Nov 17, 2014, 9:36 AM
Wowo and Jobarteh were tried under a thirteen-count indictment which included abuse of office, conspiracy to defeat justice and interference with witnesses, offences relating to judicial proceeding, and giving false information to a public officer, which both denied.
This was the second conviction against Lamin Jobarteh within the space of three weeks by the same court.
Delivering the judgment, Justice Emmanuel Nkea stated that upon information dated and filed the 19 August, 2013, the accused persons herein are jointly and severally indicted on thirteen (13) counts which included abuse of office, frauds and breaches of trust, conspiracy to defeat justice and interference with witnesses, offences relating to judicial proceedings, giving false information and false assumption of authority respectively.
He said at all times material to the facts giving rise to this action, the 1st accused Joseph Wowo, was the President of the Gambia Court of Appeal and the 2nd accused; Lamin Jobarteh, was the Attorney General and Minister of Justice.
He then went on to give the particulars of offence as indicated in the charge.
The accused persons each denied the charges on the 19 August, 2013 and trial effectively commenced against them on 20 August 2013, he said.
He added that ‘Consent to Prosecute’ dated and filed 19 August, 2013 was issued by the Hon. Attorney General in terms of section 90(3) of the Criminal Code for the prosecution of the section 90 offences.
The State adduced in evidence the testimonies of eight witnesses and tendered several exhibits in support of the indictment, while the accused persons each gave sworn evidence in their defence and tendered a host of exhibits as well, he added.
The facts of this case are simple and straightforward, he said, adding that on 29 October, 2012, the erstwhile Chief Justice of the Republic of The Gambia, The Honorable Justice, Emmanuel Akomaye Agim, in two separate letters, respectively notified His Excellency The President of the Republic of The Gambia and the Judicial Secretary of his intention to discontinue his services, and to voluntarily resign as the Chief Justice of The Gambia effective 10 January 2013.
“On 13 November 2013, the Judicial Secretary summoned a meeting of the Judicial Service Commission for the 16th November, 2012 with an agenda item on the resignation of The Hon. Justice Emmanuel A. Agim as Chief Justice. In that meeting The Hon Justice Emmanuel Agim informed the Judicial Service Commission that he has handed over the Judiciary to Hon. Justice Joseph Wowo as Acting Chief Justice. By handing over notes dated 19 November, 2012, and witnessed to by the Judicial Secretary, Hon. Justice Emmanuel Agim handed over the Judiciary to Hon. Justice Wowo as Acting Chief Justice,” Justice Nkea added.
On this premise and date, he went on, Hon. Justice Wowo assumed the office and performed the functions of Acting Chief Justice until about 14 December, 2012 and during that period, the 1st accused (Justice Wowo), Messrs Mene, Chuka, Alieu Barry, Ebrima Gisseh and Andre Sape Van Klaabergen attended a meeting at the residence of the 2nd accused Justice Lamin Jobarteh.
That meeting was secretly recorded by Mr. Alieu Barry, and the recorded CD tape and the transcribed copy were in evidence as exhibits, he stated.
On the 3rd December, 2012, he continued, the 1st accused wrote a complaint to the Director General of the National Intelligence Agency against Mrs. Amie Bensouda for undermining the administration of The Gambia Judiciary and upon that complaint Mrs. Amie Bensouda, Mr. Buba Jawo (Hon. Sheriff of The Gambia), Mrs. Mariama Ceesay (Principal Registrar of the High Court), and other staffs of the Judiciary were arrested and investigated and a report was issued.
He added that during the period of these investigations, Mrs. Mariama Ceesay (Principal Registrar of the High Court) was queried and then transferred to the Brikama High Court but the transfer decision was later rescinded.
Mr. Justice Wowo would later be appointed Chief Justice of The Gambia for a brief period lasting June 20 to July 19 2013 when he was removed, and subsequently arrested, investigated and charged, the judge said.
The 2nd accused person, Lamin Jobarteh had also been earlier removed, and subsequently arrested, investigated and charged, he stated, adding that they volunteered statements to the police.
Both sides filed and adopted written briefs of argument, he stated.
“It is trite law that the burden to prove a charge against an accused person rests on the prosecution, and that this burden does not shift in a criminal trials except as otherwise provided by law and the prosecution must proof each element of the offence beyond reasonable doubts,” said Justice Nkea.
But the law was also trite that the evidential burden to proof a fact in issue; lies on the party who asserts that fact, he said.
He went on to highlight count by count.
He said there was overwhelming evidence before this court that Mr. Joseph Wowo assumed and performed the functions of the Acting Chief Justice of the Gambia from 19 November, 2012, to 14 December, 2012.
He admitted so in his own testimony to the court and it was trite law that an admitted fact needs no further proof, adding that the only outstanding issue for determination as far as this charge was concern was whether, the 1st accused; Mr. Joseph Wowo, assumed that office and performed such functions with lawful authority.
“It is plain that the appointment of an Acting Chief Justice is the sole prerogative of His Excellency the President of the Republic of The Gambia pursuant to 1997 Constitution of The Gambia. Thus the power to appoint an Acting Chief Justice is a power vested in the executive. The exercise of this discretion can be communicated through different administrative channels, and because of the presumption of regularity of such executive processes, once that executive decision is communicated in writing, the appointee is presumed to be lawfully authorized to hold that office,” Justice Nkea stated.
“There is overwhelming documentary evidence before this court to confirm that such appointment is always in writing and at the instance of the executive. I have seen that there was a written communication appointing Hon Justice Raymond Sock as Acting Chief Justice of The Gambia. I have also seen that there was a written communication appointing Hon. Justice Agyemang as Acting Chief Justice of The Gambia. And I have also seen too that there was a written communication appointing Hon. Justice Joseph Wowo as Chief Justice of The Gambia,” he said.
“But the only thing that I have not seen, and is yet to see; is the written communication appointing Hon. Justice Wowo as Acting Chief Justice of The Gambia,” he went on.
He said the 1st accused had tried to rely on the handing over notes from the outgoing Chief Justice Agim as the legal basis for his assumption of the office and functions of Acting Chief Justice of The Gambia.
“I have looked at the invitation/agenda and minutes respectively of the emergency meeting of the Judicial Service Commission during which Agim CJ voluntarily resigned,” he added.
He said it was plain from the foregoing that it was Agim CJ who handed over the Judiciary of The Gambia to Hon. Justice Wowo, and it has been touted by the 1st accused that since some members of the Judicial Service Commission are appointed by His Excellency the President, then they are representatives of His Excellency to the Commission.
Justice Nkea added that since they did not oppose the handing over of the Judiciary to him as Acting Chief Justice, it follows that there was executive approval for his appointment as Acting Chief Justice of The Gambia.
“That proposition is an affront to good judgment. It does not follow that when a person is appointed to an office he automatically becomes part of the executive or the representative of his appointer. Otherwise, it would be erroneously conceived that because all Judges are appointed by His Excellency the President, they are part of the executive. That suggestion by the 1st accused is accordingly discountenanced for lacking in merit,” said the judge.
He stated that it must therefore be immediately emphasized that the Judicial Service Commission is an organ of the Judiciary, notwithstanding its composition and whatever decisions are taken by the Judiciary Service Commission remains the decision of the Judiciary.
He said it had been held by the Supreme Court of the Gambia, that the judiciary cannot take over the powers vested in the executive by the constitution unless as authorized by the constitution.
“So, since the power to appoint an Acting Chief Justice is a power vested in the executive; that power cannot be interfered with by the Judiciary or any person or organ under it. So it does not matter that the outgoing Chief Justice Agim informed the Judicial Service Commission that he has handed over the Judiciary to Hon. Justice Wowo, he lacked the power to do so,” he adduced.
He said it does not also matter that the Judicial Secretary signed witnessing the handing over as it had no effect whatsoever; his signature did not transform the document into an executive process, and it remained the decision of the Judiciary of The Gambia.
He said being such a senior judicial officer, Hon. Justice Wowo knew or ought to have known that by those processes he was not lawfully authorized to assume the office of Chief Justice.
“I hold that all these processes purporting to hand over the Judiciary to Hon Justice Wowo as Acting Chief Justice were exercises in futility and all such processes were a nullity ab initio,” he stated.
“Since there is no evidence whether documentary or otherwise of any executive process appointing Hon. Justice Wowo as Acting Chief Justice, I am bound to reach the conclusion that he assumed the office and performed the functions of the Acting Chief Justice of The Gambia without authority, and this I shall hold as a fact. I am therefore satisfied that this offence has been made out,” the judge said.
On the false information charge, he said, he had carefully looked at the complaint written to the NIA by the 1st accused against Mrs. Bensouda, but he was unable to find anywhere therein where the 1st accused stated that after his complaint about the activities of Mrs. Bensouda, her Chambers sent in a letter requesting for the collection of data on the resolution of Land Disputes, as alleged in that count.
These assertions are rather found in the statement of the 1st accused to the panel of investigators contained in the investigation report, he said.
It was therefore self contradictory and surprising when the 1st accused repeatedly stated under cross-examination that he had never ever seen the letter of request written by Amie Bensouda and Co. before, even when he was under oath to tell only the truth, he stated.
“I am unable to choose which of these versions of the evidence of the 1st accused to believe. It is plain to me that the 1st accused told a lie at one point or the other. He either lied to the panel of investigators when he stated in exhibit that the letter from Amie Bensouda and Co. was received by him on the 6th December, 2012, or he lied to this court under oath, when he said under cross-examination that he had never seen such a letter before,” he continued.
He said even if he was to assume that the assertions made by the 1st accused were false, and that the police officers to whom the statements were made are public servants; that bit alone cannot ground a conviction under section 114(a) of the Criminal Code.
In this case, he went on, the prosecution had not shown how the alleged false information in counts eleven and twelve influenced the actions or omission of the panel of investigators in anyway. So, the prosecution failed to establish elements.
“The 1st accused is accordingly discharged and acquitted on counts eleven and twelve,” he said.
On counts six, seven, eight, nine and ten, he said it was common cause that the Director General of the NIA is a public servant and that the 1st accused person; Joseph Wowo knowingly gave the above pieces information to him in that capacity.
“There is evidence that while the 1st accused was addressing Mariama Ceesay, Mr. Buba Jawo was present up to the point when Anna Njie of counsel came into the office of the 1st accused. Mr. Jawo was therefore a person who could corroborate that fact. But evidence was never elicited from him in that direction even under cross examination,” he added.
“I therefore believe Mrs. Mariama Ceesay as a witness of truth and hold as a fact that she never told the 1st accused that she turned down the request of Mrs. Bensouda when she approached her for the data. So the allegation by the 1st accused in his complaint to the NIA that when he confronted Mrs. Mariama Ceesay Mboob on the compilation of data at the registry, she told him that she refused the request of Mrs. Bensouda for records and had referred her to Mr. Buba Jawo is false and this I shall hold as a fact,” he said.
“From the totality of evidence before the court, especially from the exhibit and the oral testimony of Mrs. Bensouda before the court, it is clear to me that there is a strained relationship between 1st accused and Mrs. Bensouda and from the findings in the exhibits,” he adduced.
“It is also plain to me that the complaint of the 1st accused was baseless, highly anticipatory and inflammatory in nature. And when I put all these together, I reach the conclusion that in making the baseless complaint to the NIA against Mrs. Bensouda, the 1st accused knew that he would move the full weight of the security forces against her, and this I shall hold as a fact. And as anticipated, Mrs. Bensouda was arrested and detained on the strength of the said complaint. On the strength of the foregoing, I find for the prosecution in terms of section 114(sic) on counts six, seven, eight, nine, and ten,” he stated.
He said the offences in counts one to four arose from the meeting in the residence of the 2nd accused at Old Yundum and the 1st and 2nd accused persons had contended that, parties to an action can seek amicable settlement at any stage, place and time, and there is no Appeal currently pending before the Gambia Court of Appeal on the matter and that what was being discussed at the meeting was compensation and not dispute to land.
“It is also contended that when the 1st accused spoke about the issue of unjust enrichment and that the appeal had no chances of success he merely stated the position of the law which is to the effect that fresh evidence cannot be adduced on appeal,” said the judge.
“So if there was no appeal filed and pending, which case file did the 1st accused say he read at the Court of Appeal?, the judge asked.
“Why did he need to worry that the appeal will not succeed because the case had been messed up at the lower court? The important thing is that an appeal had been filed and the 1st accused and 2nd accused persons knew this as a fact,” he stated.
He said the composition and venue of the meeting in question raises concerns, adding that the meeting was not only attended by the parties and their lawyers as is usually the case, but also had in attendance the sitting President of the Gambia Court of Appeal and the serving Minister of Justice.
By their presence and effective participation, it seems to me that the 1st and 2nd accused persons had some interest in the matter, he said.
During the meeting, he continued, the 2nd accused made certain remarks that had a compelling effect on Mr. Alieu Barry, and the 1st accused affirmatively endorsed such remarks.
“Since there was an agreement between the 1st and 2nd accused to attend the meeting, and since the 1st accused endorsed the compelling demands of the 2nd accused, I am satisfied that the accused persons conspired and their interventions at the meeting, whether taken separately or together constitutes strong evidence of interference with a judicial process. I will accordingly find for the prosecution in terms of sections 102 and 106(1)(d) of the Criminal Code on counts three and four,” he added.
Turning now to the abuse of office, and breach of trust charges in counts one, two and five, the 1st accused had by himself admitted several times during the meeting, that it was wrong for him to be there because of his position as President of Gambia Court of Appeal, and during the meeting, he emphasized from time to time, that he was the president of the Gambia Court of Appeal.
“Having admitted that his presence at the meeting was wrong, there is no need to go in search of any further evidence of impropriety. And it is for this reason that I will find as a fact, that the presence of the 1st accused in that meeting was inappropriate and lacking in probity,” said Justice Nkea.
“Being a person employed in the public service, it is plain to me, that the 1st accused’s attendance of that meeting as the President of the Gambia Court of Appeal, was an arbitrary act and an improper use of the authority, and in breach of the trust and power of his office, and this too I shall hold as a fact,” he added.
On count five, I did not see any concrete evidence that it was the 1st accused who directed the transfer of Mrs. Mariamna Ceesay to Brikama. That count will fall.
It is for the above reasons that I shall find for the 1st accused on count ive, and find for the prosecutions in terms of sections 90 and 112 of the Criminal Code on counts one and two.
From the foregoing therefore, I am satisfied that the prosecution had failed to prove its case on counts 5, 11 and 12, and the 1st accused is accordingly discharged and acquitted on those counts.
In the same breath, I find with satisfaction that the prosecution proved its case with the certainty required by law on counts 1, 2 and 3, 4, 6, 7, 8, 9, 10, and 13 and the accused persons are accordingly convicted as charged.
I have listened to the plea for leniency moved by the respective counsels on behalf of the convicts. I have considered the fact that the 1st convict is a first time offender and that the 2nd convict has shown sufficient remorse as a mitigating circumstance.
I will accordingly temper just with mercy. But in doing so I shall balance the interest of the State and that of the accused persons. And I find it fit to sentence the convicts as follows:
On Count 1, and 2 I sentence the 1st convict to a fine of D200 000 each on each count in default 2 years imprisonment.
On Count 3, I sentence both convicts to 1 year imprisonment each.
On Count 4, I sentence both convicts to three months imprisonment each.
On Counts 6, 7, 8, 9, and 10, I sentence the 1st convict to pay a fine of D500 on each count in default 6 months on each Count.
On Count 13 the 1st convict is sentenced to 2 years imprisonment.
All the above sentences shall run concurrently.