By Nelson Manneh & Yankuba Jallow
Lamin Trawally, the Second Respondent in his case against Lawyer Bory S. Touray and Cherno Marenah, the Solicitor General of the Gambia has given his counter argument to that of Lawyer Bory S. Touray.
When the case was called before Justice Aminata-Saho Ceesay of the Banjul High Court, Lawyer Bory S. Touray was present whilst the Solicitor General was said to be bereaved.
Mr. Trawally said he is a victim and complainant, whose rights have been infringed, and he is exercising his constitutional right to Institute a private prosecution; that he followed due process of the Law to institute a private criminal prosecution against the persons of Borry S Touray and Cherno Marena.
He said it this was instituted by virtue of Section 86 of the 1997 Constitution which stated that An Act of the National Assembly may make provision for private prosecution and Section 69 (3) of the Criminal Procedure Code which states that, a Person, other than a prosecutor or a police officer, who has reasonable cause to believe that an offence has been committed, may make a complaint thereof to a Magistrate who has jurisdiction, to try or enquire into the alleged, or within the local limits of whose jurisdiction the accused person is alleged to reside or be; that the complaint may be made orally or in writing signed by the complainant, but if made orally, should be reduced into writing by the magistrate and when so reduced, shall be signed by the complainant.
” I proved a prime facie case before the Magistrate Court and followed due process of the Law by virtue of Section 69 (4) of the Criminal Procedure Code. That is why the Magistrate acted judiciously to issue sermons for the applicants (Lawyers Touray and Solicitor Marenah) to be prosecuted. They filed a motion to the Magistrate Court which is yet to be decided and they did not take their pleas but filed another motion at the High Court for an order of certiorari and prohibition, brought under the enforcement of the courts supervisory jurisdiction under Section 23 of the Court Act and Section 133 of the Constitution. The applicants prayed for three issues. Firstly for an order of certiorari to be issued and to be removed from the high court, for the purposes of the criminal charge sheet to be quashed in a private criminal prosecution BMC/CC661/17 between Lamim Trawally vs Borry S Touray and Cherno Marena” he said.
Secondly Trawally said the two Appellants seek for an order of prohibition to be issued in order to prohibit the Banjul Magistrate Court and any other Magistrates court for that matter, from proceeding to hear the private criminal prosecution BMC/CC661/17 between Lamin Trawally vs Borry S Touray and Cherno Marena.
Mr. Trawally told the Court that looking at section 133 of the 1997 Constitution of the Gambia, it states that the High Court shall have supervisory jurisdiction over all lower courts and adjudicator authorities in the Gambia, and in the exercise of its supervisory jurisdiction, shall have power to issue directives, orders or writs of habeas corpus, orders of certiorari, mandamus and prohibition as it may consider appropriate for the purpose of enforcing its supervisory powers; that the applicants are using their wigs and position to suppress ‘my’ constitutional rights and seriously misleading the court; that an order of certiorari is normally issued to stop enforcement of Judgment or if there is an error with due process; but that for a matter that has not started, the applicants are saying that they should not be prosecuted as if they are above the law.
“The supervisory jurisdiction of the High Court is exercised judiciously” Trawally said. “After my reply to the affidavit sworn to by Borry S Touray showing the court that what he is saying is totally different from my reasons of instituting a private criminal prosecution, again the applicants use one Ebou Badjie to file another affidavit which fact clearly spelt out all the involvement of the applicants as he mentioned in the affidavit that he wrote my name in a document to authenticate it, and that he has right to do so without relying on any law, and that Cherno Marena signed and the said documents were sent to the registrar General’s office by the support staff of Borry S Touray, which means that the transaction was done without my consent, knowledge and authority. This Ebou Badjie is not a party to the suit. He is involved in the suit in his capacity as what? This is done to mislead the court and to obstruct justice,” Trawally said.
He said Section 23 of the Court Act states that the High Court shall exercise general powers of supervision over all subordinate courts and may at any time call for an inspector or direct the inspection of all records of the subordinate courts, and may give any direction which in any case, the High Court may consider to be necessary, in the interest of justice. “The question is whether the general powers of supervision of the high court, can stop a private criminal prosecution? He asked.
He said what is practical and happening at the courts is to appeal to a higher court if you are not satisfied with the decision of the lower court; but that to say one should not be prosecuted, where then is the equality before the law? he questioned. “Although justice rushed is justice denied, justice delayed is also justice denied” Trawally said.
‘‘I started to pursue this matter in December 2015 .It was reported at a time when Cherno Marena was Solicitor General and Borry S Touray, was a Senior Lawyer. Courts operate within the limits of human knowledge. There are no 100% certainties when it comes to substantive Law. The only certainty about our Laws if any, is procedure,’’ he said.
“There are prescribed steps to be taken for every legal wrong, to reach the end of justice. What is proper is for the applicants to take their pleas at the lower court. But the applicant’s suit at the High Court is erroneous and an abuse of court process and should not be entertained”, he said; that after investigation, Mr. Trawally said the police made two recommendations; that one was civil and the other, criminal; that subsequently, civil suit was recommended and the nullification of the registration was made without relying on any Law by the police and the file was sent to the office of the DPP for legal advice.
“Then Cherno Marena was the solicitor General and the office of the DPP, who advised for civil action, relying on Section 133 of the Constitution and interpretation is done by the courts. So the applicants have been obstructing justice since the beginning and they are relying on technicalities to mislead the courts and the office of the DPP is fused with the Attorney General Chambers. So the second applicant was recommending his own case which is against the equity principle of “memos judes casa sua”, meaning one cannot be a judge in his own case” he said.
At this point in time, the trial Judge asked Mr. Trawally whether he was the one who prepared the document he was reading from. In his response, Mr. Trawally responded that he is a third year Law Student at the University of the Gambia. “I see no relevance and nexus of section 133 of the Constitution as far as my case is concerned”, he said.
“I petitioned the Minister of Justice that I should not be discriminated but he did not reply. I then channelled through the Solicitor General’s office when Sankareh was there at the time. The file was minuted to the office of the DPP, who requested for the file from the police and Sankareh was removed and Cherno Marena reinstated as the Solicitor General. Marena wrote to me and said the matter should not be handled, which shows that he is acting as a judge in his own case which is against the doctrine of equity’’, he said.
Trawally told the Court that the submissions of Lawyer Touray is misleading as section 57 of the Evidence Act is talking about opinion evidence, which is not generally accepted; that the exception to the rule is expert opinion and as per the Evidence Act from Section 57 to section 66; that both the police report and the legal advice from the office of the DPP, does not fall under this category of expert opinion.
“On the issue of the Police report, the legal advice has no binding effect or else the police and the office of the DPP will not prosecute alleged offenders in court, but rather send them to jail”, he said.
Trawally added that Section 5 of the Constitution is of no relevance as far as this matter is concerned. ‘‘I verily believed that the police and the office of the DPP are all bias as the Law is very clear as to the registration of deeds of gifts. The police do not rely on any Law but find out that my names are being used to authenticate a document without my knowledge, consent and authority and the office of the DPP cited a relevant Law that shows that the applicants have committed an offence but decided not to talk about it’’, he said.
“There is no relevance of the judgments of both the high court and the court Appeal in the matter of Alieu Sonko (by his Attorney Lamin Trawally) and Mariama Dampha, as the decision was based on the content of the Agreement and the Deeds of gift. My point is very simple. There is no Law that states that one may use another person’s name to authenticate a document without his consent and authority”, he said.
At this point, Justice Saho-Ceesay asked Trawally whether his name was used to authenticate a document and Mr. Trawally responded in the affirmative; that his name was used in the certificate of registration of deed of gift without his consent and authority.
“My Lord, Lawyer Touray was advised by Lawyer Kebba Sanyang as both Counsels are representing two different people. So if Counsel Touray is acting under the instructions of his client and Lawyer Sanyang is acting under the instructions of his client, what is more ethical as professionals is not to abuse the others’ right but to go to court and solve their arguments. It is very clear that both applicants were asked not to register the deeds of gift, as in their statements made at the police,” he said.
Mr. Trawally quoted Counsel Tourays’ statement that he made at the Police; that Counsel Touray had no knowledge of my names in the certificate of registration and that it was not done by him and not a member of his staff. Counsel Touray objected that those were not his exact words and that Mr. Trawally should use his exact words.
The Court expunged that portion from the records and the matter was adjourned to 23rd April 2018 at 11am, for continuation of hearing from Mr. Trawally.