BY SAM SARR

  The Gambia Court of Appeal, by a majority decision, disallowed the appeal of Halifa Sallah, Omar Jallow and Hamat Bah. These three executive members of NADD were and arraigned before Justice Paul on 18th November 2005. They told Justice Paul that they were not served. They also questioned his impartiality. However, Justice Paul proceeded to enter a plea of not guilty for each of them and remanded them in custody.
  In their appeal the three appellants asked the court to set aside the proceedings of 18th November presided over by Justice Paul. They also asked the court to transfer the case to another judge. They argued that they were not served as required by law and they were not expecting an impartial hearing from Justice Paul.
  The appeal was heard on 15th December and judgment was delivered today 21st December. Justice Savage read the majority decision. According to him, in a criminal appeal, there must be substantial error leading to miscarriage of justice to warrant them to allow the appeal. In this case he said there is no substantial error and no miscarriage of justice when the judge proceeded with the trial even though the appellants were not served. He further argued that in order for the judge to be recused from the case upon allegation of impartiality or the likelihood of impartiality there must be proof. He pointed out that the appellants failed to prove their allegations by the production of any document. He concluded that since the court cannot rely on mere suspicion it cannot therefore allow the appeal. This judgment was supported by Justice Agim who until recently was the Director of Public Prosecutions (DPP).
  Justice Izuako then presented her own judgment which came to a diametrically opposed conclusion. She noted that two issues arise in the appeal (1) fair hearing, (2) whether or not the judge should be recused from the case. According to her non compliance with the procedure of serving the appellants contravenes section 24 of the Constitution which protects fair hearing. This demands fair treatment. She argued that failing to do so would make a prosecution incompetent, noting that the defendants should not be taken by surprise in the proceedings. She countered the view that the court has the discretion to ignore the procedure. She maintained that no court exercises discretion on fundamental rights, noting that fair hearing is a fundamental right. She argued that it was not proper for the judge to enter a plea of not guilty for the three appellants.
  On the issue of recusing the judge from the trial she noted that there were pages of unhealthy exchanges between the judge and the appellants. She pointed out that every judge must seek to do justice noting that litigants must have confidence in the court. She pointed out that the safest thing to do under the circumstances was for the judge to recuse himself from the case. She added that proof of bias is unnecessary. That the exchanges and the language used in the proceedings revealed likelihood of being bias. She concluded that there would be substantial miscarriage of justice. The appeal must therefore succeed. She allowed the appeal and ordered that the appellants be arraigned before another judge.
  The effect of all these judgments is that the majority judgment stands. This means that Justice Paul will continue with the case.
  The appellants however still have the right to appeal to the Supreme Court against the judgment of the Court of Appeal and this court has power to order a stay of proceedings until the final determination of the appeal. This is how matters stand.

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