>From: Baboucar Gaye <[log in to unmask]>
>To: [log in to unmask]
>Subject: update:citizen fm case
>Date: Mon, 27 Aug 1956 20:44:23 +0100
>
>IN  THE   HIGH  COURT  OF THE  GAMBIA
>                                CRIM APPEAL NO. 58/98
>
>
>
>  BETWEEN:
>
>  BABOUCAR GAYE                            ...     APPELLANT
>
>  AND
>
>  INSPECTOR GENERAL OF POLICE ...     RESPONDENT
>
>AMENDED GROUNDS OF APPEAL
>
>  1. The Learned Magistrate was wrong in law,  and in fact, in finding
>that the
>      Appellant  had a case to answer.
>
>PARTICULARS
>
>    a)  The ingredients of the offence are misconceived.
>    b)  The offence is not properly laid.
>    c)   No evidence to meet the ingredients of the offence.
>
>  2. The charge on which Appellant was convicted was not
>       known to law and was bad in law.
>
>  3. The charge on which Appellant was convicted was wrong in
>       law, being duplicitous and discriminatorily applied.
>
>  4. The Magistrate was wrong in law in shifting the burden of
>       proof of innocence on the Appellant.
>
>  5. The Magistrate was wrong in law in failing to exercise any
>discretion as
>      to whether or not to order forfeiture of the Appellant’s apparatus,
>
>by holding
>      that he had no discretion over the matter.
>
>  6. The Magistrate had no legal basis for ordering forfeiture of
>      the Appellant’s Radio Station; and assuming (without conceding)
>that he had,
>      his order of forfeiture was wrong in law having regard to the
>triviality of the
>      offence and the efforts made to secure a renewal of the licence.
>
>
>
>  7. The conviction cannot be supported having regard to the  evidence.
>
>
>
>
>  DATED the 4th  day  of  June 1999.
>
>
>
>
>
>
>       S.B.  SEMEGA-JANNEH,
>       15, HAGAN STREET,
>       BANJUL,  THE  GAMBIA.
>      SOLICITOR FOR THE APPELLANT:
>
>
>
>    HEARING FINALLY  BEGINS, AFTER  15 MONTHS OF ADJOURNMENTS
>
>
>IN  THE   HIGH  COURT  OF THE  GAMBIA
>                                CRIM APPEAL NO. 58/98
>
>
>  BETWEEN:
>
>  BABOUCAR GAYE    ... APPELLANT
>
>  AND
>
>  INSPECTOR GENERAL OF POLICE ... RESPONDENT
>
>  1st Day of hearing  Monday 17 April  2000.
>  Before Justice Wallace Grante,
>  Lawyer S B Semega Janneh - Present for  Appellant
>  Acting DPP, Ms. Gloria Atiba Davies,  for IGP
>  Appellant, Baboucar Gaye - Present
>
>  S B Semega Janneh Argues appeal as follows:-
>
>In the first place, it will be seen that, as far back as 4th June last
>year, we filed an amended grounds of appeal and would require those
>amended grounds to be substituted for the notice of appeal filed by
>Lawyer G B S Janneh, as he then was.
>
>You will see that ground 3 of the amended grounds contains two mistakes,
>
>typographical errors: Duplicitous and Discriminatorily are wrongly spelt
>
>and I would like to correct it.
>
>Your Worship, the first ground of my client's appeal is that the Learned
>
>Magistrate was wrong in law, and infact,  in finding that the Appellant
>had a case to answer.
>
>That apart, I submit that rejecting a submission of no case to answer
>is, in itself, a ground of appeal (quotes Archbold 4th Edition Paragraph
>
>7 -36).  If a no case submission is made and the Judge or Magistrate
>rules that there is a case to answer  and, on appeal, the Appellant
>shows that there was no case to answer at the time, then this can be a
>ground of appeal.
>
>And in the case quoted the higher court squashed the appeal on
>thatground.
>
>The part of the ruling on no case to answer is on page 11 of the
>proceedings.
>
>What are the ingredients of the offence as charged?
>The Charge Sheet is the one of 17th March 1998.  According to this,
>Baboucar Gaye operated a Radio Station, Citizen F.M., with out a
>licence.
>
>I ask, what are the ingredients that you will find at section 7 of the
>Telegraph Stations Act Cap. 7401, which I have right before me.
>
>Reads: ‘If any person establishes a telegraph station without a licence
>in that behalf, or installs, or works any apparatus for wireless
>telegraphy  without a licence etc.’
>
>These are the ingredients.  There is no mention of radio station.
>Therefore the ingredient of the offence are certainly misconceived.
>
>The second question is: was the offence properly laid in the charge?
>And I say the answer is no.  Because the charge reads:   “operating a
>radio station.”  There is nothing like that in section 7/1.
>
>At the time the act was passed there was nowhere in the British  Empire,
>
>not even England, where you had a radio station.
>
>(Quotes‘Section 110 and 113 of the CPC and Halsburys Volume II (fourth
>edition), paragraph 929).
>
>A statement of offence must contain reference to section or paragraph or
>
>schedule to the Act making the offence.  This refers to statutory
>offences. And this is a statutory offence.  Facts: we submit that:-
>
>  1. There was ample evidence that,  for the relevant period,
>       (1st January  1997 to 6 Feb. 1998) no formal licences were being
>issued
>      by  Government for any of its frequencies or operations.
>      (quotes Adama Deen’s evidence in page 2 of the record  and
>      Mansour Bah’s evidence on  page 4 of the record).
>
>  2. There is no proof of the accused operating or broadcasting during
>the
>       relevant period and I will challenge my Learned Friend to prove
>that, during
>       the period, accused either operated a radio station or broadcast.
>
>
>CASE ADJOURNED AT THIS POINT  TO 25 MAY, AFTER ONLY 30' OF ADDRESS,
>BECAUSE JUDGE HAD TO ATTEND A MEETING.
>
>
>
>
>
>IN  THE   HIGH  COURT  OF THE  GAMBIA
>                                CRIM APPEAL NO. 58/98
>
>
>
>  BETWEEN:
>
>  BABOUCAR GAYE    ... APPELLANT
>
>  AND
>
>  INSPECTOR GENERAL OF POLICE ... RESPONDENT
>
>  2nd day of hearing :  Monday  17, April  2000.
>  Before Justice Wallace Grante,
>  Lawyer S B Semega Janneh - Present, for  Appellant
>  Acting DPP, Ms. Gloria Atiba Davies -  Absent
>  Appellant, Baboucar Gaye - Present
>
>
>Before hearing resumed, the judge sent the Court Clerk to call the
>Acting DPP  but the Court Clerk came and reported that the DPP said she
>was busy  at a murder trial.
>
>At this juncture Lawyer S.B.S Janneh told the court that he could
>continue his address and the DPP will read the record later and that
>there was nothing wrong with this.
>
>The Judge granted this prayer and hearing resumed with  Appellant’s
>Lawyer, S.B.S. Janneh, continuing his arguments.
>
>‘The last time I made mention of the origins of radio broadcasting.
>Now, me Lord, I have a learned book here concerning radio broadcasting
>edited by Robert L. Hilliard.  This is to show that,  infact, radio
>broadcasting did not start until after 1913, - the year in which the
>telegraph station’s act, under which my client was    charged, was
>passed.  This is to show that the charge just couldn't fit.
>
>I now refer to the definition  of Wireless Telegraphy in our own
>book  (reads definition).  There was nothing wrong with that  definition
>
>in 1913.  But then when radio came, the British, who  enacted this law,
>widened the definition, showing a big difference.
>
>The first definition took only four lines.  But when the British
>amended their act in 1949, to cater for radio, there came another
>definition, a new definition.  That definition took 28 lines.  The
>reason is quite clear:  in 1949, not to speak of 1998, the world of
>broadcasting had become so complex that the 1913 definition  could no
>longer apply.
>
>With that I will come to grounds 2 and 3.
>
>Ground 2 is that the charge, on which the Appellant was convicted, was
>not known to law and was bad in law.
>
>Ground 3 is that the charge, on which the Appellant was convicted, was
>wrong in law -in being duplicitous and discriminatorily applied.
>
>First of all I ask: the charge says operating a radio station without a
>licences contrary to section 7-1 of  the telegraph station act and
>regulation 4.  The question is: which regulation 4?  And the answer
>they put there is regulation 4 under section 12 of the act.   The
>question is which regulation 4?  All this is to prove that the charge is
>
>unclear  and duplicitous.
>
>The fact of the mater is that there are many regulations made under this
>
>act and each of them has a title, regulation 4- starting from page 8.
>So they should have stated in the charge which of the "regulation
>4s"they wanted to charge under.   In other words, it   vague and
>duplicitous.  This is my point: that it is bad, very bad,  totally
>contrary  to the rules as to indictment.
>
>My Lord, what is even more important is that the section in which the
>charge came is totally irrelevant, it does not apply at all.  It is
>inapplicable.  And I say that because according to regulation 5 at
>page 11 whenever the Minister has come to an agreement for the
>establishment  of a service of wireless telephony and reception of TV
>Signals, he may grant a special licence.  There is a big distinction
>here between ordinary and special licences.
>
>And, according to regulation 5-2, a special licence shall only be
>revoked by the Minister in accordance with the terms and conditions of
>granting  it.  This is why I say  the charge should not  have referred
>to section 7 but perhaps section 9, which was never laid.  That, my
>Lord, is the applicable section, but they came with section 7 which does
>
>not encapsulate special licences but only ordinary  licences.
>
>The prosecution complained, through the evidence, that the amount  for
>the licence- D12,300- was never paid and therefore there was   no
>licence. My contention is: no department or ministry can impose any
>amount for a licence except under the regulations.    This is why you
>have section 12.1 of the Telegraph Stations Act at   page 6:   ‘The
>Minister may make and, when made, may vary,  amend  or revoke
>regulations for all  or any of the following  purposes: describing fees
>payable on the grant of any licences  -   Radio TV - or  any thing
>else.’
>
>And, indeed, the Minister gave regulations concerning fees.  This   we
>will find  in the schedules of the regulations.
>
>The question I want to ask: has the prosecution shown the court  any
>regulation charging D12.300?
>
>I have not seen any such regulation and the prosecution has not  shown
>it.  Because, under the existing regulations, only D375 is  chargeable.
>
>And why do I say so?
>
>I say so because if there was a regulation it must be gazetted.
>
>I refer to the interpretation act, Cap 4 section 2:  ‘Subsidiary
>Legislation shall be published in the gazette .... to have the force of
>law.’
>
>So the question is: where is the increase in licence fees published?
>It is for the prosecution to produce it, not the defence. Otherwise it
>cannot affect us.
>
>It is for the State to refund the accused for the over payment.  In
>fact, at some stage, we may ask for such refund .
>
>On the question of discrimination, I refer to exhibit H.  Our view is
>that the appellant was discriminated against.  Exhibit H tabulates:
>Radio 1 FM - non payment 1994 to date ( refers to  evidence).   And
>Radio Syd only made an advance of D4000 plus.
>
>I say that is evidence of discrimination in applying a public Act.  So
>preferential treatment was given to certain people, for no reason
>whatsoever.
>
>It now remains for me to deal with burden of proof (refers to page  11
>of the record, last four lines: “The burden of proof has   now shifted
>to the accused person”).
>
>This is an extremely serious error that goes to the heart of our
>criminal justice system: saying the burden of proof shifts to the
>accused.  That is a fundamental error which cannot be cured at all.
>Because we all know that the burden of proof is always on the
>prosecution, except where the accused claims insanity.  And  Baboucar
>Gaye certainly did not claim insanity.
>
>I think, on that ground alone, this conviction  must be squashed.
>(Codes 1935 appeal case).
>
>And this is also not a case of strict liability.  So the burden never
>shifts.  And you cannot come under the escape route of no  substantial
>injustice was done.
>
>Now I come to the fifth ground of appeal:  The Magistrate erred by
>holding that he has no discretion, saying:  ‘My hands are tied’.
>
>(Quotes section 57.1 of the CPC and section 7.1 of the Telegraph   Act).
>
>The operative word here is “liable”.
>
>The distinction between what is discretionary, and what is not, will be
>found in the way in which the punishing section puts it.
>
>If the punishing section states: “shall be liable”( even  in the case of
>
>a  death sentence), then the Judge doesn't have to impose a death
>sentence.  But if the punishing section says:  “shall suffer death”  or
>“ shall die”, then there is no discretion in the matter.  This is trite
>law.
>
>But section 7.1 says "shall be liable”.
>
>Even if the applicable section,  i.e section 9, were used,  he would
>still have been only liable  (i.e exposed to the possibility).
>
>In this case the Magistrate did not exercise the discretion at all.
>
>The sixth ground  is related to ground 5  - that the Magistrate had  no
>legal basis for ordering the forfeiture of “the whole station”.
>That  is contrary to section 7.1, which speaks of “any apparatus “.
>
>Ground 7  is the general ground: that the conviction cannot be
>supported, having regard to the evidence.
>
>There can be no prosecution  under this act without the Attorney
>General's fiat.  There was a fiat, but the date of the fiat is
>relevant.  If you look at the date of the fiat, it is 2nd March 1998.
>Before that  date, on 16th February 1998, the appellant paid licence fee
>
>for1997.  That is proven by exhibit C.
>
>That is the end of our arguments.
>
>I submit  that both conviction and sentence should be squashed.
>
>Case was then adjourned to 20th June 2000, for continuation.
>
>  ENDS.
>
>Well there you are Coach. At least some progress. The battle continues.
>Thanks for your support. And, please continue spreading the word.
>
>Cheers!
>
>Baboucar
>
>
>

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