Jul 26, 2011, 12:52 PM
Omar Cham of the Banjul Magistrates’ Court yesterday told the court that court
orders must be obeyed.
He said that courts do not make orders in a vacuum.
He made these statements when defence counsel Combeh Gaye told the court, before the case proceeded, that she wished to inform the court that she had been instructed by her client, Tina Faal, that she was arrested and detained at Mile 2 Prisons since 8 August 2016, and that she was coming from Mile 2 Prisons on 16 August 2016.
Combeh Gaye said the magistrate granted bail to the accused on 28 July 2016, on certain conditions, adding that she was aware that the accused fulfilled the bail conditions at the office of the registrar, and two Gambian sureties entered into recognition and deposited two valid documents in their names.
She argued that she was not aware of any new charges filed against the accused by the court or any other court for her to be detained, adding that her detention was not ordered by any court.
She further stated that the detention of the accused was unlawful and a gross violation of her constitutional rights.
In the absence of any reason for her continued detention, counsel continued, she was applying to the court for her previous bail to continue and the accused be released forthwith from Mile 2 Prisons.
Prosecutor Sarja Sanyang then rose and told the court that in reply to the submission made by the defence counsel, the detention of the accused was new to him as the prosecutor.
He said he who asserts that something happened must prove that it happened, adding that the defence counsel should prove that her client was under detention.
He further stated that the detention of the accused was not to his knowledge, and that the accused was escorted by a police officer into the courtroom.
Prosecutor Sanyang adduced that the case was adjourned to 16 August 2016, for hearing and that he was ready to proceed.
The defence counsel stood up and said the fact that the prosecutor did not know that the accused was detained should not stop the court from making an order in accordance with its previous order, adding that the accused was in custody.
Magistrate Cham then said the detention of the accused was new to him.
The defence counsel stated that if the court was minded as a court of law and equity, the court could hear from the accused to tell the court whether she was in custody or not.
She further said that the case could be stood down so that the prosecutor could find out whether the accused was in custody or not.
However, the magistrate stated that the accused was granted bail by the court, adding that he could not make an order for the accused to be released from custody.
He further said that since the defence counsel argued that the constitutional rights of the accused were violated, she could take it up at the high court by virtue of section 132 of the constitution.
He then asked why the accused was still in detention.
At this juncture, the prosecutor rose and told the court that he had a witness to call.
Ebou Badjie, the witness, said he lives at Gunjur, Kombo South.
He testified that he is an assistant registrar at the Registrar General’s Office at the Ministry of Justice, adding that he works at the office of the registrar of deeds under the Registrar General.
He said he did not recognize the accused personally, further stating that they registered power of attorney from the general office.
He said he did not register any power of attorney on 28 April 2014, with a serial number 196/2014 volume 33 PA.
Mr Badjie further testified that he registered a power of attorney on 7 May 2014, adding that the conditions attached to register are to be endorsed by a legally-minded individual, for example, a lawyer, JP or notary public.
He said the document must have a stamp duty from the GRA, and there must be a payment of D500.
He adduced that if the conditions are fulfilled, they would accept the document and make their entries and forward it to the office of the Registrar General.
At this juncture, the prosecutor applied for an adjournment because, according to him, they intended to tender the said power of attorney.
He said the document was in the hands of the investigators, and urged the court to grant their application.
The defence counsel then rose and said that she was not objecting to the application made by the prosecutor to adjourn the case.
She then applied for an order for the prosecution to provide the defence with the documents they intended to rely on for the prosecution of the matter, so that the defence could prepare themselves, to guarantee the right to a fair hearing.
She said the application was necessary and in the interest of justice, and to avoid trial by ambush.
Prosecutor Sanyang did not raise any objection to the application.
The case was subsequently adjourned until 18 August 2016.