The state and counsel for former chief of defence staff Lang Tombong Tamba and six others, who are appealing against their death sentence, yesterday addressed the Court of Appeal presided by a three-member panel of judges.
The appellants, including Brigadier-General Omar Bun Mbye, Colonel Lamin Bo Badjie, Lt Colonel Kawsu Camara, Modou Gaye, Gibril Ngorr Secka, and Abdoulie Joof, a businessman, were all present in.
Daniel O. Kulo, the Director of Special Litigation at the Attorney General’s Chambers, earlier applied to withdraw the written address attached to support the motion.
The application was granted, and the president of the Court of Appeal, Justice Wowo, subsequently struck out the motion.
In his oral submissions, DO Kulo made several arguments, and in support he cited rules, which he said the appellants did not comply with.
Kulo drew the court’s attention to the notice of appeal dated 23rd July 2010, and signed by the counsel for the appellants.
Citing the Court of Appeal orders to further strengthen his arguments, Kulo urged the court to dismiss the appeal because there was clear indication of non-diligent prosecution by the appellants.
“A proper notice of appeal was filed and dumped in the registry of the court since the 23rd July 2010, and there was no step to bring the appeal into the limelight,” Kulo submitted.
He also cited another rule of the Gambia Court of Appeal, which he added places a duty on the appellants to pay a small amount of money to the registrar of the court for the purpose of getting the transmission of records of proceedings from the High Court.
He said the only instance where an appellant is excused from paying the money to the court is if a judge at the High Court made an order for exemption.
“There was no order for exemption to the payment of any fee to the registrar. The matter right here should be quashed, my lord,” Kulo further argued.
DSL Daniel O. Kulo also told the superior court that the name of a senior registrar of the Court of Appeal, who was said to have been approached for the purpose of production of the appeal, was not stated.
He submitted that the non disclosure of the person they approached leaves the court and the counsel in darkness, as the name of the registrar is not known, adding that “the absence of such information is offensive to the Evidence act”, and urged the court to dismiss the appeal.
PCO Secka’s Oral Submission
“There is no doubt that the point raised by the state respondent is a matter of procedure. It does not touch on any matter of substantial law,” Pap Cheyassin Secka who led the team of lawyers for the appellants submitted.
He too referred to rules of the Court of Appeal, adding that his submission is simple.
“We have deposited our affidavit in opposition at paragraph two sworn by the 1st appellant on behalf of rest of the appellants. It was clearly stated that counsel were instructed to file the appeal on behalf of the appellants, and there is no denial of that matter,” he told the court.
PCO Secka, in support of his arguments, among others, also referred to the Gambia Court Appeal decision in the case of Independent Electoral Commission (IEC) versus the National Alliance for Democracy and Development (NADD).
Counsel reminded the court that the appellants were appealing against a charge of treason, and for being sentenced to death.
“They are appealing against the most serious offence, and most serious punishment. I urged the court to take judicial notice of the fact that it is a long standing practice in the judiciary for legal practitioners to bring in notice of appeal in this court,” Secka argued.
He further argued that the issue of production and preparation of appeal is placed in the hands of the registrar, and not the appellants.
“My colleague SM Tambedou wrote a letter to the principal registrar on the same day the appellants were convicted on the 15th July 2010 asking for a copy of the judgment in order to file an appeal,” he told the court.
He said the appellants appended their signature on the notice of appeal while in prison custody, adding that they lost control of the documents.
Counsel urged the court to direct the registrar of the court to allow the appeal respondents to append their signature on the notice of appeal on behalf of the appellants or better still to wave non-compliance with rule 45 as a mere technicality.
He finally urged the court to dismiss the state’s respondent motion.
DSL DO Kulo also replied on points of law.
The case was adjourned till 17th December for ruling on the oral arguments