charge was an abuse of court process. She stated that the defence counsel submitted that the case was first mentioned at her brother Magistrate’s Court where it was struck out that the acronym SIS does not exist in our laws. She added that the defence counsel relied on a number of case laws dealing with one court dealing with the decision of a court with coordinate jurisdiction.
She further adduced that the prosecutor, Superintendent Mballow, in response, submitted also that the charge was not an abuse of court process and that the accused was charged under the criminal code and not the NIA (National Intelligence Agency or SIS Act).
On points of law, she went on, the defence counsel submitted that the ruling disposing the previous case was brought subject to Sections 110 to 113 of the Criminal Procedure Code. “I am very minded to say that this court is aware that it cannot proceed, overrule or set aside a decision of a court with coordinate jurisdiction. However, it is worthy to note also that this court is not bound by a decision of a court with coordinate jurisdiction,” she told the court.
She went on to say that an abuse of process is defined by Mosley and Whitley’s Law Dictionary 11th edition at page 3 to be malicious and improper use of regular legal proceeding to obtain some advantage over an opponent. She further noted that a court has jurisdiction to strike out or dismiss suits before it and the adverse party is accorded a time limit within which to get same relisted in case of a striking out and after the expiry of such time, the party may come back either by relisting or refilling.
“It is my opinion that a mere discharge does not amount to a bar or gives rise to the principle of double jeopardy,” she said. She stated that the main issue of the application was that the suit was struck out and the prosecution did not appeal same rather came back by refilling.
She said that a bar of prosecution or double jeopardy, she must state would only be applicable if the case was heard and determined in its merit. She noted that the issue of double jeopardy or a bar for prosecution, she held could not be maintained.
“Coming to the issue of whether this court in doing otherwise of the ruling dated 9th August, 2019, amounts to setting aside, overruling or proceeding with the decision of a court with concurrent jurisdiction,” she told the court.
She stated that the current application before the court was that an order was made for the prosecution to regularize before it could come back with the same charge. She went on to say that it was her belief that since there was no order but for a discharge of the accused and the case struck out, the prosecution refilling with a different suit number did not amount to an application to set aside same as they have the right to come for relisting or refilling. She added that the fundamental issue to be determined was whether the charge could stand by the name SIS which is not in our laws as stated by the defence counsel.
She told the court that judicial notice had been taken that the acronym SIS is an executive pronouncement as a substitute for the NIA. She adduced that it was noteworthy that we all know that SIS refers to the NIA which is in our laws. She said that whether the true fact that SIS was pronounced by the executive to replace NIA is proper, or constitutional or subsisting, is not an issue for the court to decide as that was not the application before it.
“What is crucial at this point for the court to decide is whether the offence of personating a public official is sustainable. Since personation has been provided for by our laws, I honestly believe that is sustainable because if the alleged offence of personating a public official is established, it would also be a burden on the prosecution to prove which public official was personated and also to prove what the intention of the accused was when such acts were done,” she stated.
This, she believed, could only be so when the evidence unfolded thus she held that it was premature at the stage to hold that the charge was unsustainable. She finally dismissed the application and ordered the accused to take his plea.
Defence Counsel B.A.M.O. Badjie, however, announced that he was going to file an appeal against the ruling.