The court declared that the police have no authority to interfere in civil matters - land matters.
The judge delivered a judgment on Monday in the case of Adama Faal versus Bernard York, the Police and 4 others.
Mr. Faal sued the police seeking a declaration that his constitutional right to liberty was infringed by the police who detained him in connection with a land matter.
Faal spent the night in a police cell in Tujereng without a charge and was taken by the police to the land in dispute to relinquish tittle to the complainant. Faal refused the demand of the police to give up his title deed and was released on bail without a charge. But for the police, the arrest was for suspicion of stealing, adding the detention was lawful. The police informed the court that Faal was arrested on the 9th September and was released within 24 hours.
The court found the police of performing adjudicatory function by interfering in a land matter between Mr. Faal and Mr. Bernard York.
The Police do not have the power to determine title of properties. That is the function of the judiciary, the judge said.
She said what the police did was adjudicatory function and not investigative because they were intimidating Mr. Faal to relinquish his title to the complainant, Mr. York.
The Police acted beyond their mandate by dealing with a land dispute. Therefore, acted ultra-virus it was purely a civil matter. The Police have no business in settling of civil matters, she said.
She held that the use of the police to settle civil matters is not provided for under the laws of the land.
The Police must base the arrest of a person on a reasonable ground, she said.
She raised the question as to why Mr. Faal was not charged by the Police since then. She held that Mr. Faal was humiliated and harassed by the Police to submit his title to the complainant. The court made a declaration that the arrest and detention of Mr. Faal was unlawful and unconstitutional contrary to Section 19. On this basis, she asked the Police, Mr. York and all other defendants to pay the sum of D150,000 to Mr. Faal for what they did to him.
The police arrested Mr. Faal merely on the complainant brought by one Bernard York regarding a land matter.
Justice Saho held that the police arrest of Mr. Faal was to intimidate him to relinquish his title to a property situated in Tanji.
Justice Aminata Saho-Ceesay said the case was brought under the original jurisdiction of the high court under section 133 of the Constitution. She cited section 19 of the 1997 Constitution which provides: (1) Every person shall have the right to liberty and security of person. No one shall be subjected to arbitrary, arrest or personal liberty detention. No one shall be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established by law. (2) Any person who is arrested or detained shall be informed as soon as is reasonably practicable and in any case within three hours, in a language that he or she can understands, of the reasons for his or her arrest or detention and of his or her right to consult a legal practitioner.
(3) Any person who is arrested or detained-
(a) for the purpose of bringing him or her before a court in execution of the order of a court, or
(b) upon reasonable suspicion of his or her having committed, or being about to commit, a criminal offence under the Laws of The Gambia, and who is not released, shall be brought without undue delay before a court and, in any event, within seventy-two hours. (4) Where any person is brought before a court in execution of the order of a court in any proceedings or upon suspicions of his or her having committed or being about to commit an offence, he or she shall not thereafter be further held in custody in connection with those proceedings or that offence save upon the order of a court.
(5) If any person is arrested or detained as mentioned in subsection (3)(b) is not tried within a reasonable time, then without prejudice to any further proceedings, which may be brought against him or her, he or she shall be released either unconditionally or upon reasonable conditions, including, in particular, such conditions as are reasonably necessary to ensure that he or she appears at a later date for trial or proceedings preliminary to trial. (6) Any person who is unlawfully arrested or detained by any other person shall be entitled to compensation from that other person of from any other person or authority on whose behalf that other person was acting.
The judge also cited Article 6 of the African Charter on Human and Peoples Right which provides every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.
The right to liberty is fundamental and inalienable, the judge said.
She said the police are empowered to maintain law and order in the society but when doing so; they should exercise this authority cautiously and in consonance with the law.
She said the power to arrest is one thing, but the justification to the arrest is another thing, adding arrest should not be based merely on an allegation of the commission of an offence.
There must be a reasonable justification to the arrest, she said.
The judge held that the onus to prove that the arrest was justifiable was on the police whereas Faal has the onus to prove that he suffered damage.
The burden of prove is on the arresting authority. The respondent (Police) admitted arresting the appellant (Faal) and therefore, the onus was on them to prove their reason of arrest, she said.
She said the Police must have a reasonable believe of a commission of an offence in other for an arrest to be justifiable.
Being in possession of a title deed does not provide a reasonable base for theft. Upon receiving the complaint, the Police should have investigated the complaint further, she said.
She held that the deal/transaction was civil in nature and therefore, the Police acted ultra-virus, adding the Police began investigating the matter, if any, after releasing Mr. Faal. The judge said the complainant (Mr. York) did not provide reasonable ground for the arrest. She said a mere fact of an allegation is made against a person does not provide a reasonable ground for arrest.