In Yankuba Badjie and Co trial, court rules in favour of prosecution

Wednesday, November 27, 2019

Justice Kumba Sillah-Camara of the High Court in Banjul on 25 November, 2019, ruled in favour of the prosecution in the case involving Yankuba Badjie and other former NIA officers. This followed the application made by the prosecution for stay of proceedings, pending the determination of two appeals filed by the defence at the Court of Appeal against the rulings made by the judge.

Delivering her ruling before the court, she said that the prosecution sought for an order staying further proceedings of the case pending the determination of the appeals filed by the defence, adding that the prosecution also sought other orders that the court may deem proper to make.

She stated that the defence counsel for the first accused/respondent filed an affidavit in opposition on 17 October, 2019, sworn to by the respondent, Yankuba Badjie, on 17 October, 2019.

She noted that the prosecution/applicant raised two issues for determination by asking whether the court had discretion to stay the proceedings in the light of the two interlocutory appeals filed by the first accused; whether the two interlocutory appeals filed by the first accused, when he would have testified in his defence (unless specifically waived) and not having applied for a stay of proceedings pending his appeal, it is open to him to object to the prosecution’s application.

She adduced that the defence/respondent also raised two issues for determination by asking whether the applicant who had no appeals pending before the Court of Appeal from the proceedings could apply for a stay of proceedings in the case pending the determination of appeals that the applicant did not file. She said that the defence also asked whether in the circumstance of the case and having regard to the subsisting ruling of the court delivered on 7 October, 2019, the application for stay of proceedings could be granted.

She further said that the main submissions of the prosecution were that every court of competent jurisdiction has the power and authority over and above its statutory rules of procedure to regulate its proceedings; that one aspect of such power and authority is a discretion to stop, stay, vary and adjourn for a specific period or indefinitely the proceedings before it. That notwithstanding, that stay of proceedings in criminal cases is not common, it does not mean that it cannot be granted; that it is proper and appropriate to do so, as a stay of proceedings in criminal cases can be made by a court in the interest of substantial justice.

The presiding judge further noted that the defence counsel for the first accused submitted that the applicant who had no appeals pending before the Court of Appeal in respect of the proceedings in the case could not apply for stay of proceedings. At some point in time, she cited some authorities to support her ruling.

“In as much as the procedure looks weird or strange in the circumstances, the bottom line is that there must be a competent appeal. The appeals are before the Court of Appeal and it is very wrong for a court to decide at the interlocutory stage issues to be determined in the substantive suit,” she declared.

However, she stated, in respect of the fact that the accused persons are charged jointly, she agreed that if the matter was not stayed, then it would defeat the justice of the case. “One of the appeals at the Court of Appeal deals with the cross-examination of witnesses listed by the prosecution and not called. If the Court of Appeal decides otherwise whilst some of the accused persons have closed their cases before the determination of the appeals, the proceedings in this case would be an exercise in futility. There would be recalling of witnesses, reopening of the case etc,” she told the court.

The ruling dated 7 October, 2019, she said, was very clear. She added that the ruling had stated in part that “this court will proceed with the defence of the other accused persons and since there is no stay…”

The presiding judge told the court that there was no application for stay at the time that ruling was delivered. She said that that was why the court indicated that the matter should proceed. “The arguments proffered by the parties that culminated in the ruling were not in respect of an application for stay but that the first accused declined to proceed with his defence because he had filed two interlocutory appeals. Therefore, this court cannot be stopped from determining this application or granting same in the light of the ruling,” she stated.

She went on to say that it should be borne in mind that the application was for stay of further proceedings which could only be wielded by the courts in exceptional circumstances. She revealed that the prosecution had shown that it would not be in the interest of justice if the matter proceeded since the charges are jointly made.

“The respondent filed the appeals and they would not be able to proceed with this case in the trial court while on appeal and therefore, granting the application would be more favourable to him than the applicant. It is an irony that this application ought to have been made by the respondent/appellant but he did not. I find it hard to believe that the reason for not doing so is not to forestall the proceedings after filing two interlocutory appeals in the Court of Appeal. The balance of convenience tilts in favour of both parties in this respect. The respondent/appellant should not talk about delay because the delay culminated from the appeals filed which must be heard and determined by the appellate court of which this court is subordinate to and any decisions  there from would bind this court,” the presiding judge declared at length.

She ordered that further proceedings of the case were stayed pending the determination of the appeals filed by the defence, and that the respondent should ensure that the appeals are expedited.

Author: Dawda Faye