27.2 C
City of Banjul
Thursday, December 2, 2021

The State v Yankuba Touray

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By an information dated and filed on the 1st day of July 2021, the Accused person is charged on a single count of murder contrary to section 187 of the Criminal Code Cap. 10:01, Volume 3, Laws of The Gambia. The particulars of offence alleged is that Yankuba Touray sometime in the month of June 1995 at Kololi in the West Coast Region of The Gambia within the jurisdiction of this Honourable Court and with malice aforethought caused the death of one Ousman Koro Ceesay by beating him with a pestle-like and other dangerous weapons thereby committing an offence.

On the 8th day of July 2019, the Accused person was arraigned before this Honourable Court and he pleaded constitutional immunity to the single charge of murder levelled against him and this Honourable Court entered a plea of not guilty.

To discharge the burden of proof required in this case, the prosecution called nine (9) witnesses and tendered the following documents into evidence as prosecution exhibits, namely:

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1.         Exhibit “A” – Voluntary statement of Yankuba Touray;

2.         Exhibit “B” – Cautionary statement of Yankuba Touray;

3.         Exhibit P3 – A Post – Mortem Report (Photocopy); and 

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4.         Exhibit P3(a) – A Post – Mortem Report (Original Copy)

During the course of the prosecution’s case, the Defence counsel tendered the following documents into evidence as defence exhibit, namely:

1.         Exhibit D1 – Witness statement of Ensa Mendy (Pw2) dated the 2nd July 2019;

2.         Exhibit D2 – Witness statement of Ensa Mendy (Pw2) dated the 5th of July 2019;

3.         Exhibit D3 – is the official manuscript of Ensa Mendy (Pw2) at the Truth, Reconciliation and Reparations Commission (TRRC) dated the 28th of March 2019;

4.         Exhibit D4 – Witness statement of Pa Abibu M’Baye (Pw5) dated 11th of October 2019;

5.         Exhibit D5 – Certified copy of the record of proceedings in case number HC/184/19/CR/025/AO between: The State vs. Yankuba Touray & Fatoumatta Jahumpa Ceesay;

6.         Exhibit D6 – Certified true copy of the witness statement of Alhagi Kanyi (Pw6) dated the 7th of March 2019 and

7.         Exhibit D8 – is the official manuscript of Alagie Kanyi (Pw6) at the TRRC dated the 28th of February 2019.

Following the closure of the prosecution’s case, the Defence entered a no case submission and it was heard and determined. This Honourable Court on the 10th day of June 2019, dismissed the no case submission and called upon the Accused person to enter his defence. Consequently, the Accused person opened his defence and called two witnesses, namely: Awa Minteh as Dw1 and Mamie Minteh as Dw2 respectively. After the conclusion of the testimonies of the two defence witnesses, the Accused person thereafter testified as Dw3. During the course of his testimony, the Defence Counsel on the 12th day of October 2020, made an oral application for this Honourable Court to discharge the Accused person on the ground that the Accused as a Junta or Council member of the Armed Forces Provisional Ruling Council (AFPRC) from the period of 1994 to 1997 and pursuant to paragraph 13(1), (3), (4) and (5) of the Second Schedule of the 1997 Constitution of The Gambia, the Accused Person enjoys immunity from such prosecution. Following the said application, this Honourable Court on the 2nd day of November 2020 pursuant to section 127(1) of the said Constitution referred to the Supreme Court of The Gambia the following question for its determination:

“Whether the Accused person is entitled to Constitutional Immunity from prosecution of the murder of Ousman Koro Ceesay pursuant to paragraph 13(1), (3), (4) & (5) of the Second Schedule of the Constitution of the Republic of The Gambia, 1997?”

On the 27th day of January 2021, the Supreme Court of The Gambia ruled that the Accused Person is not entitled to Constitutional Immunity from prosecution of the alleged murder of Ousman Koro Ceesay pursuant to paragraph 13(1), (3), (4) and (5) of the Second Schedule of the 1997 Constitution of The Gambia. The Supreme Court accordingly directed this Honourable Court to proceed with the trial of the Accused Person as charged. After the ruling of the Supreme Court, the Accused Person continued giving evidence and thereafter closed its defence.

Summary of the prosecution’s evidence 

Pw1 – sworn on the Koran in English language and testified that his names are Bubacarr Jamanka, a police officer attached to the Criminal Investigation Department. He recognizes the Accused person in the dock and testified that on the 28th day of June 2019, he was instructed by his Divisional Crime Officer to join his colleagues at Kairaba police station, where a pane was set. It is his testimony that upon joining his colleagues, they went to the Anti-Crime Unit where they found the Accused person and obtained cautionary and voluntary statements from him. He testified that before obtaining the cautionary and voluntary statements, he read the cautionary wordings and the particulars of the offence to the Accused person and his response was that he was invoking his constitutional immunity and did not give any statement to that effect and he also refused to sign the said cautionary and voluntary statements. The voluntary statement was admitted into evidence and marked as Exhibit “A” and the cautionary statement was marked as Exhibit “B” respectively.

            Under cross-examination, he maintained that he was part of an investigation team and stated that he advised the Accused person that he has the right to call his lawyer and in fact one of his officer called Yerro Saidy called the Accused person’s lawyer but he did not pick the phone. He Denied that he violated the Accused person’s right when he was obtaining statement from him.

Pw2 – sworn on the Holy Bible in English Language and testified that his names are Ensa Mendy from Brikama Town and was enlisted in the Gambia National Army on the 7th day of May 1990 and left in 2001. He recognizes the Accused person in the dock and testified that he was the Accused person’s personal body guard and orderly from August 1994 to 2001. It is his testimony that in June 1995, the Accused Person was the Minister for Local Government and Lands. On 23rd day of June 1995, he went to work with the Accused person, where the Accused informed him that the Chairman of the AFPRC and head of State will be travelling to Ethiopia in the evening and they went to the Accused person’s home and had lunch. After lunch, they later went back to the State House where Council members went in for a meeting with the Chairman, which lasted for almost an hour. He testified that when the Accused came out of the meeting, it was time to depart from the airport and the Accused person asked him and the driver Lamin Ndure (Pw4) to go back home and that he will join another Council member’s vehicle. He testified that went home and that was around 6pm to 7pm. It is his testimony that whilst at home, he received a call from the Accused person informing him that he should go on patrol with the home guards around B. B. hotel area, near the beach as there was a threat in that area. He testified that he went with some of the guards but could not remember their names because they usually change home guards every week, however, he remembers the guard commander Corporal Jangum (now a Captain in the Army) and one private Lamin Bojang. He testified that as ordered, they went on patrol but they did not see anything and they called the Accused person, but the Accused told them to continue the patrol until he gave orders for them to return to the residence. He testified that as they were on the beach patrolling, the accused called them to return to the residence and upon his return home at late night (between 1am to 2am), he saw the accused in the sitting room, going into his bedroom and close the door. He testified that from his door, he could see that the floor of the house was wet with water and muddy and he proceeded to the sitting room and it was all muddy. He further testified that he saw the Accused uniform, a green fatigue placed on the ground and saw a burnt around the side pocket. He said to himself that something must have happened here and he went to bed.  He testified that the following day, they went to work and heard rumors that the Minister of Finance, Ousman Koro Ceesay has been killed and some saying he was killed at the Residence of the Accused person. He testified that he was not part of his duty as a body guard to the Accused to be deploy for patrol at the beach side or any other place and after this patrol, he was never asked or instructed to go on patrol by the Accused person during the period he served as a body guard to the Accused.

            Under cross-examination, he maintained that he was an orderly and bodyguard to the Accused person and he was given an arm to protect him. His witness statements of the 2nd of July 2019 and 5th July 2019 were admitted into evidence and marked as Defence exhibit D1 and D2 respectively. He denied that he was instructed by the Accused to leave State House between 9pm to 10pm and could not say that the Accused killed the deceased. He further maintained that when he received a call from the Accused, he informed the Guard Commander Corporal Jangum that there is a threat around B. B. hotel area and they went on patrol, but they left before Corporal Jangum and during the patrol he did not see or communicated to Jangum. He admitted of having an Analogue Nokia Mobile Phone from Gamtel and he used to communicate with others. The manuscript of his testimony from the TRRC was admitted into evidence and marked as defence Exhibit D3 and denied that his testimony in court and at the TRRC are different. He maintained that the living room was wet and muddy.

Pw3 – sworn on the Holy Quran in English Language and testified that his names are Amat Jangum, a military officer with a rank of Major. He recognizes the Accused person in the dock as a former member of the Military Junta and he used to go on guard duties at his residence. It is his testimony that in June 1995, whilst on duties at the residence of the Accused person as Guard Commander, the former Chairman of the AFPRC, Captain Yahya A. J. J. Jammeh was travelling at night. He testified that he was at his guard post and the wife of the Accused called Mamie Minteh called and told him that to answer to a phone call that the Accused wanted to talk to him. Then he went to the sitting room where the landline was and received the call and it was the Accused who was on the line. He testified that the Accused said to him that there is a birthday party at Edward Singhateh’s residence and that he is sending a vehicle and should take all his family members to Edward Singhateh’s residence and dropping the family, he should go on patrol with his men to the beach because they have got information that there is a boat coming with arms and ammunitions. He testified that after dropping the Accused person’s family at the residence of Edward Singhateh, he went back home and picked his guards and went on patrol on the beach near B. B. Hotel as ordered. He testified that they patrolled the beach for a long time and it started raining and he told his men to go back home. He testified that when they went back to the residence of the Accused, they saw vehicles parked outside the residence and they entered inside and before he reached the Guardroom, he saw Edward Singhateh standing in a Military Uniform and they exchanged greetings and he ordered them to go back and continue their patrol. He testified that they returned back and continued their patrol until very late at night and they returned again to the residence of the Accused and the vehicles were no longer parked there. He testified that he knows that Ousman Koro Ceesay is death and it was the Accused wife Mamie Minteh who showed him a newspaper where it is stated that Ousman Koro Ceesay died in a car accident. He testified that he later heard from Freedom Radio from Ebou Jallow (the former AFPRC Spokesperson that Ousman Koro Ceesay was killed in the Accused person’s house and that the resident guards were fooled.

            Under cross-examination, he stated the him and Lamin Ndure (Wo2) were in the vehicle that the Accused family to Edward Singhateh’s residence. He remembered going on patrol with Lamin Bojang but could not remember Ensa Mendy and the other guards. He denied that Lamin Bojang went on patrol with Ensa Mendy. He maintained that the saw Edward Singhateh at the residence of the Accused person standing outside smoking. He further maintained that the day of the patrol was the day the Chairman was travelling outside the country.

Pw4 – sworn on the Holy Quran in Mandinka Language and testified to the effect that his names are Lamin Ndure, a member of The Gambia Armed Forces and in the year 1995, he was the driver of the Accused person.  He testified that he knew the deceased as a former Minister in 1995. He testified that the deceased died in 1995. It is his testimony that he left the State House with Ensa Mendy (Pw2), the orderly to the Accused person and went to the Accused person’s residence and met the Guard Commander called Jangum (Pw3). He testified that upon arrival at the Accused residence, Amat Jangum informed him that the Accused person has instructed that they should take his family to Edward Singhateh’s residence which they did and later drove Amat Jangum to beach for patrol. He testified that when he returned from beach patrol, he found vehicles parked at the residence of the Accused and he then went out to see his friends. He testified that upon his return to the residence, he did not find those cars there again and he went inside the house and did not find anybody and the house was messy with bad odour. He testified that the following day he heard on the radio that koro Ceesay died in a car accident and later heard rumors that the Junta had knowledge about Koro’s death.

            Under cross-examination, he admitted that he was residing at the Accused person’s residence, together with Ensa Mendy, and Jali Musa Sowe. He stated that when he returned to the resident he did not find anybody at the guard post and did not see any one in the house. He further stated that he brought back the family to the Accused residence and the smell of the house was not welcoming.

Pw5 – sworn on the Holy Quran in English Language and testified that his names are Pa Abibu M’Baye from 128 Mosque Road, Serrekunda and a retired police officer. He recognizes the Accused person in the dock and knows the deceased Koro Ceesay and he died in June 1995. It is his testimony that as of June 1995, he was the Crime Management Coordinator (CMC) of The Gambia police force. He testified that sometime in June 1995, at around 1am whilst in bed, he received a called from one Mr. Cham from Sukuta who told him that a black Mercedes Benz those allocated to the Ministers passed him followed by a Land Rover that looks like Edward Singhateh’s Range Rover and that he did not know what these vehicles were doing at that night and that is why he called him. He testified that the following morning he went to work and there was information going viral that the Finance Minister (the deceased) was killed. He testified that there was also information that the said Finance Minister was involved in an accident.  It is his testimony that as the CMC, it was his duty to lead in any investigation of serious or major crime and he began his investigation going to the airport and later went to the alleged accident scene, where he found the deceased car was burnt and inside of the car was almost ashes. He testified that he observed the rear number plate of the deceased car and it was detached and went round the vehicle and observed that the vehicle was also attached to a bridge slab edge and there was little dent on the vehicle.  He testified that there was no remarkable dent on the car and he left the alleged accident scene went to his office. He testified that he was at the post mortem of the deceased at the mortuary, where he found Peter Singhateh and observed that his right hand was bandaged. He testified that he said in loud voice that what happened to Ousman Koro Ceesay was a foul play and upon his return to his office, the Inspector General of Police called and told him to answer to the Accused person at his office. He testified that after some weeks, he was told that his service was no longer needed and that he should go home. Few days later whilst at home he received a dismissal letter, which stated that it was an Executive Directive that his service was terminated from The Gambia Police Force. A copy of the post mortem report was admitted through him and marked as prosecution Exhibit P3.

Under cross-examination, his witness statement was admitted into evidence and marked as Defence Exhibit D4. He maintained that his evidence in chief and his witness statement are consistent.

Under re-examination, he maintained that he normally briefs the IGP when investigations are closed.

Pw6 – sworn on the Holy Quran in English Language and testified that his names are Alagie Kanyi, a former member of the Gambia Armed Forces. He recognizes the Accused person in the Army as AFPRC Council member and also know the Deceased (Ousman Koro Ceesay) as the former Minister of Finance in the year 1995 when he died. He testified that sometime in June 1995, they (BK Jatta, Tumbul Tamba and Pa Alieu Gomez) were taken to the residence of Edward Singhateh at Cape Point, Bakau. He testified that he together with Edward Singhateh and Peter Singhateh and all of them joined various cars and drove to the house of the Accused Person at Kerr Serign. It is his testimony that upon arrival at the house of the Accused Person, they met the Accused person and none of the Accused person’s family and home guards were at the house. He testified that they entered inside the house of the Accused and they were briefed by Edward Singhateh that they were going to get rid of one Minister called Ousman Koro Ceesay (the deceased). He testified that Edward Singhateh told him that the deceased did not know him and asked him to wait at the gate to receive them and the Deceased. He further testified that Edward Singhateh and the others left for the airport to see off the President. He testified that upon their return from the Airport, Peter Singhateh was the first person to reach the house of the Accused Person and Edward Singhateh arrived with the Deceased and then Edward signaled to him that the Deceased was the Minister. Alagie Kanyi further testified that he saluted the Deceased and led him into the house of the Accused Person. According to Alagie Kanyi, as he entered the house of the Accused Person with the Deceased, he heard a sound of a noise hit from the back similar to someone being hit. He testified that as he turned back to see what was happening, he saw Peter Singhateh hit the Deceased again. He testified that the Deceased had already fallen on the floor and Edward Singhateh also hit him. According to Alagie Kanyi, Edward Singhateh gave him the stick he used and as he turns around, he saw the Accused person, Pa Alieu Gomez, BK Jatta and Tumbul Tamba and he hit the deceased. He testified that he saw the Accused person took a stick and hit the Deceased. Alagie Kanyi further stated that all of them were involved in hitting the Deceased to death. According to Alagie Kanyi, after hitting the Deceased with a stick and he died, they were ordered by Edward Singhateh to put the body of the Deceased in the official car of the Deceased, on the passenger front seat. Pw6 further testified that him, B.K. Jatta, Pa Alieu Gomez and Tumbul Tamba later went back to the house of the Accused Person and cleaned the blood from the house of the Accused Person. Alagie Kanyi stated that as they finished cleaning the house of the Accused Person, they came out but did not find the cars there and did not know where they went. Pw6 testified that the following day, they heard rumors that one Minister’s car summersaulted around Jabang village and it got burnt. He testified that as they were in the camp, he saw Peter Singhateh’s hand was burnt and covered by his uniform and nobody had the courage to tell what Peter.

Under cross-examination, his evidence was not controverted. He maintained his evidence that he went to the house of the Accused Person and that’s where the Deceased was killed. He maintained that upon arrival at Edward’s residence, he met Edward and Peter but did not know the exact time but it was around 8pm onwards. He maintained that he was at the Accused resident on the day in question upon arrival at the Accused resident, he met the accused but there were no guards and no family members. He maintained that they all participate in beating the deceased to death in the Accused person’s house. The certified record of proceedings in the case between the State vs. Yankuba Touray & fatoumatta Jahumpa Ceesay was admitted into evidence and marked as defence Exhibit D5 and the witness statement of Alagie Kanyi was admitted into evidence and marked as defence Exhibit D6. The transcribed copy of the oral testimony of Alagie Kanyi at the TRRC was admitted into evidence and marked defence Exhibit D8.

Pw7- sworn on the Holy Quran in English language and testified that his names are Muhammed L. K. Bojang (CRG), the Chief of Kombo North District and is a retired Police Officer. He stated that he knew both the Accused Person and the Deceased as Ministers in The Gambia in 1995. He also testified that the Deceased died in June 1995. He testified at in June 1995 as Commander of the CID of the Police he received information that the Deceased was involved in an accident along the Sukuta-Jambur Highway. He stated that he visited the said accident scene at the time that the body of the Deceased was removed and taken to the RVTH hospital in Banjul. He further testified that he observed that the car of the Deceased had no dent and did not summersault as it was been rumored. He further testified that he took out the number plate of the car and took it with him and Registration Number of the deceased vehicle was GG 1328A and it was a Black Mercedes Benz. He also stated that he waited for instructions from the Inspector General of Police for the matter to be investigated and he received no such order from the Inspector General of Police and case was never investigated.

Under cross examination, the evidence of PW7 was not controverted by the Defence. He stated that he was not aware of any coroner inquest was carried out.

Pw8 – sworn on the Holy Quran in English Language and testified that his names are Dr. Abdoulie Badjan, a Medical Doctor and the Head of Department of Pathology at the Edward Francis Small Teaching Hospital. He testified that he knows Dr. Oldfield, a Pathologist, whom he had met in 2007. He testified that Dr. Oldfield is now deceased and he prepared Exhibit P3, a post mortem report. The original copy of Exhibit P3 was admitted into evidence and marked as Exhibit P3(a).

Under cross-examination, there was no question.

Pw9 – sworn on the Holy Quran in English Language and testified that his names are Dr. Sanna Ceesay, a Medical Doctor and a cousin of the Deceased. He testified that the Accused was last seen in June 1995. He further testified that they all belief that the deceased died the night of Friday, 23rd day of June 1995 and they came to know about it on the 24th of June 1995 as one Police Inspector Mbaye informed them that the deceased vehicle was found burnt by Jambur. He further testified that the Deceased had no family relatives that he would visit around Jambur end as at 1995.He testified that the deceased car was burnt through intense heat and it turns white. He testified that he saw the Accused person at the funeral of the deceased. 

Under cross-examination, he admitted that he is Dr. Sanna Ceesay referred to in Exhibit P3(a) and denied that a coroner inquest was setup. He admitted that an autopsy was performed by one Dr. Fred Oldfied, a Pathologist and he prepared Exhibit P3(a).

SUMMARY OF THE DEFENCE WITNESS TESTIMONIES

Dw1 – sworn on the Holy Quran in English Language and testified that her names are Awa Minteh and is a sister-in-law to the Accused person. She testified that she knew the Accused Person for a long time because the Accused Person was raised by her father, one Alhagie Tumani Minteh. She stated further that she has been resident with the Accused Person since the Accused Person was resident in their house in Banjul. She testified that in 1995, she lived in the house of the Accused Person in Kerr Serign together with her sister called Mami Minteh (Dw2), Fatoumatta Touray (daughter of the Accused Person), and her other sister, Mariama Minteh, the Accused cousin brother Bakary Touray and the Accused nephew called Adama Touray.  He testified that they were living in the house with the orderlies who were occupation of one room and the home guards were in a converted garage to a room. She stated that one of the drivers of the Accused Person was Lamin Ndure, Pw4. She testified that he has never been to the house of Edward Singhateh alone or with her sisters and niece. It is her testimony that in 1995, she was 10 years old and Lamin Ndure (Pw4) used to drive the Accused to work and them to school and in June 1995, she was at Kerr Serign.      

Under cross examination, she stated that she has a cordial relationship with the Accused Person whom he considers as her father. She also stated that the drivers and the security guards had very cordial relationship with the Accused Person and with such a cordial relationship, there is no reason for the guards to harm the Accused person. She stated that the Accused son Edward Touray was born in December 1995 and the first two orderlies of the Accused were Ensa Mendy (Pw2) and Jalimusa Sowe. She admitted that she knows Edward Singhateh as the Minister of Defence in 1995 and she has never seen Edward Singhateh’s family visits them at Kerr Serign, however, she once saw Edward Singhateh visit their house in Kerr Serign to attend the naming ceremony Edward Touray named after Edward Singhateh. She stated that she saw it in the media that on the 23rd of June, one Ousman Koro Ceesay was found death in his car but never heard that the deceased was killed in their house. She did not know any reason why Pw2 would lie against the Accused person and did not know of any problem Lamin Ndure (Pw4) had with the Accused person and what she saw is that the Accused has excellent working relationship with the guards and orderlies. She admitted that she will anything to protect the Accused person.

Dw2 – sworn on the Holy Quran in Mandinka Language and testified that her names are Mamie Minteh Touray and the wife of the Accused Person. She testified that in the whole of 1995 she did not go to the house of Edward Singhateh as she was pregnant at the time. She testified that, the Accused person, herself, Awa Minteh (Dw1), Fatoumatta Touray, Jainaba Kujabi, Maimuna, Adama Touray, Bakary Touray, Ensa Mendy, Jali Musa Sowe and S. Bah were living in the house of the Accused person in Kerr Serign in house of the Accused Person from the 1st of January 1995 to July 1995. It is her testimony that in 1995, they attended the naming ceremony of Edward Singhate’s child and after visit, she had a bedrest. She testified that in June 1995, the Accused Person told him the morning that the Chairman was traveling out of the country. She testified that the Accused Person asked her to remove his uniform and iron it for him and he would re- iron the uniform by himself again. She testified that the Accused Person returned to the house around 3pm, he had lunch and re-ironed his uniform and had a short sleep. She testified that she gave his shoes to Pw2, who polished them for the Accused person. She testified that on that day Pw2 and Pw4 left the house and it Jalimusa Sowe who was on duty. After the Accused had a short sleep, it was after 6pm and was waiting for Jalimusa Sowe and prepared snacks for the Accused and that was after 7pm prayers. He testified that the Accused said he could no longer wait for Jalimusa Sowe because he has a meeting with his boss and thereafter, he will proceed to the airport. She testified that after the Accused left the house, they were watching Nigerian movies and she was not feeling well. She testified that she did not have any personal relationship with Edward Singahteh’s wife in June 1995. She testified that whilst watching movie, the Accused returned to the house around 12midnight to 1am. She testified that the Accused used to go to Banjul every Saturday morning to play football.  

Under cross examination, she stated that her first male child was named after Edward Singhateh and was born in 1995 and Edward Singhateh the naming ceremony. She testified that she could not remember the name of the Nigerian movies that they were watching when the Accused Person returned to the house from the airport in the night in question. She further testified that she knew of no reason why the prosecution witnesses will have cause to lie against the Accused person and as to the best of her knowledge they had a cordial relationship. She admitted that she would anything to make the Accused person happy because she loves the Accused person very much.

Dw3 – is the Accused person and he sworn on the Holy Quran in English Language and testified that his names are Yankuba Touray and in June 1995 he was a member of the AFPRC and a Minister for Local Government and Lands. He testified that in June 1995, Pw2 and one Jalimusa Sowe were his orderlies but not his body guard. It is his testimony that Pw4 was his official drive in June 1995 and he denied that he sent Pw2 to Pw4 to his house on Friday. He testified that in June 1995, he went for the usual Friday prayers at the King Fahad Mosque in Banjul. He further stated that after the Friday Prayers, he picked his children from school and went home with them to Kerr Serign. According to the Accused Person, when he reached his house with his driver and orderly (PW2 and PW4), he gave them fares to go home for the weekend as he will drive himself to the airport. He further testified that he ate lunch, slept for some time and later went to the State House to meet Chairman Jammeh. The Accused Person further testified that after he finished meeting with the said Chairperson Jammeh, the Chairman asked him to drive with him to the Airport. The Accused Person further testified that after Chairperson Jammeh departed, he joined the Chairman’s car with his driver, one Pa Malang with whom he drove back to the State House. According to the Accused Person, he arrived at the State House around 12 Midnight. He stated that after alighting from the Chairman’s car, he had a little chat with the then State Guard, Captain Lang Tombong Tamba. According to the Accused Person, he left the State House and drove his car to his residence at Kerr Serign where he arrived between 12am to 1am. The Accused Person further stated that when he reached home he found his wife watching TV with other people. He stated that he went inside his house and reprimanded his orderly, Jali Musa Sowe, who came to work late on that day. He denied that he knows Amat Jangum and further denied instructing Jangum and others to abandoned their post and denied killing Koro Ceesay.

Under-Cross Examination, the Accused Person in response to questions from the prosecution confirmed that he had a jovial relationship with the PW2, PW3, PW4. He further confirmed that he knew of no reason why all three of his former subordinated will choose to falsely testify against him. He admitted that Ensa Mendy was his orderly and Lamin Ndure was his official driver. He maintained that he returned to the State House with Pa Malang from the airport. He admitted that he was a member of AFPRC when Koro Ceesay was murdered and cannot remember whether the AFPRC conducted an investigation in the murder of Koro Ceesay. He admitted that he had rumor of the death of Ousman Koro Ceesay. He admitted on Friday 23rd June 1995, he picked his children from school together with his orderly and driver. He admitted that the communication between his guard commander, duty sergeant and platoon commander was by way of walkie talkie. He denied that he participated in the murder of Ousman Koro Ceesay at his residence.

The Defence closed their case with Dw3 and with the consent of the respective counsel for the defence and the prosecution, written briefs of arguments were ordered. Counsel for the Defence filed their brief on the 17th day of May 2021 and the Prosecution filed their brief on the 9th of June 2021. Defence Counsel waived his right to file a reply on points of law.

Counsel for the Defence in his brief of argument formulated one issue for determination and that is whether the prosecution has established the offence of murder against the Accused beyond reasonable doubt. It is the submission of Defence counsel for a conviction to be secured: death must occur; the Accused was the murderer and the Accused acted or omitted to act with malice aforethought. Defence counsel relied on the case of BATCH SAMBA FAYE v THE STATE (2001-2015) GSCLR 37 and section 190 of the Criminal Procedure and section 141 of the Evidence Act, 1994. Defence Counsel refers this Court to the case of WOOLMINGTON vs. DPP (1935) AC 462 and the case of UDOSEN v THE STATE (2007) 29 NSCOR. It is the submission of the Defence Counsel that Exhibit P3 and P3a is the finding of the pathologist created a doubt as to the cause of death of the deceased. Defence Counsel argued that the oral testimonies of Alagie Kanyi and Dr. Abdoulie Badjan cannot be conclusive piece of evidence that this court can rely on as a fact that the deceased died. It is the submission of Counsel for the Defence that the only piece of evidence as to the cause of death of the deceased is the oral testimony of Pw6 and argued that the prosecution failed to prove the case beyond reasonable doubt as the alleged murder weapon was never tendered into evidence as exhibit. Defence Counsel relies on a plethora of cases and submitted that the prosecution failed to prove its case against the Accused person and humbly urged this Honourable Court to acquit and discharged the Accused person.

Counsel for the prosecution in his brief of argument formulated three issues for determination and they are as follows:  

i.          Whether the evidence of PW6, an accomplice, has been corroborated by other evidence which could warrant this Honorable Court to convict the Accused Person.

ii.         Whether the Prosecution has proven the charge of murder beyond reasonable doubt against the Accused person?

iii.        Whether the Accused Person properly raised the defence of alibi in this case? If so, whether he is entitled to the defence of Alibi?

With regards to their first issue, Counsel for the Prosecution relies on section 181 of the Evidence Act and the case of COLONEL LAMIN BO BADJIE & 6 ORS V THE STATE (2010-2012) GSCLR 543 at page 570 and submitted that the evidence of PW6 is relevant and reliable for the purpose of proving the elements of the offence with which the Accused Person stands charged. The prosecution argued that the testimonies Ensa Mendy, Amat Jangum, Lamin Ndure, Pa Abibu M’Baye and Muhammed L.K. Bojang are consistent with the testimony of Alagie Kanyi.

With regards to their second issue, it is the submission of the prosecuting counsel that the prosecution has proved the charged of murder beyond reasonable doubt. The Prosecution argued that it is a notorious fact that the deceased is death and that both all the prosecution witnesses and the defence witnesses acknowledged it. The Prosecution submitted that it is not in dispute the death of human being has taken place and refers this Court to the testimony of Alagie Kanyi where he testified that the Accused Person and him were among the group of men who beat the Deceased with a stick in the house of the Accused Person until he died. The prosecution refers to a plethora of case law authorities and submitted that the Prosecution has proved the charge of murder beyond reasonable doubt against the Accused person.

With regards to their third issue, the prosecution submitted that the plea of alibi is not available to the Accused person. It is their submission that the Accused person only raised the plea of alibi in court, precisely during his examination-in-chief. The Prosecution argued that the Accused did not raise the plea of alibi with the Police when he was confronted by the police in relation to the allegation contained in the Information in this case. The Prosecution argued that the Accused refused to speak to the police and simply invoked ‘constitutional immunity’ that never was. The prosecution refers this court to Exhibit A, the cautionary statement.

Counsel for the prosecution submitted that this Honourable Court will note from Exhibit A, the Cautionary Statement of the Accused person, that the Accused made no mention of his whereabouts on the 23rd June 1995 around 9pm or thereabout when the offence was committed.

It is our submission that the duty was on the Accused Person to inform the police about his whereabouts in the light of the allegations made against him. It is the submission of the prosecution that the Accused person by failing to inform the Police at the earliest opportunity when he was arrested, deprived the Police of the opportunity to further investigate the alibi to ascertain its truth or falsity. Thus, failure of the Accused Person to raise the plea of alibi timely and properly warrants same to be rejected and relied on plethora of cases within and outside the jurisdiction. Counsel for the Prosecution urge this Honourable court to find that Accused person guilty of the murder of Ousman Koro Ceesay and sentence him according to section 188 of the Criminal Code. 

I have carefully listened to the oral testimonies of the Prosecution and Defence witnesses adduced during the trial and have read in detail the respective written briefs of arguments filed herein.  In as much as I have looked at the testimonies in details, I have also read the written briefs of arguments with great interest.  In order to ensure fairness, I will only limit my comments, my observations, and my findings to as it relates to the charge of murder, contrary to section 187 of the Criminal Code, Cap 10:01, Volume 3 Laws of The Gambia. I believe for proper determination of the alleged murder of Ousman Koro Ceesay, the prosecution raised three (3) issues and these issues encompassed the lone issue raised by Defence Counsel in his brief of argument. I shall therefore adopt the three (3) issues as mine as follows:

1.         Whether the evidence of Alagie Kanyi, an accomplice, has been corroborated by other evidence which could warrant this Honorable Court to convict the Accused person.

2.         Whether the Prosecution has proved the charge of murder beyond reasonable doubt against the Accused person?

3.         Whether the Accused Person properly raised the defence of alibi in this case? If so, whether he is entitled to the defence of Alibi?

With regards to the first issue as to whether the evidence of Alagie Kanyi, an accomplice, has been corroborated by other evidence which could warrant this Honorable Court to convict the Accused Person is a fundamental issue in this murder trial. The principle of law in this jurisdiction is that an accomplice is a competent witness against an accused person and for clarity I hereunder reproduce section 181 of the Evidence Act 1994, Cap. 6:06, Volume 2, Laws of The Gambia and it states as follows:

“Subject to the express provisions of any other law to the contrary, an accomplice shall be a competent witness against an accused person and a conviction shall not be illegal or reversed or altered on appeal merely because it proceeds upon the uncorroborated testimony of an accomplice.” (Emphasis Underlined).

The import of section 181 of the Evidence Act supra, is that the corroboration of the evidence of an accomplice is not required by law on a crime of murder because section 45 of the Courts Act has been repealed. What is now required is for the court to consider the witness as credible and capable of belief despite him being an accomplice. In the book, “The Law of Evidence” Revised Second Edition 2016 by Hassan B. Jallow at page 216 define an accomplice as “a participis criminis, i.e., a partner of the accused person in the commission of the crime  with which the accused is charged”. The Learned author and eminent jurist further states that  “prosecuting authorities within the common law jurisdiction often resort the use of accomplice as witnesses in situations where it would be otherwise difficult to prove the case. From the foregoing, an accomplice is certainly a person that participates in a crime for which the Accused now stand in Court is being tried and if he is tried with him on the same evidence, he would equally be guilty with the Accused being tried. In law an accomplice is a competent witness against an Accused person and conviction based on the evidence of such accomplice is not illegal, even where such evidence is not corroborated. It is up to the trial Judge to make sure that he or she weighs seriously such uncorroborated evidence of an accomplice before convicting on it. In the Gambia Supreme Court case of COLONEL LAMIN BO BADJIE & 6 ORS V THE STATE (2010-2012) GSCLR 143 at holding 6, held as follows:

“An accomplice has always been a competent witness and the uncorroborated evidence of an accomplice is admissible in law.”

It is the testimony of Alagie Kanyi that he is an accomplice to the crime which the Accused is charged with. Alagie Kanyi gave extensive evidence on how they (himself, Edward Singhateh, Peter Singhateh, BK Jatta, Tumbul Tamba, Pa Alieu Gomez, and Yankuba Touray (the accused) beat the Deceased Ousman Koro Ceesay with a pestle and other objects in the house of the Accused Person at Kerr Serign until the Deceased died. This evidence has not been materially contradicted or controverted under cross-examination. Alagie Kanyi also gave evidence that he took part in putting the body of Ousman Koro Ceesay in his official vehicle on the instructions of Edward Singhateh. From this evidence, I therefore hold as fact that Alagie Kanyi is an accomplice to the murder of Ousman Koro Ceesay and is therefore a competent witness.

I have carefully perused the testimony of Alagie Kanyi under cross-examination and there is nothing before this court which impedes Alagie Kanyi being an accomplice and a competent witness. In my view, Alagie Kanyi is a credible witness and his evidence is relevant, reliable and admissible for the purpose of establishing the ingredients of the offence with which the Accused Person stands charged. As per Section 181 of the Evidence Act, a conviction cannot be reversed on appeal simply because it was based on the uncorroborated evidence of an accomplice.

Notwithstanding the fact that an uncorroborated evidence of an accomplice is admissible, I shall however proceed to evaluate the evidence of Alagie Kanyi and find out whether it has been corroborated or not. Section 179 of the Evidence Act defines corroboration as follows:

“Corroboration consists of independent evidence from which a reasonable interference can be drawn which confirms and supports in some material particular the evidence to be corroborated and connects the relevant person with the offence, claim or defence.”(Emphasis underlined).

As to the definition of corroboration, the Supreme Court case of LT. GENERAL LANG TOMBONG TAMBA VS THE STATE (2014-2015) GSCLR 221 AT 230 also defines corroboration in terms of Section 179 (supra) which states as follows:

“From the definition it can be discerned that the corroborating evidence must be independent; and in this context it means it must be distinct and separate and does not rely as a source on the evidence that it corroborates as the contrary may amount to self-corroboration. Further the corroborating evidence must confirm or support in some material particular the evidence to be corroborated. I understand this to mean that the corroborating evidence must be relevant and logically relates to and connects the relevant person with the offence. Finally, the corroborating evidence connects the relevant person with the offence, if it tends to point to or implicate the relevant person in the commission of the offence.”

In our instant case, Alagie Kanyi gave evidence that when they arrived at the residence of the Accused person in Kerr Serign, the place was empty. That is, the guards on duty at the residence of the Accused Person were not there as well as his family. This piece of evidence is supported by the evidence of Ensa Mendy, Amat Jangum and Lamin Ndure that the Accused Person had instructed Amat Jangum for his family to be removed from the residence and taken to the residence of Edward Singhateh where a party was organized. Ensa Mendy and Lamin Ndure both testified that before the departure to the airport, the Accused Person asked them to return to his house with his official vehicle while he departed for the airport in another vehicle. Additionally, Amat Jangum gave evidence that he was further instructed by the Accused Person to go on a patrol at the beach with the guards at his residence. Amat Jangum gave evidence that after taking the Accused Person’s family to the residence of Edward Singhateh, Lamin Ndure took him and the guards to the beach for patrol. Lamin Ndure stated that when he returned to the house of the Accused Person after dropping Amat Jangum and the guards, he found a lot of cars parked outside. He said that he did not enter in the house but simply went to a friend’s house where he spent some time but upon his return to the house, the cars were gone. Amat Jangum also testified that after the patrol they returned to the house of the Accused Person but he met with Edward Singhateh inside the compound and the said Edward Singhateh asked him to go back on the patrol at the beach. He testified that he found cars parked outside of the residence of the Accused Person. It is the evidence of Lamin Ndure that when he entered the house of Accused Person, the place looked messy and had an odor inside. Ensa Mendy similarly testified that upon return from patrol, the floor of the house was wet and muddy.  In my opinion, the evidence Ensa Mendy, Amat Jangum, Lamin Ndure supports the testimony of Alagie Kanyi that after hitting the Deceased with pestle, there was blood all over the house of the house of the Accused Person and that they were instructed to clean the house.

The charred remains of the Deceased were found in his official car, which was also burnt to ashes, along the Sukuta-Jambur Highway. I must say that all the prosecution witnesses gave evidence to support this piece of evidence. Alagie Kanyi’s evidence shows that the Accused person, Peter Singhateh and Edward Singhateh left with the body of the Deceased in his official vehicle and the only reasonable conclusion that may be inferred from this evidence is that the said vehicle and the body of the Deceased were disposed of along the Sukuta-Jambur Highway by the Accused Person, Peter Singhateh and Edward Singhateh. Pa Abibu M’Baye, the Crime Management Coordinator at the time gave evidence of receiving information from one Mr. Cham an informant from Sukuta that the car of a minister and a Land Rover resembling that of Edward Singhateh was seen along that highway at around 1am in the morning of 24th June 1995. Muhammed L. K. Bojang, was a police investigator at the time equally testified before this Court that he visited the scene of the alleged accident and positively identified the vehicle belonging to the former Minister of Finance Ousman Koro Ceesay and even took out the number plates. The above testimonies of Ensa Mendy, Amat Jangum, Lamin Ndure, Pa Abibu M’Baye and Muhammed L. K. Bojang are consistent with the testimony of Alagie Kanyi. I therefore reach the conclusion that the evidence of prosecution witnesses materially corroborated the evidence of Alagie Kanyi and I therefore resolve the first issue to the effect that the evidence of Alagie Kanyi as an accomplice has been sufficiently corroborated in this trial. 

With regards to the second issue as to whether the prosecution has proved the charge of murder beyond reasonable doubt against the Accused person is the main crux of this trial. It is a cardinal principle that the adversarial system of adjudication in our criminal justice set up is well established that the legal and evidential burden of proving every element of the offence beyond reasonable doubt lies on the prosecution. Although, the prosecution can do so by either direct or circumstantial evidence, the law requires that in either case the prosecution bears the legal burden of proving all the elements of the offence necessary to establish the guilt of the accused beyond reasonable doubt; see the case WOOLMINGTON v DPP [1935] A.C. 426, 461 where Viscount Sankey LC Said:

“Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt subject to …the defence of insanity and subject also to any statutory exception.”

From the foregoing, it is clear that the prosecution must succeed on the strength of its own evidence and not allowed to rely on the weakness of the defence or lies told by the Accused as the basis for a conviction. I therefore hold the strong view that to succeed, the prosecution must lead copious, cogent, compelling and unequivocal evidence which unshakingly points to the Accused person as the man who committed the alleged murder of Ousman Koro Ceesay. The prosecution therefore has the unshifting burden of proving all the ingredients of the offence with which the accused has been charged (see The Gambia Court of Appeal case of MAMADOU JALLOW v COMMISSIONER OF POLICE [1960-1993] GLR 39). Indeed, it was held in the case of JUA v STATE [2010] 2 MJSC 152 AT 170:

“That reasonable doubt which justify an acquittal is a doubt based on reason arising from evidence or lack of it. It is a doubt which a reasonable man or woman might entertain. It is not a fanciful doubt; it is not an imaginary doubt. It is a doubt … where a prudent man will hesitate before acting in matters of importance to themselves” (emphasis added).

On the single count of murder, contrary to section 187 of the Criminal Code, Cap 10:01, Volume III, Laws of The Gambia 2009 and the particulars of offence alleged is that Yankuba Touray sometime in the month of June 1995 at Kololi in the West Coast Region of The Gambia within the jurisdiction of this Honourable Court and with malice aforethought caused the death of one Ousman Koro Ceesay by beating him with a pestle-like and other dangerous weapons thereby committed an offence. I will now proceed to state the law on murder, contrary to section 187 of the Criminal Code, under which Yankuba Touray stands accused and it states that: “any person who of malice aforethought causes the death of another person by unlawful act or omission is guilty of murder”. It must be stressed that the offence of murder is one of the heinous and abominable crimes of our land, that when committed, and the culprit is charged, tried  and found guilty upon all the available evidence presented before the court including his defence thereto, it attracts nothing but a death sentence to the accused. It is in consequence of this that the law itself deeply entrenched the criteria the prosecution must meet before a conviction for murder could be secured. It follows that the prosecution must prove in accordance with section 144 (1) of the Evidence Act 1994 and prove the case beyond reasonable doubt. To secure a conviction of an accused person charged with murder under section 187 of the Criminal Code, the Supreme Court of The Gambia held in the case of BATCH SAMBA FAYE v. THE STATE (2014-2015) GSCLR at 37, that the prosecution has the duty to prove beyond reasonable doubt that: – 

1.         death occurred;

2.         that the accused was the murderer;

3.         that the act or omission of the accused was unlawful and

4.         that the accused acted or omitted to act with malice aforethought.

To sustain a conviction, all the above ingredients must be clearly proved. It is also the duty of the prosecution to prove not only that the act of the accused or his omission could have caused the death of the deceased, but that it actually caused the death. It is not enough therefore to prove that the deceased died or was killed. I shall therefore proceed to examine the ingredients outlined above in sequence as stipulated in the BATCH SAMBA FAYE case (supra).

With regards to the first ingredient as to whether death of Ousman Koro Ceesay (deceased) occurred constitutes the actus reus of the charge. It is trite law that proof of a murder case can either be by direct or circumstantial evidence that a human being was killed and his or her death is caused by someone with malice aforethought. During the course of trial, the prosecution witnesses gave evidence that the Ousman Koro Ceesay was found death in his car in June 1995 with his body charred beyond recognition. Alagie Kanyi testified that the Accused person and him were among the group of men who beat the Deceased with a stick in the house of the Accused person until he died. He described that the Ousman Koro Ceesay was hit with a stick by Edward Singhateh, Peter Singhtateh, BK Jatta, Pa Alieu Gomez, the Yankuba Touray (accused) and himself. It is the evidence of Alagie Kanyi that he was instructed by Edward Singhateh to put the body of the Ousman Koro Ceesay in his official car, which he did with BK Jatta and Tumbul Tamba. Alagie Kanyi also testified that as they (BK Jatta, Tumbul Tamba, himself) went back to the house of the Yankuba Touray to clean the blood, whereby the Yankuba Touray together with Peter Singhateh and Edward Singhateh went with the body of the Ousman Koro Ceesay in his official car. Pa Abibu M’Baye and Muhammed L. K. Bojang who were both investigating officers led evidence that the body of the Deceased was found in his car along the Sukuta-Jambur Highway alongside a bridge. They both confirmed that the charred body was removed from the Deceased official car and taken to the mortuary in Banjul for examination. Dr. Sanna Ceesay confirmed that as a cousin to Ousman Koro Ceesay, he was present when the said medical examination was conducted on the remains of the Ousman Koro Ceesay. Furthermore, Ensa Mendy, Amat Jangum, Lamin Ndure, Awa Minteh and Mamie Minteh all confirmed that they heard radio announcement of the death of the Ousman Koro Ceesay who was purported to have been involved in an accident with his official car along the Sukuta-Jambur Highway. Even though Exhibit P3a states that the body found in the official car of the Deceased was presumed body of Ousman Koro Ceesay, the said presumption is supported by cogent and compelling evidence before this Honorable Court. Firstly, the evidence of Alagie Kanyi clearly shows that the death body of the Deceased was placed in his official car. He gave evidence also that the said official car of the Deceased was driven away / taken by Edward Singhateh, Peter Singhateh and the Accused Person. Secondly, the evidence of Pa Abibu M’Baye and Muhammed L. K. Bojang shows that the remains which were subject of Exhibit P3a was found in the official car of the Deceased during the material time in question. Dr. Sanna Ceesay, the cousin of the Deceased, also corroborated this fact. Thirdly, the evidence of Pa Abibu M’Baye shows that he was given information by an informant that the car of Edward Singhateh plus a Minister’s car was scene going towards Sukuta-Jambur around 1am in June 1995. The said car description fits the car of the Deceased. The totality of all this evidence and circumstances clearly shows that the body found in the car was that of the Deceased and this I shall hold as a fact.

It is an irrefutable evidence of the prosecution witnesses that the Deceased has died. Dr. Sanna Ceesay has led evidence to the effect that the Deceased since 25th June 1995 has not been seen or heard from. The law in this jurisdiction is that a person shown not to have been heard of for seven years by those who, if he or she had been alive, would naturally have heard of him or her is presumed dead. This principle of law is provided in Section 150(1) of the Evidence Act which provides as follows:

“A person shown not to have been heard of for seven years by those, if any, who, if he or she had been alive, would naturally have heard of him or her is presumed to be dead unless the circumstances of the case are such as to account for his or her not being heard of without assuming his or her death, but there is no presumption as to the time when he or she died, and the burden of proving his or her death at a particular time is on the person who asserts it.”

The Ousman Koro Ceesay has not been heard of nor seen by his family since Saturday 24th June 1995 according to the evidence of Dr. Sanna Ceesay.  The evidence of Dr. Sanna Ceesay was not challenged or contradicted by the Accused Person. Therefore, the Ousman Koro Ceesay not been heard or seen by his family for over two decades can clearly and conclusively be presumed dead in terms of Section 150(1) of the Evidence Act when read together with the evidence of the prosecutions witnesses. Furthermore, and most importantly, there are abundant case law authorities on the issue of corpus delicti in murder cases. The law knows that there are instances and circumstances where an accused person takes measures to destroy the body in order to avoid prosecution or conviction if prosecuted. Accordingly, where there is evidence that a human being was killed by another human being, the latter can be convicted when the body of the former is not found. The important consideration is whether there is nexus between the accused and the killing of the victim to the extent that the court comes to the conclusion that it is the accused who killed the deceased. In BABUGA vs. THE STATE (1996) 7 NWLR (Pt. 460) 279 at 296 Onu, JSC said:

“As a matter-of-fact conviction can properly be secured in the absence of corpus delicti where there is strong direct evidence. It is true that the body of the deceased has not been recovered, but it is settled that where there is positive evidence that the victim had died, failure to recover his body need not frustrate conviction.”

I should add here that an Accused person can also be convicted on strong and compelling circumstantial evidence in the absence of corpus delicti. The evidence need not necessary be direct. I must say that there is enough evidence on record that the body of Ousman Koro Ceesay was burnt to ashes. How then can the corpus delicti be found? The position of the law is to the effect that where there are facts before the Court from which it can be inferred that the body examined by the doctor is that of the deceased, and medical evidence can be dispensed with. The Supreme Court of Nigeria in the case of ABBAS MUHAMMAD v THE STATE (2017) LPELR – 42098 (SC) had the following to say on the subject.

“So, the appellant’s choice of attack against the decision of the Court below appealed against is on the identification of the corpse. He was charged with culpable homicide punishable with death. The position of the law is that where medical evidence is essential as to the cause of death, it is invariably also essential that the person, who allegedly identified the corpse of the deceased to the Doctor, is called to testify as to identification, unless identity of the deceased can be inferred from the circumstances of the case (emphasis mine) – see Enewoh V. State (1990) 4 NWLR (Pt. 145) 469, wherein Akpata, JSC, explained –

The position, however, is that if there are facts from which it can be inferred that the corpse examined by the doctor was that of the deceased, the evidence of the person, dead or alive, said to have identified the corpse is not indispensable. Indeed, a conviction for murder can be made without the recovery of the dead body if there is positive evidence that the deceased has been killed (emphasis mine). In effect, the need for anyone to identify the body of the deceased to a doctor is not a sine qua non in all murder cases. Besides, it is also trite law that medical evidence though desirable in establishing cause of death in a case of murder, is not essential provided that there are facts, which sufficiently show cause of death to the satisfaction of the Court.”

From the foregoing reasoning, I have reached the ultimate conclusion that death of the deceased occurred and the prosecution has proved with the certainty required by law that the deceased has died and this I shall hold as a fact.

With regards to the second ingredient as to whether the Accused was the murderer is a fundamental element of the charge of murder. The evidence led by the prosecution proves that the Accused Person is the murderer of the Deceased. The testimony of Alagie Kanyi shows a grant scheme of conspiracy by Edward Singhateh, Peter Singhateh and the Accused Person to kill Ousman Koro Ceesay. Alagie Kanyi gave evidence that they (BK Jatta, Tumbul Tamba and Pa Louis Gomez) were briefed by Edward Singhateh that they were going to get rid of someone and they were taken to the residence of the Accused Person in Kerr Serign.  Alagie Kanyi stated that at the time of arrival at the residence of the Accuse person, there were no guards or the family members of the Accused in his residence. Alagie Kanyi further gave evidence of how Edward Singhateh and Peter Singhateh went to the Airport while he was instructed to be on guard at the residence of the Accused Person. Alagie Kanyi also gave evidence that the said Edward Singhateh and Peter Singhateh returned to the residence of the Accused person from the Airport. He stated that the Accused person came with them to his residence. Alagie Kanyi further gave evidence that Edward Singhateh arrived at the residence of the Accused Person with the Deceased and it was signaled to him (Alagie Kanyi) by Edward Singhateh that the Deceased was the one to be killed. Alagie Kanyi further went on to give eye witness account of how Peter Singhateh used a pestle to hit the Deceased followed by Edward Singhateh. He also gave evidence that the Accused person also used the same pestle to hit the Deceased who at the time fell on the ground. He also gave evidence that BK Jatta, Tumbul Tamba, Pa Alieu Gomez and himself were instructed by Edward Singhateh to hit the Deceased with the said pestle which they did. I had observed the demeanor of the Alagie Kanyi whilst testifying in tears as to how the Ousman Koro Ceesay was bludgeoned to death. In my view, the tears from Alagie Kanyi were not crocodile tears, they were tears of remorse and regret.   Alagie Kanyi testified that the place was full of blood and that Edward Singhateh instructed them to place the body of the Ousman Koro Ceesay in his official vehicle which they did. Alagie Kanyi also gave evidence of how they (BK Jatta, Tumbul Tamba, Pa Alieu Gomez and himself) were instructed to clean the blood in the house of the Accused Person while Edward, Peter and the Accused Person left with the body of the Deceased. I must say that the above piece of evidence by Alagie Kanyi shows that the Accused Person was a primary participant in the killing of Ousman Koro Ceesay. Alagie Kanyi as an eye witness stated how the Accused Person together with Edward Singhateh, Peter Singahteh, BK Jatta, Tumbul Tamba, Pa Alieu Gomez and himself used a pestle to hit Ousman Koro Ceesay to death. Alagie Kanyi’s evidence also shows that when they finished hitting the Deceased to death with the said pestle, they placed his body in the Deceased’s official vehicle. I must say clearly that this evidence has not was not been materially controverted or challenged by the Accused Person and there was no enough cross-examination to destroy the veracity of the evidence of Alagie Kanyi. Under our criminal law, a person becomes a party to a crime if he or she actually does the act or makes the omission which constitutes the crime and this is provided under Section 23(1)(a) of the Criminal Code Cap. 10:01 Laws of The Gambia, 2009, which states as follows:

“When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say-

(a)        every person who actually does the act or makes omission which constitutes the offence.”

On Exhibit P3 and P3a, the Post Mortem reports, show the cause of death as follows:

“A presumptive pathological diagnosis of death by fire is offered in the absence of a positive finding otherwise.”

It is therefore apparent on Exhibit P3 and P3a that the cause of the death of the Deceased was by fire. The finding is clear that the conclusion of death by fire is based on a presumption which is offered in the absence of a positive finding otherwise. I must say that the said finding was based on the fact that the remains of the Deceased were what was presented for medical examination and the report of which is contained in Exhibit P3 and P3a. This fact was borne out of the evidence of Muhammed L.K. Bojang, who testified as to how the remains of the Deceased were removed from his vehicle found along the Sukuta-Jambur Highway and taken to the Royal Victoria Hospital for post mortem examination. The nature in which the remains of the Deceased was presented for medical examination could have state that the Deceased was hit with a pestle by the Accused person and his co-conspirators taking into consideration of the following circumstances antecedent to the said death by fire which is referred to in Exhibit P3a (post mortem report):

(a)        The evidence led by the prosecutions shows that there was a high scheme conspiracy hatched by Edward Singhateh, Peter Singhateh and the Accused person to kill the Deceased. Alagie Kanyi gave evidence of how they met at the house of Edward Singhateh and were briefed by Mr. Singhateh that they were going to get rid of the Deceased. His evidence shows that they drove to the residence of the Accused person which at the time was empty as there was no guard or family member of the Accused Person in the said house.

(b)       The evidence of Ensa Mendy, Amat Jangum and Lamin Ndure clearly show that Accused ensured that the guards at his residence were not present at the residence and so also his family members. Amat Jangum who was the Guard Commander gave evidence that the Accused person instructed him from the telephone in his house to take the guards on patrol around B. B. hotel because they got information that there is a boat coming with arms and ammunitions. He also gave evidence that the Accused person also informed him that he should park his family members in the house and take them to the residence of Edward Singhateh as there was a party at the said residence. He also gave evidence that the Accused person told him that he was sending a vehicle which he should use to take the family members to Edward’s residence at Cape Point, Bakau. Additionally, Lamin Ndure and Ensa Mendy gave evidence that the Accused person asked them to go to his residence. Both Ensa Mendy and Lamin Ndure corroborated the fact that all the members of the Accused person’s family at his residence were taken to the residence of Edward Singhateh on the basis that there was a party going on there. Ensa Mendy, Amat Jangum and Lamin Ndure also confirmed that they went on patrol to the beach as instructed by the Accused person. They also confirmed that when they returned to the residence of the Accused Person from the patrol, they found cars parked outside the house. Amat Jangum stated that when he went inside the residence, Edward Singhateh instructed him to return to the patrol with the guards, which they did.

(c)        Alagie Kanyi testified that after Ousman Koro Ceesay was struck with a pestle until he fell down and died, they were instructed by Edward Singhateh to place the body of Ousman Koro Ceesay in his official vehicle, which they did. Alagie Kanyi also gave evidence that when they placed the body of Ousman Koro Ceesay in his official car, they went inside the Accused person’s house to clean the blood therein. He testified that when they finished cleaning the house, they went outside but found that Edward Singhateh, Peter Singhateh and the Accused person had left with the vehicles that were parked outside.

(d)       Ensa Mendy, Amat Jangum, Lamin Ndure, Pa Abibu M’Baye, Alagie Kanyi, Muhammed L.K. Bojang and Dr. Sanna Ceesay all testified that the car of the Deceased was found along the Sukuta-Jambur Highway burnt to ashes. Their evidence shows that the body of the Deceased was charred beyond recognition. It was ashes and bones of the Deceased which were recovered from the burnt vehicle and presented for medical examination.

From the foregoing reasons, the above pieces of evidence and circumstances clearly show that the Accused person was involved in beating the Deceased with a pestle at his residence. It is also clear from the evidence that after the Deceased was struck with a pestle on many occasions, his body was placed in his official car. Furthermore, the Accused person together with Edward Singhateh and Peter Singhateh left with the body of the Deceased after he was killed in the residence of the Accused Person. Additionally, the evidence of Pa Abibu M’Baye shows that the vehicle of the Deceased and that of Edward Singhateh were seen heading towards the Sukuta-Jambur Highway at around 1am of 24th June 1995. From a careful study of the evidence on record, it is apparent that the above evidence did not only show that the Accused person actually took part in the crime of killing Ousman Koro Ceesay by hitting him with a pestle, he has also taken part in the scheme to disposed of the body of the Deceased by burning the body beyond recognition with a view to conceal the crime and this I shall hold as fact.

All the prosecution witnesses confirmed that it was announced over the radio and newspapers that the vehicle of the Deceased was involved in an accident. However, the evidence of Pa Abibu M’Baye and Muhammed L.K. Bojang as experienced police investigators shows that the said vehicle could not have been involved in an accident as it was announced. Their conclusion was based on the fact that the car had no dent or any remarkable thing which could suggest that the Deceased was involved in an accident. The circumstances of this case clearly proves that the Accused person with his co-conspirators burnt the body of the Deceased in order to cover their heinous crime of killing their colleague State Minister. Pa Abibu M’Baye gave evidence that when he went to the mortuary in Banjul where the remains of the Deceased were taken, he saw Peter Singhateh at the said mortuary. He gave evidence that the hands of Peter Singhateh were in bandages and he intentionally made a remark that there was foul play in the death of the Deceased. According to Pa Abibu M’Baye, when he made the said comments, he noticed that the countenance of Peter Singhateh changed. It is an undisputed fact that the Deceased was a cabinet colleague of the Accused Person and Edward Singhateh. The Deceased was no ordinary citizen in The Gambia at the time as he was the Minister of Finance. The Accused person and his co-conspirators ensured that no investigation was carried out in relation to the death of the Deceased for over 20 years. The evidence of Pa Abibu  M’Baye that when he began investigations into the death of the Deceased, he was summoned by the Accused person to his office. He gave evidence of how the Accused Person looked at him and asked him to leave his office. Pa Abibu M’Baye gave account of how he was dismissed from the Police shortly after he visited the office of the Accused Person. Under cross examination, the Accused confirmed and maintained that to the best of his knowledge no thorough investigation was carried out. The question that begs an answer is why no investigation was launched into the death of the Deceased by the Accused Person and his cabinet colleagues if they don’t have anything to hide from the Public? Why were the people who started investigating the case dismissed from the services of the Police? The obvious answer is that if the Accused Person had nothing to hide about the death of the Deceased, investigations would have been allowed to go on without any form of intimidation towards the investigators or their dismissal as in the case of Pa Abibu M’Baye. It is our submission that the above pieces of evidence corroborate the evidence of PW6 and inextricably link the Accused Person to the death of the Deceased. I therefore hold as a fact that the Accused person took active part in not only beating the Deceased to death but that he also took part in burning his body beyond recognition in order to cover his crime. From the totality of the evidence placed before this Honourable Court, I have reached the conclusion and satisfied that the prosecution has proved the second ingredient with the certainty required by law that the Accused is the murderer of Ousman koro Ceesay.

With regards to the third ingredient as to whether the act or omission of the accused person was unlawful is not in dispute. It is clear from the evidence led by the Prosecution that the killing of the Deceased by the Accused Person and his co-conspirators is unlawful. The Accused Person nor his co-conspiracy had no legal basis for killing the Deceased and I therefore resolve the third ingredient that the act or omission of the Accused was unlawful.

With regards to the fourth ingredient as to whether that the accused acted or omitted to act with malice aforethought and caused the death of the Deceased is an essential ingredient of the offence charged.  Malice aforethought is defined under section 190 of the Criminal Code as follows:

“Malice aforethought shall be deemed to be established by evidence proving any more or more of the circumstances-

a)         an intention to cause death of or to do grievous harm to a person, whether the person is the person actually killed or not;

b)         knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether the person is the person actually killed or not, although the knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be cause;

c)         using violent measures in the commission of, or attempt at, a felony.”

The prosecution in their bid to prove the fourth ingredient, led evidence that the Accused Person killed the Deceased with malice aforethought. Section 190 of the Criminal Code provides that malice aforethought is deemed to be established when a person has an intention to cause death of or to do grievous harm to a person, whether the person is the person actually killed or not; or uses violent measures in the commission of, or attempt at, a felony. The cause of death and the intention with which the act or omission causing the death can be inferred from the nature of the injuries and the weapon used by the accused. In the English case of the HYAM V D.P.P (1974) 2 ALL E.R. 41, the House of Lords held that an “intention” to cause death or grievous bodily harm is established if it is proved that the accused deliberately and intentionally did an act knowing that it was probable that it would result in the death of or grievous bodily harm to the victim, even though he did not desire that result. Lord Hailsham stated at page 55 that:

“…. if a man, in full knowledge of the danger involved, and without lawful excuse, deliberately does that which exposes a victim to the risk of the probable grievous bodily harm (in the sense explained) or death, and the victim dies, the perpetrator of the crime is guilty of murder and not manslaughter to the same extent as if he had intended the consequences to follow, and irrespective of whether he wishes it.”

From the above authority, the circumstances of this case clearly show the intention of the Accused person was to cause the death of the Deceased. Firstly, the Accused Person began to put his intentions into action when he ensured that his residence is empty. He instructed his guards to go on a patrol to the beach; and he instructed Lamin Ndure, his official driver to take his family members to the residence of Edward Singhateh on the pretext that there was a party at the said residence. Secondly, the evidence of Pa Abibu M’Baye shows that he received information during investigation that the Accused Person blocked the vehicle of the Deceased at the Airport such that the Deceased could not leave until the Accused person and Edward Singhateh arrived. He also gave evidence that the information he received further stated that even when the Deceased arrived at the carpark at the Airport to leave, he waited for the Accused person to arrive. That, when the Accused person arrived, he joined the vehicle of the Deceased and they drove away. Thirdly, the Accused Person in conspiracy with Edward Singhateh, Peter Singhateh, Bk Jatta, Tumbul Tamba, Pa Alieu Gomez and Alagie Kanyi used a pestle to hit the Deceased until he died. The evidence of Alagie Kanyi shows that even after the Deceased fell down, they continued hitting him and the whole place was full of blood. The Accused person by using a pestle to hit the Deceased knew very well that the use of a pestle can cause death or actual bodily harm. It is a fact that a pestle is a lethal weapon used by the Accused person to hit the Deceased with and the inference that can be drawn from the use of the pestle to beat the Deceased must be deemed to intent to cause grievous bodily harm and that death would be a probable consequence of the said act. In the Court of Appeal decision in case of ABUBACARR TUNKARA AND THE STATE CRIM. APPEAL NO. 68/2011 (unreported) where it held that:

“there is no doubt that a person who delivers a violent blow with a weapon on a vulnerable part of the body must be deemed to have intended to cause such bodily injury as he knew that death would be probable consequence of his act.”

Fourthly, the Accused person not only stopped at participating in hitting the Deceased with a pestle, but took part in disposing the body of the Deceased by burning same. Alagie Kanyi’s evidence shows that the Accused Person together with Edward Singhateh and Peter Singhateh left with the dead body of the Deceased which was placed in the official vehicle of the Deceased. The Accused person and his co-conspiracy made the death of the Deceased to look like an accident. In my view it was simply to cover up such a horrendous crime by the Accused person, Edward Singhateh and Peter Singhateh. I must say these facts only strengthened the intention of the Accused Person to ensure that the Deceased was dead by all means necessary.

The Accused person in his brief contended that the prosecution failed to provide evidence of the most crucial evidence, the alleged murder weapon. I must say that the absence of the murder weapon is not fatal to the prosecution’s case in the presence of compellable evidence on the cause of death. In the Nigerian Supreme Court Case of MOHAMMED GARBA V. STATE [2000] 12 NWLR (PT 632) 596; [2000] 4 SC (PT 11] 157; (2000) LPELR-SC.157/1999, MOHAMMED JSC HELD THAT:

“The failure to produce the murder weapon during the trial is, in my view, inconsequential. It is the intentional murderous assault on a vital part of the body, which leads to conviction… There can be no doubt that a person delivering a violent blow with a stick or club on a vulnerable part of the body such as the head must be deemed to have intended to cause such bodily injury as he knew that death would be the consequence of his act.”

From the totality of the evidence adduced by the prosecution, there is sufficient evidence placed before this Honorable Court to hold the Accused person killed the Deceased with malice aforethought. From the evidence, the actions of the Accused person and the circumstances of the case show that the Accused Person had the perquisite mental element of intention to cause the death of the Deceased. I am therefore satisfied that the prosecution has proved the charge of murder beyond reasonable doubt against the Accused person and this I shall hold as a fact.

With regards to the fourth and final issue as to whether the Accused person properly raised the defence of alibi in this case is worthy of consideration as a possible defence.  If so, whether he is entitled to the defence of Alibi is a crucial defence. The Accused person denied being present at the scene of crime at the time that the Deceased was killed. In his evidence-in-chief before this Honorable Court, the Accused Person testified that he drove to the Airport in the vehicle of Chairman Jammeh. He further testified that from the Airport, he joined Chairman Jammeh’s vehicle to return to the State House with the Chairman’s driver. He testified that he reached the State House around 12am and had a chat with the State Guard Commander, Captain Lang Tombong Tamba. In my view, the Accused person clearly put up a defense that he was not at his house around 8pm towards 9pm when the Deceased was beaten to death by the Accused Person and his colleagues including Alagie Kanyi contrary to the Prosecution’s case. The Accused person has raised the defence of Alibi in relation to the charge, that is the Accused person was somewhere else other than where the prosecution says he was at the time of the commission of the offence with which he is charged. In his book PRACTICAL APPROACH TO CRIMINAL LITIGATION IN NIGERIA Revised 3rd Edition, 2017, J.A. AGABA at page 62 held as follows:

“Where an accused person’s defence to a criminal allegation is alibi, what he is saying is that he was at another place when the offence was committed. In fact, it is the practical impossibility if a person or human being present at two different places at the same time that gives the defence its efficacy provided it is established.”

The Learned Author continued at pages 63 to 64 as follows:

“The defence or plea of alibi must not only be raised but must be promptly and properly raised by the suspect to warrant any consideration. To start with, it must be mentioned at the outset that the relevant time material to the defence of alibi is the exact time the offence was committed. Thus, it not sufficient that the suspect was somewhere else at a time antecedent or subsequent to the commission of the alleged offence. Rather, he was somewhere else and could not have been present at the scene of the crime. As common as the defence of alibi seems or sounds, it is not raised merely by saying “I was somewhere else.” It must be properly raised.

The defence of alibi is said to be properly and duly raised only when the defendant not only state that he was not at the scene of crime but somewhere else but also goes further to satisfy the evidential burden on him giving particulars of the other place which he claims to be at the time of the offence was committed. This, he must do by naming the exact place he was, the person he was with and who could testify that he was there at the time. Where an accused person fails to give particulars of the place he was at the time of the commission of the offence charged, the names of those who were with him (if any) and the time they were together (agreeing with the time the offence was committed), he is said not to have properly raise alibi. Where he gives conflicting stories as to his whereabouts at the material time under consideration, he has not properly raised alibi and there is no obligation on the prosecution to go on investigation.

Thus, must as the burden to disprove alibi is on the prosecution, the defendant, on his own part, must also discharge what is called the evidential or secondary burden.”

On the time to raise the defence of alibi, the Learned Author at page 67 stated as follows:

“The right time to raise the plea of alibi is as soon as the suspect is apprehended by the police or other law enforcement agent. In fact, it must form part of his statement to the police if he were to make any statement. The reason is that, as soon as this plea is raised and reasonable particulars are given, the police or other law enforcement agent is under a duty to investigate the alibi to ascertain its truth or falsity.”

The prosecution referred this Honourable Court to the decision in the case of THE STATE V ABDOULIE BADJIE & 3 ORS (CRIM CASE NO: HC/078/18/CR/012/AO), judgment delivered on the 16th day of December 2020 by Hon. Justice Sainabou Wadda Cisse (unreported), wherein Hon. Justice Sainabou Wadda Cisse held as follows:

“It is trite that in raising the defence of alibi the accused must furnish the police with full details of the alibi at the earliest opportunity to enable the police to check the details. I must quickly emphasis that the burden to prove the guilt of the accused person lies throughout on the prosecution. The requirement of the accused to provide details of the alibi does not shift the burden of proof to the accused, but it weakens the defence of alibi. See the case of Sowemiwo vs The State (2004) 11 NWLR pt 885 page 515.

In the instant case the defence of alibi was raised during trial. This means that the defence was not raised timeously and was therefore not investigated. It is instructive to note that the 1st and 3rd accused persons remained silent in their cautionary statements about their whereabouts at the time of the attack. The accused persons did not call none of their friends that they said they were with and failed to lead any further evidence in support of the defence. In Ogorla vs The State (1992) 2 NWLR (pt 175) 509 the court held as follows:

‘It is not proper way of raising a defence of alibi for an accused to merely show that he was elsewhere at the time antecedent to the time of the crime was proved to have been committed. He must go further to show that because he was at that place at that time, it was impossible for him to have been at the scene of the crime when it was shown to have been committed.’ (Emphasis supplied)

In support of this principle enunciated in Ogorla vs The State (Supra), the Court ad earlier in Obiode vs The State (1970) 1 ALL NLR 35 stated as follows:

‘…. The law is that it is not enough for an accused to raise the defence of alibi at large. He must give adequate particulars of his whereabouts at the time of the commission of the offence to assist the police to make a meaningful investigation of the alibi. If the accused person said he was in a particular locality or with a particular person or persons, he gives a lead as to the specific place, the names and/or addresses of whom to contact and the relevant period he was away from the scene of the crime.”

In our instant case the Accused raised the plea of alibi in court, precisely during his examination in chief. I must emphasis that the Accused person did not raise the plea of alibi with the Police when he was confronted by the police in relation to the allegation contained in the information in this case. The Accused person refused to speak to the police and simply invoked ‘constitutional immunity’ that never was. I have look at Exhibit A, the cautionary statement of the Accused person and made no mention of his whereabouts on the night in question or thereabout when the offence was committed. Under the rule of alibi, any accused person setting up alibi as a defence is also duty bound to give the police at the earliest opportunity some tangible and useful information relating to the place he was and the person with whom he also was.   In our instant case, the Accused person by failing to  inform the Police at the earliest opportunity when he was arrested deprived the Police of the opportunity to further investigate the alibi to ascertain its truth or falsity. Thus, failure of the Accused Person to raise the plea of alibi timeously and properly warrants same to be rejected. The prosecution refers this Honorable Court to the Supreme Court of Nigeria case of SAMPSON EBEHEMI & ANOR VS THE STATE (SC 220/2008) judgment delivered on the 6th day of March, 2009 and reported (2009) ALL FWLR (pt. 486) 1825 and in that case, there was a robbery incident between 11:00pm on a particular day and 2:00am the next day in which Pws 3, 4, & 5 lost various items including house and car keys. At 5:00am of the same day, the 1st Appellant was arrested by a group of youths and in his possession was a hammer and keys. The said keys were later identified to have belonged to the Pws 3, 4, & 5. The 1st Appellant raised the plea of alibi for the first time at his trial and same was rejected by the trial court. In upholding the lower court’s decision that the defence of alibi was rightly rejected by the trial court, the Supreme Court of Nigeria held that for the defence of alibi to be properly raised, it must be raised at the earliest opportunity when an accused is confronted with the commission of the offence so that the police will be in a position to check the alibi. The Supreme Court concluded that where the alibi is raised for the first time at the trial court, it does not worth consideration by the court. In our instant case, the Accused by raising the defence of alibi for the first time on trial, it is not worth of consideration by this Honourable court because the Accused person has failed to raise the defence of alibi at the earliest opportunity when he was confronted by the police about the allegation contained in the bill of indictment and this I shall hold as a fact.

In view of the fact that the Accused person raised the Alibi for the first time during the trial when he opened his Defence and after the Prosecution had closed its case, the evidentiary burden was placed on the Accused to prove his alibi on the preponderance of probability. In the Nigerian Supreme Court Case of ABUBAKAR IBRAHIM V THE STATE SC. N.167/1990, the Hon. Court had this say on the subject:

“It is possible in some cases for the accused to refuse giving voluntary statement to the police before trial, in which case he will not then raise the alibi. But if at the trial an accused person who never raised an alibi when making his statement to the police, on oath in his defence raised the issue of his not being at locus criminis at the time the offence he is alleged to have committed took place raises a new issue entirely from alibi. For alibi is a defence raised before trial for police to investigate so as to decide its veracity; but once before the Court on trial, the accused person who raises a defence of his being elsewhere at the time the offence was being committed, has made an assertion he must prove.”

I have also observed that from Exbibit B, the voluntary statement, the Accused refused to give a voluntary statement to the Police on the basis of immunity. When he was arraigned, he did not offer any defence of alibi until when he opened his Defence, the Accused Person testified that from the Airport he drove in the car of Chairman Jammeh to return to the State House. He also stated that he was alone with the driver of the then Chairman, one Pa Malang. The Accused also testified that when he reached the State House between 11pm to 12am, he chatted a little with Lang Tombong Tamba. Under cross examination he acknowledged that both Pa Malang and Lang Tombong Tamba are both alive and present in The Gambia. The Prosecution posed the question if the Accused Person intended to call the aforementioned as witnesses to which he responded in the negative. The Accused Person did not call the said Pa Malang or Lang Tombong Tamba to testify and support his assertion that at the time of the commission of the offence under consideration, he was at the State House and the inference that can be drawn is that the defence of alibi is simply an afterthought and this I shall hold as a fact. The Accused person failed to challenge the evidence of Alagie Kanyi that he in fact struck the Deceased with a stick which resulted in the death of the Deceased. Therefore, the purported defence of Alibi put forward by the Accused persons should be viewed in the context of the strong evidence put forward by the prosecution. In OCHEMAJE v. THE STATE (2008) JELR 34371 (SC) the Supreme Court of Nigeria held that:

“There is nothing extraordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempt to do so, there is inflexible and/or invariable way of doing this. If the prosecution adduces sufficient and acceptable evidence to fix the accused person at the scene of the crime at the material time, surely his alibi is thereby logically and physically demolished…”

From the foregoing, I reach the conclusion that the Accused has failed to establish the defence of alibi as required by law. I therefore hold as a fact that the Accused person is not entitled to the defence of alibi put forward in this case and is hereby rejected as  it lacks merit and not tenable.

I must state that I believed the testimonies of Alagie Kanyi, Ensa Mendy, Amat Jangum, Lamin Ndure, Pa Abibu M’Baye, and Muhammed L.K. Bojang depicting the true picture of how Ousman Koro Ceesay was murdered in cold blood and I must emphasis that the law does not concern itself with trifles as stated in the progeny of the Latin Maxim: Deminimis non curat lex. I have no cogent reason to disbelieve the testimonies of the prosecution witnesses because defence witnesses themselves admitted that there is no reason for the prosecution witnesses to lie against the Accused person.

I have had the opportunity to watch the Accused person, Awa Minteh and Mamie Minteh closely when they were giving evidence. I must say that their demeanors were not convincing at all and I am not persuaded by it as Mamie Minteh and Awa Minteh admitted under cross-examination that they would do anything possible to make the Accused person happy and protect him. In my humble view, these admissions under cross-examination leave much to be desired 

I am therefore satisfied that the prosecution has sufficiently established the constituent elements of the offence as charged. I am further satisfied that the prosecution has proved their case beyond reasonable doubt and the Accused person Yankuba Touray is accordingly found guilty and convicted as charged.

You are reminded of your right to appeal.

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