The appeal case filed by the defence counsel of the jailed UDP Campaign Manager, Femi Peters, was yesterday mentioned before Justice Amadi of the High Court in Banjul.
It would be recalled that the appellant, Femi Peters, has filed the appeal in April 2010, after he was convicted and sentenced to one year in prison, and fined of D10, 000 by Magistrate Kayode Olajubutu of the Kanifing Magistrates' Court in April 2010.
When the appeal case was called at yesterday's sitting of high court, lawyer Ousainou Darboe counsel for the appellant, told the court that he had filed an appeal and summons of notice in April 2010 against the conviction of Femi Peters.
Peters, who was dressed in a yellow gown, stood calmly in the dock, as his lawyer addressed the court.
Lawyer Darboe told the court that he wished to move his motion, adding that his "motion is seeking three grounds inclusive in the motion."
He urged the court to use its discretion to hear the appeal filed by the appellant against his conviction by the lower court, while applying further to peruse the judgment file and the entire proceedings at the lower court. He stated that he would need time to get the necessary documents on the proceedings at the lower court.
Senior State Counsel Nebo Jones did not raise any objection to lawyer Darboe's submission when asked by the trial judge Justice E. Amadi.
Subsequently, the case was adjourned to 17 June 2010.
Read below the grounds of appeal verbatim:
Grounds of Appeal
(1) The learned presiding Magistrate erred in law in over ruling the no-case-submission made on behalf of the petitioner and in the process came to the conclusions on issues that are determinable at the end of the trial.
(2) The learned trial Magistrate erred in holding that the distinction between a procession and a political rally is merely as to semantics and by so holding concluded at the no-case-submission stage that the petitioner has committed an offence, contrary to Section 5 of the Public Order Act.
(3) The learned trial Magistrate was wrong in concluding at the no-case stage that the use of the loudspeaker was done with the knowledge, consent, approval of the petitioner and in support and in furtherance of the unsuccessful application by the petitioner, when the evidence before the court was that the United Democratic Party and not the petitioner was the applicant for the permit.
(4) The learned Magistrate erred in law in concluding that the distinction between the United Democratic Party and the petitioner is merely technical.
The particulars of error
(a) The United Democratic Party is a corporate body and as such no individual or individuals can be held liable for any alleged crime committed by it.
(b) The conclusion ignores the hallowed principles enunciated in SOLOMON VS SOLOMON and other cases in corporate liability.
(5)The learned Magistrate was wrong in concluding that Exhibit A constituted an order for the purpose of Section 5 (5) (a) of the Public Order Act when there is nothing on the face of Exhibit A to show that any order was made under Section 5 (1) of the Public Order Act.
(6) The petitioner's conviction and sentence by the learned Trial Magistrate is a nullity in that the said trial Magistrate:
(a) refused the petitioners application to re-summon a witness for cross examination pursuant to his right accorded to him by Section 297 of the Criminal Procedure Code.
(b) Coerced the petitioner to open his defence and threatened to punish him if he fails to do so.
(c) Violated the petitioners constitutional right to representation by counsel.
(7) The learned trial Magistrate erred in law in concluding that the petitioner having signed Exhibit A, he is deemed to be the initiator and coordinator of the rally of the 24th day of October 2009, when there is no evidence in support of such conclusion.
Particulars of Error
(a) The mere fact that the petitioner signed Exhibit A and that he is Campaign Manager of the United Democratic Party does not qualify him as the initiator and coordinator of the rally,
(b) The conclusion it added is an assumption not based on any evidence before the court.
(8) The learned trial Magistrate erred in relying on Section 23 of the Criminal Code to convict the petitioner when there is no evidence before the court of the identity of the persons whom he aided, counseled, procured or enabled to commit any of the offences for which the petitioner was convicted.
(9) Trial Magistrate erred in law in refusing to refer to the Supreme Court for determination of the constitutional provisions formulated for reference.
The particulars of error
(a) Section 127 of the Constitution makes it mandatory for any court in which an issue arises as to the constitutionality of any legislation to refer such matter to the Supreme Court when an application for such reference is made;
The trial Magistrate erred in law when it held that it must be satisfied that a constitutional issue has arisen before it could refer to the Supreme Court under 127 of the constitution.
Particulars of Error
(a) By the said holding the trial court embarked upon an interpretation of the constitution, a matter reserved for the Supreme Court;
(b) The said holding is complete disregard of the provisions of Section 127 of the constitution;
(c) The trial court read into Section 127 of the constitution matters, which the framers of the constitution have excluded therefrom.
(11) Trial Magistrate Court exceeded its jurisdiction when in effect decided that it does not see how the Public Order Act is in conflict with the constitution and by so doing usurp the interpretative jurisdiction and functions of the Supreme Court.
(12) The trial Magistrate court denied the petitioner his fundamental right to fair hearing by proceeding with the trial notwithstanding the pendency of an application for stay of proceedings which was properly brought to the attention of the court.
(13) The Trial Magistrate Court was wrong in determining the viability of the petitioner’s application for stay of proceedings, pending in the High Court, when he had no jurisdiction over the said pending application.
(14) The sentence imposed by the trial Magistrate is unreasonable, harsh and excessive, having regarded to age, character and dissident and nature of the offence committed.
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