The High
Court in Banjul, presided over by Justice Abdulahi Mikailu
Friday convicted and
sentenced two men, Mustapha Cham and Saikou Minteh to life
imprisonment for the
offence of robbery with violence contrary to Section 272 of
the Criminal Code,
Laws of The Gambia.
On count
one, the particulars of offence stated that Mustapha Cham
and Saikou Minteh on
or about the 25th February 2012 at New Jeshwang in the
Kanifing Municipality,
whilst armed with offensive weapons robbed one Ebou Njie of
his Nokia mobile
phone along with an Africell sim card and a Qcell sim card
after subjecting him
to assorted acts of violence.
On count
two, the particulars of offence also stated that the duo on
the same day and
place, conspired to rob with violence one Ebou Njie of his
property which was
carried out pursuant to the said agreement.
The accused
persons pleaded not guilty to both counts and the
prosecution called three
witnesses and tendered six exhibits; the accused persons
gave evidence in their
defence but did not call any witness and tendered no exhibit
and at the end of
the case for defence, both parties waived their right to
address the court.
The
prosecution’s case was succinctly summarised in PW2 Ebrima
Njie alias Ebou
Njie’s testimony, who revealed that he is a watchman and
that on the 25th
February 2012 whilst at his work place (a shop) he saw the
1st accused on top
of a fence trying to jump over. He said that he came out and
when the 1st
accused sighted him, he hurriedly came down from the
fence/wall and took to his
heels.
PW2 told
the court that he pursued the 1st accused and apprehended
him. He said that as
he held the 1st accused, the 2nd accused came and stabbed
him [PW2] on the neck
and the hand with a broken bottle. As the altercation
ensued, the 1st accused
took out a knife and stabbed PW2 on the neck but the knife
could not penetrate.
Consequently PW2 brought out his mobile phone in order to
call his friend who
was at the shop but the 2nd accused snatched the mobile
phone from his hand and
ran away.
The 1st
accused was subsequently taken to the Police Intervention
Unit, Westfield by
PW2 with the help of two gentlemen. PW2 Ebou Njie further
testified that when
he was confronted with the accused persons at Kanifing
Police Station, they
both admitted robbing him of his mobile phone. The knife
allegedly used on him
by the 1st accused and mobile phone, which he identified,
were both admitted in
evidence as exhibits E and F.
Under
cross-examination, PW2 told the court that the 2nd accused
snatched exhibit F
when he was trying to make a call and that he sustained
injuries from the stab
inflicted on him by the 2nd accused.
In his
defence, the 1st accused Mustapha Cham testified that he a
petty trader,
trading in perfumes. He told the court that on the 25th
February 2012 at about
the time for Muslim early morning prayer, he and the 2nd
accused Saikou Minteh
left Jokor Night Club and whilst on their way home, they met
PW2 Ebou Njie at
Jokor – Cooperative junction who told them that he saw
someone trying to jump
over the fence at his work place.
The first
accused said he told PW2 to leave him alone but PW2
continued to drag him. During the
ensuing fight, the 1st accused saw PW2 with a knife, which
he tried to take
from him in order to defend himself and as a result he
sustained injuries on
his middle finger and forehead and also on his left arm.
He said
that as the fight continued, PW2 shouted for help and a
crowd gathered and
started to beat him because PW2 was shouting ‘thief, thief’.
Consequently
the 1st accused was taken to PIU and then to Kanifing Police
Station from where
he was later escorted by the police to fetch the 2nd
accused. The 1st
accused denied robbing PW2 and said that he did not attack
him with a knife or
used the knife to rob him of the mobile phone.
In his
defence, the 2nd accused Saikou Minteh testified that on the
25th February 2012
whilst they were going home after leaving Jokor Night Club,
PW2 Ebou Njie
suddenly attacked the 1st accused and tried to drag him into
a compound. He
intervened by pulling the 1st accused from the grip of PW2
who was holding a
knife which the 1st accused tried to snatch away but got
himself injured in the
process. He said
that as the altercation ensued, PW2 shouted for help and a
crowd gathered and
some people in the crowd started beating the 1st accused.
The 2nd
accused further testified that he tried to explain to the
crowd that they were
just from Jokor Night Club going home but someone amongst
the crowd hit him on
his forehead and he consequently ran away to his residence
and went straight to
bed. He told the court that he was later woken up when he
saw the 1st accused and
some police officers and was subsequently arrested and taken
to Kanifing police
station. The 2nd
accused denied knowing anything about the robbery and said
that he did not take
a knife to rob PW2 Ebou Njie.
In
delivering judgment, Justice Abdulahi Mikailu disclosed that
for the
prosecution to secure conviction there must be evidence to
prove the existence
of a thing capable of being stolen, that such a thing shall
be in the
possession of PW2; that the accused used or threatened
violence to PW2 with a
view to dispossessing him of the things; that the accused
dispossessed him of
the thing; that the accused person intended to obtain or
retain the said thing.
Justice
Mikailu further disclosed that there is ample evidence
presented by the
prosecution which establishes the existence of a mobile
phone the subject of
the alleged robbery adding that it is not in dispute that
exhibit F (mobile
phone) belonging to PW2 was recovered from the 2nd accused.
He averred
that in exhibit A and C the accused persons gave graphic
account of what ensued
between them and PW2 on the 25th February 2012.
The Judge
further averred that in exhibit A, the 1st accused stated
thus: “I was at
Cherno Mback’s house sleeping and later my friend Saikou
Minteh came and woke
me up and when I woke up I agreed with him to go and do
something so that we
can have money for breakfast and some other things. From
Cherno’s house, we
went to the Cooperative area along the street, we met up
with the complainant
who was talking on phone, I first confronted the complainant
and told him to
stand and my friend Saikou told him to hand over his phone
to him.
We all
strongly hold the complainant; Saikou Minteh stabbed the
complainant with a
broken bottle. I was having a knife but didn’t use it
against the complainant.
I was only threatening him with the knife I have. My friend
end up taking the
mobile of the complainant and ran away.”
Justice
Mikailu disclosed that it has long been established in a
string of decided
authorities that; where a confessional statement is direct,
positive and
unequivocal as to the admission of guilt by an accused
person, the statement is
enough to ground the conviction of the accused person.
He further
disclosed that the law is clear that a free and voluntary
confession of guilt,
whether judicial or extra judicial, if it is direct and
positive and properly
established, it is sufficient proof of guilt and it is
enough to sustain a
conviction so long as the court is satisfied with the truth
of such a
confession.
The judge
therefore declared that he hold as a fact that the accused
persons used actual
violence to dispossess PW2 Ebou Njie of his mobile phone
(exhibit F).
On the
offence of conspiracy, Justice Abdulahi Mikailu noted that
there must be an
agreement of two or more persons i.e. there must be a
meeting of two or more
minds. That the persons must plan to carry out an unlawful
or illegal act,
which is an offence; that one person cannot commit the
offence of conspiracy
because he cannot be convicted as a conspirator. That bare
agreement to commit
an offence is sufficient. He revealed
that both accused persons confessed in exhibit A and C how
they planned and
agreed amongst themselves to commit the offence in count
one.
The
presiding Judge then read the contents of both exhibit A and
C and stated that
the accused in company of each other went to the scene of
crime, both
participated in dispossessing PW2 of exhibit F after
subjecting him to various
acts of violence. Hequoted PW2 as saying that he testified
that the 1st accused threatened or even stabbed him with
knife but it could not
penetrate. The 2nd
accused in turn stabbed him with bottles and went away with
exhibit F (mobile
phone) which was found with the 2nd accused.
Justice
Mikailu pointed out that the necessary inference that can be
deduced from these
chains of unbroken evidence is that the accused persons were
on the day in
question on joint criminal enterprise to steal as conceived
by them in exhibits
A and C. Hetherefore revealed that he was
satisfied that the prosecution has proved all the essential
ingredients in both
count one and count two and they were found guilty on both
counts.
In
handingdown the sentence, Justice
Mikailu disclosed that he has taken into account the record
of previous
conviction put forward by the DPP with respect to the 1st
accused. Hepointed out that he had also taken into
account the nature of the charge which is assuming a greater
dimension in
recent times, adding that the court is supposed to be the
last hope of the
common man.
The judge
remarked that the court has therefore a constitutional
responsibility to
protect the society from grievous crime such as the one
committed by the
accused persons. Each of the
convicts was sentenced to life imprisonment on count one and
on count two, each
of the convicts were further sentenced to seven (7) years
term of imprisonment
without an option of a fine. Justice Mikailu ordered that
the sentences run
concurrently. He also reminded them of their right to
appeal.