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Treason Trial: Counsel For 2nd Accused Says Prosecution Has No Evidence Against His Client 

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The alleged coup plotters in court

By Landing Ceesay 

Lawyer Lamin L. Darboe, the attorney representing Private Gibril Darboe (the 2nd accused) in the treason trial of the alleged coup plotters, has stated that the prosecution has no evidence against his client.

The second accused, Private Gibril Darboe, has been charged with four counts, including treason. He has pleaded not guilty to all charges.

The prosecution called eight witnesses and presented evidence during the prosecution phase of the trial.

After the prosecution closed its case, Gibril Darboe’s lawyer, L.L. Darboe, filed a “no case to answer” submission in accordance with Section 166 of the Criminal Procedure Code, Volume 3, CAP.8.01, Revised Laws of the Gambia 2001.

The submission argues that the prosecution has not presented sufficient evidence to prove that Gibril Darboe is guilty of any of the charges against him.L.L. Darboe, the defense counsel for the second accused person, argued that the prosecution has failed to establish a prima facie case against his client. He pointed out that the first prosecution witness, Barra Touray, who has been serving in the army for 15 years, did not mention anywhere in his testimony that he knows the second accused person or has had any contact with him. In fact, Touray testified that he only recognizes the first, fourth, and fifth accused persons.Counsel L.L. Darboe went on to argue that the second prosecution witness (PW2) Yahya Manjang did not provide any evidence against the second accused person, as charged. He said that the second accused person’s name was not mentioned anywhere in PW2’s testimony, either in his direct examination or cross-examination.

“PW3 (Army Captain Mamat Jobe) testified in court but didn’t say anything as per the charges against the 2nd accused. PW4 (Mustapha Jabbi) testified that he was far away from the so-called meeting led by 1st, 2nd and 3rd accused persons and do not hear what they were saying. He told the court that apart from the day of that meeting he has never seen or met the 2nd accused person. Upon cross-examination, he was asked whether the second accused person joined the car but his response was no. 

“He was then asked how did he recognise the car amongst all the cars plying the road he answered that the 2nd accused was communicating with the 1st accused. He further told the court that they boarded a 5-passenger car, green in colour and that the 1st accused (Sanna), Karamo, Ebrima, the driver and himself were inside that vehicle. They went to a particular compound in Kafuta. The defence counsel asked him whose compound they went to but he said he doesn’t know because that was his first time going to Kafuta,” he argued. 

Counsel L.L. Darboe said that Assistant Superintendent of Police Sanusi Darboe (PW5) told the court that he only interacted with the first, third, and fifth accused persons.

Darboe also said that Assistant Superintendent of Police (ASP) Jally M.I. Senghore (PW6) told the court that he took the cautionary and voluntary statements of the second accused in the presence of an independent witness. He added that the cautionary and voluntary statements were admitted into evidence.

Finally, Darboe argued that PW6 said that the second accused was in contact with the first accused, but he did not know the second accused person’s phone number.

“PW7 ( Karamo Jatta) who is a soldier and sergeant in rank testified that he has been a sergeant for over 20 years. In his examination-in-chief, he told the Court that he recognises the 2nd accused. He further told the court that he proceeded to the compound of the 2nd accused and then saw the accused from a distance. The accused was on the phone but couldn’t tell what the 2nd accused was saying.

“More so, all his evidence was hearsay and inadmissible and was been expunged from the records. Upon cross-examination, he said he is not familiar with the military terms and formations and also, he has not seen an operational plan before,” he argued. 

Defense counsel L.L. Darboe argued that prosecution witness 8 (PW8), whose name has been withheld, only identified the first and fourth accused persons. He said PW8 did not say anything against the second accused person, nor did he mention anything that led to the charges against him.

Darboe said PW8’s testimony was all hearsay, and the court ruled that the evidence should be expunged from the record. He also argued that PW8, who has been in his position for over 25 years, told the court during cross-examination that he did not take a record of the proceedings, as that is not part of his job duties.

“It is further submitted that the prosecution witnesses do not support the charge laid against the 2nd accused person for concealment of treason or any of the charges levelled against him. However, PW6 contradicted his testimony and raised serious doubt regarding what he had witnessed as to the charge against the 2nd accused. Relying on the authority of the Queen vs Obissa (1992)1 NLR 651 that in a criminal matter, where there is a doubt as to a fact arising from the evidence: such doubts must be resolved in favour of the accused,” he argued. 

It is Counsel L.L Darboe’s submission that the evidence that was laid by the eight prosecution witnesses, has been “seriously” discredited by the lead Counsel.  

Counsel L.L. Darboe said both parties should bear in mind that the offences the accused persons are facing are one of the most serious or the most serious and has mandatory life sentencing or dead sentencing. 

“My lord for the court to be persuaded that the alleged offences are being committed by the 2nd accused person, credible and incontrovertible evidence has to be laid to persuade the court to call him to open his defence. The prosecution witness from 1 to 8,  Is only PW4 and PW7 that talk about the so-called meeting taken place. The statement of PW4 is so vague that the court cannot rely on it. 

“Is only PW7 who said the so-called meeting took place in a compound at Kafuta. But he did not play anything as evidence of the meeting. He did not know the owner of the compound apart from saying that he recognize the 2nd accused person. In any common law jurisdiction for any defendant to open his defence the state must produce a prima faci case for the defendant to open their defence,” Counsel L.L. Darboe argued. 

Counsel L.L. Darboe said all the testimonies and evidence the prosecution is relying on before the court, have been discredited by Counsel L.S. Camara through his “vigorous” cross-examination. 

Counsel L.L. Darboe said the telephone records, that were submitted and partly admitted before the court show nothing that incriminates the 2nd accused person. 

Counsel L.L. Darboe argued that the defence, in this case, has succeeded in discrediting the evidence of the state to the extent that no reasonable tribunal would convict the accused persons. 

“None of the prosecution witnesses mentioned that the accused told them he wants to overthrow the government by unlawful means. None of the prosecution witnesses mentioned that the accused person showed them an operational plan which is to be used for the alleged coup plot. None of the prosecution witnesses stated that they saw the accused in possession of any weapon which is to be used by coup plotters. The prosecution and their Eight (8) Witnesses called have not produced any evidence against the 2nd accused as per the charges before this honourable court. 

Counsel L.L. Darboe further cited similar treason cases and the outcome of those cases. 

“It is our humble submission My Lord, that because the prosecution has failed to establish the guilt of the accused on the charge of treason and concealment of treason, we are left with nothing but speculation. It therefore follows that the essential ingredients of the offence for which the accused is charged have not been proved, thus rendering it unsustainable.

“We further submit that the evidence of the prosecution’s witnesses does not create a nexus as to the accused involving in concealment of treason which is a serious criminal offence under the criminal code of the Gambia. This renders the prosecution’s case doubtful, baseless, unfounded. frivolous, offensive, and scandalous and a mere waste of the courts precious time,” he argued. 

Counsel L.L. Darboe argued that the test for “no case submission” to succeed is laid down in the Nigerian Locus Classicus case of Ibeziako Vs. Commissioner of Police 1963 1 all Nigeria Law Report (NLR) 61 at 68-69 in which the court held that; for a no case to submission to succeed three requirements must be met. 

Counsel L.L. Darboe said one of the three requirements is that there has to be proper evidence to prove an essential element in the alleged offence; and/ or the evidence of the prosecution must have been thoroughly discredited under cross examination that no reasonable tribunal will convict on it. 

Counsel L.L. Darboe said the final requirements is that the prosecution witnesses’ evidence must be so unreliable that it will be unsafe for any reasonable tribunal to convict on it. 

Counsel L.L. Darboe said the above principles are in tandem to those laid down in the English Practice notes 1962 1 all ER 448, 1962 1 WLR 227 by Lord Parker CJ with regards to a submission of a no case to answer. 

“This honorable court being a temple of justice where serious issues of law and fact are decided, this temple being a place where justice and not injustice is delivered, this honorabl court being a court of records where credible records of fairly adjudicated cases are put in its records and not baseless and unfounded cases, this court of law being a pot of justice and not

a father Christmas which does not operate in a vacuum, I squarely put, that the case presented by the prosecution before this honorable court lacks merits to sustain the empathy and indulgence of this court.

“We pray your Lordship to agree with us that this honorable court or nor any reasonable tribunal could entertain nor convict the 2nd accused on such evidence. I humbly submit that the prosecution has failed to establish a prima facie case against the 2nd accused enough for him to enter a defense. The prosecution has failed to prove the required clements of the offence i.e.. that the 2nd accused is involved in a treasonous act or concealment of treason,” Counsel L.L. Darboe argued.  

Counsel L.L. Darboe argued that the prosecution’s case is fatally flawed because it lacks evidence linking the accused to the charges. He stated that requiring the second accused to enter a defense would be tantamount to asking him to prove his innocence, which would violate the presumption of innocence enshrined in Section 24(3) of the Gambian Constitution.

“My Lord, based on the arguments advanced above which have clearly proved that the prosecution had failed to establish a prima facie case against the accused person, we humbly and sincerely pray this honorable court to acquit and to discharge our client the 2nd accused (Gibril Darboe) of the charges levied against him,” he argued.  

Four members of the Gambia Armed Forces (GAF) and one member of the Gambia Police Force (GPF) are on trial for treason before Justice Mahoney of the High Court of the Gambia.

The Four soldiers and one police officer were accused of an attempted coup and charged with five counts, including treason.

The Soldiers and a Police Officer charged are Lance Corporal Sanna Fadera (1st accused) Private Officer, Gibril Darboe (2nd accused) Corporal Ebrima Sannoh (3rd accused), and Corporal Omar Njie (4th accused), Fabakary Jawara (5th accused) is the Police Officer charged alongside the Soldiers. 

The prosecution called eight witnesses in the trial. However, after the prosecution closed its case, Counsels for three of the five accused persons filed a “no case to answer” submission. The 3 accused persons are; Private Gibril Darboe (2nd accused) Corporal Ebrima Sannoh (3rd accused), and Corporal Omar Njie (4th accused).

Lance Corporal Sanna Fadera (1st accused), and Fabakary Jawara (5th accused) did not file the “no case to answer submission.”

A “no case to answer submission” is a procedural motion made by a defendant in a criminal trial. The purpose of the motion is to ask the judge to dismiss the charges against the defendant before the defense has to present its case.

The lawyers representing these 3 accused persons told the court that the prosecution (the state) failed to produce a prima facie case against their clients. 

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