Jul 21, 2016, 12:54 PM
Delivering a 21-page judgment, the trial magistrate told the court that the accused person, Foday Barry, was arraigned along with one Pa Habibou Mbye on amended charges dated 26 November 2012.
He said the first accused person, Foday Barry, was alone charged with stealing.
From the evidence on record, he continued, the trial in this case commenced on 24 August 2012, with the accused persons taking their respective pleas.
“They all pleaded not guilty to all the counts in the charges against them, and were granted bail accordingly,’’ he said.
He said the prosecution, in order to prove their case, called four witnesses and tendered exhibits, stating that at the close of the prosecution’s case, and based on section 166 of the criminal procedure code, the accused made a no-case-to-answer submission on 14 December 2012.
The prosecution in turned replied and again the defence replied on points of law, he added.
He stated that the court delivered its ruling on 28 January 2013, on the no-case submission, and based on its ruling, the court acquitted and discharged the 1st accused, Foday Barry and 2nd accused, Pa Habibou Mbye on count one.
The court acquitted and discharged Foday Barry on court II, III and IV, he said, adding that Foday Barry was ordered to enter his defence on counts V and VI.
“I have searched in vain, the evidence on record, nowhere, the elements of the offence charged in count five is revealed, either direct or indirect,” said Magistrate Abeke.
“No single witness ever mentioned that the accused, Foday Barry directly did or directed to be done in abuse of his office any arbitrary act prejudicial to the right of another,” stated the magistrate.
He said no documents were before the court to show for the abuse of office by the accused person as alleged in count V.
He added that to crown it all, exhibit “B” the report of investigation dated 10 October 2012, mentioned in the records did not reveal anywhere that Mr. Robert Danquah said the accused person demanded an amount of D200,000 Euro from him as a person.
All he said was that PW3, Ousman Drammeh, told him, the magistrate continued.
Magistrate Abeke added that from evidence on record, this incident took place in 2011, before Robert Danquah escaped from custody to Ghana on 7 November 2011.
He added that Robert Danquah said he was brought back to The Gambia from Ghana in the month of February 2012.
“In October 2012, there was a correspondence letter dated 1st October 2012, ref No PR/ C/235/ TEMP. 110(4-HMTJ) from the Office of the President addressed to the Inspector General of Police conveying executive directives that a new and thorough investigation into the matter of Foday Barry and Pa Habibou Mbye,” he added.
The trial magistrate stated that based on the above executive directive, the panel was expected to get new facts and thorough investigation into the matter of Foday Barry and Pa Habibou Mbye.
He said from the above evidence, and the accompanied cross-examinations on the record, it is not in dispute that the NDEA officials stormed the Just 4 You Guest House and arrested Robert Yaw Danquah and Ousman Drammeh.
The NDEA officials who did the arrests and took them away, including their property to Holgam, were supposed to be the material witnesses in this case, but they were never called, the magistrate went on.
However, he added, the court noted from the facts on record that Mr. Robert Yaw Danquahaco-suspect of Ousman Drammeh then, was not aware of his business friend owning or being in possession of D12,000 because he never mentioned such anywhere in his statement to the police, NDEA panel of investigators and the court.
Ousman Drammeh’s evidence on record given on 22 November 2012, was grossly contradictory, untruthful and unreliable, he said.
The statement that the black bag contained D12,000 contradicted the statement that they searched the room, they found one blue plastic bag and one handbag blue in colour, that contained dalasis of 100 and 50 units denomination.
He said if Ousman Drammeh, PW3, had any black bag containing D12, 000.00 he would have mentioned that at the earliest opportunity he had to do so.
He said this was when he was detained for a month and later released on bail being, among the bags or property found at the moment of search.
“Also from PW3 Ousman Drammeh’s evidence-in-chief, he said when they called Robert Danquah to prove whether money was given to him while they were at the hotel room. Robert Danquah said he gave Ousman Drammeh D12,000.
That statement was not substantiated, and that Danquah told him to forget about this money, but he said he could not, and they started arguing.
“Why did Danquah say he should forget about the money? Why were they arguing? The above issues raised a lot of doubt, which the court will regard as unreliable and unbelievable,” he said.
He said it was a trite law that any doubt regarding the guilt of an accused person in the criminal trial ought to be resolved in favour of the accused person.
“Accordingly and consequently, Alhagie Foday Barry is hereby acquitted and discharged.”