>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 > > > ________________________________________________________________________ Get Your Private, Free E-mail from MSN Hotmail at http://www.hotmail.com ---------------------------------------------------------------------------- To unsubscribe/subscribe or view archives of postings, go to the Gambia-L Web interface at: http://maelstrom.stjohns.edu/archives/gambia-l.html ----------------------------------------------------------------------------