Feb 25, 2011, 12:16 PM
Muhideen Hydara and Buyeh Touray were arraigned at the Brikama Magistrates’ Court before Magistrate O. Cham, charged with conspiracy and disobedience to lawful order.
When the case was called, the trial judge said the appellants told the court that they have a motion pending before the court, dated 17 September 2014.
The defence counsel, AB Gaye, said in that motion they prayed for a stay of proceedings at the magistrates’ court pending the hearing of the appeal.
Counsel recalled that at the Brikama Magistrates’ Court, after the evidence of the first prosecution witness, the defence applied for the lower court to stay proceedings, and refer the matter to the Supreme Court of The Gambia for interpretation.
Magistrate O. Cham, on the basis that his court has jurisdiction to hear the case, turned down the application, counsel said.
The magistrate added that he would not stay proceedings on the matter until he received an order from the high court, counsel further submitted.
The appeal filed is an important one for the constitutional rights of the appellants, as section 127 of the 1997 constitution stated clearly that the lower court must stay proceedings, when an appeal has been filed at the Superior Court, senior counsel Gaye went on.
The constitution makes it incumbent on any lower court to stay proceedings without giving it any discretion, he said, adding that the appellants were charged with two counts, including ‘disobedience to a lawful order.’
“The charge sheet is not an exhibit before this court, but it has been incorporated in the motion of appeal,” counsel continued, further stating that Section 25 (C) of the 1997 constitution of The Gambia guarantees “freedom to practice any religion and to manifest such practice”.
“In the absence of any counter affidavit, I urge this court to order the Brikama Magistrates Court to stay proceedings on this matter, and urge the court to grant this application,” the defence counsel added.
In response, state counsel A. Jallow said the state had responded with a three-paragraph affidavit of opposition to the summons filed on 21 October 2014, and intended to rely on all the affidavits, he said.
The application to stay proceedings had cited no substantial circumstances in law on the basis of which the court should grant and pass the case to the Supreme Court for interpretation.
“Since jurisdiction is not an issue in the lower court, I shall rest my argument on the referral of the case,” state counsel Jallow said.
Section 127 of the Constitution is not merely talking about the accused person’s constitutional rights, but it has to be based on a condition of ambiguity for interpretation.
The reason for the appeal was to delay the proceedings at the lower court, state counsel added.
The state counsel then said there was no substantial circumstance to warrant a stay of proceedings in the case at the lower court.
In his ruling, the trial Judge, Justice Uduma, said generally courts have all the discretion to refuse stay of proceedings pending appeal, but it has to be exercised judiciously.
However, she agreed with state counsel A Jallow that there was no substantial circumstance to warrant a stay of proceedings to grant the application.
She, therefore, refused the appeal and allowed the criminal case involving Muhideen Hydara and Buyeh Touray, charged with conspiracy and disobedience to lawful order, to proceed at the Brikama Magistrates’ Court.