Hon. Sarjo Barrow, ESQ
By Hon. Sarjo Barrow, Esq.
Appeal is not a new phenomenon in The Gambia. It has been part of the criminal justice system since its inception. So why has the state’s decision to appeal the acquittal of defendants in the police shooting case caught the nation’s attention? The answer lies, perhaps, in the manner in which the prosecution was handled.
A separate piece is forthcoming that will examine whether Section 325(3) of the CPC 2025 is constitutional on its face, whether it becomes unconstitutional in its application, and whether the State’s request that the Court of Appeal substitute an acquittal for the conviction is lawful under the 1997 Constitution, the Court of Appeal Act, and the CPC 2025. This piece addresses a more foundational question: how appellate courts review the decisions of trial courts.
The Bench Trial and Why It Matters
Trials in The Gambia are bench trials. The judge finds the facts and applies the law. This stands in contrast to the United States and the United Kingdom, where defendants have a constitutional right to a jury trial unless they waive it, and where the jury determines the facts while the judge instructs on the law.
That structural difference matters enormously on appeal. When a trial judge’s decision is brought before the Court of Appeal, that court does not rehear the case from scratch. It applies a structured standard of review that varies depending on whether the challenge concerns a finding of fact or a question of law. These are two different things, and the law treats them very differently.
The Standard for Factual Findings: Deference Unless Perverse
For findings of fact, the governing standard is one of substantial deference. The Gambian formulation, drawn from cases such as Fatou Badjie v. Bassena, Leigh v. Mosham Fisheries, and Musa Sarr v. State, holds that an appellate court will not disturb a trial judge’s factual findings unless they are perverse, against the weight of the evidence, or the product of a defective evaluation of the evidence.
American jurisprudence calls this the clear error standard, and it arrives at the same place by a different road. A reviewing court will not reverse simply because it might have weighed the evidence differently. There must be something more: a definite and firm conviction that a mistake was made.
Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985).
The rationale is straightforward. The trial judge was present. She heard the witnesses, assessed their credibility, and absorbed the atmosphere of the courtroom in ways that no written record can fully capture. As American courts have recognized, deference to the original fact-finder rests on more than just credibility assessments: “the trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise.” Anderson, 470 U.S. at 574. Gambian appellate courts apply the same logic without borrowing the American label.
What “Perverse” Actually Means
The word perverse is worth pausing on. The Oxford English Dictionary defines it as showing a deliberate and obstinate desire to behave in a way that is unreasonable or unacceptable. In ordinary usage, to call something perverse is to say it has gone not merely wrong, but wrongly and stubbornly wrong, against reason, against evidence, against what any fair-minded person would conclude.
The law sharpens that intuition. A finding is not perverse in the legal sense merely because another judge might have decided differently, or because the appellate panel finds it surprising, or even probably wrong. In its legal meaning, a perverse finding is one that no reasonable judge, properly applying his mind to the evidence, could have reached. It does not merely disappoint; it offends the judicial conscience because it is insupportable on any fair reading of the record.
American courts, working from a different tradition but arriving at the same destination, describe the equivalent standard this way: a finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been committed. Anderson, 470 U.S. at 573. One federal court put it more vividly: the error must strike the appellate court as wrong “with the force of a five-week-old, unrefrigerated dead fish.” Cox Enterprises, Inc. v. News-Journal Corp., 794 F.3d 1259, 1272 n.92 (11th Cir. 2015). Colorful as that formulation is, it captures something the plain meaning of perverse also captures: the departure from reason must be obvious and stubborn, not merely debatable.
The two standards are therefore functionally identical. Different vocabulary, same threshold.
The Threshold in Practice
Consider a plaintiff who claims a defendant struck him at a market on a Tuesday afternoon. The defendant denies being present. The plaintiff calls a witness who says he saw the defendant there and knows him well. The defendant calls his own witness, who says the defendant was with him at the farm all day and never went to the market. The trial judge believed the plaintiff’s witness and found liability.
On appeal, the defendant argues that his witness was more credible, more consistent, more disinterested, and more detailed. The appellate court’s answer is firm: both views of the evidence were permissible. The trial judge chose one. That choice stands. The finding is not perverse, not against the weight of the evidence. A reasonable judge could have gone either way, and the trial judge was the one empowered to choose. The Court of Appeal will not interfere.
Now change one fact. The defendant produces a signed court attendance record showing he appeared before a magistrate in Basse on that same Tuesday, nearly 400 kilometers from the market. The court clerk confirms it under oath. The document is admitted without objection. The plaintiff’s witness still insists he saw the defendant at the market. The trial judge, without explanation, believes the plaintiff’s witness anyway.
This is where both the ordinary and legal meanings of perverse converge. In the ordinary sense, the finding is obstinate: it persists in the face of documentary evidence that directly forecloses it, without explanation. In the legal sense, it is insupportable. No reasonable judge, properly directing himself on the evidence, could prefer the plaintiff’s eyewitness testimony over an unchallenged official court record without at least explaining why that record was rejected. The finding is against the weight of the evidence. It is the product of a defective evaluation. It is, in the full meaning of the word, perverse. And in American terms, it is clearly erroneous. The label differs. The result is the same.
The governing principle is this: when two permissible views of the evidence exist, the trial judge’s choice between them is untouchable. When the record forecloses one view entirely, the protection of deference falls away.
The Standard for Legal Questions: De Novo Review
The de novo standard operates on an entirely different plane. Here, the question is not what happened, but what the law requires. The appellate court owes the trial judge no deference, substitutes its own judgment entirely, and corrects legal error without any threshold of magnitude.
Consider a theft case. The trial judge hears the evidence and finds as a fact that the accused took the complainant’s phone. That factual finding is entitled to respect on appeal. But in sentencing, the judge treats the offense as aggravated theft, carrying a higher maximum sentence, on the basis that the accused used “force.” The accused had merely snatched the phone from a table while the owner’s back was turned: no physical contact, no confrontation. Whether that set of facts legally constitutes the use of “force” within the meaning of the offense is not a factual question. It is a question of statutory interpretation, pure law. The appellate court does not ask whether the judge’s reading was plausible. It decides for itself what “force” means in that provision, and if the judge got it wrong, the court corrects it without any margin of appreciation.
The finding that the phone was taken is a fact. Whether taking it in that particular manner constitutes force within the meaning of the statute is law. Two sets of facts, two entirely different standards of review.
This is why the framing of an appeal matters so much. An appeal arguing that the judge should have believed the other witness is structurally weak; it runs directly into the deference wall. An appeal arguing that the judge applied the wrong legal standard to undisputed facts presents the appellate court with something it is fully empowered to correct.
Conclusion
The Court of Appeal is a reviewing court, not a second jury and not a retrial. Its function is not to see the evidence differently, but to determine whether the law was correctly applied to the facts as found. For facts, the standard is deference, broken only by the perverse. For law, the standard is independence, corrected whenever wrong. Understanding which standard governs, and framing the appeal accordingly, is the first and most consequential task of appellate advocacy in The Gambia.
By Hon. Sarjo Barrow, Esq.
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