The accused persons, who were facing trial on a single-count charge of ‘aggravated homosexuality’, were ordered to be remanded in prison custody.
During the course of the proceedings, the 3rd accused person, Modou Lamin Bittaye, who was said to be an asthmatic patient, collapsed in court while standing with his counsel, Borry Touray. He was said to be not feeling fine and as unfit to endure standing, being an asthmatic patient.
His counsel then applied to the court to allow him to be seated, which was granted by the trial magistrate.
However, as the condition of the accused person got worse as he was wheezing heavily and then collapsed on the floor, he was eventually rushed to the hospital under the escort of NIA officers.
Barrister Touray, represented the third accused person, Modou Lamin Bittaye and Mrs Kombeh Gaye-Coker represented Momar Sowe and Alieu Sarr, the first and second accused persons.
The state accused them in count one, that Momar Sowe, at various times and dates and elsewhere engaged in homosexual acts with Modou Lamin Conteh, Iker Nyan, Albert and Kebab Ceesay and thereby committed an offence.
In count two, Alieu Sarr at various times and dates and at diverse places in The Gambia and elsewhere, engaged in homosexual acts with Sheikh Bobb, Mamoud, Fallou Camara, Serigne Mboob and Modou Boy Jallow, and thereby committed an offence.
Count three stated that Modou Lamin Bittaye, at various times and dates and at diverse places in The Gambia, engaged in homosexual acts with Saloum Njie, Njanko Ceesay and Jibbou Jatta, and thereby committed an offence.
The three accused persons, who denied any wrongdoing, were subsequently remanded in prison pending the outcome of the high court decision.
Hadi Saleh Barkum, director of public prosecutions (DPP), applied for the accused persons to be remanded in prison custody, as well as for the matter to be transferred to the high court.
He submitted that these offences are normally tried at the superior court.
In response, defence counsel Borry Touray argued that the lower court has the jurisdiction to handle all offences, except treason and economic crime.
He said the court should also take judicial notice that the high court is on vacation, and allowing the state’s application for the case to be transferred to the high court would mean that the matter would not be heard until after the vacation.
“I wish to make an application for the court to order the severance of the counts for the third accused to be tried separately with the first and second accused persons respectively,” he also told the court.
He added that all the offence were not committed at the same time, noting that they are not offence of the same transactions or similarities, as the dates, time and places had been omitted from the charge sheet.
The counsel further argued that the locus of the alleged crime was not identified.
The DPP again urged the court to transfer the case to the high court, adding that the defence counsel’s application should have been made before the taking of the plea.
He cited the CPC and urged the court to disregard the defence counsel’s submission and grant the prosecution’s application.
The trial magistrate, in his ruling, granted the prosecution’s application and subsequently transferred the case to the High Court in Banjul.
