Jul 9, 2008, 6:32 AM
Justice E.F. M’bai of the Banjul High Court recently acquitted and discharged two officials of Zygot Oil Company, a private local firm engaged in processing of groundnut oil and cake.
Their acquittal and subsequent discharged followed a ruling no-case-to answer submission made by the defence counsel, Ida Drammeh, after the closure of prosecution’s case.
Mohammed S. Jabbie and Firyal Farage Jabbie were accused by state prosecutors of obtaining goods by false pretense, conspiracy to commit misdemeanor and cheating.
Delivering his ruling, Justice M’bai said the ruling was in respect of a no-case-to answer submission made on behalf of the two accused persons following the announcement made by the prosecution that they had closed their case after calling five witnesses and tendering several documents as exhibits.
The judge read the charges against accused persons such as conspiracy to commit misdemeanor, obtaining goods by false pretense and cheating, which said, the two accused persons were charged with are specific intent offences.
“Both the actus and mens rea must be sufficiently established for there to be a prima facie case is made sufficient to require the accused enter defence,” the judge said.
According to the trial Judge, the 1997 constitution of The Gambia guarantees the presumption of innocence until proven otherwise.
“The facts in the present case at best show this a purely civil matter. Money borrow was not paid. At the time of borrowing, there is no evidence to show that either the accused had the intention to defraud or cheat the complainant as alleged in count one and three,” stated the judge.
“Having gone through the testimonies of all the five prosecution witnesses and having gone through the numerous exhibits tendered in this case, I have not found any material evidence sufficient to require the accused persons enter their defence on any of the offences charged, “Justice M’bai said.
The High court Judge elucidated that the elements of ‘false pretence’ and “without intent to defraud” have not been established.
When A borrows B some money and he failed to pay as promised. A can bring in a civil action against B to recover his money. “Can the failure of B to pay A as promised amounts to any criminal offence?” I think not,” he said.
He said even where A persuaded B to invest in a business venture which did not turn out as a promised by A, in the absence of any evidence of intention to defraud no offence was committed.
“I have considered the briefs filled by both counsel in this matter. With particular evidence to the offences charged and the entire evidence led by the five prosecution witnesses. To require the accused persons or either of them enter defence on any of the offences charged would amount to reversing the resumption of innocence as guaranteed under the 1997 constitution of The Gambia,” he said.
The Judge therefore, upheld the no-case-to answer submission on behalf of the accused persons and acquitted and discharged them pursuant to the criminal procedure code.
It could be recalled that state Prosecutors accused Muhammed S. Jabbie and Firyal Farage of conspiring on diverse dates between April and September 2010, at Kanifing and other places, to obtain US$216, 000 from Mustapha Dibbasey Fadia by false pretence, and with intent to defraud.
Muhammed S. Jabbie and Firyal Farage Jabbie, were also accused on count two that on 20 September 2010, at Kanifing, in the Kanifing Municipality, by false pretence and with intent to defraud overstated the value of the assets of Zygot Oil Company Limited to Mustapha Dibbasey Fadia, which the accused persons knew to be false and induced him to deliver to the accused US$216, 000 for shares worth D450, 000 only, and thereby committed an offence.
On count three Muhammed S. Jabbie and Firyal Farage, were accused that on 20 September 2010, at Kanifing, in the Kanifing Municipality, by fraudulent trick, overstated the value of the assets of Zygot Oil Company Limited to Mustapha Dibbasey Fadia and induced him to pay to the accused US$219, 000 for shares that were worth D450, 000 only, and thereby committed an offence.