(JollofNews) – The Gambia’s Supreme Court today squashed the conviction of a Gambian man who has spent nearly ten years on death row at the maximum security wing of Mile Two prisons.
Batch Samba Faye was convicted by the high court of the Gambia in December 2004 for murdering Malick John ‘Njok’ contrary to section 187 of the Criminal Code Cap 12:01 of the Laws of the Gambia.
He was said to have stabbed his victim with a knife in December 2003 around the Senegambia Area after they had a fight in WaW nightclub.
Dissatisfied with the verdict, he filed an appeal at the Gambia Court of Appeal against the High Court’s decision. However, during the appeal, the presiding judges M. Agyemang, Justice Na-Ceesay Sallah Wadda and Justice M. Singhateh discovered that some of the exhibits enumerated in paragraph 9 of his brief-Exhibit A (broken knife), Exhibits B, B1, B2, Exhibit C, Exhibit D, Exhibits E & F, Exhibit H, Exhibit I, Exhibit J, Exhibit K, Exhibit L and Exhibit M -which were tendered and admitted at the actual trial at the high court were missing.
The state was unable to trace the missing exhibits due to the fact that the registrar of the high court, O’Brien Coker, who initially compiled the appeal had left the country. His successor, Mrs. M. C. Mboob Ceesay, recompiled and certified the appeal without the missing exhibits.
The judges later decided to strike out the appeal on the grounds that they could not make any conclusive decision on the case as a result of lack of proper record of proceedings from the lower court.
Not happy with the court’s decision, Mr Faye filed an appeal at the Supreme Court arguing that the court of appeal erred in law in striking out the appeal without determining some on merits. He also argued that the court of appeal erred in law in failing to set aside the judgment of the high court when there was a clear miscarriage of justice.
The appeal was however rejected in October 2012 by Justice Emmanuel Akomaye Agim, Justice G. Semegah Janneh, Justice Jones Dotse, Justice Henrietta Abban and Justice E. K. Ayebi for being frivolous and vexatious and a sheer waste of the court’s time.
In their ruling, the justices said the Mr Faye did not have a right of appeal directly from the High Court to the Supreme Court. They ruled that “since neither the constitution nor the Supreme Court Act Cap 605 Vol. II laws of the Gambia confers jurisdiction on the Supreme Court to entertain appeals directly from the High Court, the Supreme Court cannot sit on appeal from the decisions of the Gambian High Court.”
They however instructed Mr Faye to back to the Court of Appeal to hear his appeal again and determined his appeal on the merits of the incomplete record of proceedings.
Not happy with the decision, Mr Faye filed another appeal to Supreme Court for a review of its decision. And its ruling today, a panel of seven judges headed by the Chief Justice, Eli Nawaz Chowhan said they have gone through the testimonies of the witnesses and evidence produced by the prosecution at the high court and are satisfied that Mr was not liable for the death of Malick John.
The judges said the high court judge, Justice Madabuchi Abuchi Paul had err in law when he convict Mr Faye on the murder charge.
They said in order to establish the ingredients of the offence of murder; it is the duty of the prosecution to prove its case beyond all reasonable doubts.
“In order to determine the actual cause of the death of the decease, we have to go through the evidence and facts as narrated in the case file,” they said. “It is true that the appellant had a fight with the decease but the indisputable fact was that the decease was the first person who used a broken bottle and hit the appellant on his head and the appellant also took a knife in revenge. And where as the death of the decease was caused by the appellant, there must be tangible and substantial evidence in order to convict the appellant as charged.”
