Mohammed Jabbie and his wife Firyal Farage-Jabbie were accused by state the prosecutor of obtaining goods by false pretense, conspiracy to commit misdemeanor as well as cheating contrary to laws of the Gambia. The duo denied the charges against them.
Delivering his ruling on the no-case submission filed by Counsel Ida Drameh, Justice M’bai said: “This ruling is in respect of the no-case submission filed by the counsel on behalf of the accused persons following the prosecution’s pronouncement of the closure of their case after calling five witnesses and tendering a host of documents as exhibits.” Justice M’bai then read out the charges filed against the accused persons.
The offences which the accused persons are charged with are specific intent offences, the judge said adding: “Both the actus and mens rea must be sufficiently established. For there to be a prima facie case is to require the accused enter defence.”
According to trial judge, section 24 (3) (a) of the 1997 constitution guarantees the presumption of innocence until proven otherwise. “The facts in this case show that, this is purely a civil matter. Money borrowed was not paid. At the time of borrowing there is no evidence to show that either the accused had the intention to defraud or cheat the complainant as alleged in count one and three. There is no evidence that was pointed by the prosecution witnesses, and having gone through numerous exhibits tendered in this case, I have not found any material evidence sufficient to require the accused persons to enter their defence on any of the offences charged,” Justice M’bai ruled further.
“Having gone through the testimonies of all the five prosecution witnesses and having gone through the numerous exhibits tendered in this case, I haven’t found any tangible evidence which can compel the accused persons to enter their defence. The elements of “false pretence” and “with intent to defraud” have not been established. When A borrows B some money and he fails to pay as promised, A can bring in a civil action against B to recover his money. Can the failure of B to pay A as promised amount to any criminal offence? I think not.”
Adding: “Even where A persuaded B to invest in a business venture which did not turn out as promised by A, in the absence of any evidence of intention to defraud, no offence is committed. I have considered the briefs filed by both counsel in this matter with particular evidence to the offences charged and the entire evidence led by the five prosecution witnesses, to require the accused persons or either of them to enter defence on any of the offences charged would amount to reversing the resumption of innocence as guaranteed under 24 (3) of the 1997 Constitution of The Gambia.”
The trial judge therefore, acquitted and discharged the accused persons based on the no- case submission filed by the defence in pursuant to section 166 of the criminal procedure code cap: 10 volume 3, revised laws of the Gambia 2009.
It could be recalled that state Prosecutors accused Muhammed Jabbie and Firyal Farage of conspiring on diverse dates between the months of April and September 2010, at Kanifing and other places, to obtain US$216, 000 from Mustapha Dibbasey Fadia by false pretence, and with intent to defraud.
According to the particulars of offence on count two, Muhammed Jabbie and Firyal Farage, on 20th September 2010 at Kanifing in the Kanifing municipality, by false pretence and with intent to defraud overstated the value of the assets of Zygot Oil Company Limited to Mustapha Dibbasey Fadia, which the accused persons knew to be false and induced him to deliver to the accused US$216, 000 for shares worth D450,000 only, and thereby committed an offence.
The particulars of offense on count three stated that Muhammed Jabbie and Firyal Farage, on 20th September 2010 at Kanifing in the Kanifing municipality, by fraudulent trick, overstated the value of the assets of Zygot Oil Company Limited to Mustapha Dibbasey Fadia and induced him to pay to the accused US$219, 000 for shares that were worth D450,000 only, and thereby committed an offence.
Author: Baba Sillah]]>