By Rohey Jadama
Hadi Saleh Barkun, the Director of Public Prosecutions (DPP) yesterday urged the Banjul High court to refuse the defence’s application to halt the trial of Lawyer Darboe and others until the Supreme Court decides on the constitutionality of some of the charges.
When the case was called the DPP told the court, presided over by Justice Eunice Dada, that they are opposing the application and based on that they have filed an affidavit in opposition and that they intend to rely on the paragraphs particularly paragraph 3 of the said affidavit.
The DPP told the court that the applicants (the accused) are standing trial on seven counts charges and out of which they are asking the court to stay the proceedings of certain counts.
“Initially an application of this nature was brought by the applicants which was ruled upon by this court on the 5 of May, 2016. The ruling of this court did not go down with the applicants and as such they decided to approach the Supreme Court directly and as well file this application for stay of proceedings,” he said
He argued that the applicants have a duty to convince the court why this application should be granted. He said he has gone through the 10 paragraphs of the applicants but there is nothing essential to convince the court to grant the application for a stay of proceedings.
He said the application made by the applicants on the 5 May 2016 which was predicated on section 127(2) of the constitution was not only an application for referral to the Supreme Court but also a stay of proceedings.
“The ruling of the [high] court on 26 May, 2016 is that the referral order cannot be made and the application was dismissed. We all know that an appeal from this [high] court should be at the court of appeal. In essence we can say the substance is lacking in the affidavit in support and the applicants must also establish that they do not intend to delay or prolong the proceedings,” submitted the DPP.
He said a similar application was made by the defence calling on the high court to refer certain counts to the Supreme Court which was refused by this court. He further stated that the application filed by the applicants is an independent suit and that this can be seen by the composition of the parties. He said the suit filed at the Supreme Court is Ousainou Darboe and 19 others vs the IGP, the Director of NIA and Attorney General. He submitted that the parties are different and therefore it cannot be said to be an appeal against the ruling.
“It is trite that an application of this nature must be competent and arguable. I will refer your ladyship to the last paragraph of page 10 of the court’s ruling on the 26 May, 2016. This court has already decided, so there is no substance and there is nothing exceptional to warrant a stay of proceedings of this case”, he submitted.
The DPP further argued that if the application is granted there will be delay in the proceedings and that this was not controverted by the applicants. He said going by the case of the facts admitted and accepted by the applicants, it is their “submission that from the inception of this case, the attitude exhibited by the applicants is nothing but a delay trick.”
At this juncture defence counsel Bensouda interjected and objected to this submission made by the DPP. She argued that the DPP is only limited to facts and that he is not supposed to talk about the attitude of the applicants because they have been very diligent with the case.
Continuing his submission, the DPP argued that the question before the court is whether the court can sit as an appellate court under its own decision? He said this court has stated in its ruling that “I am not going to stay proceedings in this case”. He said the appropriate venue therefore is at the court of appeal because a decision has been made on this issue earlier on so the defence cannot bring it back to you again.
“The court has stated in its ruling that section 5 of the Public Order Act and sections 25 and 100 of the Constitution are very clear and there is no need for referral. They are challenging your decision and the right place they should have gone to is at the court of Appeal not even the Supreme Court. I urge the court to refuse the application and give room for further proceedings in this case”, submitted the DPP.
Replying on points of law Barrister Amie Bensouda said the DPP appears to have totally misconceived the nature of the application previously made on the 5 of May, 2016 and the application pending before this court.
“As regards to the present application we never invoked section 127(2) of the constitution, we invoked the inherent jurisdiction of this court and that is based on law not facts. On the 5 May, 2016 we did seek for referral to the Supreme Court and the court ruled that the referral was not necessary”, said Lawyer Bensouda.
She said the issue of stay of proceedings did not arise in the paragraph the DPP heavily relied upon. She said all the arguments found in those paragraphs lack merit. She further stated that the fundamental issue is that the court recognized the original jurisdiction of the Supreme Court to determine the issues that were raised.
“There is no appeal pending before the Supreme Court so the authority relied upon by the DPP does not apply hence it is a stay of proceedings pending an outcome of an appeal. The paragraphs relied upon by the DPP do not contain statements of facts, it is an argument and opinions”, submitted Lawyer Bensouda.
On the DPP’s submission that the parties are different, defence counsel Bensouda said the parties are not different and finally urged the court to grant the application.
At this juncture, the case was adjourned till Wednesday 8 June, 2016 at 2 pm for a ruling on whether to stay the proceedings pending the outcome of the Supreme Court determination on the charges.