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"Justice Edrissa F. Mbai of the High Court in Banjul, yesterday, 29th February 2012 set aside the judgment delivered by the Lower Baddibu District Tribunal in the matter of the District Tribunals Act and in the matter of an appeal by one Njoku Sisay against the alkalo of Saaba Village as first respondent, five Kabilo heads of Saaba Village in the Lower Baddibu District, as the 2nd respondent and the Attorney General as the 3rd defendant.
Delivering judgment yesterday morning, the presiding judge, Justice Edrissa F. Mbai disclosed that the appellant was fined D7, 000 in default to serve 6 months imprisonment with hard labour for failure or refusal to participate in the cleaning exercise locally known as set-settal, organised by the village. After paying the fine of D7, 000, the appellant filed an appeal against the said judgment before the court. The notice of appeal, dated the 21st October 2011, was filed on the 25th October 2011. The grounds of appeal are: The tribunal did not have jurisdiction to try the appellant for what did not constitute an offence in law; and the appellant did not have a fair hearing.

The prayer sought before the court was to order that the judgment of the Lower Baddibu District tribunal be set aside. According to the certified true copies of the record of proceedings the appellant was defiant to honour the call of the Alkalo and the Kabilo heads and the VDC.
The records of proceedings states “…the Alkalo called for the clearance of the weeds in the health centre on the request of the nurses there. All those who were absent were listed and a penalty was instituted against them of which Njoku was part of. We called them to come and others didn’t including Njoku.”

There are two issues that needed to be determined in the appeal. The first issue is whether the district tribunal has any jurisdiction to try what in law does not amount to an offence. The second issue is whether based on the record of proceedings the trial was conducted fairly.

On the first issue, it is the duty of the respondents to establish that legally they can bring the action they took against the appellant. The participation in the national cleansing exercise, which is initiated by His Excellency the president of the Republic is indeed a civic duty. It requires the commitment and total participation of everybody because the whole objective of this exercise is to have a clean and healthy environment, the primary beneficiaries being the people who live in such communities and villages. The importance of cleanliness goes back to the biblical principle that man must be clean first before he can pray to his Creator.

However, although the appellant’s refusal or failure to participate in the national cleaning exercise, organised in his locality may be described as a defiant conduct forwards authority, or even unpatriotic, so long as there is no law making it an offence his conduct cannot constitute to an offence. His conduct can only become an offence if there is a law passed by the National Assembly with the blessing of the president expressly saying so. 

The presiding judge however stated that he had not been referred to any law of this land passed by the National Assembly that gives district tribunals or any court such powers as to impose a fine or in default to serve terms of imprisonment to any person who has failed or refused to take part in a cleaning exercise. District tribunals like any court, do not create laws, they interpret laws that have already been passed by parliament. 

The second issue is whether based on the record of proceedings the trial was conducted fairly. On the face of the record of proceedings the plaintiff is the Alkalo and Kabilo heads of Saaba Village. The plaintiff’s witnesses are listed as: Alhaji Tabora Danso, Alhaji Kasamanding Singhateh, Bakary Makalo, Nfamara Balajo and Baba Janteh Singhateh. The defendant (the appellant) called two witnesses; namely Fafanding Danso and Kebba Janteh Singhateh. 

It is crucially important that the record of proceedings reflect what actually transpired during the trial particularly the testimonies of all the witnesses that have testified. The record failed to show the individual testimonies of each of those witnesses and whether there was any cross-examination followed there after or not. 

On the top paragraph of page 3 of the record of proceedings it states, “in this case all the witnesses said the same thing about Njoku’s refusal to attend meetings, set-settal and they also stressed his refusal to pay a fine of D50 imposed by the VDC for those who were defaulters to participate in the village work.” 

The duty of the court to record the testimonies of all the witnesses that have testified have been breached. The presiding Judge said he cannot for instance look at the record of proceedings and refer to the testimonies of the witnesses of either side and whether there was an opportunity given to have such witnesses cross-examined. The whole record consists of summary of the evidence of the plaintiff and two of the defendant’s.

The record of proceedings showed that all the 5 witnesses of the plaintiff and two of the defendant’s testified the same day that judgment was delivered, on the 29th September 2011. “The whole trial lasted one day. It is said that justice delayed is justice denied, but equally justice rushed is also justice infringed.

The impression amply demonstrated by the district tribunal in hearing seven witnesses and delivering their judgment on that very day suggested that the testimonies of the witnesses could not have been properly evaluated and analyzed,” stated the presiding judge. He added that it also showed the tribunal had already concluded in their thinking that the appellant was guilty of an offence which is not known to law.

He went on: “The judgment was delivered on the 29th September 2011. The notice of appeal, dated 21st October 2011 was filed on the 25th October 2011. Therefore this appeal was filed within time and not the contrary, as counsel for the respondent state in his brief”.

The judge stated that he could not see how the issue of forced labour can be applied in this case. Since there are no issues of such, he shall disregard it as irrelevant and of no moment. The cleaning exercise is not covered by S.20(3)(e) of the Constitution of the Republic of The Gambia, 1997. Even if it does it never gave district tribunals or any court the power to impose any form of punishment for failure or refusal to participate in such exercise.

The issue of whether the appellant’s failure to state if his ground of appeal was based on error of law or fact, or misdirection of law or fact leading to the appellant not having a fair hearing, could be noticed in the record of proceedings. As stated by counsel for the appellant, the main issue in this appeal is whether or not the district tribunal has any jurisdiction to act as they did in imposing a fine against the appellant for what is described as the appellant’s defiance to honor the call of the Alkalo and the Kabilo heads and the VDC.

Having considered the issues raised, the judge found as fact, that there is no law which makes it an offence for failure or refusal to participate in a cleaning exercise; that the district tribunal acted without any jurisdiction when they fined the appellant D7000 in default to serve 6 months imprisonment with hard labour; that the individual testimonies of witnesses were not recorded thus violating the rules of natural justice for the appellant’s right to a fair hearing; that the record of proceedings show the trial lasted one day suggesting that the entire evidence could not have been properly and carefully considered before the judgment was delivered; and that since the district tribunal lacked any jurisdiction to try the appellant for an offence not known to law their decision is null and void.

In light of the foregoing, the judgment of the Lower Baddibu District Tribunal, delivered on the 29th of September 2011 is thereby set aside.At that juncture, counsel for the appellant, E.M Sissoho applied for cost but counsel for the first and second respondent, Borry Touray, submitted that this was a criminal trial in the Lower Court and that it is not the practice in this jurisdiction that cost is awarded in criminal cases. He therefore applied that parties bear their own cost. Sissoho in his response disagreed with Touray’s submission and remarked that what transpired cannot be described as a criminal trial but an abuse of authority.

Justice Mbai disclosed that cost is in the discretion of the court and he therefore awarded cost of D20, 000 against the 1st and 2nd respondents. He noted that the said court is on record on having struck out the appellant’s case and awarding cost of D5, 000 to the respondents, which was settled.  Author: Sidiq Asemota"