>From: Baboucar Gaye <[log in to unmask]>
>To: [log in to unmask]
>Subject: update:citizen fm case
>Date: Mon, 27 Aug 1956 20:44:23 +0100
>
>IN THE HIGH COURT OF THE GAMBIA
> CRIM APPEAL NO. 58/98
>
>
>
> BETWEEN:
>
> BABOUCAR GAYE ... APPELLANT
>
> AND
>
> INSPECTOR GENERAL OF POLICE ... RESPONDENT
>
>AMENDED GROUNDS OF APPEAL
>
> 1. The Learned Magistrate was wrong in law, and in fact, in finding
>that the
> Appellant had a case to answer.
>
>PARTICULARS
>
> a) The ingredients of the offence are misconceived.
> b) The offence is not properly laid.
> c) No evidence to meet the ingredients of the offence.
>
> 2. The charge on which Appellant was convicted was not
> known to law and was bad in law.
>
> 3. The charge on which Appellant was convicted was wrong in
> law, being duplicitous and discriminatorily applied.
>
> 4. The Magistrate was wrong in law in shifting the burden of
> proof of innocence on the Appellant.
>
> 5. The Magistrate was wrong in law in failing to exercise any
>discretion as
> to whether or not to order forfeiture of the Appellant’s apparatus,
>
>by holding
> that he had no discretion over the matter.
>
> 6. The Magistrate had no legal basis for ordering forfeiture of
> the Appellant’s Radio Station; and assuming (without conceding)
>that he had,
> his order of forfeiture was wrong in law having regard to the
>triviality of the
> offence and the efforts made to secure a renewal of the licence.
>
>
>
> 7. The conviction cannot be supported having regard to the evidence.
>
>
>
>
> DATED the 4th day of June 1999.
>
>
>
>
>
>
> S.B. SEMEGA-JANNEH,
> 15, HAGAN STREET,
> BANJUL, THE GAMBIA.
> SOLICITOR FOR THE APPELLANT:
>
>
>
> HEARING FINALLY BEGINS, AFTER 15 MONTHS OF ADJOURNMENTS
>
>
>IN THE HIGH COURT OF THE GAMBIA
> CRIM APPEAL NO. 58/98
>
>
> BETWEEN:
>
> BABOUCAR GAYE ... APPELLANT
>
> AND
>
> INSPECTOR GENERAL OF POLICE ... RESPONDENT
>
> 1st Day of hearing Monday 17 April 2000.
> Before Justice Wallace Grante,
> Lawyer S B Semega Janneh - Present for Appellant
> Acting DPP, Ms. Gloria Atiba Davies, for IGP
> Appellant, Baboucar Gaye - Present
>
> S B Semega Janneh Argues appeal as follows:-
>
>In the first place, it will be seen that, as far back as 4th June last
>year, we filed an amended grounds of appeal and would require those
>amended grounds to be substituted for the notice of appeal filed by
>Lawyer G B S Janneh, as he then was.
>
>You will see that ground 3 of the amended grounds contains two mistakes,
>
>typographical errors: Duplicitous and Discriminatorily are wrongly spelt
>
>and I would like to correct it.
>
>Your Worship, the first ground of my client's appeal is that the Learned
>
>Magistrate was wrong in law, and infact, in finding that the Appellant
>had a case to answer.
>
>That apart, I submit that rejecting a submission of no case to answer
>is, in itself, a ground of appeal (quotes Archbold 4th Edition Paragraph
>
>7 -36). If a no case submission is made and the Judge or Magistrate
>rules that there is a case to answer and, on appeal, the Appellant
>shows that there was no case to answer at the time, then this can be a
>ground of appeal.
>
>And in the case quoted the higher court squashed the appeal on
>thatground.
>
>The part of the ruling on no case to answer is on page 11 of the
>proceedings.
>
>What are the ingredients of the offence as charged?
>The Charge Sheet is the one of 17th March 1998. According to this,
>Baboucar Gaye operated a Radio Station, Citizen F.M., with out a
>licence.
>
>I ask, what are the ingredients that you will find at section 7 of the
>Telegraph Stations Act Cap. 7401, which I have right before me.
>
>Reads: ‘If any person establishes a telegraph station without a licence
>in that behalf, or installs, or works any apparatus for wireless
>telegraphy without a licence etc.’
>
>These are the ingredients. There is no mention of radio station.
>Therefore the ingredient of the offence are certainly misconceived.
>
>The second question is: was the offence properly laid in the charge?
>And I say the answer is no. Because the charge reads: “operating a
>radio station.” There is nothing like that in section 7/1.
>
>At the time the act was passed there was nowhere in the British Empire,
>
>not even England, where you had a radio station.
>
>(Quotes‘Section 110 and 113 of the CPC and Halsburys Volume II (fourth
>edition), paragraph 929).
>
>A statement of offence must contain reference to section or paragraph or
>
>schedule to the Act making the offence. This refers to statutory
>offences. And this is a statutory offence. Facts: we submit that:-
>
> 1. There was ample evidence that, for the relevant period,
> (1st January 1997 to 6 Feb. 1998) no formal licences were being
>issued
> by Government for any of its frequencies or operations.
> (quotes Adama Deen’s evidence in page 2 of the record and
> Mansour Bah’s evidence on page 4 of the record).
>
> 2. There is no proof of the accused operating or broadcasting during
>the
> relevant period and I will challenge my Learned Friend to prove
>that, during
> the period, accused either operated a radio station or broadcast.
>
>
>CASE ADJOURNED AT THIS POINT TO 25 MAY, AFTER ONLY 30' OF ADDRESS,
>BECAUSE JUDGE HAD TO ATTEND A MEETING.
>
>
>
>
>
>IN THE HIGH COURT OF THE GAMBIA
> CRIM APPEAL NO. 58/98
>
>
>
> BETWEEN:
>
> BABOUCAR GAYE ... APPELLANT
>
> AND
>
> INSPECTOR GENERAL OF POLICE ... RESPONDENT
>
> 2nd day of hearing : Monday 17, April 2000.
> Before Justice Wallace Grante,
> Lawyer S B Semega Janneh - Present, for Appellant
> Acting DPP, Ms. Gloria Atiba Davies - Absent
> Appellant, Baboucar Gaye - Present
>
>
>Before hearing resumed, the judge sent the Court Clerk to call the
>Acting DPP but the Court Clerk came and reported that the DPP said she
>was busy at a murder trial.
>
>At this juncture Lawyer S.B.S Janneh told the court that he could
>continue his address and the DPP will read the record later and that
>there was nothing wrong with this.
>
>The Judge granted this prayer and hearing resumed with Appellant’s
>Lawyer, S.B.S. Janneh, continuing his arguments.
>
>‘The last time I made mention of the origins of radio broadcasting.
>Now, me Lord, I have a learned book here concerning radio broadcasting
>edited by Robert L. Hilliard. This is to show that, infact, radio
>broadcasting did not start until after 1913, - the year in which the
>telegraph station’s act, under which my client was charged, was
>passed. This is to show that the charge just couldn't fit.
>
>I now refer to the definition of Wireless Telegraphy in our own
>book (reads definition). There was nothing wrong with that definition
>
>in 1913. But then when radio came, the British, who enacted this law,
>widened the definition, showing a big difference.
>
>The first definition took only four lines. But when the British
>amended their act in 1949, to cater for radio, there came another
>definition, a new definition. That definition took 28 lines. The
>reason is quite clear: in 1949, not to speak of 1998, the world of
>broadcasting had become so complex that the 1913 definition could no
>longer apply.
>
>With that I will come to grounds 2 and 3.
>
>Ground 2 is that the charge, on which the Appellant was convicted, was
>not known to law and was bad in law.
>
>Ground 3 is that the charge, on which the Appellant was convicted, was
>wrong in law -in being duplicitous and discriminatorily applied.
>
>First of all I ask: the charge says operating a radio station without a
>licences contrary to section 7-1 of the telegraph station act and
>regulation 4. The question is: which regulation 4? And the answer
>they put there is regulation 4 under section 12 of the act. The
>question is which regulation 4? All this is to prove that the charge is
>
>unclear and duplicitous.
>
>The fact of the mater is that there are many regulations made under this
>
>act and each of them has a title, regulation 4- starting from page 8.
>So they should have stated in the charge which of the "regulation
>4s"they wanted to charge under. In other words, it vague and
>duplicitous. This is my point: that it is bad, very bad, totally
>contrary to the rules as to indictment.
>
>My Lord, what is even more important is that the section in which the
>charge came is totally irrelevant, it does not apply at all. It is
>inapplicable. And I say that because according to regulation 5 at
>page 11 whenever the Minister has come to an agreement for the
>establishment of a service of wireless telephony and reception of TV
>Signals, he may grant a special licence. There is a big distinction
>here between ordinary and special licences.
>
>And, according to regulation 5-2, a special licence shall only be
>revoked by the Minister in accordance with the terms and conditions of
>granting it. This is why I say the charge should not have referred
>to section 7 but perhaps section 9, which was never laid. That, my
>Lord, is the applicable section, but they came with section 7 which does
>
>not encapsulate special licences but only ordinary licences.
>
>The prosecution complained, through the evidence, that the amount for
>the licence- D12,300- was never paid and therefore there was no
>licence. My contention is: no department or ministry can impose any
>amount for a licence except under the regulations. This is why you
>have section 12.1 of the Telegraph Stations Act at page 6: ‘The
>Minister may make and, when made, may vary, amend or revoke
>regulations for all or any of the following purposes: describing fees
>payable on the grant of any licences - Radio TV - or any thing
>else.’
>
>And, indeed, the Minister gave regulations concerning fees. This we
>will find in the schedules of the regulations.
>
>The question I want to ask: has the prosecution shown the court any
>regulation charging D12.300?
>
>I have not seen any such regulation and the prosecution has not shown
>it. Because, under the existing regulations, only D375 is chargeable.
>
>And why do I say so?
>
>I say so because if there was a regulation it must be gazetted.
>
>I refer to the interpretation act, Cap 4 section 2: ‘Subsidiary
>Legislation shall be published in the gazette .... to have the force of
>law.’
>
>So the question is: where is the increase in licence fees published?
>It is for the prosecution to produce it, not the defence. Otherwise it
>cannot affect us.
>
>It is for the State to refund the accused for the over payment. In
>fact, at some stage, we may ask for such refund .
>
>On the question of discrimination, I refer to exhibit H. Our view is
>that the appellant was discriminated against. Exhibit H tabulates:
>Radio 1 FM - non payment 1994 to date ( refers to evidence). And
>Radio Syd only made an advance of D4000 plus.
>
>I say that is evidence of discrimination in applying a public Act. So
>preferential treatment was given to certain people, for no reason
>whatsoever.
>
>It now remains for me to deal with burden of proof (refers to page 11
>of the record, last four lines: “The burden of proof has now shifted
>to the accused person”).
>
>This is an extremely serious error that goes to the heart of our
>criminal justice system: saying the burden of proof shifts to the
>accused. That is a fundamental error which cannot be cured at all.
>Because we all know that the burden of proof is always on the
>prosecution, except where the accused claims insanity. And Baboucar
>Gaye certainly did not claim insanity.
>
>I think, on that ground alone, this conviction must be squashed.
>(Codes 1935 appeal case).
>
>And this is also not a case of strict liability. So the burden never
>shifts. And you cannot come under the escape route of no substantial
>injustice was done.
>
>Now I come to the fifth ground of appeal: The Magistrate erred by
>holding that he has no discretion, saying: ‘My hands are tied’.
>
>(Quotes section 57.1 of the CPC and section 7.1 of the Telegraph Act).
>
>The operative word here is “liable”.
>
>The distinction between what is discretionary, and what is not, will be
>found in the way in which the punishing section puts it.
>
>If the punishing section states: “shall be liable”( even in the case of
>
>a death sentence), then the Judge doesn't have to impose a death
>sentence. But if the punishing section says: “shall suffer death” or
>“ shall die”, then there is no discretion in the matter. This is trite
>law.
>
>But section 7.1 says "shall be liable”.
>
>Even if the applicable section, i.e section 9, were used, he would
>still have been only liable (i.e exposed to the possibility).
>
>In this case the Magistrate did not exercise the discretion at all.
>
>The sixth ground is related to ground 5 - that the Magistrate had no
>legal basis for ordering the forfeiture of “the whole station”.
>That is contrary to section 7.1, which speaks of “any apparatus “.
>
>Ground 7 is the general ground: that the conviction cannot be
>supported, having regard to the evidence.
>
>There can be no prosecution under this act without the Attorney
>General's fiat. There was a fiat, but the date of the fiat is
>relevant. If you look at the date of the fiat, it is 2nd March 1998.
>Before that date, on 16th February 1998, the appellant paid licence fee
>
>for1997. That is proven by exhibit C.
>
>That is the end of our arguments.
>
>I submit that both conviction and sentence should be squashed.
>
>Case was then adjourned to 20th June 2000, for continuation.
>
> ENDS.
>
>Well there you are Coach. At least some progress. The battle continues.
>Thanks for your support. And, please continue spreading the word.
>
>Cheers!
>
>Baboucar
>
>
>
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