Nature and Definition of Criminal Procedure and The Sources of The Law of Criminal Procedure PDF

ABDOU A.
MANNEH, GAMBIA LAW SCHOOL

CRIMINAL PROCEDURE NOTES
BARRISTER AT LAW CANDIDATE
THE NATURE AND DEFINITION OF CRIMINAL PROCEDURE
It’s important from the word go to define the limits or the perimeters of the subject Criminal
Procedure. It is therefore important to start by defining the words ‘Criminal’ and ‘Procedure’.
The word ‘criminal’ is derived from crime which is synonymous with the word ‘offence’. Offence
is the word used in our criminal code and it is defined under s. 2 of the Criminal Code as: “An act,
attempt, omission punishable by Law”. Thus to constitute a crime, the act or omission complained
of has to be designated by law to be a crime.
The word ‘procedure’ means the prescribed method governing certain processes. For example, the
method governing the process of admission to the Gambia Law School is primarily governed by
making an application to the effect and paying the prescribed fees. Students who do not follow
this procedure are not usually admitted. This is the stipulated procedure for admission to the
Gambia Law School as a student.
Criminal procedure, therefore, is the method laid down by law for bringing a person who is accused
of committing an offence before a court of law for trial. It also deals with the method to be adopted
by the court of trial, the powers of the court of trial, the right of appeal of a person convicted of a
crime and the right of the initiator of the proceedings – the prosecutor. Finally, it deals with the
rules governing procedure in appellate courts.
Assume, for example, that John went to the Albert Market in Banjul. He took a CD from Kerewan
Sounds Shop, concealed it in his pocket and walked away without paying for it. Outside the shop,
he was accosted by a private security man and taken to Banjul Police Station. The security man
and John made statements to the police at the police station. The police decide to charge John with
the offence of stealing the CD. He is given bail by the police and allowed to go home. He is to
report to Banjul Magistrates’ Court the following morning at 9 a. m. Certain points emerged from
this hypothetical illustration.
- Firstly, that a person found committing an offence can be arrested by a private person. In
this case, the security man (a private person) arrested John.
GAYE SOWE - LECTURER – THE GAMBIA LAW SCHOOL Page 1

- Secondly, that a private person must take an arrested suspect to a police station and deliver
him to a police officer. This was what the security man did.
- Thirdly, that it is the duty of the police to enforce all laws. The owner of Kerewan sounds
did not enforce the law directly, but handed over John to the police to enforce the law.
- Fourthly, that the police have the power to give bail to a person accused of committing
certain offences. In this case, John was not detained but granted bail by the police.
- Finally, that the police prefer charges at the Magistrates’ Court. In the instance case, John
was charged with the offence of stealing at the Magistrates’ Court.
The issues that arose in this hypothetical illustration – those of arrest, enforcement of law,
investigation of crime and the interrogation of suspects, charge and bail are few examples of
matters that are exclusively procedural within the domain of criminal procedure. It is obvious that
criminal procedure is unlike substantive criminal law, which deals mainly with specific offences
known to law e.g. murder, stealing, rape, etc., the ingredients of such offences, and the defences
to such offences (e.g. bonafide claim of right, self-defence, insanity, mistake of fact etc).
Thus while knowledge of criminal law is essential for easier understanding of criminal procedure,
the two subjects are separate and distinct, the former dealing with substantive and the latter dealing
with the procedure.

SOURCES OF THE LAW OF CRIMINAL PROCEDURE
The law dealing with the procedure to be followed when a person is alleged to have committed an
offence is found in several enactments. These laws range from the time such a person is arrested,
charged, tried, convicted or acquitted, sentenced, and if aggrieved files an appeal. We will
categorize these enactments into two: principal and secondary enactments. Apart from these
enactments there exist the practice and procedure applicable in criminal trials in the High Court in
England and the judicial interpretations of Gambian courts of the enactments and of common law1
courts with similar enactments. We will now consider the sources of criminal procedure.
1. PRINCIPAL ENACTMENT
The Criminal Procedure Code was enacted for the Gambia by Act 26 of 1933. Kenya’s 1930
Criminal Procedure Code was used as model. It should be noted that the Criminal Procedure Code
has from time to time been amended, consolidated and revised but the changes are not very
substantial. It is the principal enactment governing criminal procedure in The Gambia.
All offences under the Criminal Code are to be “inquired into, tried, and otherwise dealt with”
according to the provisions of the CPC.2 All other offences under any other law (for example the
Drug Control Act, Tourism Offences Act, Economic Crimes (Specified Offences) Act) are also to
be “inquired into, tried and otherwise dealt with” according to the provisions of the CPC subject
to any enactment for the time being in force regulating the manner and place of inquiring into,
trying, or otherwise dealing with such offences.3 Thus, subject to the provisions of section 3 (2) of
the CPC all offences in The Gambia must be inquired into, tried and dealt with in accordance with
the provisions of the CPC, irrespective of whether the offence is found in the Criminal Code or
any other enactment.
1
Note that common laws crimes continue to apply in The Gambia by virtue of section 2 (a) of the Criminal Code.
2
Section 3 (1) of the CPC. 3
Section 3 (2) of the CPC. Note the provisions of the District Tribunal Act and Rules on customary crimes and the
provisions on the Children’s Act and Rules on child offenders.

The provisions of the CPC apply to trials before the Supreme Court, Court of Appeal, High Court,
Magistrates’ Court. These provisions, however, do not apply to trials before a District Tribunal.3
The provisions of the Children’s Act and Children’s Court Rules also apply to trials before the
Children’s Court.
2. SECONDARY ENACTMENTS
Chapter IV of the Gambian Constitution deals exclusively with the fundamental human rights of a
person and these include the right to personal liberty guaranteed in section 19 and the right to fair
trial guaranteed in section 24. These rights, particularly the right to fair trial are a very important
feature of every criminal trial. A violation of the right to fair trial, for example, could need to a
conviction being set aside on appeal or a whole trial being declared null and void, and of no effect.
Searches are also dealt with in the Constitution.4 The Constitution also deals with the power of the
Director of Public
Prosecutions, subject to the control of the Attorney General, to initiate, takeover and discontinue
all public prosecutions.5 The Constitution further gives the President the power to grant a pardon,
after consulting with the Committee on the exercise of the prerogative of mercy. 6 Chapter VIII of
the Constitution also deal with the superior courts of record. The criminal jurisdiction of the
Supreme Court, Court of Appeal, High Court, and Special Criminal Court is dealt with in this
chapter. Their original and appellate jurisdiction with respect to criminal matters is dealt with as
well as their composition.
The Courts’ Act, the Supreme Court Act and Supreme Court Rules, and the Court of Appeal Act
and Court of Appeal Rules contain provisions regulating the composition, jurisdiction and powers
of courts created under these laws. When dealing with criminal cases, these courts must be guided
by the provisions of the laws creating them. These laws spell out the procedure to be followed by
an aggrieved party appealing from a decision of a lower court to a higher court. They therefore
also regulate criminal procedure.
The High Court Rules also to some extent regulate criminal procedure in that the rules, inter alia,
spell out the procedure to be followed on appeals from a subordinate court to the High Court
Some enactments make provisions relating to certain offences. These include the Economic
Crimes (Specified Offences) Act and the Drug Control Act both of which have specific provisions
on bail, a very important component of criminal procedure law.
3
See the definition of court in section 2 of the CPC
4
Section 23 of the Constitution
5
See section 85 of the Constitution
6
See section 81 of the Constitution

Other enactments have provisions relating to certain offenders and the procedure to be followed
by designated courts as contained in these laws for the trial and punishment of offenders. The
Children’s Act and the Children’s Court Rules, for example, regulate the trial of children. The
Coroner’s Act also regulates the powers and duties of the Coroner, the Gambia Armed Forces Act
and the Armed Forces (Regulations for Discipline) create offences and prescribe the procedure for
trial of offenders while the
Gambia National Army (Gambia National Guard Unit) Police Duties Regulations give the Gambia
National Guard police powers. The Police Act also lays down the powers and duties of the Gambia
Police Force.
The above-mentioned secondary enactments and a host of others, too many to be listed, constitute
a good source of the law governing criminal procedure.
3. ENGLISH HIGH COURT PROCEDURE AND PRACTICE IN CRIMINAL

MATTERS
Section 3 (3) of the CPC provides:
The procedure and practice to be observed in the High Court in the exercise of its criminal
jurisdiction shall, subject to the express provisions of this Code and any law for the time
being in force in The Gambia, be assimilated as nearly as circumstances admit to the course
of procedure and practice of Her Majesty’s High Court of Justice and the Courts of Oyer
and Terminer and General Gaol Delivery in England at the date of the coming into
operation of this Code.7
The procedure and practice of the English High Court of Justice and the Courts of Oyer and
Terminer and General Gaol Delivery therefore remain a very important source of criminal
procedure. A very good example of when our High Court can resort to the practice and procedure
of these courts is when the CPC and other applicable laws are silent on the procedure to be adopted
in a matter or where there are no express local laws on a matter.8
It should also be noted that section 3 (3) of the CPC contains a cut-off date. Section 3 (3) of the
CPC only applies to the practice and procedure of the said English Courts at the date of the coming
into operation of the CPC which is 1st October, 1934. Thus our High Court cannot rely on section
7
Cf s.363 of the Criminal Procedure Act of Nigeria which provides for the application of “the procedure and
practice for the time being in force in the High Court of Justice in England in criminal trials in the High Court in so
far as this Act has not specifically made provision therefor.”
8
Nigerian courts (their decisions are persuasive) have done so in the following cases: Board of Customs and Excise
v. Hassan [1978] 2 LRN 56, Simidele v. Commissioner of Police (1966) NMLR 116, Olugbusi & Ors. v. Commissioner
of Police [1970] 2 ALL nlr 1, Achadu v. The State 1981 91) NCR 16 10 (1891) AC 107 at 144 to 145. 11 (1892) AC 481
at 487 (PC).

3 (3) of the CPC to resort to the practice and procedure of the said English Courts after the said
date.
4. JUDICIAL INTERPRETATION OF ENACTMENTS
The courts interpret the said principal and secondary enactments to give effect to them. This means
the rules of interpretation of statutes must be adhered to when interpreting any of the above-named
enactments.
The current approach to the interpretation of a Code is found in the classic passage in the Judgment
of Lord Hershell in Bank of England v. Vagliano Brothers10. This passage was approved by the
Privy Council in the case of Robinson v. Canadian Pacific Railway Company11. Even though
Lord Hershell was discussing the 1882 Bills of Exchange Act, his remarks are equally applicable
to Criminal Procedure Codes. He stated:
I think the proper course is in the first instance to examine the language of the statute and
to ask what is its natural meaning, uninfluenced by any considerations derived from the
previous state of the law, and not to start with inquiring how the law previously stood and
then assuming that it was probably intended to leave it unaltered to see if the words of the
enactment will bear an interpretation in conformity with this view. If a statute, intended to
embody in a code a particular branch of the law, is to be treated in this fashion, it appears
to me that the utility will be almost entirely destroyed and the very object with which it
was enacted will be frustrated. The purpose of such statute surely was that on any point
specifically dealt with by it, the law should be ascertained by interpreting the language
used, instead of as before, by roaming over a vast number of authorities in order to discover
what the law was, examining it by minute critical examination of the prior discussions. I
am of course far from asserting that resort may never be had to the previous state of the
law for the purpose of aiding in the construction of the provisions of the code. If, for
example, a provision of doubtful import, such resort would be perfectly legitimate. Or
again if in a code on the law of negotiable instruments words to be found have previously
acquired a technical meaning or been used in a sense other than their ordinary one, in
relation to such instruments the same interpretation might well be put upon them in the
code. The first step to be taken should be to interpret the language of the statute and that
an appeal to earlier decisions can only be justified on some special ground.”
We can therefore deduce the following from Lord Herschell’s judgment:
a. That when interpretation the provisions of a code all pre-existing case law ceases to be
of authority as regards stating the law.
b. That the law is to be deduced from an examination of the language of the code, in its
natural meaning. It is therefore wrong to inquire as to the state of the preexisting law
in order to attempt to construe the provisions of the code in such a way as to make the

latter comply. Thus the resumption of statutory interpretation that an enactment does
not alter the pre-existing law does not apply to codes.
c. That under special circumstances, it is permissible to refer to the pre-existing law in
order to ascertain the meaning of a provision in a code. These special circumstances
are:
i. Where a provision of a code is of doubtful import. A provision is of doubtful
import where it is capable of two or more meanings and also where it is vague,
that is, where it is impossible to attribute any definite meaning to it.
ii. That the words used had acquired a technical meaning.
In interpreting provisions of the CPC therefore, the starting point should be interpreting them in
their ordinary and natural sense. Unwarranted references should never be made to the preexisting
law, except where a special ground or special circumstance exits. It is therefore wrong to ignore
the provisions of the CPC in favour of the common law or a foreign law. This does not mean that
in interpreting provisions of the CPC our courts cannot invoke in aid the interpretation given to
provisions in identical enactments in other jurisdictions. The CPC is very similar to the Criminal
Procedure Act of Nigeria and the criminal procedure code of many other common law countries.
This means interpretations given to the code by the courts in such countries can be invoked by
Gambian courts when interpreting provisions of the Code. It should however be noted that such
foreign decisions are of persuasive and not binding effect.
The courts may also use the opinions of acknowledged and distinguished jurists to help in
interpreting the provisions of the code or any other secondary enactment discussed above.
It should also be noted that the interpretation given to the said enactments, including the CPC, by
the Supreme Court, Judicial Committee of the Privy Council (before the Supreme Court was
created), Court of Appeal and West Africa Court of Appeal is binding on the High Court. The
interpretation given to the said enactments by the High Court is also binding on subordinate courts.
It follows therefore that the judicial interpretation of the said enactments constitutes a very
important source of criminal procedure.

COURTS VESTED WITH CRIMINAL JURISDUCTION
INTRODUCTION
The Courts of the Gambia are:
1. The Supreme Court
2. The Court of Appeal
3. The High Court
4. The Special Criminal Court
5. The Cadi Appeals Panel
6. Court Martial
7. The Industrial Tribunals
8. The Magistrates’ Court
9. The Cadi Court
10. The District Tribunals
11. The Rent Tribunals
12. The Children’s Court
The judicial power of The Gambia is vested in these courts and is exercised by them in accordance
with the respective jurisdictions conferred on them by law. The Chief Justice is the head of the
judiciary and is therefore responsible for the administration and supervision of the courts.
In the exercise of their judicial functions, the courts, the judges and other holders of judicial office
shall be independent and shall be subject only to the Constitution and the law, and, shall not be
subject to the control or direction of any other person or authority. The Government of The
Gambia and all government departments are also required to give assistance to the courts as the
courts may reasonably require to protect their independence, dignity and effectiveness. Note that
a judge or any other person exercising power shall not be liable for any act or omission by him or
her in good faith in the exercise of his or her judicial function.
Not all the courts stated above are vested with criminal jurisdictions. The Courts vested with
criminal jurisdiction (our concern for the purposes of this topic) are:
1. The Supreme Court
2. The Court of Appeal
3. The High Court
4. The Special Criminal Court
5. The Court Martial
6. The Magistrates’ Court
7. The Children’s Court

One of the most fundamental questions of law is whether a given court has jurisdiction to preside
over a given case. In any given case, a court of law must first of all bear in mind whether it has
jurisdiction over the persons appearing before him (in personam), whether it has jurisdiction over
the subject matter, or res, and whether it has jurisdiction to render the particular judgment sought.
The term jurisdiction is really synonymous with the word ‘power’ and is loosely understood in two
broad senses:
a. In the constitutive sense i.e., in the sense of the inherent power and competence of a court
of law to determine an issue. In this sense, it is the enabling Act creating a court that creates the
scope of its power over certain disputes and delimits it.
b. Secondly, jurisdiction may refer to the territory over which a particular court adjudicates.
This is called a court’s territorial jurisdiction.
We shall now consider all the courts in The Gambia that are vested with criminal jurisdiction.
1. THE SUPREME COURT
Before the Supreme Court of The Gambia was established under the 1997 Constitution, the highest
court for the Gambia was the Judicial Committee of the Privy Council. Section 125 (1) of the 1997
Constitution establishes the Supreme Court which shall consist of
a. the Chief Justice;

b. not less than four other Justices of the Supreme Court;
c. any judge of the Court of Appeal who is appointed to act as a Justice of the
Supreme Court. Such a judge must however be qualified to be appointed as a Justice of the
Supreme Court.
The Supreme Court is constituted by an uneven number of not less than five judges of the court. A
single judge of the Court may however exercise the powers of the court in any interlocutory matter.
See also UDP (No. 2) v. Attorney General (No. 2) 8where it was held that where the Supreme
Court is not sitting or in session, all interlocutory applications come before a single judge who
under s. 125 (2) of the Constitution may exercise the powers of the court in respect of that matter.
Even where the Supreme Court is in session or sitting, it may decide to hear and determine all such
applications or refer them to a single judge for determination. The Chief Justice presides over its
sittings and in his absence, the most senior of the judges of the Supreme Court presides. It can also
sit at any place in the Gambia appointed by the Chief Justice.
CRIMINAL JURISDICTION OF THE SUPREME COURT

The Supreme Court is the final court of appeal for the Gambia and its jurisdiction is as stated in
sections 126 to128 of the Constitution and sections 4 to 6 of the Supreme Court Act.

It has no original criminal jurisdiction. It hears appeals in criminal causes and matters from the
Court of Appeal. It is the court of last resort and its decisions are binding on all courts in The
Gambia. It t may also depart from its previous decision when it appears right to do so.
Criminal appeals to the Supreme Court could take any of the following forms:
APPEALS AS OF RIGHT
As stated in section 128 (1) of the Constitution, an appeal to the Supreme Court shall lie as of right
in any of the following instances:
a. From any judgment of the Court of Appeal in any civil or criminal matter from a judgment
of the High Court in the exercise of its original jurisdiction.
b. From any judgment of the Court of Appeal dismissing an appeal from a sentence of death
imposed by any other court.
c. In any matter as may be prescribed by an Act of the National Assembly.
APPEALS WITH THE LEAVE OF THE COURT OF APPEAL

An Appeal to the Supreme Court shall lie with leave of the Court of Appeal from a judgment of
the Court of Appeal in any matter commenced in a Court other than the High Court where the
Court of Appeal is satisfied that the case involves a substantive question of law or it is in the public
interest that the matter should be heard by the Supreme Court.
APPEALS WITH LEAVE OF THE SUPREME COURT

An appeal shall lie to the Supreme Court with its leave from any judgment of the Court of Appeal
other than the instances stated above.
All appeals to the Supreme Court are filed at the instance of a party to the proceedings at the Court
of Appeal or, with leave of the Supreme Court or the Court of Appeal, at the instance of any other
person having an interest in the matter or, in a criminal matter, at the instance of the Attorney
General acting in the interest of justice. Note that in any appeal at the instance of the Attorney
General, the Supreme Court shall have no power to reverse any acquittal at the court of first
instance or reverse a judgment allowing an appeal against conviction of a criminal offence.
SPECIAL LEAVE
The Supreme Court may entertain an application for special leave to appeal to the Supreme Court
in any criminal case and may grant leave accordingly.

REVIEW
The Supreme Court may also review any decision made or given by it on such grounds and subject
to such conditions as may be prescribed by the rules of court. The procedure for such a review is
provided for in rules 54 to 60 of the Supreme Court Rules. When exercising its power of review
under this section, the Supreme Court shall be constituted by not less than seven Justices of the
Supreme Court.
APPEALS PROCEDURE
The procedure for criminal appeals is as set out in rules 31 to 44 (Part III) of the Supreme Court
Rules. Matters dealt with under this part relate to:
- Time for, and manner of, appealing in criminal cases
- Notice of criminal appeal
- Grounds of appeal
- Notice of application for extension of time to appeal
- Notice of application for leave to appeal
- Forwarding of proceedings to the Court
- Copies of records for parties
- Action on decision on application to a single Justice
- Abandonment of appeal
- Withdrawal of notice of abandonment of appeal
- Temporary suspension orders
- Grant of bail
- Notification of final determination of appeal - Return of exhibits.
2. THE COURT OF APPEAL
The Court of Appeal is the second highest court for the Gambia. It consists of the President of the
Court of Appeal, not less than three justices of the Court of Appeal and such judge of the High
Court as the Chief Justice may by writing under his/her hand, select to sit in the Court of Appeal
for the determination of a particular matter. Such a judge selected from the High Court must
however be qualified to be appointed as a Judge of the Court of Appeal. The Court of Appeal is
constituted by three justices of the court but a single judge of the Court may exercise the powers
of the Court in any interlocutory matter, subject to an appeal from his or her decision to a bench
of three judges of the Court. The President of the Court of Appeal presides over the sittings of the
court and in his absence, the most senior of the other justices presides.
The President of the Court of Appeal in consultation with the Chief Justice may establish such
divisions of the Court of Appeal and in such place in the Gambia as he deems fit.

CRIMINAL JURISDICTION OF THE COURT OF APPEAL
The Court of appeal has no original jurisdiction. It only has appellate jurisdiction which is spelt
out in section 130 of the Constitution. It has jurisdiction to hear and determine appeals from
judgments, decrees and orders of the High Court and such other appellate jurisdiction as may be
conferred on it by an Act of the National Assembly. Appeals from any judgment, decree or order
of the High Court shall lie as of right. The Court of Appeal also hears appeals from a Court
Martial.
Furthermore, by virtue of section 14 of the Court of Appeal Act of The Gambia Act (Cap 6:02)
(hereinafter called the Court of Appeal Act), an appeal shall lie to the Court of Appeal from any
Disciplinary Committee of the General Legal Council suspending a legal practitioner of the
Supreme Court from practice or striking out his or her name off the Roll, and for the purposes of
the appeal the order shall be deemed to be an order of the High Court. In exercising its powers
under section 14 above, the Court of Appeal shall have full power to vary or discharge an order
made by the Disciplinary Committee. In particular, it may substitute an order of suspension for an
order striking an appellant off the Roll in any case in which it may think fit to do so.29
In addition to its jurisdiction to hear appeals, a Judge may reserve for consideration of the Court
of Appeal, on a case to be stated by him or her, any question of law which may arise on the trial
before the Judge of any person charged on information, and if a verdict of guilty be returned, may
postpone judgment, or may direct judgment be entered provisionally, subject to the opinion of the
Court of Appeal, respiting execution of the judgment, and the Court of Appeal shall have power
to hear and determine every such question.
In hearing and determining any appeal within its jurisdiction, the Court of Appeal shall all the
powers vested in the court from which the appeal is brought.
RIGHT OF APPEAL IN CRIMINAL CASES
By virtue of section 5 of the Gambia Court of Appeal Act, a person convicted in the High Court in
the exercise of its original jurisdiction may appeal to the Court of Appeal:
c. Against his or her conviction on any ground of appeal which involves a question of law
alone;
d. With the leave of the Court of Appeal or on the certificate of the Judge who tried him or
her that it is a fit case for appeal against his or her conviction on any ground of appeal which
involves a question of fact alone, or a question of mixed law and ground of appeal; and
e. With the leave of the Court of Appeal against the sentence passed on his or her conviction,
unless the sentence is one fixed by law.
DETERMINATION OF APPEALS IN ORDINARY CRIMINAL CASES

The Court of Appeal shall, on any appeal in ordinary criminal cases, allow the appeal if it thinks
that the verdict should be set aside on the ground that it is unreasonable or cannot be supported
having regard to the evidence, or that the judgment should be set aside on the ground of a wrong
decision of any law or that on any ground there was miscarriage of justice and in any other case
shall dismiss the appeal.
Where the Court of Appeal is of the opinion that a point raised on appeal might be decided in
favour of the appellant, it may nonetheless dismiss the appeal if it considers that no substantial
miscarriage of justice has actually occurred.
If the Court of Appeal allows an appeal against conviction, it shall, subject to the special provisions
of the Court of Appeal Act, quash the conviction and direct that a judgment and verdict of acquittal
be entered.
On appeal against sentence the Court of Appeal shall, if it thinks that a different sentence should
have been passed, quash the sentence passed at the trial, and pass such other sentence warranted
in law by the verdict (whether more or less severe) in substitution therefor as it ought to have been
passed, and in any other case shall dismiss the appeal.
POWERS OF THE COURT OF APPEAL IN SPECIAL CRIMINAL CASES
If it appears to the Court of Appeal that the appellant, though not properly convicted on some count
or some part of the information, has been properly convicted on some other count or part of the
information, the Court may either affirm the sentence passed on the appellant on the trial, or pass
such sentence in substitution therefor as it thinks proper, and as may be warranted in law by the
verdict on the count or part of the information on which the Court considers that the appellant has
been properly convicted.
Where an appellant has been convicted for an offence and the judge could, on the information,
have found him or her guilty of some other offence, then if it appears to the Court of Appeal that
the Judge must have been satisfied of facts which proved him or her guilty of that offence, the
Court of Appeal may, instead of allowing or dismissing the appeal, substitute for the verdict found
a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence
passed at the trial as may be warranted in law for the other offence, not being a sentence of greater
severity.
If on any appeals it appears to the Court of Appeal that although the appellant was guilty of the act
or omission charged against him or her, he or she was insane at the time the act was done or
omission made so as not to be responsible according to law for his actions, the Court of Appeal
may quash the sentence passed by the trial court and order the appellant to be kept in custody as a
criminal lunatic in the same manner as if a special verdict had been found to that effect.

RE-VESTING AND RESTITUTION OF PROPERTY ON CONVICTION
The operation of any order for the restitution of any property to any person made on conviction on
information and the re-vesting, in case of any such conviction, in the original owner or his or her
representative of the property in stolen goods, shall (unless the trial judges direct to the contrary
in any case in which, in his or her opinion, the title to the property is not in dispute) be suspended
until the expiration of ten days after the date of the conviction but where leave to appeal is given
within ten days after the date of conviction, until the determination of the appeal. In cases where
the operation of an order, or a re-vesting, is suspended until the determination of the appeal, the
order or the re-vesting, as the case may be, shall not take effect as to the property in question if the
conviction is quashed on appeal.
Note that Court of Appeal may order, annul or vary any order made on a trial for restitution of any
property to any persons, although the conviction is not quashed. Note further that if such an order
is annulled, it shall not take effect and if varied, it shall take effect as varied.
TIME FOR APPEALING
Where a convict desires to appeal to the Court of Appeal, or to obtain the leave of the Court of
Appeal to appeal, he or she shall give notice of appeal or notice of his or her application for leave
to appeal in such a manner as may be directed by the rules of the court within ten days of the date
of conviction.
It should be noted that except in cases where an appellant is sentenced to death, the time within
which notice of appeal or notice on application may be given may be extended at any time by the
Court of Appeal or by the Court that convicted the appellant. Where the appellant is sentenced to
death or corporal punishment, the sentence shall not in any case be executed until after the expiry
of the time within which notice of appeal or an application for leave to appeal may be given under
section 9. Where notice to appeal is given, a death sentence or corporal punishment shall not be
executed until after the appeal is determined. Where an application for leave is refused, a sentence
of death or life imprisonment shall also not be executed until the determination of the application.
SUPPLEMENTARY POWERS OF THE COURT OF APPEAL
Section 10 of the Court of Appeal Act gives the court the following supplementary powers:
a. The power to order the production of any document, exhibit, or other thing connected with
the proceedings, the production of which it appears to be necessary for the determination of the
case.

b. The power, where the Court of Appeal deems it fit, to order any witnesses who have been
compellable witnesses at the trial to attend and be examined before the Court of Appeal, whether
they were or were not called at the trial, or order the examination of any such witnesses to be
conducted in a manner provided by the rules of court, or, in the absence of rules of court making
provision in that behalf, as it may direct, before any Judge of the Court of Appeal or other persons
appointed by the Court of Appeal for that purpose, and allow the admission of any deposition so
taken as evidence before the Court of Appeal.
c. The power, if it deems fit, to receive the evidence, if tendered, of any witness (including
the appellant) who is competent but not compellable witness, and, if the appellant makes an
application for the purpose, of the husband or wife of the appellant, in cases where the evidence of
the husband or wife could not have been given at the trial except of such application.
d. The power to order reference of any question arising on appeal and involving prolonged
examination of documents or accounts, or any scientific or local investigation, which in the Court’s
opinion cannot be conveniently conducted before it in a manner provided by the rules of court, or,
in the absence of such rules, the Court may order an inquiry and a report to a Special Commissioner
appointed by the Court. The Court then, where it deems fit, acts on any report issued by such
Commissioner.
e. The power to exercise in relation to the proceedings of the Court of Appeal any such powers
which may for the time being be exercised by the Court of Appeal in civil matters, and issue any
such warrants necessary for enforcing its orders or sentences.
It should be noted, however, that the Court of Appeal can’t increase any sentence by reason or in
consideration of any evidence that was not given at the trial.
RIGHT OF APPELLANT TO BE PRESENT
An appellant, notwithstanding that he or she is in custody, shall be entitled to be present, if he or

she desires it, on the hearing of his or her appeal. However, where the appeal is on some ground
involving a question of law alone or where the Court is considering an application for leave to
appeal or it is considering any matter preliminary or incidental to the appeal, the appellant does
not have to be present, except where the rules of court provide that he or she shall have the right
to be present or where the Court of Appeal gives him or her leave to be present. Where an
application for extension of time within which notice of appeal or notice of application for leave
is granted by the court that convicted the appellant, that court may give the appellant leave to be
present.
Note that the power of the Court of Appeal to pass any sentence under the Court of Appeal Act
may be exercised even where the appellant is absent for any reason.

ADMISSION OF APPELLANT TO BAIL
A Judge may, if he or she thinks fit, admit an appellant to bail pending the determination of his or
her appeal. An appellant who is not admitted to bail shall, pending the determination of his or her
appeal, be treated in such a manner as may be directed by the rules made under the Prisons Act.
The time during which the appellant, pending the determination of the appeal, is admitted to bail,
and subject to any directions which the Court of Appeal may give to the contrary on any appeal,
the time during which the appellant, if in custody, is specially treated as an appellant under this
section, shall not count as part of any term of imprisonment under his or her sentence.
In the case of an appeal under the Act, any imprisonment under the sentence of the appellant,
whether it is the sentence passed by the High Court or the sentence passed by the Court of Appeal,
shall, subject to any direction which may be given by the Court of Appeal, be deemed to be
resumed or to begin to run, as the case requires, if the appellant is in custody, as from the day on
which the appeal is determined, and if he or she is not in custody, as from the day on which he or
she is received into prison under the sentence.
APPEALS PROCEDURE
The procedure for criminal appeals before the Court of Appeal is as set out in rules 43-45, 47-54
and 56-70 to 44 of the Court of Appeal Rules (Part III). Matters dealt with under this part are:
- Method of appealing
- Judge’s Certificate
- Notices of Appeal
- Forwarding of proceedings in court below to Registrar
- Procedure on decision of application by single judge
- Notice of application for leave of appeal
- Abandonment of appeal
- Notice of abandonment of appeal may be withdrawn
- Person in custody in default of payment of fine
- Varying order of restitution or property
- Temporary suspension of orders made on conviction as to money, rewards, costs etc.
- Report of Judge of Court of trial

- Furnishing Judge of Court of trial with materials for report
- Procedure where question of law reserved
- Appellant and surety’s recognisances; before whom to be taken
- Notification of final determination of appeals - Notification of result of appeal -
Enforcement of orders, etc.
- Copies of record, etc., for appellant
- Attendance of witness before the Court
- Proceedings on reference
- Waiver of non-compliance with rules
- Costs of appeal
- Judgment of the Court
THE HIGH COURT

The High Court of the Gambia consists of the Chief Justice, not less than seven other justices of
the High Court and any judge of a superior court whom the Chief Justice may, by writing, request
to sit as a judge of the High Court. It is duly constituted by a single judge and may sit at such
places as the Chief Justice may determine. The Chief Justice may also establish permanent
divisions of the Court to sit at various places throughout the Gambia and appoint judges of the
Court to any such division.
ORIGINAL JURISDICTION OF THE HIGH COURT

Section 132 of the Constitution gives the High Court original jurisdiction to hear and determine all
civil and criminal proceedings. Thus the High Court of The Gambia has unlimited jurisdiction in
respect of criminal matters. This means it can try any offence under any law and pass any sentence
authorised by law.
APPELLATE JURISDICTION OF THE HIGH COURT

Section 132 (2) of the Constitution further gives the High Court jurisdiction to hear appeals from
Subordinate Courts, except the Cadi Court. Thus the High Court hears appeals from the
Magistrates’ Courts, the Children’s Court and District Tribunals in respect of criminal matters.
SUPERVISORY JURISDICTION OF THE HIGH COURT

The High Court also has supervisory jurisdiction over all lower courts and adjudicatory authorities
in The Gambia and in the exercise of its supervisory jurisdiction shall have powers to issue
directions, order or writs, including writs of habeas corpus, orders of certiorari, mandamus and
prohibition as it may consider appropriate for the purpose of enforcing its supervisory powers.
This is further buttressed by section 23 of the Courts Act which provides:

“The High Court shall exercise general powers of supervision over all subordinate courts and may,
at any time, call for and inspect or direct the inspection of all records of such courts, and may give
any directions which in any case the High Court may consider to be necessary in the interests of
justice.”
It follows therefore that any lower court or adjudicatory authority exercising its criminal
jurisdiction is subject to the supervisory jurisdiction of the High Court.
3. THE SPECIAL CRIMINAL COURT
This court is established by Section 134 of the Constitution. It is not yet constituted. It should be
constituted by a panel consisting of a Chairperson and not less than two other panel members and
has jurisdiction to hear and determine all criminal matters relating to theft, misappropriation and
other similar offences in which the public funds and public property are affected. The National
Assembly is mandated under section 136 of the Constitution to pass a law to give effect to the
provisions of the Constitution on the Special Criminal Court.
4. COURTS MARTIAL
These are courts convened under The Gambia Armed Forces Act (Cap 19:01) to try persons subject
to the Act. Sections 35-81 of the Act contain military offences (service offences) for which officers
and soldiers of the Gambia Armed Forces can be tried by a Court Martial. The offences range
from the serious offence of aiding the enemy (section 36 of the Act) which attracts the punishment
of death to the less serious offences of malingering (Section 61 of the Act) which attracts a sentence
of a term of imprisonment. Section 94 of the Act establishes a General Court Martial and
Disciplinary Court Martial and they are both convened by the President or such other authority as
may be authorized in that behalf by him.
A General Court Martial consists of not less than five (5) officers. Its President shall be an officer
of or above the rank of Lieutenant Colonel or an officer of corresponding rank with the Navy or
Air Force. Where the accused person is above the rank of Brigadier, the President of the General
Court Martial shall be an officer of or above the rank of the accused person. Members of the Court
Martial shall be of or above the rank of a Captain, or of or above the rank of Colonel or an officer
of corresponding rank.

Where the accused is of the rank Lieutenant Colonel or officer of corresponding rank, all members
of the court martial other than the President shall be of or above the rank of Major or an officer of
corresponding rank.
A General Court Martial may try any person subject to the Act who is alleged to have committed
an offence under the Act and the Chief Justice appoints a person to officiate as a Judge Advocate
at a General Court Martial. For persons disqualified to serve on a General Court Martial, see s.
98 of the Act.
A Disciplinary Court Martial is constituted by not less than three officers of or above the rank of
Captain or an officer with corresponding rank in the Navy or Air Force.
A Disciplinary Court Martial may try any person subject to the Act who is alleged to have
committed an offence under the Act or any regulations thereunder. However, a Disciplinary Court
Martial shall not pass a sentence including punishment higher in a scale of punishment than
dismissal with disgrace from the Armed Forces.
The Chief Justice may appoint a person to officiate as a Judge Advocate of a Disciplinary Court
Martial. For persons disqualified to serve as a Disciplinary Court Martial, see section 103 of the
Act. See also sections 104, 105, and 108 of the Act dealing with place of sitting of a Court Martial,
offences in respect of a Court Martial and decisions of a Court Martial respectively. Subject to the
exception mentioned in section 109 of the Act, a Court martial shall sit in open court and in the
presence of the accused person.
Please note that under section 90 of the Act, a Commanding Officer may try an accused person by
summary trial. The conditions stated in section 90 of the Act must, however, be satisfied. Superior
officers also have similar powers under section 90 of the Act.
5. MAGISTRATE’S COURTS
S. 14 (1) of the Courts Act (Cap: 6.01) provides:

”There is here by established in the City of Banjul and in every Division of the Gambia, a court
subordinate to the High Court which shall be presided over by a magistrate and which shall, subject
to any law for the time being in force, exercise jurisdiction within the City of Banjul or such
Division as the case may be. The style of such court shall be, in respect of Banjul, the Banjul
Magistrate’s Court and in respect of a Division, the divisional Court of the Division in respect of
which it has jurisdiction.’’
A Magistrates’ Court is duly constituted by one Magistrate lawfully empowered to adjudicate

therein. Magistrate’s Courts have both civil and criminal jurisdiction and the powers and

jurisdictions of magistrates are limited and determined by the powers and jurisdiction of the Class
of Magistrate presiding over a court.
Magistrates in The Gambia are of three classes:

- First Class Magistrates
- Second Class Magistrates
- Third Class Magistrates
-
Despite the above classification, it should be noted, however, that subject to express provisions of
any other law and to any directions of the High Court given under section 23 of the Courts Act to
the contrary, it is lawful for any Second or Third Class Magistrate to take cognizance of and make
orders in relation to any preliminary or interlocutory proceeds in any matter which would otherwise
be within the jurisdiction only of a First Class Magistrate.
Note further that a Governor in charge of a Region and every Administrative Officer in a Region
other than a Governor could serve as Second Class and Third Class Magistrates respectively. Any
two Justices of the Peace also have the powers of a Third Class Magistrate.
CRIMINAL JURISDICTION OF MAGISTRATES
The criminal jurisdiction of a magistrate is as spelt out in the CPC. Note that the jurisdiction to
try an offence is different from the jurisdiction to impose punishment.
JURIDICTION OVER OFFENCES
By virtue of section 5 of the CPC, a Magistrates’ Court may try any offence under any law, except
the offence of treason. Nothing in this section, however, shall:
“(a) derogate from any law which provides that a particular offence shall be triable only by a
subordinate court of a particular class or classes or by a court other than a subordinate court; or
(b) be deemed to prohibit the exercise of the power of the High Court to transfer any case for trial
by itself or by any other subordinate court, or of the Attorney General to require that a case triable
by a subordinate court be tried by the High Court.”
Before this amendment was introduced, a Magistrates’ Court could only try offences for which the
maximum sentence for imprisonment was ten years or less. Thus Magistrates’ Courts did not have
the jurisdiction to try offences such as murder, rape, manslaughter, arson etc. At the moment
magistrate can try all offences, except treason, irrespective of the magistrate’s class.

JURISDICTION TO IMPOSE PUNISHMENT
By virtue of section 5 (2), a First Class Magistrate may pass any sentence authorized by law. Thus
a First Class magistrate can pass a death sentence or impose life imprisonment or impose any fine.
A Second Class Magistrate may impose any of the following sentences or both:
a. Imprisonment for a term not exceeding ten (10) years.

b. Fine not exceeding five hundred thousand dalasis (D500, 000).
A Third Class Magistrate may impose any of the following sentences or both of them:
a. Imprisonment for a period not exceeding five years and
b. Fine not exceeding two hundred and fifty thousand dalasis (D250, 000).
Before the said amendment a First Class magistrate could not pass a sentence of imprisonment
exceeding seven years. A Second Class Magistrate could not pass a sentence of imprisonment
exceeding five years and a fine exceeding five thousand dalasis while a Third Class Magistrate
could not pass a sentence of imprisonment exceeding one year and a fine of more than one thousand
dalasis.
8. DISTRICT TRIBUNALS
Section 9 of the District Tribunal Act (Cap 6:03) provides:

“The criminal jurisdiction of a District Tribunal shall extend, subject to the provisions of this Act,
to the hearing, trial and determination of all criminal charges or matters in which any person is
accused of having wholly or in part within the jurisdiction of the Tribunal committed or been
accessory to the committing of an offence.”
On its face, this section seems to give District Tribunals jurisdiction over all criminal matters
coming from their respective jurisdictions, including murder, treason, rape, etc. Section 12 of the
District Tribunal Act saves the situation and it provides:
“The President may, by Order, confer upon all or any District Tribunals jurisdiction to enforce
within the local limits of their jurisdiction, all or any of the provisions of any act specified in such
Order and to impose penalties on such persons subject to the jurisdiction of the Tribunal who
offend such against provisions, subject to such restrictions and limitations, if any, as may be
specified in the Order”.
The District Tribunals (Jurisdiction under certain Acts) Order was made under this section (section
12). This order restricts the criminal jurisdiction of District Tribunals and the penalties they might
impose. For offences under the Criminal Code, this order provides that all District Tribunals have

jurisdiction over any offence, which in accordance with the Criminal Procedure Code, can be tried
by a Subordinate Court of the Second Class.
For offences under the Public Health Act, (Cap 40:02) only the Tribunals in the following districts
are given the jurisdiction to enforce its provisions:
1. Lower Nuimi District.
2. Foni Bondali District
3. Foni Kansala District
4. Foni Bintang Karenai District
5. Kombo East District
6. Kombo Central District
7. Kombo South District
8. Kombo North District
9. Lower Baddibu District
10. Upper Baddibu District
11. Lower Saloum District
12. Niani District
13. Janjanbureh District
14. Fulladu East District
15. Fulladu West District
16. Eastern Niamina District
17. Niamina Dankuku District
18. Kantora District
All District Tribunals can enforce regulations made under the Land (Regions) Act (Cap 57:03),
Farmers Trading Act (Cap 59:04) and the Bicycles Act (Cap 70:06).
Rule 6 (e) of the District Tribunal Rules gives Group District Tribunals full jurisdiction in causes
concerning offences against customary law. Single Tribunals have similar jurisdiction under Rule
6 (m).
It is submitted that these provisions (rule 6 (e) and (m) of the rules and s.13 of the Act) giving
District Tribunals jurisdiction over customary offences should be revisited because they breed
uncertainty. One of the main features of customary law is its flexibility. Customary law has always
shown unquestionable adaptability to altered circumstances. This means something permissible
today might be forbidden tomorrow and vice versa. Bearing in mind the fact that customary law is
largely unwritten and the fact that criminal law regulates our behaviour and its application might
border on an individual’s liberty and freedom, its provisions must be easily ascertainable. The
best way this can be done is by codification. This guarantees certainty, easy reference and access.
It is therefore submitted that the criminal jurisdiction of our District Tribunals should be restricted

to offences under our written laws. A person should not be convicted of a criminal offence unless
the penalty therefor is prescribed under a written law. This is in line with the law in many common
law jurisdictions. In Nigeria, for example, the Nigerian Constitution and s. 3 (2) Penal Code, which
is applicable in the North, prohibits the punishment of any offender under any native law or
custom.
Please note that in some instances, District Tribunals do not have jurisdictions over parties resident
in their Districts. The Minister for Local government is authorized under section 8 of the District
Tribunal Act to direct that any person or class of persons, who would otherwise be subject to the
jurisdiction of a District Tribunal, shall not be subject to the jurisdiction of a District Tribunal
except with their consent. Under a direction called “Persons not subject to the jurisdiction of
District Tribunals except with their consent”, the following classes of people are not subject to the
jurisdiction of District Tribunals, except with their consent.
1. Members of the Armed forces of the Gambia

2. Members of the Gambia Police Force
3. Members of the House of Representatives (now National Assembly)
These persons must therefore consent before they can be subject to the jurisdiction of District
Tribunals. It must be emphasized that nothing stops the Minister from further directing that the
said list be extended to include other classes of persons.
POWER TO SUMMON WITNESSES
Every District Tribunal has the power to summon any person before it for The purpose of giving
evidence. Any person who fails without reasonable excuse to obey a summons lawfully issued by
a District Tribunal shall be liable to a fine not exceeding fifty dalasis or in default of payment, to
imprisonment with or without hard labour for a term not exceeding one month. PROCEDURE IN
CRIMINAL CASES
It is important to note the procedure in criminal matters before the District Tribunals. Section 20
of the District Tribunal Act provides that subject to such rules as may be prescribed, the practice
and procedure of District Tribunals shall be regulated in accordance with customary law.
Therefore, customary law and rules 9-15 of the District Tribunal Rules apply in criminal matters
before District Tribunals.
By virtue of these rules, proceedings before a District Tribunal are commenced by a complaint or
information made to the tribunal during the sittings of the court, or if the court is not sitting to the
president of the tribunal, who then decides, after hearing the complaint or information, whether it
shall be entertained. If the tribunal or the president decides to entertain the complaint, a summons
is issued against the offender. By Virtue of rule 20 of the District Tribunal Rules, such a summons
may either be in writing or verbal. An offender who disobeys the summons or who is charged with

a serious offence, may be arrested and brought before the tribunal that made the order. However,
such an offender must not be detained for no longer than is reasonably necessary. This provision
in the District Tribunal Rules is overridden by section 19 (b) of the Constitution which requires an
arrested person to be taken without delay before a court within 72 hrs.
Legal practitioners are also not allowed to appear or act for any party before a District Tribunal by
virtue of section 33 of the District Tribunal Act. Lawyers cannot therefore appear on behalf of an
accused person charged with a criminal offence before a District Tribunal. The popular belief,
especially with District Tribunal members, seems to be that since none of them is legally trained,
lawyers should not appear before them and confuse them with the inherited English legal system
and its intricacies.
It is submitted that section 33 of the District Tribunal Act contradicts section 24 (3) (d) of the 1997
Constitution which provides:
“Every person who is charged with a criminal offence shall be permitted to defend himself/herself
before the court in person or, at his or her own expense by a legal representative of his or her
choice.”
Section 4 of the Constitution emphasizes the supremacy of our Constitution and consequently
section 33 of the District Tribunal Act is void to the extent of the inconsistency with the
constitution.
CONTEMPT OF COURT
Any person subject to the jurisdiction of a District Tribunal who shall omit to produce or deliver
up a document on the lawful order of such Tribunal or who shall contumaciously refuse of neglect
to comply with the lawful order of such Tribunal, or who shall refuse to answer any question
lawfully asked by the Tribunal or to sign any statement lawfully required by the Tribunal, or who
intentionally insults the Tribunal or any member thereof, or who intentionally interrupts the
proceedings thereof at any stage shall be guilty of contempt of court and shall be liable to a fine
not exceeding fifty dalasis and in default of payment to imprisonment with or without hard labour
not exceeding one month.
PUNISHMENTS, FINES AND COMPENSATION
Section 13 of the District Tribunal Act provides that for offences against customary law, a District
Tribunal may, subject to the provisions of the Act, impose a fine or may order imprisonment with
or without hard labour or both fine and imprisonment, or may inflict any punishment authorised
by customary law. However, such imprisonment must not be repugnant to natural justice and

humanity and must not be excessive but shall always be proportioned to the nature and
circumstances of the offence. Where corporal punishment is ordered, it shall not be inflicted upon
a person aged sixteen years or upwards. This provision is now overridden by section 220 (9) of
the Children’s Act which bars the imposition of capital punishment under children. In all other
instances in which corporal punishment is permissible, section 21 (3) of the District Tribunal
(discussed below) must be complied with.
Persons sentenced by a District Tribunal to imprisonment may be detained in a place authorised

by the Minister as a local prison or in a prison established under the Prisons Act.
Where a fine is imposed by a District Tribunal, the tribunal may order that such a fine be paid at
such time or times and by such instalments as it shall deem fit. If the fine is not paid, the District
Tribunal may order that it be levied by the sale of any property belonging to the offender or that
the offender undergoes imprisonment in default of the payment of the fine. See section 15 of the
District Tribunal Act.
A District Tribunal can also direct that a fine or any part thereof be paid to the victim of the
offender. If the victim accepts such payments, he cannot maintain any suit for the recovery of
damages or the loss or injuries sustained. The law here is different from the law as it applies to
other courts. At the Magistrates’ Courts, fines are paid to the government coffers and not to the
victim.
REPORT OF CASES TO BE SUBMITTED TO THE GOVERNOR
All District Tribunals are required to submit to the Governor in writing, or if so directed, orally, a
report of all cases tried in the Tribunal, and if the report is made orally, a record of all cases so
reported shall be made by the officer to whom the report was made.
Where a District Tribunal imposes a sentence of corporal punishment , or of more than fourteen
days’ imprisonment, it shall report the case to the Governor forthwith. A sentence of corporal
punishment shall not be executed unless and until the sentence has been confirmed by the Governor
and the High Court and any sentence shall be so executed in accordance with the provisions of
section 30 of the Criminal Code.
REVISIONARY POWERS OF GOVERNORS
By virtue of section 23 of the District Tribunal Act, all Governors shall at all times have access to
any District Tribunal in their regions and to the records of such Tribunals and may:

a. Revise any of the proceedings of a Tribunal, whether civil or criminal, and may make such
order or pass such sentence therein as the District Tribunal could have made or passed. No sentence
of fine of imprisonment can, however, be increased by such Governor without the accused being
given the opportunity to be heard;
b. Order any case to be re-tried either before the same Tribunal or before any other District
Tribunal of competent jurisdiction;
c. Transfer any cause or matter to the subordinate court established by the Courts Act for the
Division concerned. This power given to Governors is exercisable either before trial or at any stage
of the proceedings for trial or after sentence passed or judgment given for the re-trial.
It should be noted that the powers conferred upon a Governor under section 23 (1) cannot be
exercised after an appeal is made to the High Court under section 26 of the District Tribunal Act.
These powers cannot also be exercised by a District Tribunal after the expiration of three months
from the termination of proceedings in the District Tribunal. A review commenced before a
Governor before the expiration of the said three months may however be completed thereafter.
Note finally that in every case where a Governor exercises such power of review, he or she shall
record any reasons for exercising it and place a date of his doing so in writing in the record of the
District Tribunal.
APPEALS
Any party who feels aggrieved by a judgment, order or decision of a District Tribunal in the
exercise of its criminal jurisdiction or of a Governor in the exercise of his or her powers under
section 23 of the District Tribunal Act may appeal to the High Court. The powers of the High
Court on appeal are spelt out in section 28 of the District Tribunal Act
DISTRICT TRIBUNALS
CRIMINAL JURISDICTION
Section 9 of the District Tribunal Act (Cap 6:03) provides:

“The criminal jurisdiction of a District Tribunal shall extend, subject to the provisions of this Act,
to the hearing, trial and determination of all criminal charges or matters in which any person is
accused of having wholly or in part within the jurisdiction of the Tribunal committed or been
accessory to the committing of an offence.”
On its face, this section seems to give District Tribunals jurisdiction over all criminal matters
coming from their respective jurisdictions, including murder, treason, rape, etc. Section 12 of the
District Tribunal Act saves the situation and it provides:

“The President may, by Order, confer upon all or any District Tribunals jurisdiction to enforce
within the local limits of their jurisdiction, all or any of the provisions of any act specified in such
Order and to impose penalties on such persons subject to the jurisdiction of the Tribunal who
offend such against provisions, subject to such restrictions and limitations, if any, as may be
specified in the Order”.
The District Tribunals (Jurisdiction under certain Acts) Order was made under this section (section
12). This order restricts the criminal jurisdiction of District Tribunals and the penalties they might
impose. For offences under the Criminal Code, this order provides that all District Tribunals have
jurisdiction over any offence, which in accordance with the Criminal Procedure Code, can be tried
by a Subordinate Court of the Second Class.
For offences under the Public Health Act only the Tribunals in the following districts are given the
jurisdiction to enforce its provisions:
1. Lower Nuimi District.
2. Foni Bondali District
3. Foni Kansala District
4. Foni Bintang Karenai District
5. Kombo East District
6. Kombo Central District
7. Kombo South District
8. Kombo North District
9. Lower Baddibu District
10. Upper Baddibu District
11. Lower Saloum District
12. Niani District
13. Janjanbureh District
14. Fulladu East District
15. Fulladu West District
16. Eastern Niamina District
17. Niamina Dankuku District
18. Kantora District
All District Tribunals can enforce regulations made under the Land (Regions) Act (Cap 57:03),
Farmers Trading Act (Cap 59:04). All District Tribunal can enforce sections 3 and 4 of the Bicycles
Act (Cap. 70:06) and regulations 2, 3, 4, 5, 6, 7, 8, 9 and 21 of the Bicycle Regulations made under
the Bicycles Act.
Rule 6 (e) of the District Tribunal Rules gives Group District Tribunals full jurisdiction in causes
concerning offences against customary law. Single Tribunals have similar jurisdiction under Rule
6 (m).

It is submitted that these provisions (rule 6 (e) and (m) of the rules and s.13 of the Act) giving
District Tribunals jurisdiction over customary offences should be revisited because they breed
uncertainty. One of the main features of customary law is its flexibility. Customary law has always
shown unquestionable adaptability to altered circumstances. This means something permissible
today might be forbidden tomorrow and vice versa. Bearing in mind the fact that customary law is
largely unwritten and the fact that criminal law regulates our behaviour and its application might
border on an individual’s liberty and freedom, its provisions must be easily ascertainable. The
best way this can be done is by codification. This guarantees certainty, easy reference and access.
It is therefore submitted that the criminal jurisdiction of our District Tribunals should be restricted
to offences under our written laws. A person should not be convicted of a criminal offence unless
the penalty therefor is prescribed under a written law. This is in line with the law in many common
law jurisdictions. In Nigeria, for example, the Nigerian Constitution and s. 3 (2) Penal Code, which
is applicable in the North, prohibits the punishment of any offender under any native law or
custom.
Please note that in some instances, District Tribunals do not have jurisdictions over parties resident
in their Districts. The Minister for Local government is authorized under section 8 of the District
Tribunal Act to direct that any person or class of persons, who would otherwise be subject to the
jurisdiction of a District Tribunal, shall not be subject to the jurisdiction of a District Tribunal
except with their consent. Under a direction called “Persons not subject to the jurisdiction of
District Tribunals except with their consent”, the following classes of people are not subject to the
jurisdiction of District Tribunals, except with their consent.
1. Members of the Armed forces of the Gambia

2. Members of the Gambia Police Force
3. Members of the House of Representatives (now National Assembly)
These persons must therefore consent before they can be subject to the jurisdiction of District
Tribunals. It must be emphasized that nothing stops the Minister from further directing that the
said list be extended to include other classes of persons.
QUORUM
For the purpose of hearing any case in a District Tribunal, it shall be sufficient if there is present
at the hearing the President, or the Vice President, and at least two other members. The decision
of the majority shall be the decision of the tribunal and where there is an equality of votes, the
President or other presiding member shall have a casting vote.

POWER TO SUMMON WITNESSES
Every District Tribunal has the power to summon any person before it for The purpose of giving
evidence. Any person who fails without reasonable excuse to obey a summons lawfully issued by
a District Tribunal shall be liable to a fine not exceeding fifty dalasis or in default of payment, to
imprisonment with or without hard labour for a term not exceeding one month.2
PROCEDURE IN CRIMINAL CASES
It is important to note the procedure in criminal matters before the District Tribunals. Section 20
of the District Tribunal Act provides that subject to such rules as may be prescribed, the practice
and procedure of District Tribunals shall be regulated in accordance with customary law.
Therefore, customary law and rules 9-15 of the District Tribunal Rules apply in criminal matters
before District Tribunals.
By virtue of these rules, proceedings before a District Tribunal are commenced by a complaint or
information made to the tribunal during the sittings of the court, or if the court is not sitting to the
president of the tribunal, who then decides, after hearing the complaint or information, whether it
shall be entertained. If the tribunal or the president decides to entertain the complaint, a summons
is issued against the offender. By Virtue of rule 20 of the District Tribunal Rules, such a summons
may either be in writing or verbal. An offender who disobeys the summons or who is charged with
a serious offence, may be arrested and brought before the tribunal that made the order. However,
such an offender must not be detained for no longer than is reasonably necessary. This provision
in the District Tribunal Rules is overridden by section 19 (b) of the Constitution which requires an
arrested person to be taken without delay before a court within 72 hrs.
Legal practitioners are also not allowed to appear or act for any party before a District Tribunal by
virtue of section 33 of the District Tribunal Act. Lawyers cannot therefore appear on behalf of an
accused person charged with a criminal offence before a District Tribunal. The popular belief,
especially with District Tribunal members, seems to be that since none of them is legally trained,
lawyers should not appear before them and confuse them with the inherited English legal system
and its intricacies.
It is submitted that section 33 of the District Tribunal Act contradicts section 24 (3) (d) of the 1997
Constitution which provides:
“Every person who is charged with a criminal offence shall be permitted to defend himself/herself
before the court in person or, at his or her own expense by a legal representative of his or her
choice.”

Section 4 of the Constitution emphasizes the supremacy of our Constitution and consequently
section 33 of the District Tribunal Act is void to the extent of the inconsistency with the
constitution.
CONTEMPT OF COURT
Any person subject to the jurisdiction of a District Tribunal who shall omit to produce or deliver
up a document on the lawful order of such Tribunal or who shall contumaciously refuse of neglect
to comply with the lawful order of such Tribunal, or who shall refuse to answer any question
lawfully asked by the Tribunal or to sign any statement lawfully required by the Tribunal, or who
intentionally insults the Tribunal or any member thereof, or who intentionally interrupts the
proceedings thereof at any stage shall be guilty of contempt of court and shall be liable to a fine
not exceeding fifty dalasis and in default of payment to imprisonment with or without hard labour
not exceeding one month.
PUNISHMENTS, FINES AND COMPENSATION
Section 13 of the District Tribunal Act provides that for offences against customary law, a District
Tribunal may, subject to the provisions of the Act, impose a fine or may order imprisonment with
or without hard labour or both fine and imprisonment, or may inflict any punishment authorised
by customary law. However, such imprisonment must not be repugnant to natural justice and
humanity and must not be excessive but shall always be proportioned to the nature and
circumstances of the offence. Where corporal punishment is ordered, it shall not be inflicted upon
a person aged sixteen years or upwards. This provision is now overridden by section 220 (9) of
the Children’s Act which bars the imposition of capital punishment under children. In all other
instances in which corporal punishment is permissible, section 21 (3) of the District Tribunal
(discussed below) must be complied with.
Persons sentenced by a District Tribunal to imprisonment may be detained in a place authorised

by the Minister as a local prison or in a prison established under the Prisons Act.
Where a fine is imposed by a District Tribunal, the tribunal may order that such a fine be paid at
such time or times and by such instalments as it shall deem fit. If the fine is not paid, the District
Tribunal may order that it be levied by the sale of any property belonging to the offender or that
the offender undergoes imprisonment in default of the payment of the fine. See section 15 of the
District Tribunal Act.
A District Tribunal can also direct that a fine or any part thereof be paid to the victim of the
offender. If the victim accepts such payments, he cannot maintain any suit for the recovery of
damages or the loss or injuries sustained. The law here is different from the law as it applies to

other courts. At the Magistrates’ Courts, fines are paid to the government coffers and not to the
victim.
REPORT OF CASES TO BE SUBMITTED TO THE GOVERNOR
All District Tribunals are required to submit to the Governor in writing, or if so directed, orally, a
report of all cases tried in the Tribunal, and if the report is made orally, a record of all cases so
reported shall be made by the officer to whom the report was made.
Where a District Tribunal imposes a sentence of corporal punishment , or of more than fourteen
days’ imprisonment, it shall report the case to the Governor forthwith. A sentence of corporal
punishment shall not be executed unless and until the sentence has been confirmed by the Governor
and the High Court and any sentence shall be so executed in accordance with the provisions of
section 30 of the Criminal Code.
REVISIONARY POWERS OF GOVERNORS
By virtue of section 23 of the District Tribunal Act, all Governors shall at all times have access to
any District Tribunal in their regions and to the records of such Tribunals and may:
a. Revise any of the proceedings of a Tribunal, whether civil or criminal, and may make such
order or pass such sentence therein as the District Tribunal could have made or passed. No sentence
of fine of imprisonment can, however, be increased by such Governor without the accused being
given the opportunity to be heard;
b. Order any case to be re-tried either before the same Tribunal or before any other District
Tribunal of competent jurisdiction;
c. Transfer any cause or matter to the subordinate court established by the Courts Act for the
Division concerned. This power given to Governors is exercisable either before trial or at any stage
of the proceedings for trial or after sentence passed or judgment given for the re-trial.
It should be noted that the powers conferred upon a Governor under section 23 (1) cannot be
exercised after an appeal is made to the High Court under section 26 of the District Tribunal Act.
These powers cannot also be exercised by a Governor after the expiration of three months from
the termination of proceedings in the District Tribunal. A review commenced before a Governor
before the expiration of the said three months may however be completed thereafter. Note finally
that in every case where a Governor exercises such power of review, he or she shall record any
reasons for exercising it and place a date of his doing so in writing in the record of the District
Tribunal.
REMOVAL ON MOTION OF DEFENDANT

A defendant in any case (including criminal cases0 may apply to the Governor for the removal of
proceedings, and the Governor may for reasons to be recorded in writing stop further hearing of a
case before a District Tribunal on such terms as he or she deems fit or the Governor may direct
that such a matter be tried by another subordinate court within the region.
CHALLENGING OF MEMBERS
Where an person tales exception to a member of a Tribunal on the score of partiality, affinity,
interest or ill-will or other like grounds, the Tribunal shall inquire into the grounds of the challenge
and on being satisfied as to the sufficiency of the grounds, may direct the member to abstain from
voting, or from taking part in the proceedings connected with the case.14
INDEMNITY OF OFFICERS
A person shall not be liable to be sued for any act done or ordered to be done by him or her in good
faith in the exercise of jurisdiction conferred by the District Tribunal Act, whether or not within
the limits of his or her jurisdiction. An officer of a District Tribunal or other persons bound to
execute warrants orders issued or made in the exercise of powers under the District Tribunal Act
shall not be liable to be sued if such persons had been acting in the exercise of lawful authority.
SERVICE OUTSIDE THE JURISDICTION OF DISTRICT TRIBUNAL

A warrant or order issuing out of a District Tribunal, and endorsed by Governor with a request for
service or execution within the jurisdiction of another District Tribunal may, on payment of the
prescribed fees for service or execution be served or executed within the jurisdiction of the other
Tribunal. An affidavit that the warrant or order was served or executed must however be made by
the person who effected service or executed the order.
EXECUTION OF JUDGMENT, DECREE OR ORDERS OF HIGH COURT, OTHER

SUBORDINATE COURT OR DISTRICT TRIBUNAL
A District Tribunal shall execute a judgment, decree or an order of the High Court or of any
subordinate court or of any District Tribunal directed to it for execution or service and shall
generally give assistance to any to any court or tribunal as may be required.
APPEALS
Any party who feels aggrieved by a judgment, order or decision of a District Tribunal in the
exercise of its criminal jurisdiction or of a Governor in the exercise of his or her powers under
section 23 of the District Tribunal Act may appeal to the High Court. The powers of the High
Court on appeal are spelt out in section 28 of the District Tribunal Act.

ARREST
The appearance of an offender may be secured before a court of law by means of an arrest. The
offender may be arrested with or without a warrant of arrest. See s.. 69 (1) (a) of the CPC.
ARREST WITH WARRANT
A warrant of arrest may be issued by a Magistrate or Judge after receiving a complaint that a person
has committed an offence. In practice, a warrant of arrest is usually issued by a Magistrate in the
following circumstances:
(a) When the statute creating the offence or any other law provides that the offender cannot be
arrested without a warrant.
(b) When a serious offence is alleged to have been committed by an offender.
(c) When a summons issued by a Magistrate has been disobeyed.
FORM CONTENT AND DURATUION OF WARRANT OF ARREST
Every warrant of arrest shall be signed by the Magistrate or Judge issuing it. It is also dated and
bears the seal of the court issuing it. S. 81 (1) of the CPC.
A warrant of arrest shall also state shortly the offence with which the person against whom it is
issued is charged. Such a person must be named or described in the warrant.
It should further order the person or persons to whom it is directed (usually a police officer or
police officers) to apprehend the person against whom it is issued and bring him before the court
issuing the warrant or before some other court having jurisdiction in the case to answer to the
charge therein mentioned and to be further dealt with according to law. See s. 81 (2) of the CPC.
Every arrest warrant shall remain in force until it is executed or cancelled by the court which issued
it. See s. 81 (3) of the CPC. Thus once an arrest warrant is executed, its life expires. A fresh
warrant of arrest has to be issued to effect an arrest. In the Nigerian case of R v. Akinyanju (1959)
WRNLR 253, a warrant of arrest was issued for the arrest of the accused. It was executed on him
and he was duly arrested. Subsequently, he was discharged. However, he was subsequently re-

arrested on the same warrant of arrest. The court held that the subsequent execution of the warrant
of arrest which had been earlier executed and had thus outlasted its duration, was irregular.
Like a summons or other processes issued by a Judge or Magistrate, a warrant is not invalidated
by reason of the Judge or magistrate who signed it dying or ceasing to hold office or have
jurisdiction. See s. 88 (2) of the CPC.
ISSUE OF WARRANT OF ARREST
Even where a summons is issued, a warrant of arrest may be issued at any time before or after the
time appointed in the summons for the appearance of the accused. See section 79 of the CPC.
If an accused person, other than a corporation, disobeys a summons and his personal attendance
has not been dispensed with under s.78 of the CPC, the court may issue a warrant for him to be
arrested and brought before it. See s. 80 (1) of the CPC. If the accused person disobeying the
summons is a corporation, the court may cause an officer of the corporation (any director or
member of the Board of management) to be summoned before it in the manner provided for under
the CPC for compelling the attendance of witnesses. It such an officer fails to attend, a warrant
may issue against him. See s. 80 (2) (3) of the CPC.
A warrant can only be issued under s. 80 of the CPC if the court is satisfied by evidence on oath
that the summons directed to that person was duly served. Note that the court can deal with a case
in the absence of the accused person in the manner provided for by s. 163 of the CPC. See s. 80
(5) of the CPC.
EXECUTION OF A WARRANT OF ARREST
A warrant of arrest may be directed to one or more police officers named therein or generally to
all police officers. A police officer can effect an arrest where the warrant issued by a court is not
in his possession but when a person to be arrested asked for it, he should show and read it over to
him. See s. 29 of the Police Act. Note that where the immediate execution of the arrest is necessary
and no police officer is immediately available, the court issuing such a warrant may direct it to any
other person and such person may execute it. See s. 83 (1) CPC.
When a warrant is directed to more officers or persons than one, it may be executed by all or any
one or more of them. See s. 83 (2) CPC. When directed to any police officer, it may also be
executed by any other police officer whose name is endorsed upon the warrant by the police officer
to whom it is directed or endorsed. See s. 84 CPC. A warrant of arrest may also be executed of
any place in The Gambia. See s. 86 CPC.

If a police officer or another person is effecting an arrest under the authority of a warrant, he/she
shall notify the substance of the warrant to the person to be arrested and if so required, shall show
him the warrant.
When a warrant of arrest is executed outside the local limits of the jurisdiction of the court which
issued it, the person arrested shall, unless the court which issued the warrant is within 20 miles of
the place of arrest, or is nearer than the Magistrate within the local limits of whose jurisdiction the
arrest was made or unless security is taken under s. 82 of the CPC, be taken before the Magistrate
within the local limits of whose jurisdiction the arrest was made. Such magistrate shall, if the
person arrested appears to be the person intended by the court which issued the warrant, direct that
the arrested person be taken to the court which issued the warrant. Note that bail can be given
unless the law states otherwise. See s. 87 CPC.
The police officer or the other person executing a warrant of arrest shall (subject to the provisions
of s. 82 of the CPC) without unnecessary delay bring the person arrested before the court which
issued it. See s. 85 CPC. Compare with s. 19 (3) (b) of the Constitution.
WARRANT OF ARREST ENDORSED WITH BAIL
See s. 82 of the CPC. A warrant of arrest other than one for an offence punishable with death
(murder or treason), may be endorsed with a direction to grant bail to the arrestee, after the
conditions of bail endorsed on the warrant are met by the arrestee. The endorsement directs that
the person named in the warrant on arrest, be released on his entering into a recognizance in such
amount as may be specified, with or without sureties. The endorsement also requires the arrestee
to appear before a particular court and at such time as the endorsement shall state. The
endorsement therefore specifies:
(a) the number of sureties (if any);
(b) the amount in which they and the person named in the warrant are respectively bound;
(c) the court before the person arrested is to attend and
(d) the time at which he is to attend, including an undertaking to appear at such subsequent
times are may be directed by such court.
Where such an endorsement is made, the officer in charge of any police station to which on arrest
the person named in the warrant is brought shall release him upon his entering into a recognizance
with or without sureties approved by that officer. Where security is taken, the officer taking it
shall have it forwarded to the court that issued the warrant.

ARREST WITHOUT WARRANT
A person accused of committing an offence may also be arrested without a warrant of arrest.
Generally, police officers, judicial officers and private persons are empowered before the law to
effect an arrest without a warrant. Members of the Gambia National Guard and the National
Intelligence Agency are also given powers of arrest without a warrant.
THE POLICE
S. 15 of the CPC provides that any police officer may without an order from a Magistrate and
without a warrant, arrest:
(a) Any person whom he suspects upon reasonable grounds of having committed a cognizable
offence, an offence under any of the provisions of Chapter XVII of the Criminal Code or any
offence for which under any law provision is made for arrest without warrant .
(b) A person who commits a breach of the peace in his presence.
(c) Any person who obstructs a police while in the execution of his duty, or who has escaped
or attempts to escape from lawful custody.
(d) Any person in whose possession anything is found which may reasonably be suspected to
be stolen property or who may reasonably be suspected of having committed an offence with
respect to such thing.
(e) Any person whom he suspects upon reasonable grounds of being a deserter from the Armed
Forces.
(f) Any person whom he finds in a highway, yard or other place during the night and whom
he suspects upon reasonable grounds of having committed or being about to commit a felony.
(g) Any person whom he suspects upon reasonable grounds of having being concerned in any
act committed in any place out of The Gambia, which, if committed in The Gambia would have
been punishable as an offence, and for which he is, under the Extradition Act or otherwise liable
to be apprehended and detained in The Gambia .
(h) Any person having in his possession without lawful excuse, the burden of proving which
excuse shall be on such person, any implement of house breaking.

(i) Any person for whom he has reasonable cause to believe a warrant of arrest has been issued
by a court of competent jurisdiction in The Gambia.
(j) Any person whom he believes to be bound by any recognisance to appear before any court
or any police officer and whom he believes to be about to leave or is making preparations to leave
The Gambia.
Section 73 (1) of the Drug Control Act (Cap. 13:05) provides:
“A Narcotics Control Officer, a police officer, customs officer or any other person acting in
exercise of his or her powers may arrest without a warrant a person who has committed, or who
the police officer, with reasonable cause, suspects to have committed an offence under the Act.”
Where a controlled drug is found on any premises or in any place searched or in any ship, vessel,
boat, aircraft, or other means of conveyance, as the case may be, the Narcotics Control Officer, the
police officer, customs officer or any officer who effected the search or stopped the ship, vessel,
boat, aircraft, vehicle or other means of conveyance as the case may be, may arrest without warrant
any person in the premises, place or ship, vessel, boat aircraft, vehicle or other means of
conveyance whom he or she gas reason to believe has committed an offence under the Drug
Control Act. Note that the power to arrest without warrant under the Drug Control Act shall not be
without prejudice to any power of arrest conferred by any other law. See 73 (2) and (3) of the Drug
Control Act.
In the exercise of his powers under s. 15 of the CPC or section 73 of the Drug Control Act, a police
officer or Narcotics Control Officer, as the case may be, must show that there were facts from
which it could be reasonably inferred that the suspect committed an offence. In the absence of such
facts, the police officer or Narcotics Control Officer cannot defend his action by relying on the
statutory provision.
What is important is not the belief of the police officer but inference can be deduced from the facts
of the case. Thus the test to be adopted in determining whether the police officer acted within his
power is objective. In other wards from the facts of the case, could it be reasonably inferred that
the commission of an offence was disclosed. In the Nigerian case of CHUKWUKA v.
COMMISSIONER OF POLICE (1964) NNLR 21, it was observed that.
“The test as to what is reasonable belief that a suspect has committed an offence is objective. It is
not what the policeman himself considered reasonable but whether the facts within the knowledge
of the policeman at the time of arrest disclosed circumstances from which it could be reasonably
inferred that the appellant had committed an offence.”

In the Nigerian case of JACKSON v. OMOROKUNA (1981) 1 NCR 283, the plaintiff and
somebody else were driving a motor cycle in a high crime area at night. The defendant, a police
officer, demanded for the motor cycle particulars and the ignition key. When these could not be
produced, the police officer arrested them and took them to the police station. The police officers
at the police station detained them but they were subsequently released. The plaintiff brought an
action against the defendant for unlawful arrest and false imprisonment. On the plaintiff‟s action
based on unlawful arrest, the High Court held that the defendant had reasonable grounds in
suspecting that the plaintiff and co. stole the motor cycle since they could not produce the
particulars of the motor cycle and did not explain the whereabouts of the ignition key. It was held
that the arrest was lawful. Iguh J observed at pages 296-297:
“The power possessed by police constables to arrest without warrant, whether at common law for
suspicion of felony or under statutes for suspicion of various misdemeanours is subject to the
requirement that the constable shall before arresting satisfy himself that there exist in fact
reasonable grounds for suspicion of guilt. The test to be applied, with the onus of proof on the
defendant seeking to justify his conduct, must be that of a reasonable person acting without passion
or prejudice. The matter must be looked at objectively and in the light of the facts known to the
defendant at the time, not on facts that may subsequently come to light.”
The action failed.
It must appear to the police officer that the suspect committed an offence. If after the arrest,
investigations reveal that the suspect did not actually commit the offence for which he was arrested,
and he was subsequently released, the arrest is not rendered unlawful. What is important is whether
at the time of arrest, the facts disclosed an apparent commission of an offence.
In Whiltshire V Barrett (1965) 2 All ER 271, the respondent was arrested without a warrant by the
appellant, a police officer. The respondent was arrested for driving while under the influence of
alcohol, the arrest being effected by force, because the respondent did not submit himself
voluntarily to the police. In consequence he sustained some bodily injuries. After the respondent
was examined by a doctor, it was revealed that he was not under the influence of alcohol at the
time he was arrested and he was released. The respondent brought an action against the police
officer claiming damages for assault and unlawful arrest. Damages were awarded to the respondent
in the lower court.
On appeal, the English Court of Appeal in a unanimous decision allowed the appeal. It was held
that the trial judge misdirected the jury in ruling that if the respondent did not actually commit the
offence, the arrest was unlawful. It held that if it appeared to the policeman that the respondent
was driving under the influence of alcohol, even though subsequent investigation revealed that at
the he was arrested this was not actually the case, the arrest remains lawful. Lord Denning at pages
274-275 observed:

“The police have to act at once, on the facts as they appear on the spot and they should be justified
by the facts as they appear to them at the time and not any expost facto analysis of the situation ...
In all the many cases, where a statute gives power to arrest when a man is „committing‟ or „found
committing‟, that is apparently committing an offence.”
A police officer, after arresting a suspect, does not have to take the suspect directly to the police
station. He can do what is reasonable to investigate the offence alleged against the suspect. He can
take the suspect to his house to search in order to obtain necessary evidence. He can take him to
any other police to verify any explanation made by the suspect. For example, if the suspect claims
that he was at a particular place at the time the offence for which he was arrested was committed,
the police officer can take the suspect to the place to inquire whether he was in fact there before
proceeding to the police station. However, the actions of the police officer must be reasonable.
Otherwise he may be liable for false imprisonment.
In Dallison V. Caffery (1964) 2 All ER 610, the respondent, a police officer was held not liable
for damages for false imprisonment for taking the appellant first to his house to search for stolen
money and then to friend‟s house to verify an alibi before taking him to the police station. It was
held that the police officer acted reasonably in conducting an investigation into the alleged offence
before taking the suspect to the police station.
S. 16 of the CPC also empowers any police officer in charge of a police station to arrest or cause
to be arrested without a warrant any person found taking precautions to conceal his presence within
the limits of such station under circumstances which afford reasons to believe that he is taking
such precautions with a view to committing a cognizable offence.
A station officer can also arrest or cause to be arrested any person found within the local limits of
his station who has no ostensible means of subsistence or who cannot give satisfactory account of
himself. See s. 16 of the CPC.
Where the power of arrest without a warrant is vested solely in an officer in charge of a police
station, such officer may cause the arrest to be effected by any officer subordinate to him by
delivering to the officer required to make the arrest an order in writing specifying the person to be
arrested and the cause for which the arrest is to be made. See s. 17 of the CPC.
Where any person who, in the presence of a police officer, has committed or has been accused of
committing a non-cognizable offence, refuses on the demand of such officer to give his name and
residence or gives a name or residence which such have reason to believe to be false, he may be
arrested by such officer in order that his name or residence be ascertained. See s. 18 (1) of the
CPC.

When the time and residence of such person have been ascertained, he shall be released on his
executing a recognizance with or without sureties, to appear before a Magistrate if so required.
However, where such a person is not resident in The Gambia, the recognizance shall be secured
by a surety or sureties resident in The Gambia. See s. 18 (2) of the CPC.
If the true name and residence of such person is not ascertained within 24 hours from the time of
arrest, or should he fail to execute the recognizance or, if so required, to furnish sufficient sureties,
he shall forthwith be taken before the nearest Magistrate having jurisdiction. See s. 18 (3) of the
CPC.
THE NATIONAL INTELLIGENCE AGENCY (NIA)
The NIA is established under the National Intelligence Agency Decree, Decree No.45 of 1995
(Cap 17:03). Its functions as stated under s. 3 of the Decree are as follows:
1. To obtain and provide the government with information relating to actions or intentions of
persons who may be a threat to state security
2. To protect the security of the state generally, and in particular, protect the state against
threats of espionage, terrorism and activities relating to sabotage undertaken by Gambians or
foreigners, agents of foreign powers, organisations or institutions
3. To take adequate precautions to protect the state against activities which may undermine
government or lead to the overthrow of the government through industrial, violent or other means.
4. To take necessary measures to safeguard the welfare and economic well-being of the
persons living in The Gambia, against threats posed by internal or external aggressors.
5. To investigate and obtain information relating to the prevention or detection of serious or
economic crimes. An economic crime is defined in s. 2 of Economic
Crimes (Specified offences) Act (Cap. 13:07) as including any act or omission
that results in financial loss, damage or injury or economic loss or injury, to a public body. Public
body includes the government, a statutory corporation, a company, firm registered society or any
other body in which the government owns shares, holds securities or has pecuniary or other
interest. See s. 2 of the Economic Crimes (Specified offences) Act (Cap. 13:07).
6. To undertake such assignment as may be assigned to it by the National Intelligence Council

set up under s. 6 of the Decree.
Under s. 10 (a) of Decree No.16, the staff of the agency have the power to arrest and detain for
investigation of any person within the territorial boundaries of the country suspected of having an
intention to undertaking or undertaking activities inimical to the security of the state, or to the
welfare or economic well-being of persons living in the country. The staff of NIA can also arrest
or detain any person for investigations in relation to any serious or economic crime. See s. 10 (d)
of Decree No. 16.

An officer of the NIA may arrest or detain any person without warrant when obtaining a warrant
at the material time would cause or facilitate the commission of a crime or an act detrimental to
state security. See s. 13 (5) of the Decree.
The Gambia National Guard (GNG)
The change in government in July 1994 resulted to the amalgamation of the Gambia National Army
with the then Tactical Support Group (TSG) formally called the Gendarmerie. The Gambia Armed
Forces Act (Amendment) Decree, 1996, Decree No. 87 was put in place to regularize all these
changes of names, nomenclature and chain of command. See Police Powers of the Gambia
National Guard in terms of the Gambia ”Gambia National Army (Gambia National Guard Unit)
Police Duties, Regulation, Legal Notice 1 of 2000” presented by Lt. Colonel Ndure Cham (as he
then was) at a seminar on Access to Justice as a Fundamental Right on 13th – 14th May 2005.
The Gambia National Army (Gambia National Guard Unit) Police Duties Regulations, 2000, made
under s. 147 of The Gambia Armed forces Act (Cap 19) provides in regulation 3(1) that in addition
to their paramilitary responsibilities within the Gambia National Army, the Gambia National
Guard shall, together with the police, be employed in the prosecution of law and order, protection
of property, prevention and detection of crime, apprehension of offenders and the enforcement of
all laws and regulations with which the police are charged. Thus apart from their military duties,
the Gambia National Guard unit can exercise duties performed by the Gambia Police Force.
Under regulation 3 (2), The Gambia National Guard Unit is mandated to regularly carry out
surveillance of the whole country, especially rural areas.
In discharging its duties, the Gambia National Guard may intervene in any place where public
order is threatened and shall be under the command of the Commander of the GNG. See regulation
3 (3) and (4) of the Legal Notice.
The powers of arrest of the GNG are not specifically spelt out in the said Legal Notice but
regulation 20 (1) of the said notice provides:
“The National Guard shall investigate offences, gather evidence and prosecute suspects in
appropriate courts.”
Regulation 20 (2) further provides

“The National Guard shall carry out its functions under this regulation, under the supervision of
the Attorney General and in accordance with provisions of the Criminal Procedure Code and other
relevant laws.”

Investigating an offence might entail effecting an arrest which by virtue of regulation 20 (2) must
be in accordance with the CPC and other relevant laws dealing with arrest. Thus our earlier
discussions on the powers of arrest without a warrant of the police apply to the GNG unit. A person
arrested by members of the GNG may be kept in custody and interrogated or to facilitate
investigations. See regulation 24 of the Legal Notice.
JUDICIAL OFFICERS
When any offence is committed in the presence of a Magistrate within the local limits of his
jurisdiction, he may himself arrest the offender or order any person to arrest the offender and
thereafter, subject to the provisions of the CPC dealing with bail, commit the offender to custody.
See s. 24 of the CPC. Section 25 of the CPC further provides: “Within the local limits of his
jurisdiction, any Magistrate may arrest or order the arrest in his presence of any person whose
arrest upon a warrant he could have lawfully ordered if the facts known to him at the time of
making or directing the arrest has been stated before him on oath by some other person.”
In the latter case, the offence is not committed in the presence of the Magistrate.
Every person is obliged by law to assist a Magistrate or a police officer reasonably demanding his
attention to assist in taking or preventing the escape of any person whom such Magistrate or police
officer is authorised to arrest and in preventing or suppressing a breach of the peace or in
preventing any attempted injury to any telegraph or public property. See s. 28 of the CPC.
PRIVATE PERSONS
A private person may arrest any person who in his view commits a cognizable offence, or whom
he reasonably suspects of having committed a felony. Under s. 2 of the CPC a cognisable offence
means any offence:
(1) Which on conviction may be punished by a imprisonment for a term of one year or more;
or
(2) Which on conviction may be punished by a fine exceeding one thousand dalasis; or
(3) Which is declared by law to be a cognizable offence or to be an offence for which a person
may be arrested without a warrant.
A felony is defined in s.3 of the Criminal Code to mean an offence which is declared by law to be
a felony or if not declared as a misdemeanour, is punishable, without proof of previous conviction,
with death, or with imprisonment with hard labour for three or more years.
A Property owner or his servants persons authorized by him can arrest without a warrant of arrest
any person found committing an offence involving injury to his property.

A private person arresting an offender without a warrant shall without any unnecessary delay take
such a person to a police officer, or in the absence of a police officer, take him to the nearest police
station – See s. 21 (1) of the CPC. Thus under this provision, a person arrested by a private person
must be taken with all reasonable dispatch to a police station. The test of reasonableness or whether
the delay was “unnecessary “ is determined by the circumstances of each case.
In John Lewis v. Tims (1952) 1 All ER 1203 the appellant was held liable for false imprisonment
of the respondent by a lower court. The respondent and her daughter had been arrested by a private
detective of the appellant company for stealing from their store. They were taken before the chief
store detective and the managing director of the company, and were detained for some time. The
evidence of the respondent‟s daughter was that they were detained for an hour. However, there
was other evidence that they were detained for less than this. They were subsequently handed over
to the police. In allowing the appeal, the House of Lords held that where a person in the exercise
of his common law right arrested a person without a warrant, he should take the person arrested to
a Justice of the Peace or police, not necessarily forthwith, but as seen as reasonably possible. In
this case, the taking of the respondent to the appellant‟s office to obtain authority to prosecute
from the managing director was not an unreasonable delay before handing them to the police. The
appellants were not therefore not liable for false imprisonment. Thus failure to take the arrested
person to a police station within a reasonable time renders the person effecting the arrest liable in
damages for false imprisonment.
If a private person hands over an offender to a police officer who believes such a person can be
arrested without a warrant of arrest or order of a magistrate as provided for in s. 15 of the CPC,
the police officer shall thereupon arrest the offender. See s. 21 (2) of the CPC.
In there is reason to believe that the offender has committed a non-cognizable offence and he
refuses on the demand of the police officer to give his name and address, or gives a name or address
which such a police officer believes to be false, he shall be dealt with as provided for in Sec. 18 of
the CPC, which we have already discussed above. If there is no sufficient reason to be believe that
he has committed any offence, he shall be released forthwith – see s. 21(3) of the CPC.
MODE OF EFFECTING AN ARREST
An arrest is effected by the police officer or other person making the arrest actually touching or
confining the body of the person to be arrested, unless there is a submission to custody by word of
mouth or action. See s. 8 (1) of the CPC. Thus unless the person to be arrested submits to the
custody of the person effecting the arrest when he is informed in unequivocal terms that he is
under arrest, an arrest cannot be effected by mere words. The person to be arrested must actually
be touched or his body confined.

In the Nigerian case of Sadiq v. The State 1982 2 NCR 142, the accused was invited by a police
officer to the police station for questioning over the commission of an alleged offence. The accused
refused to accompany the police officer to the police station. Other officers were sent to the accused
and he was eventually persuaded to accompany them to the police station. The accused was
charged and convicted, inter alia, with the offence of resisting police arrest. On appeal against
conviction on the charge of resisting police arrest, the appellate court held that the appellant was
never arrested because he was not restrained. It was held that mere words cannot constitute an
arrest under the law unless accompanied by some form of restraint. Since there was no arrest in
law, the court held that the appellant could not have resisted arrest. His appeal was allowed.
Please note that the person arrested shall not be subjected to more restraint than is necessary to
prevent his escape – See s. 10 of the CPC.
If the person to be arrested forcibly resists the endeavours to arrest him or attempts to evade the
arrest, the person effecting the arrest may use all means necessary to effect the arrest. See s. 8 (2)
of the CPC. The means used to effect the arrest must however be reasonable. See s. 8(3) CPC. A
Person effecting an arrest may also break out of any house or a place in order to liberate himself
or any other person who‟ having lawfully entered for the purpose of making an arrest, is detained
therein. See s. 10 of the CPC.
NOTIFICATION OF ARREST
Except when an arrested person is caught committing an offence or is pursued immediately after
escape from lawful custody, the person effecting an arrest must inform the person arrested of the
cause of the arrest and if he/she is acting under the authority of a warrant, he or she shall notify the
substance thereof to the person to be arrested and if so required shall show him the warrant. See s.
12 of the CPC.
S. 19 (2) of the 1997 Constitution provides:

“Any person who is arrested or detained shall be informed as soon as is reasonably practicable
and in any case within three hours, in a language that he/she understands, of the reasons of his or
her arrest or detention and of his or her right to consult a Legal Practitioner.”
See also s. 14 of the CPC which provides:

“Any person who is arrested, whether with or without a warrant, shall be taken with all reasonable
dispatch to a police station or other place for the reception of arrested persons, and shall without
delay be informed of the charge against him. Any such person while in custody shall be given
reasonable facilities for obtaining legal advice, taking steps to furnish bail and otherwise making
arrangements for his defence or release”.

Note further the provisions of s. 19(6) of the Constitution which provides:
“Any person who is unlawfully arrested or detained by any person shall be entitled to compensation
from that person or from any other person or authority on whose behalf that other person was
acting.”
IRREGULARITY OF PROCESSES COMPELLING ATTENDANCE
S. 69(2) of the CPC provides:

“The validity of proceedings instituted or purported to be instituted in pursuance of subsection 1
of this section shall not be affected by any defect in the charge or complaint or by the fact that a
summons or warrant was issued without any complaint or charge or, in the case of a warrant,
without a complaint on oath.”
S. 88 (1) of the CPC also provides:
“Any irregularity or defect in the substance or form of a summons or warrant, and any variance
between a summons or warrant and the written complaint, or between a summons or warrant and
the evidence adduced at any inquiry or trial on the part of the prosecution against an accused person
whose attendance has been procured by such summons or warrant shall not affect the validity of
any proceedings at or subsequent to the hearing of the case, but if any such variance appears to
the court to be such that the accused has been thereby deceived or misled, such court may, at the
request of the accused, adjourn the hearing of the case to some future date, and in the meantime
remand the accused or admit him to bail ...”
S. 130 of the Drug Control Act provides:

“A notice, direction or any other process given, served or published… under this Act, shall not be
invalid by reason of an error or omission in the notice, direction or other process or in the
description of any property or person mentioned therein if the property or person is identifiable
from the description mentioned.”
Thus, any irregularity in a process issuing from a court, such as a summons or a warrant of arrest
or the service of such processes or any irregularity in effecting an arrest without a warrant does
not invalidate any subsequent trial of the accused. In the Nigerian case of Okotie v. Police 4 FSC
125, the accused was arrested without a warrant of arrest and charged with conspiracy to bring
false accusation and stealing. He was convicted of both offences. He appealed against the
conviction on the ground that his trial and conviction were a nullity because the provisions of the
section creating the offence of conspiracy to bring an accusation which requires an offender to be
arrested with a warrant were not complied with.
The court held, inter alia, that the defect in the arrest merely rendered the arrest unlawful. It did
not in any way affect the validity of the trial. The appeal was dismissed. Abbott Acting C.J.F
however cautioned at page 126 thus:
“This section [s.101 CPA of Nigeria] is extremely wide in its terms, particularly in its last phrase,
and it would be contrary to the whole spirit of administration of the criminal law for the prosecution
to rely on it readily. We do not wish it to be thought it can be invoked to exempt police officers
either from carrying out their duties under the law in the proper way or, indeed from any civil,
criminal or disciplinary responsibility which they might incur by failing to observe the provisions
of the criminal law of this country relating to the procedure for procuring the attendance of an
accused person before a court.”

PROCESSES TO COMPEL ATTENDANCE OF AN OFFENDER
BEFORE A COURT
An offender must attend court to know charges preferred against him by the complainant. The two
processes by which the attendance of an offender is secured are by summons and arrest. In most
instances, the attendance of an offender in court is ensured by the arrest of the offender with or
without a warrant of arrest.
SUMMONS
A Magistrate may issue a summons to compel the attendance of an accused person before the court
over which he presides, or if the offence alleged appears to be one which he is not empowered by
law to try or inquire into, before a competent court having jurisdiction. See s. 69 (5) CPC. A
summons may be issued on any day including a Sunday or a public holiday. See s. 69 (8) CPC.
CONTENTS OF A SUMMONS
Every summons issued by a court under s. 69 of the CPC must be in writing and in duplicate. It
must also be signed and sealed by the presiding officer of such court or such other officer as the
High court may from time to time by rule direct. See s. 70 (1) CPC.
Where the law requires that processes issuing from a court shall be signed by the presiding officer
of the court, it is sufficient compliance with the law, if the presiding officer affixes his signature
by means of a rubber stamp. In Goodman v. Eban Ltd (1954) 1 QB 551, the English Court of
Appeal held that where a statute requires a person to sign a document, the provision of the statute
is sufficiently complied with if the person affixes his signature on the document by means of a
rubber stamp. Such a signature is deemed valid in law. Evershed M.R quoted with approval the
following observations of Sir William Bovill C.J in Bennet v. Brumfitti:
“The ordinary mode of affixing a signature to a document is not by hand alone, but the hand
coupled with some instrument such as a pen or pencil. I see no distinction between using a pen or
pencil and using a stamp, where the impression is put upon the paper by the proper hand of the
party signing. In each case, it is the personal act of the party and to all intents and purposes a
signing of the document by him.”
A summons should also be directed to the party summoned and shall require him to appear at the
time and place stated in the summons. It must also contain a concise statement of the complaint
against the accused person. See s. 70 (2) CPC.

EXECUTIONS OF SUMMONS
A summons is served by a police officer or by an officer of the court issuing it or other public
servant. See s. 71 (1) of the CPC. If the summons is to be served by a police officer, it is served at
any time during the hours of daylight. Where, however, a police officer has reasonable cause to
believe that a person is evading the service the summons may be served anytime. See section 30
of the Police Act.
If practicable, a summons is served personally on the person summoned by delivery or tendering

to him one of the duplicates of the summons. The person served with the summons, must sign the
back of the duplicate to acknowledge receipt of the service of the summons. See s. 71 CPC.
Where the person summoned cannot by the exercise of due diligence be found, the summons may
be served by leaving one of the duplicates for him with some adult male member of his family or
with his employer or his servant residing with him. The person with whom the summons is so left
shall, if so required by the serving officer, sign the back of the duplicate to acknowledge receipt of
service of the summons. See s. 72 CPC.
If the mode of service stipulated in ss. 71 and 72 of the CPC cannot by the exercise of due diligence
be effected, the serving officer shall affix one of the duplicates of the summons to some
conspicuous part of the house or home in which the person summoned ordinarily resides. The
summons is then deemed duly served. See s. 73 CPC. Note that a summons can also be served
anywhere in The Gambia. See s. 76 CPC.
Where the person summoned is on Government service, the court issuing the summons shall send
it in duplicate to the head of the office in which such person is employed. The head of office shall
then cause the summons to be served in the manner provided by s.71 of the CPC and shall return
it to the court under his signature with the endorsement required by that section. Such signature
shall be evidence of service.
Where a summon is to be served on an incorporated company or other body corporate, service is

effected by serving it on the secretary, local manager or other principal officer of the corporation
or by registered letter addressed to the chief officer of the corporation in The Gambia at the
registered office of such company or body corporate. If the summons is posted, service is deemed
to have been effected when the letter arrives in the ordinary course of post. See s. 75 of CPC.
When the officer who effected service is not present at the hearing of the case, and where a
summons issued by a court has been served outside the local limits of its jurisdiction, an affidavit
purporting to be made before a Magistrate that such summons has been served and a duplicate of
the summons as endorsed shall be admissible in evidence. The statements made in the affidavit

are deemed to be correct unless and until the contrary is proved. Such an affidavit may be attached
to the duplicate of the summons and returned to the court. See s.77 of the CPC.
Where a Magistrate issues a summons in respect of any offence other than a felony, he may, if he
sees reason to do so, and shall when the offence which the accused is charged is punishable only
by fine or only by fine and imprisonment for a term not exceeding three (3) months or by fine or
imprisonment not exceeding three (3) months, dispense with the personal attendance of the
accused, provided that he pleads guilty in writing or appears by a counsel. See s.78 (1) of the CPC.

BAIL
This is the procedure by which a person arrested of an offence is released on security being taken
for his appearance on a certain day and place. The issue of bail arises at 3 points in the process of
administration of justice.
Firstly, it arises after a person arrested with or without warrant is taken to the police station. The
officer in charge of the police station may admit the suspect to bail pending further investigation
into the matter. This is called police bail.
Secondly, it arises after the suspect has been charged to court accused of committing an offence.
The accused may be admitted to bail by the court pending the final determination of the case
against him. This is known as the court bail.
Thirdly, it arises after an accused person convicted of an offence has filed an appeal against his
conviction. The convicted person may apply for bail pending the final determination of his appeal.
This is known as court bail pending appeal.
We will now consider in detail the 3 types of bail:
1. POLICE BAIL
S. 19 (3) (b) of the 1997 Constitution provides that any person who is arrested or detained upon
reasonable suspicion of his or her having committed a criminal offence under the laws of the
Gambia and who is not released, shall be brought without undue delay before a court and, in any
event, within 72 hours.
Section 19(5) further provides:

‘If any person arrested or detained as mentioned in subsection 3(b) is not tried within a reasonable
time, then without prejudice to any further proceedings which may be brought against him or her,
he or she shall be released either unconditionally, or upon reasonable conditions, including, in
particular, such conditions as are reasonably necessary to ensure that he or she appears at a later
date for trial, or proceedings preliminary to trial`.
Section 22(1) of the CPC also provides:

‘Where any person has been taken into custody without a warrant for an offence other than an
offence punishable with death, the officer in charge of the police station or other place for the
reception of arrested persons to which such person is brought shall at once inquire into the case,
and if, when the inquiry is completed, there is no sufficient reason to believe that the person has
committed any offence, he shall be released forthwith’
If upon such inquiry, there is reason to believe that the person arrested has committed an offence
and if the offence does not appear to be of a serious nature, the said officer in charge of the police
station may, and shall, if it does not appear practicable to bring such person before an appropriate

subordinate court within 72 hours after he was taken into custody, release the person on his
executing a recognizance with or without sureties for a reasonable amount, to appear before a
subordinate court at the time and place named in the recognizance. See s. 22 (2) of the CPC. Thus
once the police have reason to believe that the person arrested did not commit a serious offence
they may release such a person on bail. The power to release such a person on bail is therefore
discretionary. Where such a person cannot, however, be taken before a subordinate court within
72 hours, the police shall release him on balance. No discretion is therefore exercisable by the
police where the offence is not a serious one and the accused cannot also be taken to court within
72 hours. Note that by virtue of s. 3 (2) of the Economic Crimes (Specified Offences) Act (Cap
13:07), s. 22 (2) above does not apply to economic crimes.
S. 22(3) of the CPC further provides that where a person is taken into custody as stated above and
it appears to the said officer that the inquiry into the case cannot be completed forthwith, such a
police officer may release the said person on his entry into a recognizance with or without sureties
for a reasonable amount, to appear at such a police station and at such time as are named in the
recognizance. Unless such a person previously receives notice in writing from the officer in charge
of that police station or unless his presence is not required, any such recognizance may be enforced
as if it were a recognizance conditional for the appearance of the said person before a subordinate
court for the place in which the police station named in the recognizance is located. In other words
such a bond or recognizance can be enforced as if it were a bond or recognizance before a
magistrate. The bail granted by the police while investigations are continuing into the allegation
against the accused is to enable him to secure his release on condition that he returns to the police
station at the time specified in the bond or recognizance. By virtue of section 22(3) of the CPC
therefore the suspect is expected to report back to the police station.
Section 22(4) of the CPC requires any person taken into custody as aforesaid to be brought before
a subordinate court at the earliest time practicable whether or not the police inquiries are
completed. It appears that section 22 (4), which provides that where a person is arrested for a
serious offence he shall be brought before a court as soon as practicable, is inconsistent with section
19(3)(b) of the Constitution which requires such a person to be brought before a court within 72
hours. By virtue of s. 4 of the 1997 constitution, the constitution is the supreme law of The Gambia
and any other law found to be inconsistent with any provisions of the constitution is, to the extent
of the inconsistency, void. Thus since s.22 (4) of the CPC is inconsistent with this constitutional
provision, it is null, void and of no effect. Therefore for non-capital offences, irrespective of the
seriousness of their nature, whether felonies, misdemeanour or simple offences, a suspect must be
arraigned before a court within 72 hours.
In the Nigerian case of Eda v Commissioner of Police of Bendel State (1982) 3 NLR 291, it was
held that s. 17 of the Criminal Procedure Act of Nigeria and s. 17 of the Police Act of 1967 ( which
are similar to section 22 of the CPC of the Gambia) were inconsistent with section 32(4) and
section 32(5) of 1979 constitution of Nigeria, which provided that an accused person shall be
charged to court within 24 hours of the alleged commission of the offence and were therefore null
and void to the extent of the inconsistency.

If a suspect remains in police custody after bail has been granted to him by the police because he
is unable to fulfil the conditions of the bail, then his continuous detention in police custody is not
in contravention of the constitutional provisions since it is the duty of the suspect to comply with
the conditions of the bail. See Eda v. COP (supra).
In practice, in the Gambia, the police and other security agencies detain those arrested for serious
non-capital offences such as fraud, drug and other offences beyond the constitutional time limit
without granting them bail on grounds that investigations are still going on or are incomplete. This
clearly contravenes the Constitution.
APPLICATION FOR POLICE BAIL
Where a suspect is in police custody, the police officer in charge of the police station may grant
the suspect bail. After bail has been granted, a suspect may be required to appear at a court or
police station depending on whether investigations have been concluded. Where the suspect is not
offered bail by the police officer in charge of the station, the suspect or his counsel or relations
may apply for his bail. The application is either written or made orally. In this jurisdiction, such
applications are usually made orally. The suspect has to satisfy the conditions of the bail before he
is released by the police. Where the police require the suspect to provide surety or sureties before
giving bail, the application for bail and the bond entered into by the surety usually, by convention,
includes the surety’s ID card or phone number.
2. COURT BAIL
Court bail arises in two instances:
1. On execution of warrant of arrest. Any court issuing a warrant for the arrest of an offender
in respect of any offence other than murder or treason, may if it deems fit direct by endorsement
on the warrant that the offender so named on the warrant, upon arrest, be released on his entering
into a bond in a specified amount to appear before a court at such time stated in the endorsement.
The bond may or may not require a surety. See sec. 82(1) of the CPC.
By virtue of section 82(2) of the CPC, the endorsement on the warrant must state the following: a.
The number of sureties, if any;
b. The amount in which the sureties and the person named in the warrant are respectively to
be bound;
c. The court before which the person arrested is to attend or to appear and
d. The time at which he is to attend including an undertaking to appear at such subsequent
time as he may be directed by the court.

There is no precedent form of such a warrant in the CPC. In practice, however, the said
endorsement is done by the magistrate issuing the warrant writing the condition of bail on the
reverse side of the warrant of arrest. Such endorsement is therefore usually written at the back of
a bench warrant. The magistrate’s signature is then appended after the endorsement. Where such
an endorsement is made, the police officer in charge of the police station to which the person
arrested is taken must release him upon his fulfilling the conditions of bail endorsed on the warrant
or arrest. See section 82(3) of the CPC. Please note that a police officer has no power to give an
accused bail if there is no such endorsement or to vary the conditions in the endorsement.
Whenever security is taken under this section (s.82), the police officer who takes the recognizance
must transmit it to the court where the suspect is directed to appear. See sec 82 (4) of the CPC.
2. In the course of proceedings before a court. As noted above, s. 19(3) (b) of the Constitution
requires that an arrested person or a detainee is to be taken before a court within 72 hours. Where
a suspect is taken to court, such a court may admit him to bail. The need for bail arises because of
the interval of time between arraignment of the accused, taking of evidence, conclusion of trial,
return of verdict and sentence.
Section 99(1) of the CPC provides for court bail. It provides that when any person other than a
person accused of an offence punishable with death, appears or is brought before a court on any
process or after being arrested without a warrant, and is prepared at any stage of the proceedings
to give bail, such person may in the discretion of the court be released on bail. The bail can be with
or without a surety or sureties and is conditioned for the accused appearance before the court at
the time and place named in the recognizance.
Note that section 99(1) was amended by Act no. 2 of 2002 called the Criminal Procedure Code
(Amendment Act) to include offences punishable with life imprisonment. The bail may be with or
without a surety or sureties and is for the accused person’s appearance before such court at the
time or place mentioned in the bond or recognizance.
APPLICATION FOR COURT BAIL
Application for court bail, after an accused person has been arraigned, is usually made orally by
counsel if the accused is represented. Application for bail need not be in writing. Once the accused
has been charged and he pleads not guilty, the case may be adjourned until some future date.
Counsel applies orally for bail pending the final determination of the case. The police may or may
not approve the grant of bail by the court. If an attorney represents the state, he seeks the view of
the police on the matter before determining his position. Note that the fact that the prosecution
does not oppose bail does not mean that bail will automatically be granted. In the Ghanaian Fynn
v. The State 1971 2GLR 433 at 443, Taylor J held:
‘The fact that the Republic does not oppose the application means no more that they are in no
position to offer arguments to assist the court against the grant, but there may well be argument
against the grant which an independent examination by the court may reveal.’

Even though this was a case of bail pending appeal the principle is equally applicable to bail
pending trial as shown in the Ghanaian case of Dogbe v. Republic (1976) 2GLR 82 at 94 where
the same judge repeated this pronouncement in the earlier case. It was also held in Dogbe v.
Republic (supra) that even where the Attorney General (AG) has written to the court that the bail
should be granted in the particular case, this does not conclude the issue.
Where an accused person is not represented by counsel, he may himself apply for bail. In this
jurisdiction, it is however customary for the courts to ask the prosecutor if he has any objection to
bail. Subject to whatever the prosecutor might say in court, the court shall thereafter decide whether
to grant or withhold bail to the accused.
When bail is granted the amount of bail is fixed with due regards to the circumstances and shall
not be excessive. See section 99(2) of the CPC. See also EYU v. STATE (infra). In the Nigerian
case of STATE v. AMAEFULE & ORS (1988) 2NWLR 75 at 156, the accused persons were
charged with various offences. They were granted bail by the court on the following conditions.
One surety in the sum of N20, 000 with the accused, surety must produce a tax clearance certificate,
surety must be resident in the judicial division of the court, surety must file a copy of his title deed
in the court’s registry, surety must also swear to an affidavit stating his residence, particulars of
his developed property and tax clearance certificate, and the accused and his surety must be
recommended by a solicitor. Dissatisfied with the conditions of the bail, the accused applied to the
court of appeal for a review of the conditions. The court of appeal ruled that the conditions were
not onerous. However, it varied the conditions of bail by ruling that in lieu of satisfying the
conditions of bail, the accused person should deposit N25000 in the court’s registry. The
application was dismissed.
PRINCIPLES GOVERNING DECISIONS TO GRANT BAIL
The police ought to offer bail to an accused person alleged to have committed an offence not
punishable with death or life imprisonment if they cannot arraign him in court within the stipulated
time limit. Since it is a duty imposed on them, they have no discretion in the matter. However, the
arrested person must comply with the condition of the bail before he can be released on bail.
Unlike the police, the court has a discretion on the matter and can decide to admit an accused to
bail or withhold bail. Please note that if an accused is charged with other than an offence punishable
with death or life imprisonment, the factors that must me taken into consideration by the court in
granting bail are not expressly stated in s. 99 of the CPC and amendment thereto which deal with
the granting of bail to an accused. Nonetheless the courts take some factors into consideration in
deciding whether to grant or withhold bail. These factors include:
1. Nature of the offence. The first thing the courts consider before giving bail is the nature of
the offence with which an accused is charged and the punishment prescribed for the offence. Where
the offence is a serious one, carrying a heavy penalty, the court may not exercise its discretion in
favour of granting to the accused. Please note however that under section 24(3) of the Constitution,
an accused is presumed innocent until proven guilty. Therefore an accused should not be punished

by being denied bail in the absence of cogent or compelling reasons, but simply because of the
nature of the offence alleged against him. In the Nigerian case of DOGO V C.O.P. 1980 1NCR 14,
it was held that bail should not be denied as a form of punishment. OKAGDIBO J. stated at page
19 that ‘It has been well established that bail is not to be withheld merely as punishment, and
furthermore, that the requirements as to bail are primarily to secure the attendance of the accused
person at the trial.’
2. The accused person’s criminal record. The accused person’s criminal record is also taken
into consideration before bail is given. If an accused can show that he is a person of good character
and he has never been convicted of an offence, the court ought to exercise this discretion in favour
of the accused and admit him to bail. A person of good character who has no prior conviction is
therefore more likely to be given bail than a habitual offender. In the Nigerian case of EYU V
STATE 1988 2NWLR (pt.78) 602. OJUNTADE J.C.A., after stating other factors taken into
consideration in deciding to grant or withhold bail stated as follows: ‘Another important factor to
bear in mind is the criminal record of the accused and the likelihood of the repetition of the
offence.’
3. The possibility of the accused committing another offence. The court also gives
consideration to the possibility of the accused committing further offences while on bail. If an
accused is unlikely to commit another offence while on bail, the court should exercise its discretion
and admit the accused to bail. In the Nigerian case of R V JAMAL 16NLR 54, bail was refused to
the accused because he committed the offence for which he was arraigned while he was on bail.
BUTLER LLOYD, Acting CJ stated at page 55 thus: ‘I find that this offence is alleged to have
been committed while the accused was on bail on another equally serious charge. I think that I am
not putting it too strongly in saying that I should not be exercising my discretion judicially if I
made an order the effect of which would be to restore the accused a second time to that liberty
which according to the deposition now before me, he has already abused so seriously.’
4. Possibility of inferring with the investigation of the offence. A fourth consideration is the
possibility of interfering with the investigation of the offence. If the accused is likely to interfere
with the investigation of the offence, bail shall be refused. Interfering with the investigation of the
offence might involve trying to destroy evidence or absconding, trying to tamper with evidence or
the witnesses, or trying to bribe the witnesses in the case. On the other hand, if there is no evidence
that the accused will infer with the investigation of the case, bail ought to be granted. In the
Nigerian case of DANTATA V POLICE 1959 NNLR 3, bail was refused to the accused because
he offered a bribe of N36000 to the police in other to retrieve evidence of the commission of the
offence in the custody of the police.
It follows from the above that the grant of court bail is the discretion of the court. The principle
test to apply when a court gives consideration to the question whether or not to admit an accused
to bail is whether he will be able to appear to stand his trial. The most serious offence with which
he is charged and the heavier the penalty, the more likely it is that the accused will not when
granted bail appear to stand his trial.

PROVISIONS AS TO RECOGNIZANCES GENERALLY
Both the police and the court may admit to bail a person alleged to have committed an offence on
such terms and conditions, as they deem fit. The terms of bail are fixed with due regard to
circumstances of the case. As noted above, they should not be onerous or excessive. If bail is
granted on onerous terms, de jure, the accused has been granted bail, but in fact because the terms
are difficult to fulfil the bail amounts to no bail and, de facto, bail has been denied.
Bail may be granted without sureties. See s. 99 of the CPC. This means that a person may be
granted bail on his own recognizance, i.e. on his undertaking that he will appear to stand trial. No
surety is required from the accused person and in most cases no bond is prepared. However, bail
is rarely granted on personal recognizance except where the offence with which the accused is
charged is a minor offence or where the person admitted to bail is of high social standing in the
community, and the court is satisfied that he will appear to stand his trial.
A person may also be admitted to bail on condition that he executes a bond for a fixed sum. A
bond is a written undertaken executed by the person to be admitted to bail, that he will, while on
bail, appear in a designated place when his attendance is required as stated in section 100(3) of the
CPC. In default of appearance, the person admitted to bail may be required to pay the amount of
money specified in the bond.
A person may be admitted to bail on condition that he produces one or more persons to enter into
a bond for a stated sum. Such a person is known as a surety. The surety undertakes to pay the
money by which he is bound if the person admitted to bail fails to appear at the designated place.
Bail granted on the condition that the person admitted to bail enters into recognizance or provides
sureties or both is known as bail on recognizance. For example where an accused person is granted
bail on recognizance by the court, the court may require the accused person to execute a bond in
the sum of D1000 and to provide two sureties each executing a bond of D500. A court order giving
bail may take this form: “The accused person is admitted to bail in the sum of D600 with one
surety in the like sum.”
As a matter of practice counsel appearing for the accused is not allowed by the court to stand as
surety for his client. Counsel is only permitted to recommend to the court the suitable person to be
admitted as surety for the accused person.
The court may also require that the sureties have landed property in the Gambia or the magisterial
division concerned if the case is before a Magistrate or in the case of a nonGambian that a Gambian
surety be provided.
Once the amount in the bond in which the sureties, if any, are to be bound has been fixed, the
recognizance or the bond need not be entered into before the court. It may, subject to any rules
made in pursuance to the CPC, be entered into by the parties (accused and surety) before any other
court or before any clerk of a court or before a Chief Inspector or Inspector of Police or other police
officer of equal or superior rank or in charge of any police station. Where any of the parties is in
prison, the recognizance or the bond may be before the superintendent or other keeper of such

prison. After the above is done, all the consequences in law shall ensue and the provisions of the
CPC with respect to recognizance shall apply, as if the recognizance had been entered before the
said court. See s.100 (1) of the CPC.
Where as the condition of a release of any person held in custody he is required to enter into a
bond with sureties, the recognizance of the sureties may be taken separately and either before or
after the recognizance of the principal (the accused) and is if so taken the recognizances of the
principal and sureties shall be binding as if they had been taken together and at the same time. See
sec 100(2) of the CPC.
A recognizance for the appearance of any person may be conditioned for his appearance at every
time and place, to which, during the course of the proceedings, the hearing may be from time to
time adjourned. However, the court has power to vary such an order at any subsequent hearing.
See sec 100(3) of the CPC.
Where the execution of a recognizance is a condition of a release of any person, that person must
be released as soon as the recognizance has been executed and if he is in prison or police custody,
the court shall issue an order of release to the officer in charge of the prison or other place of
detention and such officer on receipt of the order shall release him. See s.101 of the CPC. This
however, does not mean that a person detained for some matter other than that in respect of which
the bond was executed will be released as a result of this order. See s. 101(2) of the CPC. A suspect
may be kept in custody or re-arrested even though he has a proper bond or recognizance in
connection with one case, if there is some other matter for which he may be lawfully held or
arrested.
Note that if a suspect or an accused person is unable to fulfill the terms of bail, he must be detained
in custody.
DEPOSIT IN LIEU OF RECOGNIZANCE
When any accused person is required by any court or officer to execute a recognizance, with or
without sureties, such court or officer may, except in the case of recognizance for good behavior
permit him to deposit a sum of money or such amount as the court or officer may fix in lieu of
executing such a recognizance. This will serve as security for the due performance of the
conditions imposed on him by the court or officer. See s. 102 of the CPC. Please note that the
amount to be deposited should not be excessive. S. 102 of the CPC further provides that when any
of the conditions stated in the recognizance are breached, proceedings for the forfeiture of the
deposit may be taken under section 107 of the CPC.
In the Nigerian case of EYU V STATE (supra), the accused was granted bail on condition that
N400, 000 be deposited with the registrar of the court. He was further required to enter into a
recognizance in the sum of N5000 with one surety in the like sum. The accused appealed against

the conditions of bail. The court held that under section 120 of the Nigerian Criminal Procedure
Act, which is in pari materia with s.102 of the Gambian CPC, a court could order an accused to
deposit money before bail is granted. The court however went on to state that the amount ordered
to be deposited should not be excessive. The court further held that the amount of deposit required
in this case is excessive. It then set aside the conditions of bail and granted bail to the accused in
the sum of N100, 000 with two sureties each in the sum of N50, 000, the sureties to be house
owners, and to depose to affidavits of means.
VARIATION OF A RECOGNIZANCE
If it appears to the courts at any time after a recognizance has been entered into that for any reason
the sureties are unsuitable or due to all the circumstances of the case, the amount of the
recognizance is insufficient, the court may issue a summons or warrant for the appearance of the
principal. Upon the appearance of the principal before the court, the court may order him to execute
a fresh recognizance in another amount or with another surety or sureties, as the case may be. See
s.103 of the CPC.
APPLICATION FOR DISCHARGE OF SURETY
Any surety for the appearance or behaviour of any person may at any time apply to a magistrate to
discharge the recognizance either wholly or so far as it relates to the applicant. See s. 104(1) of the
CPC. When an application is made, the magistrate shall issue a summons or warrant of arrest
directing that the person given bail shall appear or be brought before him. See s. 104 (2) of the
CPC. When such a person appears before a magistrate, the magistrate shall direct that the
recognizance be discharged either wholly or so far as it relates to the applicant or applicants, and
shall call upon such person to find other sufficient sureties. If he fails to do so, the magistrate may
commit him to prison. See s. 104(3) of the CPC.
RECOGNIZANCE IN RESPECT OF MINORS
When the person in respect of whom a court makes an order requiring that a recognizance be
entered into is a minor, the court shall not require the minor to execute the recognizance or bond
but shall require a relative, guardian, or other fit person to execute a recognizance with or without
sureties on condition that the minor shall do what the court order requires him to do. See s.105 of
the CPC.
S. 211 of the Children’s Act also provides that where a child is charged with an offence, the court
shall inquire into the case and unless there is a serious danger to the child, release him on bail on
a court bond on the child’s own recognizance. The court can also release the child on bail with
sureties, preferably the child’s parents or guardian who shall be bound on a court bond, not cash.
If the court denies the child bail, it shall record the reasons for refusal and inform the applicant of
his right to apply for bail to the High Court. See s. 211 (2) of the Children’s Act. Where a child is

denied bail, a court may order that the child be remanded or committed in custody in a secure home
named in the order. Detention pending trial should however only be used as a measure of last resort
and for the shortest possible period of time.
PERSON BOUND BY RECOGNIZANCE ABSCONDING.
When any court is satisfied on oath that any person bound by a recognizance to appear any court
or police officer is about to leave the Gambia, the court may cause him to be arrested and may
commit him to prison until the trial, unless the court shall deem it fit to admit him to bail upon
further recognizance. See s. 106 of the CPC.
FORFEITURE OF RECOGNIZANCE
When a person admitted to bail by a court fails to appear or stand trial, he is said to have jumped
bail. The consequence of an accused person jumping bail is that his bail may be revoked by the
courts. The court may then issue a bench warrant for the arrest and detention of the accused
pending the final determination of the case. The court may also order the forfeiture of the
recognizance or the bail bond. Forfeiture of a recognizance is provided in s. 107 of the CPC.
Section 107 (1) of the CPC provides that whenever it is proved to the satisfaction of a court by
which a recognizance under the CPC has been taken, or when the recognizance is for appearance
before a court, to the satisfaction of that court, that the recognizance had been forfeited, the court
shall record the grounds of such proof, and may call upon any person bound by the recognizance
to pay the penalty attached thereto, or to show cause why it should not be paid. However, before a
bond can be declared forfeited all conditions precedent to making the bond valid and operating
must have been fulfilled.
If sufficient cause is not shown and the penalty is not paid, the court may proceed to recover the
same penalty by forfeiting any sum deposited in pursuance of section 102 of the CPC, or by issuing
a warrant for the attachment and sale of the moveable property belonging to such person or his
estate in the case of his death. See s. 107 (2) of the CPC. The warrant for the attachment and sale
of moveable property belonging to other people may be executed within the local limits of
jurisdiction of the court which issued it. When endorsed by any magistrate within the local limits
of whose jurisdictions such property is found, it shall authorize the attachment and sale of any
moveable property belonging to such persons without such limits. See s. 107 (3) of the CPC.
If the penalty stated above is not paid and cannot be recovered by such attachment and sale, the
person bound by the recognizance shall be liable, by order of the court which issued the warrant,
to imprisonment without hard labour for a term not exceeding six months. In the Matter of Saikou
Camara, in the Matter of Abou Betts and Maulana Betts as Sureties (1994)
GR 176, the applicants had taken Saikou camara on bail and had entered into a bond of D30, 000
each to ensure his appearance in court in extradition proceedings relating to a criminal offence in

Sierra Leone. Saikou Camara absconded while on bail. The court ordered that they should pay the
forfeited bond of D30, 000each or imprisonment for six months. The applicants applied for a
review of the order. They submitted that section 107 CPC sets out the steps to be followed by the
court before imposing a term of imprisonment. They maintained that by virtue of section 107 (2)
of the CPC, their properties should have been attached before the court took the steps of
imprisonment under s. 107 (4) of the CPC. The applicant further submitted that the sum should
have been recovered as a civil debt on the ground that the forfeiture of a recognizance is a civil
matter. In dismissing the applications Omusun CJ (as he then was) held that the use of the word
“may” in section 107 (2) vested the court with a discretion as to whether to attach the sureties’
properties. The provision did not require the court to take these steps before resorting to the
imposition of a term of imprisonment under section 107 (4). The order was not varied.
Before the court proceeds to forfeit the bond, certain procedure must be followed.
Firstly, the order of the court granting bail to the accused must be exhibited. It’s the order of the
court that will reveal the terms and conditions under which bail was granted to the accused, and
whether bail was granted to the accused on recognizance with or without sureties.
Secondly, the bail bond executed by surety must be exhibited. It must be proved before the court
that the bond was executed by the surety on behalf of the principal. This means that the exact terms
of the bond are revealed. It can then be determined whether there had indeed been a breach of the
terms of the bond. Where there is an appeal against the forfeiture of the bond, the bond must be
exhibited in the appellate court. This is to enable the appellate court to decide whether the trial
court was right in declaring the bond forfeited. In the Nigerian case of TEA V COMMISSIONER
OF POLICE (1963) NLR 77, the appellant was surety to an accused. When the accused failed to
stand his trial, the recognizance of the appellant was forfeited. On appeal against the forfeiture of
the recognizance, it was held that the lower court erred in law in forfeiting the recognizance without
exhibiting the recognizance. It was also stated the bond must be exhibited before the appellate
court to enable it to decide whether the lower court rightly forfeited the bond. Finally, the court
stated that before a bond can be forfeited, it must be exhibited in the court. Thus, the appeal was
allowed and the order of forfeiture was set aside.
In the Nigerian case of COP v JOHN and anor (1981) INCR 139, the appellant stood surety for an
accused. The accused failed to appear on the date of the trial. The appellant was asked to produce
the accused and when he failed to do so, the trial court declared the bond forfeited. On appeal
against the forfeiture of the bond, the appellate court held that the trial court erred in forfeiting the
bail bond without exhibiting the bond executed by the appellant. It cited with approval Tea’s case,
and stated that where the bond is not exhibited, it cannot be determined by the trial court whether
its terms have been breached. Furthermore, the bail bond should be part of the record of appeal
where there has been an appeal against a forfeiture order. This is to enable the appellate court to
determine the correctness or otherwise of the order. The appeal was allowed.
The third procedure is that the surety must heard by the court. The court must allow the surety to
explain why the bond should not be forfeited. In the case of LAMIDI ABUDU in re A.K. KOTUN
v IGP (1961) LLR 53, the appellant stood as surety for an accused who absconded. The lower
court forfeited the bail bond. On appeal against the order of forfeiture of the bail bond, the appellate

court held that the lower court acted prematurely in forfeiting the bail bond without proof of the
order of bail and of the appellant’s recognizance and without giving the appellant the opportunity
of being heard. Thus the appeal was allowed and the order of forfeiture was set aside.
Please note that the court can also use its discretion to remit any portion of the penalty mentioned
above and enforce payment in part only. See s. 107 (5) of the CPC.
Where a surety dies before the recognizance is forfeited, his estate shall be discharged from all
liability in respect of the recognizance. See s. 107 (6) of the CPC.
When any person who has furnished security is convicted of an offence the commission of which
constitutes a breach of conditions of his recognizance, a certified copy of the judgment of the court
by which he was convicted of such offence may be used as evidence in proceedings under this
section against his surety or sureties, and, if such certified copy is so used, the court shall presume
that such offence was committed by him unless the contrary is proved. See s. 107 (7) of the CPC.
When any surety to a recognizance becomes insolvent or dies or when any recognizance is
forfeited, under the provisions of s. 107 of the CPC, the court may order the person from whom
such recognizance was demanded to furnish fresh security in accordance with the direction of the
original order. Where such security is not furnished, such court may proceed as if there had been
default in complying with such original order. See s. 108 of the CPC.
Note that all orders passed under s.107 by any magistrate shall be appealable and can therefore be
reviewed by the High Court. See s. 107 (8) of the CPC. Note further that, the High Court may
direct any magistrate to levy the amount due on a recognizance entered into before the High Court.
See s. 109 of the CPC.
SOME RESTRICTIONS TO THE GRANT OF BAIL IN THE GAMBIA
It would appear that almost in all cases courts in The Gambia have a discretion to admit an accused
person to bail unless he or she is charged with an offence not punishable with death or life
imprisonment. In some cases, however, restrictions are imposed to the grant of bail.
1. OFFENCES RELATING TO THEFT OF MISAPPROPRIATION OF PUBLIC PROPERTY
S. 289B of the CPC provides that:
“Notwithstanding the provision of this Code relating to bail and recognizance, provisions of this
Part shall apply to all offences relating to theft, misappropriation and other similar offences in
which public property is affected and shall in particular apply to all cases relating to offences

specified with Chapters XXVI to XXXII and Chapter XXXIV of this Code which affect public
property.”
Sec 289D of the CPC further provides:
“(1) When any person is brought before the court charged with an offence referred to under s.
289B of this Code such person shall not be released on bail unless the court is satisfied that there
are special circumstances warranting the grant of bail.
(2) Before any person is released on bail under this section the court shall order that such
person shall as a condition for his release –
a. deposit into the court, an amount equal to one-third of the total monies alleged to be the
subject matter of the charge, or pledge other property of equivalent amount as security ; or
b. find at least two sureties who shall deposit into court an amount equal to one-third of the
total monies alleged to be the subject matter of the charge, or pledge properties of equivalent
amount as security.
(3) Whenever it is proved to the satisfaction of the court that any person to whom bail has been
granted under this Part has jumped bail, the court shall order that the money deposited shall be
forfeited to the State and shall issue a warrant for the attachment and sale of property pledged as
security.”
2. DRUG OFFENCES
By virtue of s. 132 (a) of the Drug Control Act (Cap 13:05) bail may only be granted, in the case
of an offence under s. 35 of the Act , by a Narcotics Control Officer, in consultation with the
Executive Director or such officer designated by him if:
a. the accused person enters into a recognizance with a surety or sureties, in a sum equivalent
to the maximum fine prescribed for the offence for which he is reasonably suspected of
committing,
b. the accused person deposits title deed to real property, and
c. the accused person satisfies such other conditions as the Executive Director may impose.
A person charged with any other offence can only be bailed by the High Court. See s. 132 (b) of
the Act.
The new s. 132 of the Drug Control Act is a clear departure from the old s. 132 which it amended.
Before this amendment was introduced by Act No. 11 of 2005, bail was not available to any person
charged with a drug offence where the term of imprisonment prescribed for the offence exceeded
one year. Thus before the said amendment, court or police bail was only available to persons
charged under s. 36 (4) (c), s.40 (3) (c), s. 41(3) (c) (i) and (ii) of the Act as they then were.

3. ECONOMIC CRIMES
The Economic Crimes (Specified Offences) Act (Cap 13:07) also provides under s. 8 (1) that bail
shall not be granted to a person brought before a court for an offence under s. 5 of the Act, unless
the following conditions are met:
1. The accused and the surety provide such security as required by the court; and
2. After signing the bond, the accused or the surety shall deposit with the court or such person
as the court may direct, the title deeds of any property used as security for the bail, and in the case
of cash security, the actual amount on the face of the bond.
Where the accused absconds after he has been granted or he is absent from the court on any day
where he is required to appear before it, he shall be liable to forfeit to the State such of his property,
if any, as the court may determine. The surety shall also forfeit to the State every security used to
support the bail unless the surety can establish a reasonable excuse for such absence. See s. 8 (2)
of the Act.
Section 4 (1) of the Act further provides that any person who is arrested and detained in connection
with an economic crime shall be brought before a court of competent jurisdiction within 30 days
from the date of his arrest and detention. Section 4(2) of the same decree further provides that a
court before which such a person is brought under subsection (1) may remand such a person in
custody for such a reasonable period as the court may order. This provision too seems to contravene
s. 19 of the Constitution.
3. BAIL PENDING APPEAL
As we noted above, bail pending appeal arises where a convicted person applies for bail pending
the final determination of his appeal by a higher court.
BAIL PENDING APPEAL TO THE SUPREME COURT
Rule 42 of the Supreme Court Rules (Cap 6:05) provides:
“(1) The Court may, at any time during the pending of a criminal appeal, on its own motion or on
an application made by any person, grant bail to the appellant of revoke or vary any order
previously made.
(2) Where the Court grants bail to an appellant pending the determination of his or her appeal, the
Court specify the amount in which the appellant and his surety if any, shall be bound by
recognizance and unless otherwise directed by the Court the recognizance of the appellant or his
or her surety shall be taken before the Registrar.”

The recognizances stated above shall be in Forms 20 and 21 set out in Part II of the Schedule to
the Supreme Court Rules.
An appellant who has been granted bail shall be personally present at each and every hearing of
his or her appeal and at the final determination of the appeal unless the Court otherwise directs.
Where the appellant is not present at the hearing of his or her appeal after having been granted bail
under the said Rules, the Supreme Court may either consider the appeal in his or her absence or
make an order as it thinks fit, or it may summarily dismiss the appeal and issue a warrant for the
arrest of the appellant Form 22 set out in Part II of the Schedule to the Rules. It should be noted
that rule 42 (5) shall apply with such modification as the Supreme Court may direct in any case
where the appellant indicates that he or she desires to be present at the hearing of his or her appeal
but does not in fact attend.
BAIL PENDING APPEAL TO THE COURT OF APPEAL
A Judge may, if he or she thinks fit, admit an appellant to bail pending the determination of his or
her appeal. An appellant who is not admitted to bail shall, pending the determination of his or her
appeal, be treated in such a manner as may be directed by the rules made under the Prisons Act.
The time during which an appellant, pending the determination of the appeal, is admitted to bail,
and subject to any directions which the Court of Appeal may give to the contrary on any appeal,
the time during which the appellant, if in custody, is specially treated as an appellant under this
section, shall not count as part of any term of imprisonment under his or her sentence.
In the case of an appeal under the Act, any imprisonment under the sentence of the appellant,
whether it is the sentence passed by the High Court or the sentence passed by the Court of Appeal,
shall, subject to any direction which may be given by the Court of Appeal, be deemed to be
resumed or to begin to run, as the case requires, if the appellant is in custody, as from the day on
which the appeal is determined, and if he or she is not in custody, as from the day on which he or
she is received into prison under the sentence.
BAIL PENDING APPEAL TO THE HIGH COURT
S. 281 (1) of the CPC provided:
“After the filing of a petition of appeal by any person entitled to appeal, and pending the hearing
of the same, the High Court may, for reasons to be recorded by it in writing, order that the execution
of a sentence or order appealed against be suspended and also, if he be in confinement, that he be
released on bail or on his own recognizance.”
S.281 (2) further provided:
”When the appellant is ultimately sentenced to imprisonment, the time during which he is so
released shall be excluded in computing the term for which he is sentenced.”

The said section was, however, repealed by Act No. 2 of 2002. Thus before Act No. 2 of 2002 was
passed into law, a person convicted and sentenced by a Magistrate Court or any other subordinate
court exercising its criminal jurisdiction could be granted bail by the High Court pending the time
his or her appeal was determined by the High Court. Consequently, where a magistrate or the
presiding officer of a subordinate court erroneously applied the law and in the process convicted
and sentenced an offender to jail, the High Court could give such a person bail pending the time
such a mistake was corrected. Act No. 2 of 2002 deleted the provisions of s. 281 from the CPC.
Thus under our current law, once an accused is sentenced to imprisonment by a subordinate court,
bail pending appeal does not arise. Thus no matter the circumstances, an accused person who is
convicted and sentenced to imprisonment by a subordinate court cannot apply for bail. This is
contrary to practice in most common law jurisdictions.
BAIL UNDER THE SEXUAL OFFENCES ACT

1. SPECIAL DUITES OF PROSECUTORS AND THE POLICE IN BAIL APPLICATIONS
UNDER THE SEXUAL OFFENCES ACT
The Sexual Offences Act imposes special duties on prosecutors and the police in respect to bail
for offences committed under the Act. Where an accused standing trial is charged with an offence
of a sexual nature, the prosecutor is required to consult with the complainant in order to ensure
that all information relevant to the trial has been obtained from her, including information relevant
to the question whether the accused should be released on bail and, if the accused were so released
whether any conditions of bail should be so imposed. See s. 10 (a) of the Sexual Offences Act
2011.
Where an accused standing trial is charged with an offence of a sexual nature, s. 11 of the Sexual
Offences Act requires the police officer in charge of the investigation:
a. To forthwith inform the prosecutor in such proceedings of any reason to believe that the
complainant would be at risk if the accused is released on bail and of any other investigations
involving the accused;
b. If bail has been granted to the accused, to forthwith, after becoming aware thereof, inform
the prosecutor of any failure by the accused to comply with his or her conditions of bail.
2. RIGHTS OF THE COMPLAINANT IN BAIL APPLICATION

Section 12 of the Sexual Offences provides for the following rights to complainants in proceedings
involving a rape charge:
a. A complainant has the right to attend any proceedings where the question is to consider
whether an accused who is in custody on a charge of rape should be released on bail or, if bail has
been granted to the accused, whether any further conditions of bail should be imposed or whether
any such conditions of bail should be amended or supplemented. See s. 12 (1) (a)
b. A complainant has the right to request the prosecutor in proceedings involving a rape
charge to present any information or evidence to the court that might be relevant to any question
under consideration by the court in such proceedings. See s. 12 (1) (b)

c. Where the accused is in custody on a rape charge, s. 12 (2) requires the person in charge
of the police station the accused is detained to inform the complainant as soon as possible of the
place, date and time of the first appearance of the accused in court and her rights in paragraph (a)
and (b) above.
d. Where an accused in custody on a rape charge intends to apply for bail on a date or at a
time the complainant is not aware of, the accused or his or her legal representatives are required
under s. 12 (3) to request the person in charge of the police station the accused is detained to inform
the complainant accordingly. Upon such request from the accused or his legal representative, the
complainant is then informed by the person in charge of the police station that the accused intends
to apply for bail.
e. Any person required to provide information to the complainant under s. 12 (2) and (3) of
the Act must prepare an affidavit stating the following:
i. Whether the provisions of s. 12 (2) and (3) as the case may be have been duly complied
with and, if they have not been so complied with, the reasons for not complying with any such
provisions;
ii. The manner in which the complainant has been so informed; and iii. The date and
time when the complainant has been so informed. See s. 12 (4)
Note that such an affidavit is to be handed to the judge or judicial officer presiding at the
proceedings at which bail is considered, and such affidavit shall form part of the record of such
proceedings. See s. 12 (5)
f. If a complainant is present at a proceedings at which bail is considered in respect of an
accused who is in custody on a rape charge, and such proceedings are postponed the court is
required to inform the complainant of the date and time to which such proceedings have been
postponed and of the complainant’s right under paragraphs (a) and (b) above. See s. 12 (6)
g. If the complainant is not present at the proceedings at which bail is considered in respect
of an accused who is in custody on a rape charge, the court is required to enquire into the question
whether the complainant has had knowledge of such proceedings and if it is satisfied that it is
likely that the complainant is aware of such proceedings, it shall direct that the matter be dealt with
in the absence of the complainant. If the court is satisfied that the complainant is not aware of the
proceedings, it shall postpone the proceedings in order to obtain the presence of the complainant.
It should be noted that if it is in the interests of justice (with due regard to the interests of the
complainant) that the matter should be dealt with forthwith, it may be dealt with in the absence of
the complainant. See s. 12 (7).
h. If a complainant is not present, as contemplated in s. 12 (7) above, the prosecutor is required
to inform the complainant that bail was granted to the accused if that was the case and the terms
of conditions of such bail. By virtue of s. 12 (8) (b), if the proceedings were postponed, the
prosecutor must inform the complainant of the date and time to which such proceedings have been

postponed and the complainant’s rights in paragraphs (a) and (b) above. See s. 12 (8). Note that
the provisions of s. 12 (4) (5) referred to above must be complied with (with necessary changes)
in respect of any notification given under s. 12 (8) (b). See s. 12 (9).
i. If the accused who is in custody on a rape charge is released on bail, the court shall add
such further conditions of bail as will, in the court’s opinion, ensure that the accused does not make
contact with the complainant. See s. 12 (12) (sic).
INSTITUTION OF CRIMINAL PROCEEDINGS BY THE POLICE

The police are authorized by statute to initiate criminal proceedings. In addition to their general
powers under S.4 of the Police Act, S.28 of the same Act empowers a police officer to conduct in
person any prosecution before a court of summary jurisdiction whether the information or
complaint is laid in his or her name or not.
Similarly section 69(1) (a) of the Criminal Procedure Code provides that Criminal proceedings
may be Instituted by a police officer bringing a person arrested with or without a warrant before a
Magistrate upon a charge.
It is clear from the wordings of the two provisions that a police officer can only institute Criminal
proceeding and prosecutes offences before a Court of summary jurisdiction. A police officer
cannot institute Criminal Proceedings before the High Court. It is also submitted that a police of
the lowest rank may Institute Criminal Proceedings before a Magistrate’s Court or Court of
summary jurisdiction. It should be noted that the power to Institute Criminal Proceeding by a police
officer is subject to the overriding Constitutional powers of the DPP as enshrined in section 85 of
the 1997 Constitution to take over and continue or discontinue criminal proceedings.
INSTITUTION OF CRIMINAL PROCEEDINGS BY NDEA
The NDEA is empowered under section 133 of the Drug Control Act CAP 13:05 to undertake
prosecution in its name, of offences under the Drug Control Act. The phrase in its name means
that the title of the case shall be read as NDEA VS M R A. for instance. This however does not
derogate the powers of the DPP enshrined under section 85 of the 1997 Constitution to take over
and continue or discontinue criminal proceedings. Even though the Agency is now empowered to
investigate Crimes generally, it can only institute Criminal Proceedings with respect to offences
created under the Drug Control Act.
Criminal Proceedings with respect to offences created by other laws which have been investigated
by the Agency are usually prosecuted by the office of the DPP. It should be noted that offences
under other laws investigated by the NDEA which are triable by a Magistrate could be prosecuted
by the police.
PRIVATE PROSECUTIONS
Criminal Proceedings may also be instituted by a person other than a police or Public Prosecutor
otherwise known as Private Prosecution. See S.69 (1)(c ) of the Criminal Procedure Code.
1. A person may orally or in writing lodge a complaint to a Magistrate (who has the
jurisdiction to try and enquire into the alleged offence or within the local limits of whose

jurisdiction the accused is alleged to reside or be) if he or she has reasonable and probable cause
to believe that such a person has committed an offence.
2. If orally made the complaint shall be reduced into writing and signed by the complainant.
3. If the Magistrate is satisfied from the complaint that prima facie Commission of the offence
has been disclosed and that it is not frivolous or vexations, he/she shall draw up or cause to be
drawn a charge and shall sign the charge containing statement of the offence alleged.
4. The Magistrate may at his discretion issue summons or warrant of arrest to compel the
appearance of the accused before his court or before any Court having the jurisdiction to try the
offence. Warrant shall not be issued at the first instance, unless the complaint is supported by
evidence on oath either oral or by affidavit evidence. See Section 69(5) of the Criminal Procedure
Code.
5. The Court may instead of compelling the offenders to appear before it, refer the complaint
to the police for investigation or further investigation and who shall report back their findings. See
Section 69(6) of the Criminal Procedure Code.
NOTE: That the police shall not effect arrest of a person under section 69(5) unless the alleged
offence is a cognizable offence. See S.69 (7) of the CPC.
Cognizable offence is an offence which on conviction may be punished by imprisonment for a
term of one year or more, or a fine exceeding D1000 or is declared by law as such or to be an
offence for which a person may be arrested without warrant. See Section 2 of the CPC.
WITHDRAWAL FROM PROSECUTION UNDER SECTION 68 OF THE CRIMINAL

PROCEDURE CODE
A prosecutor in a Criminal Proceeding before the subordinate court with the consent of the court
or on the instructions of the Attorney General at any time before a Judgment is pronounced may
withdraw from prosecution of a person either generally or in respect of any one or more offences
with which he or she is charged.
Under section 68 of the CPC, the subordinate Court will not only have to consent to the withdrawal,
the prosecution is enjoined to adduce reasons for such withdrawal.
This decision was considered and applied in Clarke & anor v. Attorney –General Lagos State
(1986) 1 QLRN 119. The applicants were arraigned and charged with the offence of conspiracy to
steal an aircraft. After the testimony of 5 witnesses and a visit to the locus in quo, the prosecutor
applied to withdraw the charge.
The applicants were discharged but were promptly re-arrested on stepping out of the court hall.
The Attorney- general of Lagos State later brought new charges (substantially) the same as the
previous one) against them in another court. They brought an application against the Attorney-
General of Lagos State for an order for leave to restrain him and his servants from prosecuting
them the second time. The court held that;
i. The practice and procedure in our courts and in fact in the law in Nigeria shows that a trial
is complete when both parties are heard on merit;

ii. A trial is also complete where a party with full opportunities to present its case fails or
refuses to do so in the course of proceedings;
iii. Where, in a criminal trial, the prosecution after calling some of its witnesses is unable or
fails to call the rest and decides to withdraw from further prosecution or discontinues with the
proceedings, whether the discharge of the accused person amounts to an acquittal will depend on
the facts and the circumstances of the proceedings;
iv. Under section 75 of the Criminal Procedure Act a withdrawal by the prosecutor before the
accused is called upon to enter upon his defence entitles the court to discharge but not to acquit
the accused persons;
v. The Attorney-general has not given reasons for the withdrawal from prosecution and
indeed he is not under any obligation to give any reason, and
vi. The court is not competent to restrain the State’s Attorney-General from continuing with
new charges. The application was dismissed.
Withdrawal from prosecution under section 68 of the CPC relates to criminal proceedings before
a subordinate court and not the High Court. A prosecutor may with the consent of the subordinate
court or on the instruction of the Attorney-General may withdraw from prosecution of an accused
either generally (on all the counts) or with respect to one or more offences in the charge.
CONSEQUENTIAL ORDER TO BE MADE ON INVOCATION OF SECTION 68 OF THE
CRIMINAL PROCEDURE CODE
The consequential order to be made by a subordinate court upon withdrawal from prosecution
under section 68 of the Criminal procedure Code depends on the stage of the proceedings. If the
withdrawal is made in the course of a trial before the accused is called upon to make his or her
defence, he or she shall be discharged in respect of the offence or offences. Where the withdrawal
is made after the accused from is called upon to make his or her defence, he or she shall be acquitted
in respect of the offence or offences.
The proviso to section 68 of the CPC further provides that even where the withdrawal takes place
before the accused is called upon to make his defence, a subordinate court may in its discretion
order the accused to be acquitted if he is satisfied upon merits of the case that such order is proper
one. The magistrate must however endorse his reason for so doing.
Distinguish from ordinary power conferred on the prosecutor under section 68 of the Criminal
procedure Code and the powers of the DPP under section 85 (1)(c) of the Constitution.
1. The court under section 68 of Criminal Procedure Code not only has to consent to the
withdrawal, the prosecution is obliged to adduce reason for such withdrawal. Whereas in entering
Nolle, the DPP may be influenced by whatever reasons for such withdrawal. The effect of Nolle
Prosequi when effectively entered is a mere discharge of accused and not Acquittal. See section
64(1) of the Criminal procedure Code. The effect is that the accused may be subsequently
prosecuted for the same offence. Compare this with section 68 Criminal Procedure Code

CRIMINAL PROCEDURE
CHARGES AND INFORMATION
Unlike in other jurisdictions, the Criminal Procedure Code of the Gambia has not defined a charge
or information. However section 110 of the Criminal Procedure Cap 11:01 Volume III Laws of
the Gambia 2009 makes provision on what a good and valid charge and information shall contain.
Section 110 of the CPC provides that every charge or information shall contain and shall be
sufficient if it contains, a statement of the specific offence or offences with which the accused
person is charged, together with such particulars as may be necessary for giving reasonable
information as to the nature of the offence charged.
In concert with the said provision, a charge or information can safely be defined as statement and
particulars of specific offence or offences with which a person is accused and tried before a court
of law. A charge sheet is a document containing a charge.
Blacks Law Dictionary defines a charge to mean “An accusation of a crime by a formal complaint,
indictment or information.”
In practice the term charge is used to describe either
a. The entire charge sheet in a trial; or
b. The statement and particulars of specific offence (count) with which a person is charged.
Thus, whilst every offence stated in a charge sheet or information is called a charge or count, the
entire charge sheet may also be called a charge.
In EDUN V IGP (1966) 1 ALL NLR P17 @1, the Supreme Court of Nigeria held thus:
“A charge in Criminal procedure Act may mean, as in section 162 and s.163 the whole document
which may contain one or more counts of accusation or merely as in s.156, a count of accusation,”
The position is not different in the Gambia. The term charge or information is used interchangeable
in s.113 (a) (i) and (iv) of the CPC to mean a count in a charge sheet or the entire charge sheet or
information.
FORM OF A CHARGE OR INFORMATION
From the provision of s.110 of the CPC, a charge or information is intended to give in clear terms
reasonable information to the accused person of the offence for which he is to be tried.
Consequently, in practice a charge or information is drafted in the following form:
CHARGE/INFORMATION
A. Heading
B. Reference Number
C. Parties
D. Preamble (this applies to information only)
E. Count (charges); and
F. Date and Signature of the drafting authority
A: HEADING:
The charge sheet or information must commence with the heading. The heading indicates the style
of the subordinate court with jurisdiction to try the offence. Under s.14 (1) of the Courts Act Cap

6:01, Subordinate Courts were established in the city of Banjul and in every region of the Gambia.
The Subordinate Courts are presided over by magistrates. Care must be taken to ensure that a
charge is properly headed because it touches on the very important question of jurisdiction. It is
the court in which local limits of jurisdiction an offence is alleged to have been committed that is
seized with jurisdiction to try the accused.
Although High courts have unlimited jurisdiction to try criminal cases, it is however proper for
criminal cases to be tried in the High court in which locality the offence is alleged to have been
committed. This is first reflected in the heading.
Thus a charge sheet intended to be used in a trial at Banjul Magistrates’ Court should read as
follows;
“IN THE BANJUL MAGISTRATES’ COURT
HOLDEN AT BANJUL”
Whilst the heading of a charge sheet intended to be used at Essau Magistrates’ Court should read
as follows;
“IN THE ESSAU MAGISTRATES’ COURT
HOLDEN AT ESSAU”
Information intended to be used at Basse High Court should read as follws;
“IN THE HIGH COURT OF THE GAMBIA

HOLDEN AT BASSE”
The word HOLDEN is the old English expression for HOLDING. Although allowed by tradition,
it is of no legal significance.
B: REFERENCE NUMBER
Every charge sheet or information must bear a reference number otherwise known as Charge or
Case Number. Reference Number used in the charge sheet or information is usually given at the
Court’s Registry after filing. Although, it is not a requirement of law, it is of administrative
importance and has by convention acquired the force of law. The charge or case number as the
case may be is stated at the top right hand corner of the charge sheet immediately after the heading
as indicated below;

HOLDEN AT BANJUL
CHARGE/CASE NUMBER....................”
OR
“IN THE KANFING MAGISTRATES’ COURT

HOLDEN AT KANFING
CASE NUMBER.......................”
OR

“IN THE HIGH COURT OF THE GAMBIA
HOLDEN AT BASSE
CASE NUMBER.......................”
C. PARTIES
In civil proceedings, the usual parties to the suit are the “plaintiff (s)” and the “defendant(s)”.
Unlike in civil proceedings, the victim of a crime is not a party in criminal proceedings. He /she is
termed a witness or nominal complainant.
By legal fiction, the State is the Complainant whilst the alleged offender is the accused or defendant
in a criminal trial. This so, because a crime is a violation of the laws of the State made for the
security, order and good governance of the entire state.
The State is usually and in most cases represented by the Police at the Magistrates’ Court in the
Gambia. Consequently, the party in a criminal trial before a magistrate’s court in which the state
is represented by the police is as follows;
IN THE BANJUL MAGISTRATES’ COURT

HOLDEN AT BANJUL
CASE No..........................
BETWEEN
INSPECTOR GENERAL OF POLICE .......................................COMPLAINANT
AND
KOLEY PAUL.........................................................................ACCUSED PERSON
Where the State is represented by the office of the Attorney General or State Counsel, the parties
will be as follows;

HOLDEN AT BANJUL
CASE No..........................
BETWEEN
STATE..................................... ........................................COMPLAINANT
AND
KOLEY PAUL...................................................................ACCUSED PERSON

Section 133 of the Drug Control Act allows the NDEA to undertake prosecution in its name of
offences under the Drug Control Act. Where the state is represented by the NDEA before the
Narcotic Court, the parties should be as follow:
IN THE NARCOTIC COURT

HOLDEN AT BANJUL
CASE No..........................
BETWEEN
NDEA..................................... ......................................COMPLAINANT
AND
KOLEY PAUL................................................................ACCUSED PERSON
OR

HOLDEN AT BANJUL
CASE No..........................
BETWEEN
NDEA..................................... .....................................COMPLAINANT
AND
In case of information it is :-
IN THE HIGH COURT OF THEGAMBIA

HOLDEN AT BANJUL
CASE No..........................
BETWEEN
STATE .................................... ........................................COMPLAINANT
AND
KOLEY PAUL.....................................................................ACCUSED PERSON
D: PREAMBLE
There is no preamble in case of a charge. The word CHARGE is simply written immediately after
the parties’ e.g.

IN THE KANFING MAGISTRATES’ COURT
HOLDEN AT KANFING
CASE No.......................
BETWEEN
STATE..................................... ....................................COMPLAINANT
AND
CHARGE
In case of information, the following preamble is usually written immediately after the parties.
IN THE HIGH COURT OF THE GAMBA

HOLDEN AT BANJUL
CASE No.......................
BETWEEN
STATE........ .............................................................................COMPLAINANT
AND
KOLEY PAUL...............................................................ACCUSED PERSON
INFORMATION
The Honourable Court is informed by the Honourable Attorney General on behalf of the State that
Omar Dial is charged with the following offence(s).
E. COUNT (CHARGES)
Next to the preamble is the count (charges) set out in two distinct paragraphs. First paragraph shall
contain ‘STATEMENT OF OFFENCE’ and the second paragraph ‘PARTICULARS OF
OFFENCE’.
EXAMPLE

An example of information filed at the High Court in Banjul for an offence of rape contrary to
section 121 of the Criminal Code Cap 10 Volume III of the Laws of the Gambia 2009 will state as
follows;

HOLDEN AT BANJUL
CASE No.......................
BETWEEN
THE STATE.......................................................................................COMPLAINANT
AND
KOLEY PAUL.......................................................................ACCUSED PERSON
INFORMATION
KOLEY PAULis charged with the following offence.
STATEMENT OF OFFENCE
Rape contrary to section 121 of the Criminal Code Cap 10 Vol.III Revised Laws of the Gambia
2009.
PARTICULARS OF OFFENCE
Koley Paul on or about the 15TH day of November 2012 at Westfield in the Kanifing Municipality
of the Republic of the Gambia within the jurisdiction of this Honourable court had unlawful carnal
knowledge of Ramatoulie James without her consent and thereby committed an offence.
An example of a charge filed at the Banjul Magistrates’ Court
IN THE BANJUL MAGISTRATE’S COURT

HOLDEN AT BANJUL
CASE No.......................
BETWEEN
THE STATE....................................................................................COMPLAINANT
AND
KOLEY PAUL........................................................................ACCUSED PERSON

CHARGE
2009.
That you Koley Paul on or about the 15TH day of November 2012 at Westfield in the Kanifing
Municipality of the Republic of the Gambia within the jurisdiction of this Honourable court had
unlawful carnal knowledge of Ramatoulie James without her consent and thereby committed an
offence.
F: DATE AND SIGNATURE OF THE DRAFTING AUTHORITY

The charge or information shall finally be dated and signed by the prosecuting authority. For
example;
HOLDEN AT BANJUL
CASE No.......................
BETWEEN
THE STATE..........................................................................COMPLAINANT
AND
KOLEY PAUL........................................................................ACCUSED PERSON
INFORMATION
KOLEY PAULis charged with the following offence.
2009.
Koley Paul on or about the 15TH day of November 2012 at Westfield in the Kanifing Municipality
of the Republic of the Gambia within the jurisdiction of this Honourable court had unlawful carnal
knowledge of Ramatoulie James without her consent and thereby committed an offence.

Dated this 17th day of December 2012
..........................
B. Y CAMARA
PRINCIPAL STATE COUNSEL
OR
IN THE BANJUL MAGISTRATE’S COURT

HOLDEN AT BANJUL
CASE No.......................
BETWEEN
INSPECTOR GENERAL OF POLICE..............................................COMPLAINANT
AND
KOLEY PAUL.........................................................................ACCUSED PERSON

CHARGE
2009.
That you Koley Paul on or about the 15TH day of November 2012 at Westfield in Kanifing
Municipality of the Republic of the Gambia within the jurisdiction of this Honourable court had
unlawful carnal knowledge of Ramatoulie James without her consent and thereby committed an
offence.
Dated this 17th day of December 2012
......................................................................
POLICE PROSECUTOR
CRIMINAL PROCEDURE I
RULES FOR DRAFTING OF CHARGES
The drafting of charges is guided and regulated by four rules. These rules whilst prescribing
standards that must be attained by every charge admits some exceptions. These four rules are
governed by sections 110, 111, 112, and 113 of the CPC. The rules are
1. The rule against ambiguity.
2. The rule against duplicity
3. The rule against misjoinder of offenders.

4. The rule against misjoinder of offences
1. The Rule against ambiguity-see section 113 of the CPC.

The rule is that all particulars required by law to be stated in a charge must be so stated. The rule
applies to count in a charge rather than the entire charge sheet. Since a charge or information is
intended to inform the accused person in clear terms the offence for which he is to be tried, it must
therefore be in certain and unambiguous terms. A charge or information must therefore bear;
1. The offence with which the accused is charged.
2. The written law and the section of the written law creating the offence.
3. Particulars of date and place the offence was allegedly committed.
4. The person against whom or thing, if any in respect of which the offence was committed
5. The name of the accused person.
The rule against ambiguity admits no exception and it is rigid. However section 113 of the CPC
provides that a charge or information shall subject to the provision of the said Code not be open to
objection in respect of its form or contents if it is framed in accordance with the rules mentioned
below.
i. A count of a charge or information shall commence with a statement of the offence.
See section 113(a) (i) of the CPC.
In OKEKE & Anor VS INSPECTOR GENERAL OF POLICE (1965) 2 All NLR p.81, the
appellant was charged and convicted of two offences. In the judgment, the trial Magistrate stated
that the accused person was charged under “some sections of the Criminal Acts” On appeal it was
contended that this contravened the provision of section 151 (3) of CPA which require the written
law and section of the written law against which the offence is said to have been committed to be
set out in the charge. The court upheld the submission and declared the trial null and void for
ambiguity.
NOTE: where an offence unknown to the law is charged, a conviction based on it will be quashed
see- BALLO KANTEH (ALIAS FABAKARY KANTEH VS STATE report in Criminal Appeal
cases Digest by E. Agim page 58 at page 68.
ii. The statement of offence shall be describe the offence shortly in ordinarily language,
avoiding as far as possible the use of technical terms, and without necessarily stating all the
essential elements of the offence, and if the offences charged is one enacted by an enactment, it
shall make reference to the section of the enactment creating the offence. See section 113(a) (ii)
of CPC.
In CEESAY VS STATE Criminal Appeal cases digest at 14, the Gambia Court of Appeal held that
the statement of offence together with the supporting particulars should give reasonable
information as to the nature of the offence charge and if the offence charged is one created by an
enactment; the statement of offence must make reference to the section creating the offence.
Thus in STATE VS ABDOULIE CONTEH (2002-2008) I GLR p.150 at 182, the Gambia Court
of Appeal held,
“It is trite law that the correct section for charging a person with an offence is the offence creating
section. This is statutorily provided for in section 113(a) (1) and (11) of the Criminal Procedure
Code”

For instance, in a case of murder the offence creating section is section 187 of the Criminal Code.
e.t.c
Care must be taken so as not to confuse definition section with the offence creating section of an
enactment. A clear distinction was made between the two in STATE VS ABDOULIE CONTEH
(SUPRA) at page 158 ratio 25 where the Gambia Court of Appeal held that the section defining
theft is different from the section creating it. It further held.
“There is no doubt that section 245 of the Criminal Code defines stealing. This is the definition
section. Like this Court has held above section 252 is the offence creating section”.
A valid charge should always make reference to the offence creating section.
iii. After the statement of offence, particulars of such offence shall be set out in ordinary
language in which the use of technical terms shall not be necessary. See section 113(a) (iii) of
CPC.
This provision is to ensure that the accused person receive adequate notice of the charge against
him. The statement of offence together with supporting particulars should give reasonable
information of the nature of the offence charged to enable the accused person prepare for his
defence.
In CEESAY Vs STATE (Supra); At the Magistrate’s Court, a charge of possession of prohibited
drug was put to the appellant. He pleaded guilty to it and was subsequently convicted and sentenced
to a fine of D100, 000 in default to serve 5 years imprisonment. He was in addition ordered to
serve another 5 years imprisonment. The appellant appealed against the decision. During hearing
of the appeal at the Supreme Court, the appellant came to learn for the first time that the charge
against him was in fact a serious one of Drug trafficking. The Gambia Court of appeal held that
the practice amounted to denial of Justice to the appellant as he was embarrassed and prejudiced
in arranging for a possible defence. The conviction for drug trafficking was set aside and the
appellant was convicted of possession of prohibited drug which he earlier confessed to. He was
sentenced to 22 months term of imprisonment back dated from 26/1/94
Compare this case with the case of SMITH VS STATE reported- the Criminal Appeal cases Digest
at page 7. In this case indictment described the offence with complete accuracy. The particulars
which merely elaborate the statement of offence made inaccurate reference to the enactment that
created the offence under which the appellant was charged. The Gambia Court of appeal held that
“In our opinion this did not make the indictment a bad indictment but similarly a defective or
imperfect one…… In our view the appellant was not in any way embarrassed or prejudice by
reference to the wrong section of the law as he well knew the offence he had to meet”
Thus the effect of ambiguity is dependent on whether it was sufficient enough to mislead the
accused to the extent that he did not know the offence for which he was being tried.
See also the case of BALLO KANTEH & Ors VS STATE reported in the Criminal Appeal cases
Digest by E. Agim at page 62, where the Gambia Court of appeal held a charge to be defective in
material particulars if it omitted the very essence of the offence. It further held that the offence
charged being at variance with the offence creating section, was an offence unknown to law and
conviction on such a charge should be quashed.
In Ogbornor VS STATE (1985)2 S.C page 289, the accused was charged and convicted for armed
Robbery under the Robbery and Firearms Act 1970. He appeal on the grounds that although there
was a law known as the Robbery and Firearms(special provisions) Act 1970, there was no law
known as Robbery and Firearms Act as stated on the face of the charge The Supreme Court of
Nigeria held

(1) The use or mis-description of the Robbery and Firearms (Special provisions) Act 1970 was
minor and Technical and;
(2) That the accused knew the offence of Armed Robbery and that the accused person knew what
he was being tried for.
In OSIGWE VS POLICE (1966), NMLR page 212, a contention that a charge was bad for
ambiguity because the accused was charged under Criminal Code Laws of the Federation instead
of the Criminal Code was rejected by the court.
Compare this with the case of BALLO KANTEH & ORS VS STATE (supra)
ii. Where a charge or information contains more than one count, the counts shall be
numbered consecutively. See section 113(a) (iv) of CPC.
This provision is only relevant to multiple counts in a charge sheet. In such a case each count must
be numbered followed by the statement of offence and particulars of offence.
EXAMPLE:
COUNT 1
Rape Contrary to section 121 of the Criminal Code Cap 10 Volume III Revised Laws of the
Gambia 2009
That Omar Ceesay on or about the 16th day of May 2010 at Kunkujang had unlawful carnal
knowledge of one Rabiat Touray without her consent and thereby committed an offence
COUNT 2
Assault causing actual bodily harm contrary section 228 of the Criminal Code Cap 10 Volume III
Laws of the Gambia 2009
That Omar Ceesay on or about the 16th day of May 2010 at Kunkujang assaulted Rabiat Touray
with a knife and inflicted injury on her fore head and thereby committed an offence
iv. The description of property in a charge or information shall be in ordinary language,
and such as to indicate with reasonable clearness the property referred to, and, if the property is so
described, it shall not be necessary (except when required for the purpose of describing an offence
depending on any special ownership of property or special value of property) to name the person
to whom the property belongs or the value of the property, where property is vested in more than
one person and the owners of the property are referred to in a charge or information , it shall be
sufficient to describe the property as owned by one of those persons by name with the others, and
if the persons owning the property are a body of persons with a collective name’, such as a joint
stock company or “Inhabitants,” “Trustees”, “Commissioner” or “Club” or other such name, it
shall be sufficient to use the collective name without naming any individual. See section 113(c) (i)
and (ii) of CPC.
Example: In a case of theft of property belonging to omar Ndow, Basil Jobe and Yankuba Jatta, it
shall be sufficient to state in the particulars of offence ‘property of Omar Ndow and others.’ If the

property belongs to persons as a body known as Reform Club, it shall be sufficient to state
‘property of Reform club’
v. Property belonging to or provided for the use of any public establishment, service or
department may be described as the property of the Republic. See section 113(c) (iii) of CPC.
Republic here refers to the Republic of the Gambia
ii. When a person is charged with any offence under section 252 and section 257, or
section 258, or section 259 or section 260 of the Criminal Code, it shall be sufficient to specify the
gross amount of property in respect of which the offence is alleged to have been committed and
the dates between which the offence is alleged to have been committed without specifying
particular items or exact dates; See section 113(c) (v) of CPC.
vi. The description or designation in a charge or information of the accused person, or of
any other person to whom reference is made therein, shall be such as is reasonably sufficient to
identify him on her, without necessarily stating his or her correct name, or his or her abode, style,
degree or occupation, and, if owing to the name of the person not being known, or for any other
reason, it is impracticable to give such a description or designation such description or designation
shall be given as reasonably practicable in the circumstances or such person may be described as
”a person unknown”. See section 113(d) of CPC. This allows the draft person to frame a charge of
conspiracy even when the identity of the other conspirators are not known
v. Where it is necessary to refer to a document or instrument in a charge or information
it shall be sufficient to describe it by any name or designation by which it is usually known, or by
the purport thereof, without setting out any copy thereof.
See section 113(e) of CPC.
vii. Subject to any other provisions of section 113 of CPC, it shall be sufficient to describe
any place, time, thing, matter, act or omission whatsoever to which it is necessary to refer in any
charge or information in ordinary language in such a manner as to indicate with reasonable
clearness, the place, time, thing, matter, act or omission referred to; See section 113(f) of CPC.
viii. It shall not be necessary in stating intent to defraud, deceive, or injure to state intent to
defraud, receive or injure a particular person, where the enactment creating the offence does not
make intent to defraud, deceive, or injure a particular person an essential ingredient of the offence.
See section 113(g) of CPC.
Thus in a charge of Obtaining money by false pretence under section 288 of CC, it will be
necessary to state the intent to defraud in a charge as intent to defraud is one of the ingredients of
the offence.
ix. Where a previous conviction of an offence is charged in a charge or information, it

shall be charged at the end of the charge or information by means of a statement that the accused
person has been previously convicted of that offence at a certain time and place without stating the
particulars of the offence. See section 113(h) of CPC.
vi. Figures and abbreviations may be used for expressing anything which is commonly
expressed thereby. E.g ‘Dalasi’ is abbreviated by the use of letter “D’.
EFFECT OF NON COMPLIANCE
The essence of the rule against ambiguity is to ensure that an accused is given adequate notice of
the charge laid against him. However the effect of ambiguous charge is dependent on whether the
ambiguity was sufficient to mislead the accused person to the extent that he did not know the

offence for which he is being tried. It is not every error on the part of the prosecutor that will
essentially invalidate the charge or make the court to set aside the conviction. See DURO VS THE
POLICE (1960), LLR 130 OGBOMOR VS THE STATE (1985), WLR 223, OGBODU VS THE
STATE (1987) 3SC 497 and SUGH VS THE STATE (1988) NWLR 475.
In the following cases, the court held that the errors in charges were fundamental- CLEMENT
ISONG V AG, OKEKE VS POLICE (1965)2 ALLNLR 81.
PROPER TIME TO RAISE OBJECTION TO A CHARGE AND INFORMATION
Both sections 161A and 217 of the CPC provides that objection to any formal defect on the face
of a charge or information (as the case may be) shall be taken immediately after the charge or
information has been said over to the accused person and not later.
The import of these provisions is that the objection must be raised immediately after the charge is
read and before the accused plead thereto. The formal defect referred to in section 161A and 217
of the CPC has been held to extend to duplicity in a charge or information.
In STATE VS ABDOULIE CONTEH (SUPRA) at 168 the Gambia Court of appeal held that;
“The arm of the objection challenging count 3 of the information for being duplicitous should have
been raised by the respondent immediately after the information had been read over to him before
he pleads thereto and not later. This is the time limited by section 217 of the CPC for taking an
objection to formal defects on the face of the information. See the decision of this court in STATE
VS JARJUE & ORS IN Criminal Appeal section 9-/99.
See also STATE VS LAMIN JUWARA CRIM. Criminal appeal digest at page 7/03, where the
High Court of the Gambia Coram M.A. PAUL held that;
‘ The essence section 217 is to ensure that the case is dealt with in a manner consistent with
substantial justice, so that when objection is raised early, the defect, if any can be cured and the
matter proceed on its merit”
2. RULE AGAINST DUPLICITY

Just like the rule against ambiguity, this rule relates to a count in a charge. This rule is clearly
brought in STATE VS LAMIN JUWARA (SUPRA) when the High court Coram M.A. Paul. Held
at page 121 thus;
‘……….duplicity means two offences charged in one count. The law is that a charge must not be
double, that is to say no one count of a charge should charge an accused with having committed
two or more separate offences.”
A charge will be bad for duplicity if it contains more than one offence in the same count. An
accused must be charged for each of the offences committed by him separately in the charge sheet
or information.
The legislative source of the rule against duplicity is provided under section 112(2) of the CPC.
The said section provides that where more than one offence is, charged in a charge or information,
a description of each offence so charged shall be set out in a separate paragraph of the charge or
information called a count.
In KEBBA NJIE & 11Ors VS STATE Criminal Appeal NO 14-25/88 the Gambia Court of appeal
re-echoed the need to charge one offence in one count.

“The indictment must not be double, that is to say no one count of the indictment should charge
the offender with having committed two or more separate offences.
Duplicity being a matter of form an objection on such ground is better taken before an accused has
pleaded to the charge see. STATE VS ABDOULIE CONTEH (SUPRA) at page 155 and STATE
VS LAMIN WAA JUWARA Criminal appeal cases Digest at page 127.
The rule provides that if Mr. Touray broke into premises and stole a television set, Tailoring
machine and D100, 000 Dalasis, he must be charged separately and must be tried separately for
each offence. Mr. Touray will be charged in one charge sheet with three counts and tried for each
of the offences alleged against him separately.
Note that it is immaterial if Mr. Touray had committed the three offences in the same premises or
against the same persons. Where a count of offence discloses or alleges more than one offence it
will be bad for duplicity.
In OKEKE VS POLICE (1965) 2 ALL NLR p.81, the appellant was charged and convicted for the
offences of demanding and receiving contained in a count. On appeal, WACA held that demanding
and receiving constituted two separate offences and should have been properly charged on two
separate counts in the same charge sheet.
In R .V. CHIMA 10 WACA p. 223, the court held that an accused person who was alleged to have
killed her twin babies at birth, should have been charged with two separate counts of infanticide.
Similarly in R. V. BALLYSIGHN (1957) 37 Cr. App. Rep. p.28, the court held that where a person
is accused of stealing from several sections or counters of the supermarket, each alleged offence
of stealing must be contained in separate count. It is bad for duplicity to put all the acts of stealing
in one count.
The Gambia Court of appeal held in the case of KEBBA NJIE & 11 Ors VS STATE (SUPRA) at
p.89 that an appellate court may hold a count bad for duplicity and quash the conviction.
However, It is should be noted that, not in all cases where a charge is bad for duplicity that the
conviction of the accused person should be quashed or set aside.
In ONAKOYA VS FRN(2002)6 SC (pt 2) p.220, the Supreme Court of Nigeria held that unless
the accused person is prejudiced or misled in his defence, his conviction will not be quashed or set
aside.
See also AWOBOTU VS STATE (1976) 5.SC 49 where, it was held that a charge that is bad for
duplicity does not necessarily invalidate the charge or the trial except it has occasioned miscarriage
of justice.
EXCEPTION TO THE RULE AGAINST DUPLICITY
1. Where a person is charged with Theft section (S.252 CC ) and stealing by person on public
service (S.257 CC) or stealing by clerk or servant (S.258 CC) or stealing by Director or officer of
Companies (S.259 CC) or stealing by agent (S. 60 CC), it shall be sufficient to specify the gross
amount of property in respect of which the offence is alleged to have been committed and the dates
between which the offence is alleged to have been committed without specifying particular item
or exact dates. The gross amounts refer to sum of money.
In R.V. NWANKWO (1962) I ALLNLR (pt4) p.64, the defendant was convicted of stealing
monies. He was alleged to have misappropriated public funds by the fraudulent abuse of three
receipt books. He was charged with three counts of stealing. The monies allegedly stolen through
each of the receipt books were summed up. Each count containing the sum total of the monies

misappropriated from each receipt book. He appealed against his conviction contending that the
charge was bad for duplicity because each count contained more than one allegation of stealing.
The appellate court held, that since the allegation against the defendant was of general deficiency
of money the sums misappropriated through each receipt could be summed by each contained in a
single count. His appeal was dismissed.
The essence of this exception is that it is often difficult to ascertain the particular time at which
any particular sum of money was misappropriated in such cases. This exception does not apply to
a general deficiency of goods.
In R.V. AWIEMEKE, (the defendant was charged with stealing of 59 boxes of cigarette in one
count . In the court of trial, it was revealed that the alleged stealing took place on 53 specific dates.
The defendant was convicted. He appealed, the appellate court held
(i) The exception contained in section 152(2) CPA only related to a general deficiency of money
and not goods.
(ii) The defendant ought to have been charged in separate counts for each allegation of stealing.
The conviction was set aside.
(1) The Rule against misjoinder of offenders
The general rule is that every accused should be charged separately and tried separately for any
offence alleged against him.
Thus, if simultaneously, at 9:00 am on Saturday, the 9th of January 2011, Sarjor, Bakary and
Almameh separately broke into the premises of the Gambian Law School Banjul and Sarjo stole
money from the Director’s office, Bakary stole water dispenser from the common room and
Almameh raped a female student in the library. Upon their arrest, they should be charged to court
in separate charge sheets. Sarjo will be charged for theft of money, Bakary for theft of water
dispenser and Almameh for rape.
It does not matter that they committed the three offences at the same time and date and in the same
premises or against the same institution. To charge, Sarjo , Bakary and Almameh in separate counts
in the same charge sheet or one count in the same charge sheet will offend the rule on misjoinder
of offenders.
EXCEPTIONS TO RULE AGAINST MISJOINDER OF OFFENDERS.
There are however exceptions to the general rule. Section 111 of the CPC provides that the
following persons may be charged and tried together ;
A - JOINT COMMISSION OF THE SAME OFFENCE. Persons accused of the same offence
committed in the course of the same transaction may be charged and tried together for the
Commission of the offence. See section 111(a) of CPC. In this case they may not only be charged
in the same charge sheet but may also be charged in a single count.
In Okojie & Ors vs COP (1961) WRNLR 91, the accused persons in this case arrested the
complainant pursuant to a warrant of arrest and took him to court hall where they all assaulted him.
The accused were subsequently charged jointly in the same charge sheet for the offence of assault
occasioning harm and consequently convicted.
On appeal against their conviction, they contented amongst other things that they ought to have
been charged separately and that the charge against them was bad for misjoinder of offenders. The

Court held that they were properly charged together in the same charge sheet because they jointly
committed the offence against the complainant.
(b) AIDING, ABETTING OR ATTEMPTING TO COMMIT SAME OFFENCE : Persons
accused of an offence and persons accused of abetment or attempt to commit such offence may be
jointly charged and tried together in the same charge sheet. See section 111 (b) of CPC.
Thus, several offenders may be charged together in the same charge sheet notwithstanding the fact
that their offences were not committed in the course of the same transaction. Person who actually
commit offences are called principal offenders. Principal offenders may be tried together with
other persons who aided, abetted, counseled or procure the commission of the offence. This is
because they are partners to the offence committed by the principal offender. This is the concept
of participis criminis (parties to an offence).
Section 23 of the Criminal Code defines principal offenders to include;
1) Every person who actually does the act or makes the omission which constitutes the offence
2) Every person who does or omits to do any act for the purpose of enabling or aiding another
person to commit the offence.
3) Every person who aids or abets another person in committing the offence.
4) Every person who counsels or procures any other person to commit the offence.
These people are deemed to have taken part in committing the offence and may be charged with
actually committing it. Thus a conviction of counseling or procuring the commission of an offence
entails the same consequences in all respect as conviction of committing the offence. See s.23 (2)
(3) and (4) of the Criminal Code.
In addition, a person who actually commits an offence may also be charged together with the
person who is caught attempting to commit the same offence. However both commissions of the
offence and attempting to commit the offence must occur at the same time before the offenders
may be charged together.
In the celebrated case of Njovens and Ors vs State (1973) NNLR 76 SC. The offenders were
charged and tried amongst other things with offences of abetting, receiving stolen property and
accepting gratification. The offenders were privy to a plan to rob a bank and they promised to use
their power and influence to prevent the detection of the robbery and prosecution of the robbers.
The robbery took place as planned and the illegal proceeds were shared amongst them. They were
all charged together, tried and convicted. On appeal, the Supreme Court of Nigeria, upheld their
conviction of abetting and receiving stolen property.
C) Persons accused of more than one offence of the same kind committed by them jointly within
a period of twelve months may be jointly charged and tried. See section 111 (c) of the Criminal
Code.
(d) JOINT COMMISSION OF DIFFERENT OFFENCE: Persons accused of different offences
committed in the course of the same transaction. See section 111 (d) of the Criminal Code.
Where two or more persons commit different offences, but all the offences were committed in the
course of same transaction, they may be charged and tried together on the same charge sheet. For
this exception to apply, the alleged different offences must all arise out of the same transaction.
Thus the case of in Haruna and Ors vs The State (1972) ALL NLR 738, some people reached
agreement in Lagos to obtain payment in Bida, Niger State for fictitious purchase by means of
forged vouchers. One of the accused submitted the first payment voucher in Bida and recieved a
cheque for the amount stated therein. It was held that all the accused were properly tried and
convicted in Bida. The court held that all acts in question from the very beginning should be in

contemplation or should form component parts of a whole. Bearing in mind the original agreement
was in Lagos and the elaborate arrangements made for the overt acts which followed at Bida, the
conspiracy and the overt acts were done undoubtedly in the course of the same transaction and it
was therefore right and proper to charge and try all the accused together.
Difficulty may arise in determining when a criminal transaction begins and when it ends. In order
to ascertain that offences were committed in the course of the same transaction, the test to be
applied is laid down by Fatayi Williams JSC (as he then was) in Haruna and Ors vs The State as
follows;
“Whether two or more acts constitute the same transaction depends on the proximity of time and
place, continuity of action, and community of purpose or design relative to particular acts. This in
order to constitute a transaction, all acts from the very beginning should either be in contemplation
or should form the component parts of a whole.
The test therefore requires a consideration of three factors
• Proximity of time and place, or
• Continuity of action
• Community of propose or design
All the tree factors need not be established before the accused can be charged together. Any one
of the factors, if established is sufficient.
PROXIMITY OF TIME
The accused must have committed the different offences at proximate times and places. What this
means is that all the different offences must have been committed contemporaneously and at a
place or places close to each other. Where the different offences committed by different accused
are separated by long periods of time or at places far apart from each other, they may not be charged
together in the same charge sheet except within continuity of action or community of purpose.
Proximity of time and place requires that the several offences must have been committed at times
and places close to one another.
CONTINUITY OF ACTION
The different offences committed by different accused persons may all occur at the same time and
place or different times and places. Whether different accused committed different offences at the
same time and place or different times and places, they must all occur in a continuous flow of
criminal activities. Each act or omission that constitutes a crime must have been committed in
discernible flow of activities which may occur at the time and place or different times and places.
Whether the offences are committed at the same time and place or not the accused may not be
charged together in the same charge sheet unless there is continuous flow of action from the first
offence to the others.
COMMUNITY OF PURPOSE
Community of purpose or design may arise out of conspiracy or common intention. Where two or
more persons agree to do an act or make an omission which constitutes a crime, they are liable for
conspiracy and may be charged with the offence they conspired to commit. See Odunleye vs The
State (2001) ISC (pt.1) 1 pp 6-7.
Common intention may also arise when two or more persons without prior agreement for a
common intention to do an act or make an omission and in the prosecution of their purpose an

offence is committed. An offence committed in the course of a fight or riot, come readily under
common intention. See The State v Oladimeji (2003) 14 NWLR (pt. 839) 57 pp.71. In the case of
different offences committed by conspirators and persons who formed a common intention, all
defendants may be charged together in the same charge sheet but different counts for particular of
offences they allegedly committed in the prosecution of their common intention.
In Haruna and Ors v The State (SUPRA), the accused entered into agreement in Lagos to collect
some cheques for fictitious purchase. They were charged jointly in the same charge sheet and tried
and convicted. On appeal, the accused contended amongst other things that the charges against
them violated the rule against misjoinder of offenders. The Supreme Court of Nigeria held:
1. That the appellant committed the offence in the same transaction and;
2. They had a common design or purpose in committing the offences.
In the above case, the offences were not committed at proximate time and place. However there
was both continuity of action and community of purpose or design. From the conspiracy in Lagos
to commit an offence against the company in Bida, Niger State, the entire Criminal activities
commenced and continued till the forged cheques were presented Bida for payment. At all the
times there was community of purpose or design, to wit to defraud the Company in Bida. They
were accordingly rightly charged together in the same charge sheet in Bida for various offences
committed in the prosecution of their unlawful act or purpose.
(e) Persons accused of an offence under chapter xxvi to xxxi of the Criminal Code and person
accused of receiving or retaining or assisting in the disposal or concealment of property possession
of which is alleged to have been transferred by any such offence committed of the first named
persons, or abetment or attempting to commit any such last named offence may be tried together.
The offence persons accused of this offence committing related offences. For example, the offence
of theft and stolen property are related offences. See section 111 (e) of CPC.
Therefore a person who commits theft may be charged in the same charge sheet with person who
receives the proceeds of the theft. Every person who committed any offence in chapter xxvi to
xxxi of the criminal code may be charged together in the same Charge sheet.
(F)Persons accused of offences under section 297 and 298 of the criminal code or any of those
sections in respect of property the possession of which has been transferred by one offence. Thus
a person accused of receiving stolen property and receipt or possession of property stolen abroad
and of offences in respect of property the possession of which was been transferred by one offence
may be charged and tried together. This shall apply to offences of extortion, criminal
misappropriation and receipt of proceeds of any of these offences.
(G) Persons accused of any offence under chapter xxxvi of the criminal code relating to counterfeit
coin and persons accused of any other offence under the said Chapter relating to the same coin or
attempting to commit any such offence may be charged together.
JOINDER OF TWO OR MORE OFFENCES IN A CHARGE OR INFORMATION
Section 112(1) of the CPC provides that any offences, whether felonies or misdemeanors may be
charged together in the same charged if the offences charged are founded on the same facts or form
or are a part of series of offences of the same or a similar character.
Two factors has to be considered in determining whether to charge two or more offences in the
same charge sheet or information.
- That the offences as founded on the same facts or

- Form or are a part of series of offences of the same or similar character.
OFFENCES OF SIMILAR CHARACTER
In MARSH VS THE QUEEN, the court held that both law and facts should be taken into account
in determining whether offences are similar and dissimilar in character.
There must exist a series of such offences and in this regard, nexus really is the feature of similarity
which in all circumstances of the case enables the offences to be described as series. Establishing
similarity is not enough but sufficient nexus should be shown to make them a series.
CHARGES
An accused person is arraigned in court upon a charge sheet. A charge sheet is the document before
the court which informs the court and the accused of the allegations levelled against the accused
by the prosecution. In other words, the charge sheet contains the charge or charges against the
accused person. A charge is therefore a statement of offence in a summary trial and in a trial on
information (indictment). In a trial upon indictment, the charge sheet is known as the bill of
indictment. Note that whilst every offence stated in a charge sheet or information is called a charge
or count, the whole charge sheet can be called a charge.
DRAFTING OF CHARGES
The prosecutor prepares a charge sheet before the commencement of a trial. Police officers are the
main prosecutors in the Magistrates’ Courts. S. 28 of the Police Act provides:
“Any police officer may conduct in person any prosecution before any court of summary
jurisdiction whether the complaint is laid in his name or not.”
S. 69(1) (a) of the C.P.C provides that criminal proceedings may be instituted by a police officer
bringing a person arrested with or without a warrant before a magistrate upon a charge. S. 69(1)
(b) further provides that criminal proceedings may be instituted by a police officer laying a charge
against a person before a Magistrate and requesting the issue of a warrant or a summons. S. 133 of
the Drug Control Act also provides that the NDEA may “undertake the prosecution, in its name,
of offences under the Act.”

Thus, police officers and the NDEA are authorized to prepare charge sheets in a summary trial and
since most prosecutions are conducted by them, they sign the said charge sheet.
Legal practitioners employed at the Attorney General’s Chambers, otherwise called Law Officers
or State Counsel or Public Prosecutors can also prosecute in Magistrates’ Courts. S. 85(1) (a) of
the 1997 Constitution provides that the Director of Public Prosecutions shall have power in any
case in which he or she considers it desirable to do so, and subject to the approval of the Attorney
General, to initiate and undertake criminal proceedings against any person before any court for an
offence committed against the law of the Gambia. S. 85 (3) further empowers the D.P.P to exercise
these powers by him or her in person or by persons under his direction and control. S. 69 (1) (b)
also empowers a public prosecutor to institute criminal proceedings by laying a charge against a
person before a Magistrate and requesting the issue of a summons or a warrant. By virtue of these
provisions therefore, law officers at the AG`s department can draft and sign charge sheets in all
courts including Magistrates’ Courts.
Under S. 175B of the CPC, the AG, or any person authorized by him may commence criminal
proceedings in the High Court by filing with the Registrar of the High Court:
a. an information which shall be in the form of indictment and shall state in writing the charge
against the accused; and
b. a summary of evidence which shall comprise a list of the witnesses whom the prosecution
proposes to call at the trial and summary of the evidence to be given by each such witness.
S. 175D of the CPC further empowers the AG or any member of his professional staff designated
by him to authenticate the information and summary of evidence by appending his signature
thereto. Law officers are therefore usually the prosecutors before the High Court. Consequently,
an information in the High Court is drafted and signed by law officers. Thus, while charges are
usually drawn up at the Magistrates’ Courts and Narcotics Court by police officers and the NDEA,
at the High Court they are drawn up by law officers. It must be noted however that by virtue of s.
69(1) (c) and (3) of the CPC and s. 85 of the Constitution private persons may also institute private
prosecutions.
CONTENTS OF A CHARGE SHEET
Every charge sheet or information must contain the statement of the specific offence or offences
with which the accused person is charged, together with such particulars as may be necessary for
giving reasonable information as to the nature of the offence charged. See s. 110 of the C.P.C.
The following particulars are therefore required to be contained in a charge sheet:
1. A count of a charge or information shall commence with a statement of the offence charged,
called the statement of the offence, s. 113(a) (i) CPC. The offence allegedly committed by the
accused must therefore be stated in the charge sheet. See OKEKE v. IGP (infra). Thus where an
offence unknown to law is charged, the conviction will be quashed on appeal. See BALLO
KANTEH V. THE STATE [1997] GCA Criminal Appeal No. 12 -158. Note that the offence
should be stated in the charge in its ordinary name instead of its technical name, without necessarily

stating all the essential elements of the offence. See s. 113 (a) (ii). For example, when charging a
person with an alleged offence of stealing or theft, the offence should be stated simply as stealing
or theft and not as fraudulent conversion.
The Criminal Code and most criminal enactments in the Gambia use marginal notes in stating the
offence created in the body of the enactment. The practice employed by draftsmen is to use the
name given to the offence in the marginal notes in describing the offence. For example, the offence
of assault causing actual bodily harm contrary to s. 228 of the Criminal Code. Some criminal
enactments do not use marginal notes. In stating the offence created in this type of enactment, as
much of the definition of this offence as is sufficient to describe it clearly must be used in stating
the offence in the charge sheet. This ensures that the accused receives adequate notice of the charge
or charges against him and helps him prepare his defence. See CEESAY v. THE STATE Criminal
Appeal Cases Digest 14
The statement of offence must also contain a reference of the section of the enactment creating the
offence. See CEESAY v. THE STATE (supra). It is usual for the written law creating an offence
to define the ingredients of an offence created in one section and to provide the punishment of the
offence in another section. Thus, there may be two sections dealing with an offence: a definition
section defining the ingredients of an offence, and a punishment section prescribing the
punishment for the section. For example, the offence of theft is defined in s. 245 of the Criminal
Code, while the punishment for the offence is contained in s.252 of the Criminal Code.
Sometimes, the definition of the ingredients of an offence and the punishment for the offence may
be contained in one and only one section of the enactment. For example the offence of obtaining
goods by false pretences is defined in s. 288 of the Criminal Code which also provides the
punishment for that offence. Similarly, the offence of receiving stolen property is defined in s. 297
of the Criminal Code, which again prescribes the punishment for that section.
Offences may also be defined in one section of an enactment but the punishment for such offences
may not be stated in that section or in any other section of the enactment specifically relating to
those offences. Instead, a general penalty section is included in the enactment prescribing
punishment for all offences contained in the enactment for which no express punishment has been
prescribed elsewhere. An example of this sort of offence is defamation of foreign princes contrary
to s. 60 CC. The punishment for this offence is not named in this section but s. 34 CC provides:
“When in this Code no punishment is specially provided for any misdemeanour, it shall be
punishable on conviction with a fine or with imprisonment for a term not exceeding two years or
with both fine and imprisonment.”
Thus this section (s.34) provides punishment for all misdemeanours created by the CC in respect
of which penalties are not prescribed. S.6 of the Economic Crimes (Specified Offences Act) and
s. 85 of the Motor Traffic Act as amended also has similar provisions.

It is necessary to know which section of the law to state in the charge sheet as having been
contravened when drafting a charge. The proper procedure is as follows:
a. Where an offence is defined in one section and the penalty for the offence is prescribed in another
section, the charge sheet must state the penalty section. The penalty section is the offence creating
section. Therefore, for the offence of theft, an accused would be alleged to have committed the
offence of stealing contrary to s. 252 of the Criminal Code. To charge contrary to both the
definition section (s. 245) and the penalty section (s. 252) is incorrect. It is also incorrect to charge
contrary to the definition section.
Delivering the lead judgment in the case of THE STATE V ABDOULIE CONTEH GCA Crim.
App. No.4/2006 (unreported), Justice Agim PCA held at page 24 of the judgment thus:
“There is no doubt that s.245 of the Criminal Code defines stealing. This is the definition section.
Like this court has held above s.252 is the offence creating section. It is trite law that the correct
section for charging a person with an offence is the offence creating section. This is statutorily
provided for in s.113 (a) (i) and (ii) of the Criminal Procedure Code”.
See also BALLO KANTEH V. THE STATE (supra) where the Gambia Court of Appeal that
charge not based on the offence creating section was a charge unknown to law and any conviction
based on it should be quashed
In the Nigerian case of the AG OF THE FEDERATION V ISSONG (1980) 1 LRN 75, the accused
was charged with unlawful possession of fire arms contrary to s. 3 of Fire Arms Act, 1958 as
amended by the Fire Arms (Amendment) Act, 1966 and unlawful possession of ammunitions
contrary to s. 9 of the Fire Arms Act 1966. The trial court held inter alia that the charge was
defective because, the accused was charged contrary to the definition section of the Fire Arms Act.
It stated that this was a contravention of s. 151(3) of the Criminal Procedure Act of Southern
Nigeria and that the accused ought to have been charged with an offence against the penalty section
of the Fire Arms Act.
b. Where an offence is defined in one section and the punishment for the offence is prescribed
in the same section as in the case of obtaining goods by false pretences under section 288 of the
CC, the charge sheet must state that section only. Therefore, for the offence of obtaining goods by
false pretences contrary to section 288 of the Criminal Code, only that section should appear on
the charge sheet.
c. Where an offence is defined in one section but the punishment for that offence and other
offences are jointly stated in a separate section, the charge sheet shall state both the definition and
the penalty section. Therefore for the offence of defamation of foreign princes contrary to s. 60
CC, the charge sheet should contain both the section defining the ingredients of the offence and
the section prescribing the punishment for the offence: S. 60 CC and s. 34 CC.
Does a charge sheet become invalid just because a wrong section of an enactment is cited? Section
69(2) provides:
“The validity of any proceedings instituted or purported to be instituted in pursuance of this
section shall not be affected by any defect in the charge or complaint…”

It follows therefore that an error in stating the applicable section in the statement of offence does
not vitiate the charge, if no substantial miscarriage of justice has been occasioned. Such an error
is technical in nature and an objection on it should be rejected. In the Ghanaian case of STATE v.
KOFI ADABO (1961) GLR 321, the accused was charged with murder under a repealed section
of the Criminal Code of Ghana. The accused was convicted and he appealed. The Supreme Court
dismissed the appeal which was grounded on the defect and held that the defect was a technical
error and no substantial miscarriage had occurred.
In the Ghanaian case of DOCHI VS STATE 1965 GLR 208. The appropriate subsection of the
relevant section was wrongly stated. The section itself was correctly stated. It was held that this is
merely a technical error.
However, where the omission to refer to an enactment amounts to a lack of information as to the
nature of the charge the accused is facing, the charge, unless amended, will be held irredeemably
bad. This was what happened in the Ghanaian case of REPUBLIC V DUFA (1976) 2 GLR 18
where the relevant executive instrument imposing the maximum control price for the time being
against which the accused was alleged to have offended was not included .
2. The particulars of offence shall follow the statement of offence. The particulars of offence
must give enough information about the accused person’s act or omission that led to the
commission of an offence. If, for example, an accused in charged with being in possession of a
prohibited drug, the nature and weight of the drug found in his/her possession should be specified.
In the Nigerian case of COP v. AGI (1980) 1 NCR 234, it was held on appeal that an assault charge
was defective where it failed to state the method and any weapon allegedly used by the accused.
Note the provisions of s. 113 (a) of the CPC that “the particulars of offence shall be set out in
ordinary language, in which the use of technical terms shall not be necessary.” However, the
proviso to this paragraph provides thus:
“Where any rule of law or any act limits the particulars of an offence which are required to be
given in a charge or information, nothing in this paragraph shall require anymore particulars to be
given than are required”
For the defects in particulars of offence and the consequences, see A.N. E. Amissah in his book
Criminal Procedure in Ghana at pages 79 to 82.
3. Where a charge or information contains more than one count, the counts shall be numbered
consecutively. See s. 113 (a) (iv) of the CPC.
4. The charge or information should contain the name of the accused person or accused
persons. The accused person’s description and designation in a charge or information must be such
as reasonably sufficient to identify him. Thus if an accused person is sufficiently identified in a
charge or information, it is irrelevant if his correct name is stated or not. If a person’s name is not
known or it is impracticable to give such a description or designation, it is suffices to give such
description or designation as is reasonably practicable. In the circumstance such a person can be
described as ‘a person unknown’. It is not also necessary to state a person’s, title, style, degree or

occupation. Thus if an accused is a medical doctor, a chief, an alkalo, a reverend father, Mr. or
Mrs., it is not necessary to give his or her status or state his or her title in the charge. See 113(d)
of the CPC.
5. Where an enactment constituting an offence states the offence to be the doing or the
omission to do any one of different acts in the alternative, or the doing or the omission to do any
act in any one different capacities, or with any one of different intentions or states any part of the
offence in the alternative, the acts, omissions, capacities or intentions, or other matters stated in
the alternative in the enactment, may be stated in alternative in the count charging the offence.
It is also not necessary in any count charging an offence constituted by an enactment to negative
any exception or exemption from or qualification to operation of the enactment creating the
offence. See 113 (b) CPC.
6. Property in a charge or information shall be described in ordinary language and such as to

indicate with reasonable clearness the property referred to. If the property is described with
reasonable clearness, it shall not be necessary to name the person to whom it belongs or the value
of the property, except when the name of the owner of the property is required for the purpose of
describing an offence depending on any special ownership of property or special value of property.
See s.113(c) (i). In EWHARIEME & ORS v. THE STATE (1985) 11 SC 174, the accused persons
were charged and convicted of armed robbery. They filed an appeal contending that the charge
against them was defective in that the owner of the property allegedly stolen was not stated in the
charge. Rejecting their appeal, the Supreme Court of Nigeria held that it was not mandatory to
name the owner of property allegedly stolen in a charge sheet. Please note that in practice, charges
in this jurisdiction not only identify the owner of property described in a charge sheet, but also
contain the value of the property.
Where property is vested in more than one person and the owners are referred to in the charge or
information, it is sufficient to describe the property as owned by one of those persons by name
with the others. If the property is owned by a body of persons with a collective name, for example,
a joint stock company, ‘trustees’ or ‘club’ etc, it is sufficient to use the collective name instead of
naming any individual. See s. 113 (c) (ii) of the CPC.
Property belonging to a public establishment, service or department may be described in the charge
sheet as property of the Republic. See s. 113 (c) (iii) of the CPC.
Coin, bank notes and currency notes can be described as money; and so far as regards the
description of the property, shall be sustained by proof of any amount of coin, or of any bank or
currency note, although the particular species of coin of which such amount was composed, or the
particular nature of the bank or currency note is not provided. See s. 113 (c) (iv) of the CPC.
When an accused person is charged with any offence under s. 252, 257, 258, 259 or 260 of the
Criminal Code, it is sufficient to specify the gross amount of property in respect of which the
offence is alleged to have been committed and the dates between which the offence is alleged to

have been committed without specifying the particular items or exact dates. See s. 113 (c) (v) of
the CPC.
7. Where it is necessary to refer to any document or instrument in a charge or information it

is sufficient to describe it by name or designation by which it is usually known, or by the purport
thereof without setting out any copy thereof. See s. 113 (e) of the CPC.
8. It is also sufficient, subject to any other provisions of s. 113 of the CPC, to describe any
place, time, thing, matter, act or omission whatsoever to which it is necessary to refer in any charge
or information in ordinary language in such a manner as to indicate with reasonable clearness, the
place, time, thing, matter, act or omission referred to. See s. 113 (f) of the CPC.
9. It is not necessary in stating any intent to defraud, deceive, or injure to state an intent to
defraud, deceive or injure any person, where the enactment creating the offence specified in the
charge does not make an intent to defraud, deceive, or injure a particular person an essential
ingredient of the offence. See s. 113 (g) of the CPC.
10. Where an accused person has a previous conviction which is intended to be included in the
charge sheet, it is sufficient to merely state that the accused has been convicted of a previous
offence at a certain time and date without stating the particulars of the offence. See s. 113 (h) of
the CPC.
11. Figures and abbreviations can be used to express anything commonly expressed that way.
See s. 113 (i) of the CPC.
FORMS OF CHARGE SHEETS
THE MAGISTRATES’/NARCOTICS COURT
HEADING: A charge sheet is headed by the name of the court where the trial of the accused is to
take place. If, for example, an accused is charged before the Kanifing Magistrates’ Court, the
charge sheet would bear this heading.
THE CHARGE NUMBER: The charge should bear a charge number, for example, CC/ 12/98.
THE TITLE: The charge sheet is titled as IGP v. the accused, for example, IGP v. Omar Barry. S.
133 of the Drug Control Act also allows the NDEA to prosecute offences under the Drug Control
Act. Where a case is before a Narcotics Court, the charge sheet is entitled NDEA v. Omar Barry.
The accused person’s name and surname should be stated in full. See s. 113 (d) discussed above.
If he is known by an alias, that can also be listed in charge sheet. The accused person’s gender is
usually indicated in the charge sheet in bracket as (F) or (M). The practice in the Gambia is that

the accused person’s age and nationality are also spelt out. Stating the accused person’s age in the
charge sheet helps the court to know whether the accused is a child or an adult. The accused
nationality is also important if the court wants to decide on whether to give the accused bail or not,
especially if there is a likelihood that he might abscond. Note however that it is not mandatory to
state an accused person’s age or gender in the charge sheet.
THE BODY: This contains the charge or allegation made against the accused and the particulars
of offence. The body is divided into two paragraphs. The first paragraph states the offence alleged
against the accused. It also states the section of the enactment and the enactment allegedly
contravened, for example, stealing contrary to s. 252 of the Criminal Code.
The second paragraph is also known as the particulars of offence and it follows the statement of
offence. Thus the name of the accused, the date when the offence was committed, the place of the
alleged commission of the offence, how the alleged offence was committed and the name of the
complainant are all indicated in this paragraph. If it is an offence involving a property, the value
is usually stated. Note that a charge sheet does not have to indicate the exact date an offence was
committed. Thus, it is sufficient if the particulars, for example, state “on or about the 10 May
2014” or “between February and June 2013” or “sometime in April 2014’. In DURU v. POLICE
(1960) LLR 130, the accused was tried and convicted of office corruption. The charge against him
alleged that the offence was committed on or about the 3rd day of May 1960 but the evidence
adduced during the trial revealed the offence was committed between 5 – 7 May, 1960. The trial
magistrate amended the date to reflect the new date and the accused was convicted. On appeal, it
was held that the amendment by the magistrate was not necessary. The court held that even though
the date the offence was committed should be indicated in the charge sheet, it wasn’t a requirement
to state the exact date. Note however that the particular timeframe within which the alleged offence
was committed must be indicated in the charge. In AKWA v. THE STATE (1969) 1 All NLR 133,
the accused was charged and convicted of culpable homicide punishable with death. It was alleged
in the particulars of offence that the offence was committed on 1 January, 1968. The evidence
adduced during his trial however revealed that the offence was committed at different dates. On
appeal it was held that because the evidence adduced was utterly confusing as to the date of the
incident, which raised serious doubts in the prosecution’s case and that had to be resolved in favour
of the accused. The usage of the phrase “on or about” could help resolve such doubts. It should
also be noted that in some instances, the date of the commission of the offence may be of the
essence. See, for example, s. 52 CC, s. 213 of the Customs Act and s. 124 of The Gambia Armed
Forces Act (Cap 19:01). Thus if any person is charged under of these laws, the charge sheet must
state the date the alleged offence was committed. Note further that where time is an element of the
offence charged (s. 281 (1) and (20 CC), the time the offence was committed must be stated.
If the accused is alleged to have committed more than one offence, each offence must be stated in
a separate paragraph, and followed by the particulars of offence. The paragraphs are numbered
consecutively and are called counts, for example, Count 1,2,3 etc.
THE SIGNATURE: The charge sheet is then signed by the prosecutor who drafted it. As we noted
above the main prosecutors at the Magistrates’ Court and the Narcotics Court are the police and

the NDEA. Thus the police officer or Narcotics Officer who drafted the charge sheet signs it.
When it is drafted by a law officer the law officer signs it.
THE HIGH COURT

A charge in the High Court is by way of information. The information may be filed by a law
officer in which case it is called a public information or it may be filed by a private person when
it is referred to as private information.
PUBLIC INFORMATION. See the Schedule to the CPC.
A public information contains the following:
HEADING: A public information bears the name of the court where the case is to be tried, for
example, In the High Court of the Gambia.
THE CHARGE NUMBER: The information bears a charge number.
THE TITLE: A public information bears the title “State v. the Accused Person”, for example, “The
State v. Samba Joof’. The name of the accused is written in full. It is permissible to indicate the
accused person’s gender but this is not mandatory.
THE PREAMBLE: The body of the public information is usually preceded by a preamble called
the information. In the preamble, the AG informs the court the offence or offences with which the
accused is charged.
THE BODY: The body of a public information is just like the body of a charge before a
Magistrates’ Court.
THE SIGNATURE: As provided for under s. 175D of the CPC, the AG or any Law Officer
designated by him shall sign the information. Please note that the summary of the evidence to be
adduced by each witness is also signed by an officer from the AG’s office.
PRIVATE INFORMATION
A private person may file an information against an accused person where the State has failed to
do so. Unlike the position in Nigeria, in The Gambia, a private person does not need the fiat of the
AG to institute such criminal proceedings. A private information is similar to a public information
and takes the following form:
HEADING: A private information is headed. The heading is that of the court where the case is
going to be tried.

The CHARGE NUMBER: A private information has a charge number.
THE TITLE: A private information bears the name of the accused person and the private person
instituting the criminal proceedings, for example, “Fatou Sey v. Jainaba Sarr.”
THE BODY: The body of a private information is like that of a public information
THE SIGNATURE: The private information is then signed by the private prosecutor.
ACCOMPANIMENTS TO CHARGE SHEETS
Since the procedure before a Magistrates’ Court and the Narcotics Court, is summary, charges
before these courts are filed without supporting documents such as proofs of evidence.
Under s. 175B of the CPC the AG or any person authorized by him may commence criminal
proceedings in the High Court by filing with the Registrar of the High Court the following:
1. The information which shall be in the form of an indictment and shall state in writing the
charge against the accused.
2. A summary of the evidence which shall comprise a list of witnesses whom the prosecutor
proposes to call at the trial and summary of the evidence to be given by each of the witnesses.
Note that the bill of indictment must also comply with the form and content set out in schedule of
the CPC. Note also the bill of indictment and summary of evidence may be amended or added to
at any time during the proceedings but before judgment is delivered. This must however be done
by leave of the court. The Prosecutor is also under an obligation, unless court otherwise directs, to
deliver into the custody of the court all documents and things which, according to the summary of
the evidence, are intended to be put in evidence at the trial. See s. 175 C of the CPC.
SERVICE OF A CHARGE SHEET

After the charge sheet is filed, the Registrar of the court must serve the accused or his counsel with
a notice of the date of the trial. This warns the accused about the allegation against him before the
court and further enables him to prepare his defence.
RULES OF DRAFTING CHARGES
1. RULE AGAINST MISJOINDER OF OFFENDERS

The general rule is that any person who is accused of an offence must be charged and tried
separately for the offence. If, for example, A is accused of rape and B is accused of murder, they
must be charged and tried separately for the offences of murder and rape respectively. If A and B

are charged together in the same charge sheet, this would contravene the rule against misjoinder
of offenders and it is therefore a bad charge This rule however has exceptions as outlined in s. 111
of the CPC. Thus by virtue of s. 111 of the CPC, the following persons can be charged and tried
together:
1. Persons accused of the same offence committed in the course of the same transaction.
2. Persons accused of an offence and persons accused of abetment, or of an attempt to commit
such offence. See NJOVENS & ORS v. THE STATE (1973) NNLR 76 SC.
3. Persons accused of more than one offence of the same kind committed by them jointly
within the period of twelve months.
4. Persons accused of different offences committed in the course of the same transaction.
5. Persons accused of offences under Chapter 26 – 31 of the Criminal Code and persons
accused of receiving or retaining, or assisting in the disposal or concealment of property,
possession of which is alleged to have been transferred by any such offence committed by the first-
named persons, or of abetment of or attempting to commit any such lastnamed offence.
6. Persons accused of offences under sections 297 and 298 of the Criminal Code or any of
those sections in respect of property the possession of which has been transferred by one offence.
7. Persons accused of any offence under Chapter 36 of the Criminal Code relating to
counterfeit coin, and persons accused of any other offence this Chapter relating to the same coin,
or of abetment of or attempting to commit any such offence.
2. RULE AGAINST MISJOINDER OF OFFENCES

The general rule is that for every distinct offence with which a person is accused, there must be a
separate charge contained in a charge sheet, and every such charge should be tried separately. If
for example A is accused of rape, stealing and arson, he must be charged and tried separately for
each of the alleged offences. If the offences of rape, stealing and arson are charged in one charge
sheet preferred against A, the charge against him is bad for mis-joinder of offences and is thus a
defective charge. There are however exceptions to this rule as found in s. 112 (1) of the CPC which
provides:
“Any offences, whether felonies or misdemeanors, may be charged together in the same charge or
information if the offences charged are founded on the same facts or form or are a part of a series
of offences of the same or a similar character.”
Thus where an accused commits offences founded on the same facts or similar facts, the offences
can be charged in the same charge sheet.
Offences are committed in the course of the same transaction if the acts or omissions portray a
community of purpose. This means that there was a proximity of time and place, a continuity of
action and a community of purpose or design. See HARUNA v. THE STATE (1972)1 ALL NLR
(Pt.2) 302. For example, A and B agreed to steal from a bank. The plan was executed and they
stole DI million from the bank. After they committed the offence they were chased by the police
and B drove negligently and as a result knocked down a pedestrian. The offences of conspiracy to

steal, stealing and careless driving can be contained in one charge sheet because they were all
committed in the course of the same transaction.
Offences of the same or similar character are identical offences. For example, two offences of
stealing are offences of the same character and stealing and robbery are offences of a similar
character in that there is a link or nexus between them either in law or in fact. In LUDLOW v.
METROPOLITAN POLICE COMMISSIONER (1970) 54 Cr. App R. 233 the offences of stealing
and robbery were preferred against the accused in a charge sheet. This was endorsed by the House
of Lords.
3. RULE AGAINST DUPLICITY
S. 112 (2) of the CPC provides that where more than one offence is charged together in the same
charge or information, a description of each offence so charged shall be set out in a separate
paragraph of the charge or information called a “count”. Thus for every distinct offence with which
a person is charged, there must be a separate charge or count, and the charge must be contained in
a distinct count in the charge sheet.
The charge sheet is the whole document containing the charge or the charges levelled against the
accused. There cannot be a count without a charge sheet because a charge sheet must at least
contain one count. Therefore a charge sheet must contain one or more counts. As we have noted
above where a charge sheet has more than one count, the counts have to be numbered
consecutively.
The terms ‘charge’ and ‘count’ are not defined in s. 2 of the CPC (the interpretation section of the
CPC). However, the term ‘charge’ as used in the CPC has two different meanings. Firstly it is used
to describe a charge sheet stricto sensu and secondly, it is used to describe that part of the charge
sheet namely, a count.
If a count in a charge sheet contains more than one offence, the charge is said to be bad for
duplicity. For example, A is alleged to have committed within a period of 12 months the offences
of rape, stealing and murder. If these offences are founded on the same facts, a charge consisting
of the three counts of, one for rape, one for stealing and one for murder can be preferred against
A. If all the allegations against A are lumped together in one count, the charge is bad for duplicity.
Thus an accused person cannot be charged in the same count with stealing and common assault
contrary to sections 252 and 227 of the Criminal Code. The offences of stealing and common
assault must be charged in separate counts.
In THE STATE v. LAMIN JUWARA (unreported), Justice M.A. Paul held that “duplicity means
two offences charged in one count. The law is that a charge must not be double, that is to say no
one count of a charge should charge an accused with having committed two or more separate
offences.” See also KEBBA NJIE & 11 ORS v. THE STATE Criminal Appeal No. 14-25/88 where
the Court of Appeal held that “the indictment must not be double, that is to say no one count of the

indictment should charge the offender with having committed two or more separate offences.”
When this rule is contravened, the charge sheet is said to be bad for duplicity. In R. v. CHIMA 10
WACA 223, for example, it was held that where an accused person killed her twin babies at birth,
he should have been charged with two separate counts of infanticide.
It should be noted that not in all cases in which a charge is bad for duplicity that a conviction is
quashed. In ONAKOYA V. FEDERAL REPUBLIC OF NIGERIA (2002) 6 SC 220 and
AWOBOTU V. THE STATE (1976) 5 SC 49, it was held that a conviction on a duplicitous charged
will only be set aside if the accused was prejudiced or misled in his defence, i.e., where there was
a miscarriage of justice.
It appears from the way section 112 (2) of the CPC is worded that the rule against duplicity admits
of no exception. The word ‘shall’ is used in this subsection. In the Nigerian case of R. v.
NWANKO (1962) 1 All NLR (pt4) 64, however, the accused was convicted of stealing sums of
money. The charge contained 3 counts alleging monies stolen through three receipt books. Each
count contained the sum total of monies misappropriated from each receipt book. He appealed
alleging the charge was bad for duplicity in that each count contained more than one allegation of
stealing. Rejecting his appeal, the court held that since the charge related to general deficiency of
money, the sums misappropriated through each receipt book could be summed and charged in one
count. Thus where a person is charged with an offence under ss. 252 to 260 CC, it is sufficient to
specify the gross amount of property (money) in respect of which the offence is alleged to have
been committed and the dates between which the offence is alleged to have been committed. It
should be noted that this exception wouldn’t apply where the deficiency relates to goods.
A mistake commonly made in The Gambia even by some lawyers is calling every defective charge
bad for duplicity. It must be noted that the rule against duplicity is very different from the rule
against misjoinder of offences. Thus, the rule against the duplicity is only contravened or violated
where an accused is charged with more than one offence in the same count.
4. RULE AGAINST AMBIGUITY
This rule requires that all the particulars required to be stated in a charge sheet must be stated in it
methodically, clearly and accurately. The charge sheet should be devoid of any ambiguity.
Ordinary and simple words should therefore be used. The use of complicated and technical words
should be avoided. The method or order laid down in ss. 110 – 113 of the CPC should be followed.
The rule against ambiguity or uncertainty is rigid and inflexible. Under no circumstances should a
charge be ambiguous.
In the Nigerian case of OKEKE v. POLICE 1965 2 ALL NLR 81, the accused was charged with
the offences of conspiracy and stealing. The trial magistrate convicted him of both offences and
stated in his judgment that the accused was charged with some sections of the Criminals Acts. On

appeal against conviction, on the ground that the case was bad for ambiguity, it was held that as
the sections of the enactment contravened by the accused were not stated in the trial magistrates’
judgment and there were no enactments known as the Criminal Acts, the charged was bad for
ambiguity
PROPER TIME TO RAISE OBJECTION TO A CHARGE AND INFORMATION

Ss. 161A and 217 CPC provide that objection to any formal defect on the face of a charge or
information shall be taken immediately after the charge or information has been read over to the
accused person and not later. In THE STATE V. LAMIN JUWARA (supra), Justice M.A Paul
held that “the essence of section 217 is to ensure that the case is dealt with in a manner consistent
with substantial justice, so that when objection is raised early, the defect, if any can be cured and
the matter to proceed on its merit.” In THE STATE V. ABDOULIE CONTEH (supra), the Gambia
Court of Appeal held that “the arm of the objection challenging count 3 of the information for
being duplicitous should have been raised by the respondent immediately after the information had
been read over to him before he pleads there to and not later. This is the time limited by section
217 of the CPC for taking an objection to formal defects on the face of the information.”
GENERAL PROVISION ON CHARGES.
S. 112 (3) of CPC provides:

‘Where, before trial, or at any state of trial, the court is of opinion that a person accused may be
embarrassed in his defence by reason of being charged with more than one offence in the same
charge or information, or that for any other reason it is desirable to direct that the person should
be tried separately for any one or more offences charged in a charge of information, the court may
order a separate trial of any count or counts of such charge or information.’
Thus where an accused person will be embarrassed if jointly charged with another person or if he
will be embarrassed if charged with different offences in the same charge sheet, the court should
order a separate trial.
CHARGES AND INFORMATION

Unlike in other jurisdictions, the Criminal Procedure Code did not define a charge or information.
However section 110 of the Criminal Procedure Cap 11:01 Volume III Laws of the Gambia 2009
makes provision on what a good and valid charge and information shall contain. Section 110 of
the CPC provides that every charge or information shall contain and shall be sufficient it contains,
a statement of the specific offence or offences with which the accused person is charged, together
with such particulars as may be necessary for giving reasonable information as to the nature of the
offence charged. In concert with the same provision, a charge or information can be defined as
statement and particulars of specific offence or offences with which a person is accused and tried
before a court of law. A charge sheet is a document is a document containing a charge.
A charge according to Blacks Law Dictionary is “An accusation of a crime by a formal complaint,
indictment or information.”
In practice the term charge is used to describe either

a. The entire charge sheet in a trial
b. The statement and particulars of specific offence (count) with which a person is charged.
Thus, whilst every offence stated in a charge sheet or information is called a charge or count, the
entire charge sheet is also called a charge. In EDUN V IGP (1966) 1 ALL NLR P17 @1, the
Supreme Court of Nigeria held thus:
“A charge in Criminal procedure Act may mean, as in section 162 and s.163 the whole document
which may contain one or more counts of accusation or merely as in s.156, a count of accusation,”
The terms charge or information used interchangeable in s.113 (a) (i) and (iv) of the CPC to mean
a count and the entire charge sheet or information.
FORM OF A CHARGE OR INFORMATION
From the provision of s.110 of the CPC, a charge or information is intended to give in clear terms
reasonable information to the accused person the offence for which he is to be tried. Consequently,
a charge or information is in practice drafted in the following form:
CHARGE
A. Heading
B. Reference Number
C. Parities
D. Preamble
E. Count (charges); and
F. Date and Signature of the drafting authority
A: HEADING:
The charge sheet must commence with the heading. The heading indicates the style of the
subordinate court having the jurisdiction to try the offence. Under s.14 (1) of the Courts Act Cap
6:01, Subordinate Courts were established in the city of Banjul and in every region of the Gambia.
The Subordinate Courts are presided over by magistrates’. Care must be taken to ensure that a
charge is properly headed because it touches on the very important question of jurisdiction. It is
court with the local limits of jurisdiction an offence is alleged to have been committed that is seized
with jurisdiction to try the accused. This is first reflected in the heading.
Thus a charge sheet intended to be used in a trial at Banjul Magistrates’ Court should read as
follows;
HOLDEN AT BANJUL”
Whilst the heading of a charge sheet intended to be used at Essau Magistrates’ Court should read
as follows;
“IN THE ESSAU MAGISTRATES’ COURT
HOLDEN AT ESSAU”
The word HOLDEN is the old English expression for HOLDING. Although allowed by tradition,
it is of no legal significance.
B: REFERENCE NUMBER

Every charge sheet must bear a reference number otherwise known as Charge or Case Number.
Reference Number used in the charge sheets is usually given at the Court’s Registry after filing.
Although, it is not a requirement of law, it is of administrative importance and has by convention
acquired the force of law. The charge or case number as the case may be is stated at the top right
hand corner of the charge sheet immediately after the heading as indicated below;

HOLDEN AT BANJUL
CHARGE/CASE NUMBER....................”
OR
“IN THE KANFING MAGISTRATES’ COURT

HOLDEN AT KANFING
CASE NUMBER.......................”
C. PARTIES
In civil proceedings, the usual parties to the suit are the “plaintiff (s)” and the “defendant(s)”.
Unlike in civil proceedings, the victim of a crime is not a party in the proceedings. He /she is
termed a witness or nominal complainant.
By legal fiction, the State is the Complainant whilst the alleged offender is the accused or defendant
in a criminal trial. This so, because a crime is a violation of the laws of the State made for the
security, order and good governance of the entire state.
The State is usually and in most cases represented by the Police at the Magistrates’ Court in the
Gambia. Consequently, the party in a criminal trial before a magistrate’s court in which the state
is represented by the police is as follows;

HOLDEN AT BANJUL
CASE No..........................
BETWEEN
INSPECTOR GENERAL OF POLICE

.............................................................................COMPLAINANT
AND
A.B........................................................................................................................ACCUSED
PERSON
Where the State is represented by the office of the Attorney General or State Counsel, the parties
will be as follows;

HOLDEN AT BANJUL
CASE No..........................
BETWEEN
STATE.....................................
.............................................................................COMPLAINANT
AND
KOLEY PAUL..........................................................................................................ACCUSED
PERSON
Section 133 of the Drug Control Act allows the NDEA to undertake prosecution in its name of
offences under the Drug Control Act. Where the state is represented by the NDEA before the
Narcotic Court, the parties should be as follow:
IN THE NARCOTIC COURT

HOLDEN AT BANJUL
CASE No..........................
BETWEEN
NDEA..................................... .............................................................................COMPLAINANT
AND
KINGSLEY BOYE....................................................................................................ACCUSED
PERSON
OR

HOLDEN AT BANJUL
CASE No..........................

BETWEEN
NDEA..................................... .............................................................................COMPLAINANT
AND
KINGSLEY BOYE....................................................................................................ACCUSED
PERSON
D: PREAMBLE
There is no preamble in case of a charge. The word CHARGE is simply written after the parties’
e.g.
IN THE KANFING MAGISTRATES’ COURT

HOLDEN AT KANFING
CASE No.......................
BETWEEN
STATE.....................................
.............................................................................COMPLAINANT
AND
OMAR DAMBALLY.................................................................................................ACCUSED
PERSON
CHARGE
Whilst in an information, the following preamble is usually put up indicated after the parties.

HOLDEN AT BANJUL
CASE No.......................
BETWEEN
STATE.....................................
.............................................................................COMPLAINANT
AND

OMAR DIAL...........................................................................................................ACCUSED
PERSON
INFORMATION
Omar Dial is charged with the following offence(s).
E. COUNT (CHARGES)
Next to the preamble in an information and heading in a case of a charge is the count (charges) set
out in two distinct paragraphs usually STATEMENT OF OFFENCE and PARTICULARS OF
OFFENCE.
EXAMPLE
An example of an information filed at the High Court in Banjul for an offence of rape contrary to
section 121 of the Criminal Code Cap 10 Volume III of the Laws of the Gambia 2009 is as follows;

HOLDEN AT BANJUL
CASE No.......................
BETWEEN
THE
STATE............................................................................................................COMPLAINANT
AND
KINGSLEY BAHOUM..............................................................................................ACCUSED
PERSON
INFORMATION
Kingsley Bahoum is charged with the following offence.
Rape contrary to s.121 of the Criminal Code Cap 10 Vol.III Revised Laws of the Gambia 2009.
Kingsley Bahoum on or about the 15TH day of November 2012 at Westfield in Kanifing
Municipality of the Republic of the Gambia within the jurisdiction of this Honourable court

unlawfully had carnal knowledge of Ramatoulie James without her consent and thereby committed
an offence.
An example of a charge filed at the Banjul Magistrates’ Court

HOLDEN AT BANJUL
CASE No..........................
BETWEEN
STATE.....................................
.............................................................................COMPLAINANT
AND
KOLEY PAUL..........................................................................................................ACCUSED
PERSON
CHARGE
Theft from a vehicle contrary to section 245 (1) and punishable under section 256 (c) of the
Criminal Code Cap 10 Vol. III Laws of the Gambia.
Koley Paul on or about the 12th of May 2011 at the NAWEC office in Banjul within the
jurisdiction of this Honourable Court stole an unspecified amount of money; property of Omar
Cham by removing the said money from his vehicle and thereby committed an offence.
Where the offence charged is more than one, each offence charged shall be contained in separate
paragraphs containing statement and particulars of offence.
F: DATE AND SIGNATURE OF THE DRAFTING AUTHORITY

The charge or information is finally dated and signed by the prosecuting authority.
PRELMINARIES TO TRIAL
The Black Law Dictionary defines a trial as:
A judicial examination and determination of issues between the parties. A judicial examination in
accordance with the law of the land, or of a cause either civil or criminal, of the issues between the
parties, whether of law or fact, before a court that has proper jurisdiction.
A trial is therefore a judicial examination and determination of issues between the parties in
accordance with the law of the land. The issues between the parties may be civil or criminal. Where
the issues between the parties are criminal, then a criminal trial is being undertaken by the court.

We will now consider preliminary matters that are relevant to a criminal trial.
PLACE OF INQUIRY OR TRIAL

A court of The Gambia has the general authority to cause to be brought before it a person who is
within the local limits of its jurisdiction and is charged with an offence committed within The
Gambia, or which according to law may be dealt with as it if had been committed within The
Gambia, and to deal with the accused person according to its jurisdiction.
Where a person accused or having committed an offence within The Gambia has escaped or
removed from the Region or district within which the offence was committed and is found within
another Region or district, the court within whose jurisdiction he or she is found shall cause him
or her to be brought before it and shall, unless authorized to proceed in the case, send him or her
in custody to the court within whose jurisdiction the offence is alleged to have been committed.
The court within whose jurisdiction the accused was found could also require him or her to give
security for his or her surrender to the court within whose jurisdiction the offence is alleged to
have been committed to answer the charge and to be dealt with according to law.
Subordinate courts may be held at any place within the local limits of their jurisdiction. For a
Children’s Court, it shall, wherever possible, sit in a different building from the one normally used
by other courts. It should be noted that “A finding, sentence or order of any criminal court shall
not be set aside merely on the ground that that the inquiry, trial or other proceedings, in the course
of which it was arrived at or passed, took place in a wrong Region, district or other local area,
unless it appears that the error has in fact occasioned a failure of justice.”
The High Court may exercise its criminal jurisdiction at any place where it has power to hold
sittings. It may sit at such places in The Gambia as the Chief Justice may determine, and he or
she may establish permanent divisions of the court to sit at various places throughout The Gambia
and appoint judges of the Court to any such division. It shall also, except during vacation, be open
throughout the year for the hearing, trial and determination of any criminal and civil cases and for
the disposal of all legal business pending therein.
The High Court can, however, change venue if it appears that :
a. A fair and impartial inquiry or trial cannot be had in any criminal court subordinate thereto;
b. Some question of law of unusual difficulty is likely to arise;
c. A view of the place in or near which any offence has been committed may be required for
the satisfactory inquiry into or trial of the same;
d. An order under this section will tend to the general convenience of the parties or witnesses
or the more speedy or satisfactory administration of justice; or
e. Such an order is otherwise expedient for the ends of justice or is required by any provision
of this Code. In exercising its powers on s. 63 (1) (e), the High Court may order that :-
i. An offence inquired into or tried by a court not otherwise empowered or competent to
inquire into or try the offence,
ii. A particular criminal case or class of cases be transferred from a subordinate court to any
other criminal court of equal or superior jurisdiction,
iii. An accused person be tried by the High Court itself,

iv. An accused person committed to the High Court for trial be tried summarily in accordance
with Part V of the CPC by any court competent to try the offence with which the accused is
charged, including the court which committed the accused person.
In exercising its powers under s. 63, the High Court may act on the report of the subordinate court
or on the application of a party interested or on its own initiative. An application to the High Court
for it to exercise its powers under s.63 shall be made by motion and supported by an affidavit,
unless the Attorney General is the applicant. Where the application is made by an accused person,
he or she shall give to the Attorney General notice in writing of the application, together with a
copy of the grounds on which it is made. An order on the merits of the application shall not be
made unless at least 24 hours have elapsed between the giving of the notice and the hearing of the
application.
Where the application to change venue is made by an accused person, the High Court may direct
him or her to execute a recognizance, with or without sureties, on condition that he or she will, if
convicted, pay the costs of the prosecutor. An application made by the Attorney General under s.
63 shall be granted as of course. Where the High Court decides to try an accused person by itself
for an offence triable by a subordinate court, it shall follow the procedure provided for in Part V
of the CPC.
The President of the Court of Appeal may, in consultation with the Chief Justice, establish such
divisions of the Court of Appeal as he or she thinks fit to sit at such places in The Gambia as he or
she may determine. The Supreme Court may sit at any place in The Gambia appointed by the
Chief Justice.
TRANSFER OF CASES
If on the hearing of any proceedings under the Criminal Code it appears that the cause or matter is
outside the limits of the jurisdiction of the court, the court shall, on being satisfied that it has no
jurisdiction, direct the case to be transferred to the court having jurisdiction.
If the accused person is in custody and the court directing the transfer thinks it expedient for him
to remain in custody, or if he is not in custody but the court directing the transfer thinks he should
be, the court shall direct that the offender be taken by a police officer before the appropriate court
having jurisdiction. The court making such an order shall give a warrant to the said police officer
for onward delivery to the other court along with the complaint or charge sheet and any executed
recognisances, if any. The complaint or charge sheet and recognisances shall be treated as if they
were taken before the court the case is transferred to.
If the accused person is not continued or placed in custody as stated above, the court shall inform
him, or her that it has directed the transfer of the case and thereafter, it shall transmit the documents
stated above to the court the matter is transferred to.
Where a charge has been brought against any person for an offence not triable by a subordinate
court, the Magistrate may subject to s. 99 of the CPC remand that person into custody until such
time the matter is mentioned in the High Court.
OTHER PRELIMINARY ISSUES TO CONSIDER BEFORE A TRIAL

TRIAL AT PLACE WHERE ACT DONE OF WHERE THE CONSEQUENCE OF OFFENCE
ENSUES

Where a person is accused of the commission of an offence by reason of anything which has been
done or of a consequence which has ensued, the offence may be inquired into or tried by a court
within the local limits of whose jurisdiction the thing has been done or the consequence has ensued.
TRIAL WHERE OFFENCE IS CONNECTED WITH ANOTHER OFFENCE
When an act is an offence by reason of its relation to any other act which is also offence or which
would be an offence or which would be an offence if the doer were capable of committing an
offence, a charge of the first-mentioned offence may be inquired into or tried by a court within the
local limits of whose jurisdiction either act was done.
TRIAL WHERE PLACE OF OFFENCE IS UNCERTAIN
When it is uncertain in which of several local areas an offence was committed or when an offence
is committed partly in one local area and partly in another, it may be inquired into or tried by a
court having jurisdiction over any of the local areas. Again when an offence is a continuing one,
and continues to be committed in more local areas than one, or when an offence consists of several
acts done in different local areas, it may be inquired into or tried by a court having jurisdiction
over any of the local areas.
OFFENCE COMMITTED ON A JOURNEY
Where an offender commits an offence in the course of a journey or voyage, the offence may be
inquired into or tried by a court through or into the local limits of whose jurisdiction the offender
passed in the course of that journey or voyage.
HIGH COURT TO DECIDE IN CASES OF DOUBT

When there is a doubt as to the appropriate court a matter is to be inquired to or tried, the court
having such doubt may, in its discretion, report to circumstances to the High Court and the latter
shall decide the court the matter should be referred to. The decision of the High Court on such
matters is final, unless where the accused shows that no court in The Gambia has jurisdiction in
the case.
PLACE OF SITTINGS OF THE HIGH COURT
PUBLICITY OF TRIAL
The general rule by virtue of s. 61 CPC is that criminal trials are to be held in open court to which
the general public may have access, so far as the same can conveniently contain them. This is
reinforced by s. 24 (2) of the 1997 Constitution which provides that “all proceedings of every court
and proceedings relating to the determination of the existence or extent of civil rights or obligations
before any other authority, including the announcement of the decision of the court or other
authority, shall be held in public”
Note that this rule is not absolute because the proviso to s. 61 provides thus:
“Provided that the presiding Judge or Magistrate may, if he or she thinks fit, order at any stage of
the inquiry or trial of any particular case that the public generally or any particular person shall not
have access to or be or remain in the room or building used by the court.”
The proviso to s. 24 (2) also provides:

“Provided that the court or other authority may, to such extent as it may consider necessary or
expedient in circumstances where publicity would prejudice the interests of justice or interlocutory
civil proceedings, or to such extent as it may be empowered or required by law to do so in the
interest of defence, public safety, public order, public morality, the welfare of persons under the
age of eighteen years or the protection of the private lives of persons concerned in the proceedings,
exclude from its proceedings persons other than the parties thereto and their legal representatives.”
Note further that in cases before the Children’s Court, “the child's right to privacy shall be
respected throughout the proceedings, and accordingly, proceedings shall be held in camera or
where necessary by video links.” Apart from members and officers of the Court and subject to s.
72 (1) (f) of the Children’s Act, only the following persons may, at the discretion of the Court,
attend a sitting of a Children’s Court:
a. the parties to the case before the Court, witnesses and other persons directly concerned in
the case;
b. the parent or guardian of the child before the Court;
c. a Social Welfare Officer;
d. a Probation Officer; and any other person whom the Court authorizes to be present.
The publication of any information that may lead to the identification of a child in any matter
before the Children’s Court is prohibited, except by permission of the Court.
PRESENCE OF PARTIES
The accused person is required to appear in court throughout his trial unless his personal attendance
is dispensed with under s. 78 of the CPC. Where the accused does not appear personally and pleads
guilty in writing pursuant to s.78 of the CPC, the court may proceed to convict him even in the
absence of the prosecutor or the accused’s counsel. The court cannot however proceed with a case
in the absence of the accused person if he or she is charged with a felony, unless he or she consents.
Thus, unless the accused person consents the trial shall not take place in his or her absence, unless
he or she so conducts himself or herself as to render the continuance of the proceedings in his or
her presence impractical and the court has ordered him or her to be removed and the trial to proceed
in his or her absence.
For case before a subordinate court , where the prosecutor does not appear at the hearing of the
charge, after having notice of the time and place named for the hearing, the court shall discharge
the accused person, unless for some reason it thinks it proper to adjourn the hearing of the case
until some other date, upon such terms as it thinks fit. Where both parties appear or the personal
attendance of the accused is dispensed with, the court shall proceed to hear the case.
The CPC seems to be silent on the non-appearance of a defence counsel. Non-appearance of
defence counsel can cause delay. What happens if a defence counsel deliberately fails to attend
court to defend an accused person he is meant to represent? Like I said the CPC is silent on the
issue. The Nigerian case of Shemfe v C.O.P , even though merely persuasive, is helpful in this
regard. In this case, counsel of the accused sent a telegram to the court seeking an adjournment of
this matter. No reason was given by counsel in the telegram as to the necessity for an adjournment
and his failure to appear in court. The prosecutor opposed the application for an adjournment on
the ground that several adjournments have been granted in the past and that the prosecution
witnesses were present in court to testify. The court refused the application and proceeded with

the case. The accused conducted his defence and was convicted. On appeal against conviction it
was contended that the appellant was denied a fair trial, because of the refusal of the trial court to
grant an adjournment to enable counsel to appear for the accused. The court dismissed the appeal.
It held that the appellant had a fair trial and that the failure of the appellant to be represented by
counsel was not the fault of the court but that of the defence counsel.
It must be noted however that, if counsel is unavoidably absent from court for cogent and
compelling reasons, the court should grant an adjournment to enable counsel to attend court.
MANDATORY LEGAL REPRESENTATION

A person accused of an offence has a right to the right to be defended by a counsel of his or her
choice. Note, however, that it is mandatory for legal aid to be provided at the expense of
Government to children involved in any criminal matter and accused persons charged with
offences that carry the death penalty or life imprisonment. Persons who earn not more than such
minimum wage as the Government may specify and desire legal representation in any civil or
criminal matter may be entitled to legal aid at a date to be fixed by the Attorney General.
COMMENCEMENT OF TRIAL
THE ACCUSED PERSON’S PLEA
If the accused person is personally present, the substance of the charge shall be read stated and
explained to him and if he not present, to his counsel. The accused could take any of the following
actions:
a. STAND MUTE/FAILURE TO PLEAD

For cases before a subordinate court, s. 164 (4) of the CPC provides:
“If the accused person or his counsel, as the case may be, refuses to plead, or if he or she does not
appear and the court decides to hear the case in his or her absence under the provisions of
subsection (1) of section 163 of this Code, a plea of “not guilty” shall be entered and the plea so
entered shall have the same force and effect as if the same had been actually pleaded.”
For cases before the High Court, s. 223 of the CPC provides:
If an accused person being arranged on any information stands mute of malice, or neither will, nor
by reason of infirmity can, answer directly to the information, the Court, if it thinks fit, shall order
the Registrar of the High Court or other officer of the Court to enter a plea of “not guilty” on behalf
of the accused person, and the plea so entered shall have the same force and effect as if the accused
person had actually pleaded the same, or else the Court shall thereupon proceed to try whether the
accused person is of sound or unsound mind, and if he or she is found of sound mind, shall proceed
with the trial, and if he or she is found of unsound mind, and consequently incapable of making
his or her defence, shall proceed in the manner provided by section 132 of this Code.”
In the Nigerian case of Gaji v. The State , the accused was charged with culpable homicide
punishable with death for assaulting and killing the deceased. During his trial, the accused refused
to plead to the charge and a plea of not guilty was recorded by the court. The accused rested his
case on that of the prosecution. He was convicted of a lesser offence and on appeal the Nigerian

Supreme Court observed that the trial judge was right in entering a plea of not guilty when the
accused stood mute and failed to plead.
PLEA OF GUILTY
S. 164 (2) provides:
“If the plea is one of guilty, the plea shall be recorded nearly as possible in the words used, or if
there is an admission of guilt by letter under the provisions of subsection (1) of section 78 of this
Code, the letter shall be placed on the record and the court shall convict the accused person or pass
sentence or make an order against him or her, unless there appears to it sufficient cause to the
contrary.”
S. 224 provides:
“(1) If the accused person pleads “guilty” the plea shall be recorded and he or she may be convicted
thereon.
(2) Where an accused person is arraigned on an information for an offence and can lawfully be
convicted on that information for some other offence not charged in the information, he or she may
plead “not guilty” of the offence charged in the information but “guilty” of the other offence and
upon the plea of guilty the Court may, with the consent of the Attorney General, acquit the accused
person of the offence with which he or she is charged and convict him or her of the other offence
to which he or she pleads guilty.”
Where an accused person pleads guilty pursuant to ss. 164 (2) and 224 of the CPC, the following
conditions must be fulfilled before the accused is convicted. Firstly, the court dealing with the case
must be clear that the accused understands the charge against him. In Kebba Bojang v The State,
the records of the Magistrate disclosed thus:
“Court: Charge read and explained to the accused in Mandinka.
Plea: Guilty.”
The Gambia Court of Appeal called the plea as recorded by the Magistrate the shorthand way of
stating what the accused stated in Mandinka. The Court of Appeal further held that the accused
plea as recorded by the Magistrate clearly violated s.164 (2) of the CPC because the word ‘guilty’
could not have been the exact words by the accused.
It is also not enough for an accused’s plea to be recorded as ‘I admit it’. In John v Regina it was
pointed out that these words do not without more constitute a sufficient plea to a charge of an
offence consisting various ingredients. Thus the accused’s plea must reflect what the accused said
in response to the ingredients of the offence put to him and his responses must accord with the said
ingredients. Convictions in many cases were quashed by the Court of Appeal based on this and
other reasons.
The court’s record must therefore show that the substance of the offence charged is read and
explained to the accused in a language he understands. All the ingredients of the offence charged
must be put to him and he must understand them. If the explanation does not portray all the
ingredients of a narcotic offence when translated in the language the accused understands, then the
translation is not complete or full. As stated by Chomba JA in Kebba Bojang v State :
‘… when an accused is ill-educated and is not legally represented, the bounden duty of the
Magistrate when taking the plea is to ensure that all the essential elements of the offence charged
are put to the accused. And the record of trial should reflect that that was done.’
Watkins LJ also stated in R v Iqval Begum at pages 100-101 that :

‘… unless a person fully comprehends the charge which that person faces, the full implications of
it and the ways in which a defence may be raised…so that the court can be sure that person has
pleaded guilty with a free and understanding mind, a proper plea has not been tendered to the
court.’
Plea taking therefore does not consist in just calling the accused to plead guilty or not guilty when
the charge is put to him.
Secondly, the court must hear the prosecution state the facts of the case. The accused would then
be asked to react to the facts as stated by the prosecution. He should be asked whether he agrees
or does not agree with the facts. In Osuji v. Inspector General of Police, the accused pleaded
guilty to a charge of unlawful assault. The charge was not explained to the accused. The
prosecution stated the facts against the accused, and the trial magistrate, without asking the accused
whether he admitted the acts as stated by the prosecution convicted him. On appeal, the conviction
was quashed. In Ahmed v. Commissioner of Police, the conviction of the accused for a road traffic
offence upon a plea of guilty was quashed on appeal because the charge was not explained to the
accused.
Thirdly, the court must be satisfied that the accused intended to admit the commission of the
offence charged. The accused’s plea must therefore be an unequivocal plea of guilty.
Where the accused enters an equivocal or ambiguous plea, the court must reject such a plea and a
conviction must not be entered against the accused on the basis of the plea. In the Nigerian case of
Aremu v. Commissioner of Police the accused was charged with the offence of escaping from
lawful custody. He pleaded “guilty with certain reasons”. The trial magistrate, without inquiring
from the accused if he admitted the facts stated by the prosecution, convicted him on his plea. On
appeal against conviction, the appellate court held that the plea of the accused did not amount to a
plea of guilty, on the basis of which the trial court could record a conviction. The appellate court
further stated that the trial court should have taken into consideration the statement made by the
accused in mitigation, that he was never in lawful custody, as a refutation of the facts stated by the
prosecution. Thus a plea of not guilty should have been entered for the accused. His appeal was
therefore allowed.
Where an accused makes an unequivocal or unambiguous plea of guilty and denies at any stage of
the proceedings before being sentenced that he was criminally liable, the court shouldn’t convict
based on his plea. This is because his denial of criminal liability indicates that he did not intend by
his plea to admit the charge against him. In the Nigerian case of Onuoha v. Inspector General of
Police , the accused was charged and convicted of stealing. He appealed against his conviction on
the ground that he did not intend to admit the charge and that he did not plead guilty. Evidence
before the appellate court showed that the accused the accused had pleaded not guilty and a plea
of guilty had been mistakenly recorded by the trial magistrate. When the trial magistrate asked the
accused if he took the money alleged to have been stolen, he responded in the affirmative and was
convicted by the magistrate for the offence. The appellate court held that the accused’s statement
that he took the money did not amount to an admission of theft. He could, as was the revealed in
that case, have taken the money in order to keep it safe for the complainant. Thus the trial court
ought to have questioned the accused further to elicit whether he intended to keep the money for
himself, in other words to steal it. It is only when the answers received by the court showed that

the accused intended to keep the money for himself that the court should have convicted for
stealing. The appeal was therefore allowed.
Fourthly, the facts stated by the prosecution and admitted by the accused must sustain the charge
against the accused. Therefore all the ingredients of the offence alleged must be contained in the
facts stated by the prosecution, before the court will convict on the accused’s guilty plea. In the
Nigerian case of Idan v. Police , the facts stated by the prosecution on a charge of receiving stolen
property did not include the fact that the accused knew or ought to have known that the property
was stolen. On appeal against conviction for receiving stolen property, the court held inter alia that
the facts stated by the prosecution could not sustain a charge or receiving stolen property. The
appeal was therefore allowed.
In Abele v Tiv Native Authority (another Nigerian case) , the accused persons pleaded guilty to a
charge of brigandage and rioting, armed with deadly weapons. The prosecution stated that the
accused persons were armed with sticks. No sticks were tendered in evidence. The accused persons
were convicted on their pleas of guilty. On appeal against conviction, on the charge of rioting
armed with deadly weapons, the court held that the facts merely disclosed the offence of rioting,
not the offence rioting armed with deadly weapons. Since no sticks were tendered in evidence, it
was impossible to state whether the sticks would qualify as deadly weapons. The court held that
the facts adduced by the prosecution could only sustain a conviction for rioting. The court therefore
substituted a conviction for rioting for that of rioting armed with deadly weapons.
Where expert evidence is required to prove an offence, as in drug offences, the court must not
convict an accused on his plea in the absence of such evidence. In the Nigerian case of Stephenson
v Police , the accused pleaded guilty inter alia to a charge of being in possession of Indian hemp
and was convicted. On appeal against conviction, it was held that the conviction could not stand
because the plants alleged to be Indian hemp were not tendered in evidence. Furthermore, there
was no expert evidence, in the form of a “Government chemist’s report”, certifying the plants as
Indian hemp. The appeal was allowed and a retrial ordered.
The prosecution must also prove that the thing to be used as evidence was kept in safe custody
before it was sent for scientific analysis, before the court can convict an accused on a guilty plea.
If there is any evidence that the evidence was tampered with or it was substituted with something
else, the court must not convict an accused on his guilty plea even where there is expert evidence.
In Isola v The State , the accused was convicted on his plea of guilty of being in possession of
Indian hemp. The plant that was recovered from the accused was taken to the police station, and
sent to the forensic laboratory for scientific analysis, after having been kept at the police station
for 24 hours. On appeal against conviction, it was held that there was a real possibility of the plant
having being tampered with during the period it was kept at the police station. Thus the absence
of absolute authority certainty that it was the plant recovered from the accused that was sent for
scientific analysis led the court to appeal the appeal.
Where there is a doubt as to whether the thing found in the accused’s possession was that tendered
in court, the doubt should be resolved in favour of the accused. Even if the accused pleads guilty
to the charge and admits the facts as stated by the prosecution, the court shouldn’t convict. In the
Nigerian case of Essien v R (a WACA decision), the accused was convicted on his plea of guilty
of possession of forged currency. Evidence showed that the currency notes tendered at the trial
were in fact genuine. There was, however, doubt as to whether the genuine currency was that found
in possession of the accused. The appellate court held that the doubt ought to be resolved in favour

of the accused. The court therefore assumed the currency found with the accused was genuine and
the appeal was allowed.
If the facts as stated by the prosecution and accepted as correct by the accused prove the offence
with which the accused is charged, the accused is convicted. His plea in mitigation is then taken
and he is then sentenced.
PLEA OF NOT GUILTY AND EFFECT THEREOF
For criminal matters being heard before a subordinate court, s. 164 (3) provides:
“If the plea is one of “not guilty” the court shall proceed to hear the case…”
The procedure a subordinate court should follow after a plea of not guilty is as spelt out in s 165
of the CPC thus:
“(1) If the accused person does not plead guilty to the charge, the court shall proceed to hear such
evidence as the prosecutor may adduce in support of the charge.
(2) The accused person or his counsel may put questions to each witness produced against him or
her.
(3) If the accused person does not employ a counsel, the court shall, at the close of the examination
of each witness for the prosecution, ask the accused whether he or she wishes to put any questions
to that witness and shall record his or her answer.”
For criminal matters before the High Court, s. 221 of the CPC provides:
“An accused person, upon being arraigned on any information, by pleading generally thereto the
plea of “not guilty” shall, without further form, be deemed to have put himself or herself upon the
country for trial.”
Where an accused arraigned before the High Court pleads not guilty to a charge, his plea is entered
as such and the Court then proceeds to try the case.
PLEA OF AUTREFOIS ACQUIT AUTREFOIS CONVICT
This is a distinct plea provided for in s. 164 (5) (a) of the CPC for criminal matters before a
subordinate court and s. 222 of the CPC for matters before the High Court. S. 164 (5) provides
thus:
“If the accused pleads that he or she has …been previously convicted or acquitted, as the case may
be, of the same offence… the court shall try whether the plea is true in fact or not. If the court
holds that the facts alleged by the accused do not prove the plea, or it if finds that it is false in fact,
the accused shall be required to plead to the charge.”
S. 222 of the CPC provides:
“…An accused person against whom an information is filed may plead that he or she has … been
previously convicted or acquitted, as the case may be, of the same offence….If denied…to be true
in fact, the Court shall try whether the plea is true in fact or not… If the Court holds that the facts
alleged by the accused person do not prove the plea, or it finds that it is false in fact, the accused
shall be required to plead to the information.”
Thus where a plea of autrefois acquit or autrefois convict is invoked by a accused person on trial
before a subordinate court or the High Court , the court shall try the issue and if the accused does
not prove the plea he shall be required to plead to the charge.
The said provisions of the CPC are reinforced by s. 24 (6) of the 1997 Constitution which provides:
No person who shows that he or she has been tried by any competent court for a criminal offence
and either convicted or acquitted shall again be tried for that offence or for any other offence of

which he or she could have been convicted at the trial for that offence save upon the order of a
superior court made in the course of appeal or revision proceedings relating to the conviction or
acquittal:
Provided that nothing in any law shall be held to be inconsistent with or in contravention of this
subsection by reason only that it authorizes any court to try a member of a defence force for a
criminal offence notwithstanding any trial or conviction of the member under service law; but any
court so trying such a member and convicting him or her shall, in sentencing him or her to any
punishment, take into account any punishment awarded him or her under service law.
It should be noted that for the plea autrefois acquit autrefois convict to succeed, the accused must
have been tried previously on a criminal charge. A trial for a breach of an internal regulation of an
association or body does not constitute a trial on a criminal charge. Thus in the Nigerian case of R
v Jinadu (a WACA decision), the accused was tried by a police Orderly Room for a breach of
police regulations. It was alleged that he used unnecessary violence on persons in his custody. He
was convicted and ordered to be downgraded in rank by the Police Orderly Room. Subsequently,
he was charged before a court and convicted of offences of compelling action by assault, and
assault. He raised the defence of autrefois acquit autrefois convict. The trial court rejected his plea
and he was subsequently convicted. On appeal, it was held that the plea was rightly rejected by the
trial court because the charge before the Police Orderly room was not a criminal charge, but a
breach of regulation.
It must also be noted where an accused pleads the defence, the former trial must be before a court
of competent jurisdiction. Thus if the court that presided over the case lacked jurisdiction, the
verdict of the court cannot be pleaded in a subsequent charge for the same offence or for an offence
for which the accused could have been convicted at the first trial. In R v Hodge , the accused was
convicted of various offences by a Magistrates’ Court. The conviction was quashed on the ground
that the magistrate had no jurisdiction to try the offences. A fresh charge was preferred against
the accused. In answer to the charge, he pleaded autrefois acquit. The court rejected the plea and
stated that where a conviction is quashed on the ground that that the court below had no jurisdiction
to deal with the case, a plea of autrefois convict will not be available to the accused.
Note further that for a plea under this head to succeed, the previous trial must have ended with an
acquittal or a conviction. Therefore, where the accused was merely discharged (as in where, for
example, the prosecution withdraws a case under s. 68 (1) of the CPC), the trial has not ended in
an acquittal or a conviction and consequently the plea of autrefois acquit or autrefois convict will
not stand.
Note also that where an accused is acquitted and discharged on the merit, the plea of autrefois
acquit can be invoked to a subsequent action based on the same facts. Thus where an accused
person is merely discharged following the quashing of the criminal proceedings for being invalid,
the plea of autrefois acquit will not stand. In the case of Donaldson v Commissioner of Police , the
Gambia Court of Appeal dismissed the appellant’s appeal against conviction for forgery because
the plea of autrefois acquit he raised was not sustainable in that in his previous trial on the same
charge of forgery, he was not acquitted of the offence but merely discharged, following the
quashing of the committal proceedings for being invalid.

Again, a discharge based on a no-case submission by counsel or the accused or suo motu invoked
by the court is a discharge on the merit. In the Nigerian case of Inspector General of Police v Marke
, the accused was tried in a Magistrates’ Court for stealing. After the close of the prosecution’s
case, the magistrate ruled that a prima facie case has not been made out against the accused
sufficiently to require him to make a defence. The accused was subsequently discharged but
subsequently charged again before another magistrate with the same offence. He pleased autrefois
convict which was upheld. The court held that his discharge amounted to an acquittal. An appeal
by the prosecutor was dismissed.
Note finally for such a plea to succeed, the criminal charge for which the accused was tried should
be the same as the new charge against him or alternatively the new charge should be one in respect
of which the accused could have been convicted at the former trial, although not charged with it.
If the accused is charged with the same offence at the latter trial as the former trial, this would be
easy for him to prove. However, where the subsequent charge is not identical to the earlier charge,
the accused has to prove that if he had been charged at the former trial with the subsequent offence,
he may have been convicted. The accused has to establish that some or all the ingredients of the
offence charged at the first trial could sustain a conviction for the subsequent charge, if he had
been so charged at the former trial. For example, if the accused is charged with the offence of
assault causing actual bodily harm and was convicted, he cannot subsequently be charged on the
same facts with the offence of assault. This is because the ingredients of the offence of assault
causing bodily harm include that of assault, and the accused could have been convicted of assault
at the former trial.
In R v. Noku (a WACA decision), the accused was acquitted of murder because the prosecution
failed to prove that it was the wound inflicted by the accused that caused the death of the deceased.
The accused was subsequently charged with the offence of committing an act intended to cause
grievous harm. He pleaded autrefois acquit to the charge on the ground that he had been previously
acquitted of a charge of murder. The court rejected the plea holding that the accused could not
have been convicted at the former trial of the subsequent offence charged if he had been so charged.
In R v. Edu , the court rejected the plea of autrefois acquit where the accused was acquitted of
stealing a postal packet, but was subsequently charged with negligently losing the same packet.
In Connelly v. DPP , it was held that the acquittal of the accused on a murder charge did not debar
a subsequent trial for aggravated robbery. The House of Lords held that the appellant could not
have been convicted of robbery at his trial for murder. Thus his plea of autrefois acquit to the
charge of aggravated robbery was rejected.
PLEA OF PARDON
S. 164 (5) of the CPC provides:

“If the accused pleads that he or she has … obtained the President’s pardon for his or her offence,
the court shall try whether the plea is true in fact or not. If the court holds that the facts alleged by
the accused do not prove the plea, or it if finds that it is false in fact, the accused shall be required
to plead to the charge.”
“…An accused person against whom information is filed may plead that he or she has … obtained
the President’s pardon for his or her offence….If denied…to be true in fact, the Court shall try
whether the plea is true in fact or not… If the Court holds that the facts alleged by the accused
person do not prove the plea, or it finds that it is false in fact, the accused shall be required to plead
to the information.”
These provisions of the CPC are reinforced by s. 24 (7) of the 1997 Constitution which provides:
“No person shall be tried for a criminal offence if he or she shows he or she has been pardoned for
that offence.”
Thus, if the accused proves to the satisfaction of the court (the burden of proving the defence is on
the accused) that a pardon has been granted and he or she produces the relevant instruments of
pardon, the plea must be sustained. This means the charge would have to be dismissed and the
accused acquitted. Where the plea is rejected, the accused will be asked to plead to the charge
against him.
PLEA TO THE JURISDICTION OF THE COURT
The accused person may also challenge the jurisdiction of the court that is to try him. If the court
rules it has no jurisdiction, it should dismiss the charge and discharge the accused. Note the
provisions of s. 62 of the CPC on transfer of cases where a court does not have jurisdiction. Note
also that if an accused is discharged because the court rules it does not have jurisdiction, he or she
can be subsequently be rearrested and arraigned before a court vested with jurisdiction.
PLEA TO DEFECT IN CHARGE
An accused person can object to the charge preferred him or her. He or she may state that the
charge contravenes any or a combination of the rules of drafting of charges. If the plea of the
accused is sustained, the accused may be discharged at that stage. Alternatively, the court may
amend or permit the amendment of the original charge and proceed with the trial, provided that
proceeding with the trial immediately after the amendment would not prejudice the accused person.
It must, however, be noted that s. 161A of the CPC provides that an objection to a charge or any
formal defect on the face thereof shall be taken immediately after the charge has been read over to
the accused and not later. This section only applies to trials before a subordinate court. S. 217 of
CPC has a similar provision for criminal trials before the High Court.
THE COURSE OF THE TRIAL

After the accused pleads not guilty to the charge or charges preferred against him, issues are joined
between the accused and the prosecution. The prosecution must adduce sufficient evidence to
prove the guilt of the accused beyond reasonable doubt.
INTERPRETER
The language of a Magistrates’ Court or the High Court when presiding over a criminal case shall
be English. Where the accused does not understand English he or she must be provided with an
interpreter at the expense of the state. S. 24 (3) (b) the 1997 Constitution provides that every person
who is charged with a criminal offence shall be informed at the time he or she is charged, in a
language which he or she understands and in detail, of the nature of the offence charged. S. 24 (3)
(f) further provides that every person charged with a criminal offence “shall be permitted to have
without payment the assistance of an interpreter if he or she cannot understand the language used
at the trial of the charge…”
The interpreter must correctly interpret to the accused person anything said in a language that he
does not understand. Simultaneously, there should be adequate interpretation to the court of
anything said by the accused. It is punishable for a court interpreter to willfully make false
statements during in any judicial proceedings. Since the charge is written in English, it has to be
read in English and if the accused does not understand English, it must be interpreted to the accused
in a language he understands. If the court interpreter or any officer of the court does not understand
the accused’s language, then the proceedings should be adjourned until an interpreter is provided
to interpret the charge and the proceedings to the accused. Note that even though the court
interpreter or court clerk may assist in ascertaining whether the accused understands the language
of the court, it is the primary responsibility of the accused or his counsel to bring to the notice of
the court that the accused does not understand the language of the court. If the trial court is not
informed by the accused or counsel or his counsel, the accused is estopped from complaining about
having been denied the right to an interpreter.
In Ajayi v. Zaria Native Authority , the appellant’s counsel argued that the appellants were denied
a fair trial because the proceedings of the court, which were conducted in Hausa, were not properly
interpreted to the appellants. The appellants spoke and understood English and Yoruba, and not
Hausa, the language of the court. At various stages of the proceedings, 5 interpreters were engaged.
There was evidence that the interpreters were incompetent, and in at least instances, misinterpreted
the proceedings. The Federal Supreme Court of Nigeria allowed the appeal on the ground that the
appellants did not have a fair trial because the proceedings of the court were inadequately and
incorrectly interpreted to them.
In The State v. Boka , the respondent was acquitted of culpable homicide not punishable with
death. The State appealed against the acquittal. In allowing the appeal, the Nigerian Court of
Appeal held inter alia that failure of the trial judge to record the language in which the charge was
read and to certify that the proceedings were interpreted to the respondent were a violation of the
1979 Constitution of Nigeria.

Compare the above cases with the case of The State v. Gwonto (supra). In this case, the accused
persons were charged and convicted before the Jos High Court. On appeal to the Nigerian Court
of Appeal, they appeal was allowed because of the failure to interpret proceedings in Hausa for the
benefit of the appellants. When the State further appealed to the Supreme Court, it was held that
the evidence on the record showed that the respondents understood English, the language of the
court. It was further held that at any rate, neither the respondents nor counsel informed the trial
court that they did not understand the language of the court. If was held that the absence of notice
to the court by the accused persons or their counsel of their inability to understand the language of
the court, the accused persons were estopped from relying on the failure of the court to provide
them with an interpreted as a denial of fair trial to them. Nnamani JSC observed at page 148 of the
judgment that:
Perhaps emphasis ought to be placed on the words if he cannot understand the language used at
the trial of the offence. The right to an interpreter only arises in such circumstances. This is why it
is the duty of the accused person, or counsel acting on his behalf, to bring to the notice of the court
the fact that he does not understand the language in which the trial is being conducted. Unless he
does, it will be assumed that he has no cause for complaint and the question of violation of his
right to an interpreter will not arise.
WITNESSES
S. 24 (3) (e) of the 1997 Constitution provides that every person who is charged with a criminal
Offence shall be afforded facilities to examine in person or by his or her legal representative the
witnesses called by the prosecution before the court and to obtain the attendance and carry out the
examination of witnesses to testify on his or her behalf before the court on the same conditions as
those applying to witnesses called by the prosecution. Thus after a plea of not guilty, the case
against the accused open’s with the prosecution calling its witnesses. The attendance of witnesses
in court could be secured through a subpoena issued by the court at the instance of the party
wishing to call that witness.
The penalty for non-attendance of a witness is a fine not exceeding D200. The fine is levied by
attachment and sale of any property belonging to the witness and found within the local limits of
the court’s jurisdiction. Where the fine cannot be recovered by attachment and sale, the witness
may be imprisoned for 15 days, unless the fine is paid before the expiry of the 15 days. The High
Court is also empowered to remit or reduce any fine a subordinate court imposes on a witness.
If, without sufficient cause, a witness does not obey a witness summons, the court may issue a
warrant for him to be arrested and brought before it on proof of proper service of the summons.
Where a court is informed on oath that a person might give material evidence in a case and will
not attend unless he is compelled to do so, the court may at once issue a warrant for the arrest and
production of the witness before it at a time and place to be named in the warrant. Where a witness
is arrested under a warrant, the court may release him after he furnishes security, with or without
sureties. If such security is furnished, the court then orders the witnesses release from custody but
where security is not furnished, the court orders for his detention for production at the hearing.

Where the witness to be examined is a prisoner, a court presiding over a case may issue an order
to the officer in charge of the prison requiring him or her to bring the prisoner before the said court
for examination at a time to be named in the order. The officer in charge of such a prison as
aforesaid shall, on receipt of the court order, act in accordance therewith and shall provide for the
safe custody of the prisoner during his absence from the prison for the purpose of being examined
by the court.
At the commencement of a trial, witnesses are ordered out of court and out of hearing by the court
officials. This is to ensure that evidence of one witness does not influence the evidence of another
witness. The law permits the parties to the case to remain in court, even though they intend to give
evidence for themselves as witnesses.
Where a witness remains in court after being ordered to leave or where a witness remains in court
because the court or the prosecution or the defence forgot to tell the witness to leave before his
evidence is taken in court, the refusal of a witness to comply with the court order to be out of court
and out of hearing does not render the evidence of the witness inadmissible by the court. The
presence of the witness in court would merely go to the weight to be attached to his evidence by
the trial court.
PRESENTATION OF CASE FOR PROSECUTION
If the accused person pleads not guilty to the charge, the court shall then proceed to hear the
evidence adduced by the prosecution.
By virtue of s. 168 (1) of the CPC the prosecutor and the accused are entitled to address the court
at the commencement of their respective cases. In spite of this legal provision, in practice
prosecutors in this country hardly open their cases by making an opening address.
The prosecution then calls witnesses to prove its case. Witnesses in a criminal case “shall be
examined upon oath and the court before which any witness appears shall have full power and
authority to administer the usual oath.” Where a witness objects to being sworn in and states the
grounds for such objection to be either that he or she has no religious belief or that the taking of
an oath is contrary to his religious beliefs, he shall be allowed to testify on affirmation instead of
taking an oath. The affirmation is as good as an oath.
Thus evidence has to be given on oath unless the court believes a witness does not hold any
religious belief or that oath taking is against a witness’s religious belief. In these two instances,
the witness will be allowed to affirm before giving his evidence. A witness must therefore take an
oath before giving evidence unless the witness falls under either of the following situations:
a. Witness of tender years

s. 124 (3) of the CPC provides:

Where, in any proceedings a child of tender years called as a witness does not, in the opinion of
the court, understand the nature of the oath, his or her evidence may be received, though not given
upon, if, in the opinion of the court, he or she is possessed of sufficient intelligence to justify the
reception of the evidence, and understands the duty of speaking the truth.
Note that a conviction cannot be based on the sole evidence of a child pursuant to s. 124 (3) of the
CPC. Such evidence must be corroborated by some other material evidence in support thereof.
b. Witness is a non-believer or his religions forbids the taking of an oath
Note that the fact that evidence received was not given on oath and the reasons therefore has to be
recorded Note also that where a witness offers to give evidence on oath or affirmation in any form
common amongst, or held binding by, persons of the race or persuasion to which he or she belongs,
and not repugnant to justice or decency, and not purporting to affect a third person, the court may,
if it thinks fit, tender such oath or affirmation to him.
EXAMINATION OF PROSECUTION WITNESSES

After an oath or an affirmation is administered, prosecution witnesses must be examined-in- chief
by the prosecutor, then if the defence so wishes, he shall be cross-examined . The prosecuting
counsel may then be re-examined by the prosecutor if he so wishes. In Police v. Nwabueze , the
case was sent back to the lower court for trial because in acquitting the accused, the trial magistrate
did not allow the prosecuting counsel to re-examine the second prosecution witness.
ORDER OF WITNESSES
The order in which witnesses are produced and examined shall be regulated by the law and practice
for the time being relating to criminal procedure and in the absence of such law, by the discretion
of the court.
There are no statutory provisions regulating the order in which witnesses should be called. Since
the conduct of a criminal case is the duty of a prosecutor, it is his responsibility to decide in what
order witnesses should be called. In practice, the prosecutor adopts a logical order so that his case
would unfold easily before the court. Normally, when the complainant is available, the prosecutor
calls the complainant as the first prosecution but there’s a no law requiring the prosecutor to call
the complainant first. In homicide cases it is advisable for the prosecutor to call eye witnesses to
testify first before calling other witnesses. The prosecutor should therefore call his witnesses in an
order which will ensure that the evidence adduced is sequential.
NUMBER OF WITNESSES
Before the accused is convicted, the court must make sure that the prosecutor calls material
witnesses to prove its case, whether their evidence will favour the prosecution’s case or not. If a
court is satisfied that any person is likely to give material evidence for the prosecution or defence,
it may issue a witness summons for such a person.

Note that what the law requires from the prosecutor is for him to call sufficient witnesses, not all
material witnesses. Where the prosecution fails to call sufficient witnesses to establish the case
against the accused, the accused should be discharged and acquitted. In Momodou Mbenga v. The
State (supra), the appellant was convicted for unlawful possession of drugs. The prosecution’s case
was that the drugs had been discovered when a search squad raided the appellant’s home. The
drugs were said to have been discovered by a particular police officer who was not called as a
witness. At the trial and on appeal the accused denied the charged and maintained the police officer
who allegedly caught him should have been called as a witness. The appeal was allowed and the
Court of Appeal held the case against the accused was not proved beyond reasonable doubt because
the accused was denied the opportunity to cross-examine a key witness.
Thus if there is a vital point in issue and there is one witness whose evidence will settle it one way
of the other, that witnesses out to be called by the prosecution. This however does not mean that a
host of witnesses must be called upon the same point. A court should therefore always bear in
mind that the number of witnesses called by the prosecutor is within his discretion because there
is no stipulated number of witnesses required to be called to prove the accused’s guilt.
There are however instances in which a conviction cannot be based on the evidence of one witness.
At least two witnesses are required in order to secure the accused person’s guilt in the following
instances:
a. Cases of rape and other sexual offences against complainants.
b. Cases of perjury.
c. Cases of exceeding speed limit under the Motor Traffic Act.
d. Cases of sedition
e. Cases treason, concealment of treason and spying.
It is also provided for in the Evidence Act and the CPC that an accused cannot be convicted on the
unsworn evidence of a child, without the independent evidence of another witness.
Note that in a trial on information before the High Court, the prosecutor does not have to call all
the witnesses whose names are listed on the back on the information. All the prosecution needs to
do is to call enough material witnesses in order to establish its case.
Note, however, that if a witness has some important evidence to give which could have tilted the
case on way or the other to the benefit or detriment of the accused, then if the prosecution does not
call that witness it has the duty to make him available to the accused for the purposes of cross-
examination. In the case of Omar Sey v The State (supra) the Gambia Court of Appeal held that
the prosecution had discharged its duty by providing the name and regular address of a witness.
The Court stated:
“Making a witness available does not mean that the prosecution, not needing a witness should
bring or subpoena him to court and hand him over to the accused. All the prosecution can do and
should do is to tell accurately where to find the witness, his name and any special characteristics
of the witness for identifying him if he has any.”

Note further while there is a duty to call relevant witnesses, the court is also required, especially
in criminal cases, to afford the parties a reasonable chance of calling their witnesses. In the case of
Ebrima Sanusi v. C.O.P , the Gambia Court of Appeal allowed the appellants appeal and quashed
his conviction because of the refusal of the trial magistrate to grant the appellant an opportunity of
calling witnesses in his defence amounted to a denial of justice.
Note also that the court may comment on the absence of the evidence given which might have
been given, including the failure of the prisoner to exercise his right to give evidence – if in the
discretion of the court such comment appears to be fair and just.
Note further that in criminal cases, the court can suo motu call or recall witnesses because s. 123
of the CPC provides that:
“A court may at any stage of any inquiry, trial or other proceeding under this Code call any person
as a witness or recall or re-examine any person already examined, and the court shall examine or
recall and re-examine such person if his or her evidence appears to be essential to the just decision
of the case.”
Note finally that by virtue of s. 225 of the Evidence Act, the court may put questions to witnesses
or order the production of a document. The power to call or recall witnesses and the power to put
questions to witnesses or order the production of a document does not, however, mean the court
should take over the conduct of a case. The accused is presumed innocent until proven guilty and
since the prosecution, not the court, is required to prove the accused’s guilt beyond reasonable
doubt, the court should always act as an impartial adjudicator or umpire. It should never descend
to the arena of conflict.
REFACTORY WITNESSES
“When a person, appearing either in obedience to a summons or by virtue of a warrant, or being

present in court and being verbally required by the court to give evidence –
(a) refuses to be sworn or affirmed;
(b) having been sworn or affirmed, refuses to answer a question put to him or her;
(c) refuses or neglects to produce a document or thing which he or she is required to produce;
or
(d) when lawfully required to do so refuses to sign his or her deposition, without in any such
case offering any lawful or reasonably sufficient excuse for the refusal or neglect, the court may
adjourn the case for any period not exceeding eight days , and may in the meantime commit the
person to prison, unless he or she sooner consents to do what is required of him or her.”
If such a person after being brought before the court at or before the adjourned hearing, again
refuses to do what s required of him or her, the court may, if it thinks fit, again adjourn the case
and commit him or her for the like period, and so again from time to time until the person consents

to do what is so required of him or her. Nothing contained in s. 125 of the CPC, however, affects
the liability of the person to any other punishment or proceeding for refusing or neglecting to do
what is so required of him or her, or shall prevent the court from disposing of the case in the
meantime according to any other sufficient evidence taken before it.
ADJOURNMENTS
The granting of an adjournment is discretionary and would depend on the circumstances. A

criminal cause before a court may be adjourned for several reasons. Firstly, the court dealing with
a criminal case may not sit on the day the matter comes up. In that case the matter would
automatically have to be adjourned and a new date taken. Alternatively, the court may sit but
decides to adjourn a matter for compelling reasons.
Secondly, the prosecution may apply for an adjournment because the prosecution witnesses are
not available in court to enable the prosecutor to proceed with his case. In that case an adjournment
is granted to enable to witnesses to appear and testify so that the case will be determine on the
merits. Where there is evidence that the witnesses might not be available, the court may decide not
to adjourn a matter. In that case, if may discharge the accused. It should also be noted that where
a prosecutor who has notice of the hearing fails to appear, the court can either adjourn the case or
discharge the accused, s. 160 CPC.
Thirdly, the defence may apply for an adjournment in order to call defence witnesses. The court
will grant an adjournment for the defence to call its witnesses , especially if the witness sought to
be produced by the defence is a material one. However, where the defence is guilty of negligence
or laches in procuring the witness, and if there is a reasonable expectation that the witness would
not be produced on the next adjourned date, then the court may deny an application for
adjournment. In the Nigerian case of Yanor v. The State , the accused was charged and convicted
on murder. During the trial, several adjournments were granted at the request of the defence. This
was to enable counsel to secure the attendance of a material witness for the defence. At the resumed
resuming, the defence again applied for a further adjournment of the trial but the application was
rejected. The proceedings then continued and the accused was convicted. On appeal it was argued
that the failure of the court to grant the accused an adjournment was a denial of a fair trial to the
accused. The Nigerian Supreme Court that the trial court properly exercised its discretion by
refusing to further adjourn the matter. The defence was granted several previous adjournments but
the witnesses were never produced and there was no likelihood of the witnesses being produced at
all. The appeal was therefore dismissed because the court held that a further adjournment of the
case would have delayed the dispensation of justice.
It should be noted that that where an accused person fails to appear, the court can proceed in his
absence as if he were present, provided he is not charged with a felony, s. 163 CPC.
The CPC, however, seems to be silent on the non-appearance of a defence counsel. Non-
appearance of defence counsel can cause delay. What happens if a defence counsel deliberately

fails to attend court to defend an accused person he is meant to represent? Like I said the CPC is
silent on the issue. The Nigerian case of Shemfe v C.O.P , even though merely persuasive, is
helpful in this regard. In this case, counsel of the accused sent a telegram to the court seeking an
adjournment of this matter. No reason was given by counsel in the telegram as to the necessity for
an adjournment and his failure to appear in court. The prosecutor opposed the application for an
adjournment on the ground that several adjournments have been granted in the past and that the
prosecution witnesses were present in court to testify. The court refused the application and
proceeded with the case. The accused conducted his defence and was convicted. On appeal against
conviction it was contended that the appellant was denied a fair trial, because of the refusal of the
trial court to grant an adjournment to enable counsel to appear for the accused. The court dismissed
the appeal. It held that the appellant had a fair trial and that the failure of the appellant to be
represented by counsel was not the fault of the court but that of the defence counsel.
It must be noted, however that, if counsel is unavoidably absent from court for cogent and
When deciding on an adjournment, the mandatory provisions of s. 162 CPC should always be
borne in mind. This section provides that criminal cases shall not be adjourned beyond 15 days or
if the accused is committed to prison, for not more than 7 days. Note that for criminal matters
before the High Court, no such time limit is provided for. Adjournments of criminal matters before
the High Court are governed by s. 226 of the CPC which provides:
“If, from the absence of witnesses or any other reasonable cause to be recorded in the proceedings,
the Court considers it necessary or advisable to postpone the commencement of or to adjourn any
trial, the Court may from time to time postpone or adjourn the same on such terms as it thinks fit
for such time as it considers reasonable, and may by warrant remand the accused person to some
prison or other place of security.”

PRESIDING OVER NARCOTICS CASES
Presented by Gaye Sowe, Ag. Judicial Secretary, at the Training Workshop on
Narcotics Drug Offences at the Corinthia Atlantic Hotel, Banjul on Wednesday & Thursday 23rd
and 24th March 2005
‘This Court will lend its weight, in proper cases, to the well-intentioned national, and indeed,
international campaign against drug abuse and drug trafficking. However we feel that this
campaign should not be waged at the expense and the detriment of observance of strict standards
of administration of criminal justice. In particular it will not lend its weight to glaringly unfair
treatment of unrepresented persons who stand charged with serious criminal offences in trial
courts. It will not endorse convictions which are indefensible in law’
INTRODUCTION
The above passage by the former President of the Gambia Court of Appeal emphasises the
problems encountered at the Magistrates’ Court Level when dealing with narcotics cases.
Narcotics destroy innumerable individuals’ lives and undermine our societies. Confronting the
trade in drugs and its effects remains a major challenge to all, judicial officers inclusive. An
estimated 200 million people worldwide use illicit drugs. This translates to 4.7 percent of the global
population aged over 14. These figures are far alarming in themselves. The effects of drug abuse
go far beyond the individuals concerned and cause incalculable harm to society in health, social
and economic terms.
It is therefore understandable if judicial officers as members of our society take firm stands against
those who trade in drugs, drug users and abusers. However, as Justice Chomba warned us above,
the campaign against drug abuse and trafficking should not be waged at the expense and detriment
of observance of strict standards of administrative of criminal justice. As Magistrates we are judges
in the temple of justice and should always be guided by the principle that justice is better served if
ten men are set free than to convict one innocent man. The most important aspect of the criminal
law is the procedural part. If, for example an accused is charged with an offence under the Drug
Control Act, it matters very little to members of the public whether he is charged with possession
of a prohibited drug or drug trafficking. It also matters little to the public if the offence is
punishable with 5 years or 10 years imprisonment. However, it matters a lot that the case should
end in a correct verdict after a fair trial, thus the need for this paper.
When the proposed Narcotics Court is set up, all narcotics cases would be dealt with by the said
court presided over by a Magistrate. The importance of this workshop cannot therefore be over-
emphasised. My paper is aimed at highlighting some aspects of a trial involving narcotics. The
procedure involved in trying narcotics cases as well as all criminal cases is long and cannot all be
covered in this paper. I will only highlight what I consider to be some of the most important pitfalls

encountered by Magistrates in presiding over such cases. I will start my paper by identifying the
applicable laws in dealing with narcotic cases. The topics I will cover will include the rules as to
the drafting of charges, plea taking, bail, adjournments, no case submissions, trial within a trial,
witnesses and other cores issues Magistrates have to deal with in presiding over such cases. I chose
these topics because from my experience as a trial Magistrate and from the cases I have read
dealing with narcotics, problems are mostly encountered in these areas. Because of the limited
time and space, I would not be able to cover the topics in detail or the way I would have wanted
to.
APPLICABLE LAWS
In dealing with narcotic cases, a Magistrate should have the following Laws in mind:
1. The Drug Control Act, 2003 (DCA). This Act provides for the regulation of the use of and
possession of prohibited drugs, controlled drugs and precursors.
2. The Criminal Procedure Code (CPC) (Cap.12). s. 3 (2) of the CPC provides: All offences
under any law shall be inquired into, tried and otherwise dealt with according to the same
provisions subject, however, to any enactment for the time being in force regulating the manner or
place of inquiring into, trying, or otherwise dealing with such offences.
s. 129 (b) of the Drug Control Act also provides:

In the trial of offences under this Act or any regulation made under it, whether before the High
Court or a subordinate court, the procedure to be adopted shall be the procedure which obtains in
trials before the subordinate courts.
Thus by virtue of s. 3 (2) and s. 129 (b) of the DCA, trials of narcotics offences in the Gambia
should be in accordance with the CPC.
3. The Criminal Procedure Code (Amendment) Act, 2001. By virtue of this Amendment bail
after sentence no longer exists in the Gambia
4. The Criminal Procedure Code (Amendment) (No.2) Act, 2002. By this amendment the
jurisdiction of Magistrates was enhanced. Thus at the moment a Magistrate irrespective of his or
her class can try any offence under any law except treason. The amendment further means a First
Class Magistrate can impose any sentence known to law. Under the old law, such a Magistrate
could not impose a prison term exceeding 7 years. Thus a First Class Magistrate can deal with any
offence under the DCA and impose any sentence authorised by the DCA. Even though the
jurisdiction of Second Class and Third Class Magistrates is enhanced, there are restrictions as to
the type of sentence they can pass.
5. The Criminal Code (Cap.10). s. 47 of the DCA provides that the Criminal Code provisions
in relation to unlawful possession of firearms are relevant where an accused uses firearms to
commit any offence under the DCA or where an accused uses violence and then causes damage or
injury in committing an offence under the
DCA

6. The Evidence Act. s.1 (2) of the Evidence Act makes the Evidence Act applicable to
proceeding involving narcotics cases
7. The Police Act (Cap.18 ). This Act becomes relevant in determining whether the arresting
Police Officer acted in accordance with the law.
8. The Customs Act (Cap 86.01). ss. 135 (2) and 136 (2) make this Act relevant.
9. The Extradition Act (Cap13). Where a narcotic case involves extradition, Chapter VII, Part
III of the DCA makes that Act applicable.
10. The Children and Young Persons Act (Cap 45). This Act also applies where a juvenile is
involved in a narcotic case.
11. The Medicines Act (Cap 40.01). Provisions of this Act dealing with the sale, dispensing,
seizure and destruction of medical products are not affected by the DCA by virtue of s. 42 of the
latter Act.
12. The Mutual Assistance Act, 1997. This Act is referred to in s. 63 of the DCA.
13. The 1997 Constitution of the Gambia. The provisions of the Constitution dealing with the
protection of the right to personal liberty and fair trial should also be borne in mind by a Magistrate
trying a narcotic case.
I will now consider the areas we normally encounter problems as Magistrates.
1. THE CHARGE
Even though Magistrates in this jurisdiction do not draft charges, they have to make sure that a
charge sheet before them is drawn up in accordance with s.s.110-113 of the CPC. A conviction in
any criminal case based on a defective charge may be quashed on appeal. The best and quickest
way to reduce crime is to increase the likelihood that the guilty will be punished. The acquittal of
an accused person based on a defective charge or a technicality constitutes a miscarriage of justice
just as much as the conviction of the innocent.
A Magistrate must therefore make sure that the charge an accused is facing in a narcotics case
contains a statement of the specific offence or offences and the particulars of offence. The
Magistrate should make sure that the accused is charged under the proper section of the law. If the
intention of the prosecution is to secure punishment for drug trafficking, he should be charged
under that section (s.43), not under s. 35 DCA. This was emphasised by the Gambia Court of
Appeal in Manga Barry v The State , Semu Njie v. The State , Kebba Bojang v The State , Omar
Sallah v The State and so many other cases. In all these cases the Court of Appal stressed that it
was very wrong to charge an accused with possession under s. 12 of the old Act when the intention

was to secure a conviction of drug trafficking. In delivering the lead judgment in Omar Sallah v
The State , Chomba J.A stated:
‘We believe that it was grossly unfair and embarrassing to the appellant that he should be called
upon to plead to possession when in fact the intention was to convict him of the more serious
offence of drug trafficking. Such practice must be discouraged; it is unfair.’
Again in Sarjo Danso v. The State , Chomba JA stated:
‘The practice of charging persons with being in possession of prohibited drugs when the latent
purpose is to secure a conviction for drug trafficking does not redound to the credit of the institution
of administration of justice. It may be perceived as a ploy to secure more easily a plea of guilty to
a charge which the prosecutor apprehends to be difficult of proof if it were to be disclosed and if
an accused was to plead not guilty to it.’
Therefore, where an accused is found with 100 kilos of cannabis and charged with possession
under s.35 of the DCA he cannot be convicted of trafficking despite the presumption in s. 43 (4)
(e).
The particulars of offence as required by required s. 113 (iii) should be set out in ordinary language,
in which the use of technical terms is not necessary. In Antou Jarra v The State , the particulars of
offence only disclosed that the accused was engaged in drug trafficking. Quashing the accused’s
conviction, Obayan J (as he then was) held that since neither the statement of offence nor the
particulars of offence stated how the accused was engaged in drug trafficking or explain trafficking
the conviction was untenable. The learned judge further stated that the charge was defective
because it did not allege the drug was found in the accused’s residence and whether he was
trafficking the drug.
Furthermore, if the charge is possession of a prohibited drug, the Magistrate should make sure that
the statement of offence or particulars of offence do not identify the substance caught with the
accused as suspected cannabis. There is no offence called possession of suspected cannabis. As
Chomba JA stated in Akasa Mutarr Gai v The State :
It goes without saying that to refer to a suspected prohibited drug suggest that an inconclusive
investigation has been made by the investigating officer. A prosecutor should not, in the normal
course of events, accept a brief, based on such uncompleted investigation, for the purpose of
prosecuting an accused person before a court of trial… Indeed magistrates should not entertain a
charge where the prosecutor reveals that the substance is merely suspected to be what it is.’
(emphasis added)
There has always been this contention that s. 20 (4) (e) of the Drug Control Decree (now s. 43 (4)
(e) DCA) is not an offence creating section, but only raises a presumption. This subsection
provides:
Any person who is found in possession of more than- (a) one gramme of diacetylmorphine
(heroin);
(b) one gramme of cocaine;
(c) ten grammes of opium: or
(d) ten grammes of cannabis resin; or
(e) thirty grammes of cannabis

commits the offence of possession for the purpose of trafficking…’(emphasis
added)
It is submitted that these provisions (ss. 20 (4) (e) DCD and 43 (4) (e)) are offence creating sections
because they are quite different from s.12 (2) (e) of the old Drug Control Act which did not contain
the words I highlighted and underlined above. This Act only raised a presumption, unlike the
present Act and the Decree before it.
Furthermore, when I started presiding over narcotic cases in Brikama, I used to encounter a practice
in which a person found with a certain quantity of drugs was charged with both possession and
trafficking of the said drug on different counts. I ruled in these cases that the practice was wrong
and contrary to the law. My reasoning was based on the following. s. 7 (1) of the CPC is to the
effect that no sentences of imprisonment in default of payment of a fine whether imposed in
addition to a substantive term of imprisonment or not shall be directed to run concurrently. Thus,
if an accused is charged and convicted of both possession and trafficking on different counts
relating to the same quantity of drugs, the Presiding Magistrate cannot order that the fines be
cumulative or that they run concurrently. Such an accused person is therefore made to pay for the
fines imposed on both counts. In my view, this amounts to punishing him twice for committing
the same offence which is prohibited by s. 24 (6) of the Constitution. It is therefore submitted that
when an accused is found with a certain quantity of a prohibited or controlled drug, he should be
charged with either possession or trafficking and not both. I would also want my colleagues to bear
in mind the provisions of s. 7 (1). Where an accused is facing a charge under the DCA and another
charge under another law or where he is charged and convicted on more than one count, a
Magistrate cannot order that the fines fun concurrently. Thus whenever an accused is fined on
more than one count, the sentences of fine must run consecutively.
Apart from the above, a Magistrate should also make sure that a charge sheet does not violate the
rules against misjoinder of offenders and offences and the rule against duplicity. A Magistrate
should also avert his mind to the rules for framing charges outlined in s. 113 of the CPC.
2. AMENDMENT OF A CHARGE
If a charge under the DCA as presented by the Prosecutor is defective, s. 169 of the CPC empowers
a Court to make an order that the charge be amended or substituted or a new charge added, provided
the Magistrate is satisfied that the accused will not suffer any injustice. After the charge is
amended, the Court shall call upon the accused to plead to the new charge. The accused may then
recall any of the prosecution witnesses for further cross-examination by him or his counsel. The
accused can also give or call further evidence after such amendment. The Court must tell the
accused of his right to recall witnesses, s. 169 (4). If the charge is altered and an accused is
prejudiced thereby, the court shall adjourn the trial for such a period as may be necessary, s. 169
(2). The provisions of s.169 must be strictly followed. It must be noted however that variance
between the charge and the evidence adduced in respect to the time at which the alleged offence
was committed is not material and the charge need not be amended because of such variance if it
is proved that the proceedings were in fact instituted within any time limited by law for the
institution thereof, s. 169 (3).

3. THE PLEA
The rules as to the taking of pleas at the Magistrates’ Court are very detailed and are found in ss.
164 & 165 of the CPC. s. 164(1) of the CPC provides:
‘If the accused person appears personally or, under the provisions of subsection (1) of section 78
of this code by his counsel, the substance of the charge shall be stated and explained to him or, if
he is not personally present, to his advocate (if any) and his counsel as the case may be, shall be
asked whether he pleads guilty or not guilty’(emphasis added)
The Magistrate’s record must therefore show that the substance of the offence charge is read and
translation is not complete or full.
As stated by Chomba JA in Kebba Bojang v State :

court.’
After the charge is read and explained to the accused, he can do either of the following:
a. He can plead guilty. S. 164 (2) provides that if the plea is one of guilty, the plea shall be recorded
as nearly as possible in the words used.(emphasis added)
In Kebba Bojang v The State, the records of the Magistrate disclose thus:
‘Court: Charge read and explained to the accused in Mandinka.
Plea: Guilty.’
The Court of Appeal called the plea as recorded by the Magistrate the shorthand way of stating
what the accused stated in Mandinka. The accused plea as recorded by the
Magistrate clearly violates s.164 (2) of the CPC because the word ‘guilty’ could not have been the
exact words by the accused.

other reasons.
After the accused person pleads guilty, the prosecution would then state the facts of the case. The
accused would then be asked to react to the facts as stated by the prosecution. He should be asked
whether he agrees or does not agree with the facts.
Magistrates should note the mandatory provisions in the DCA when imposing sentences. In most
cases, no discretion is given to the Magistrate. Ss 47 and 49 DCA for example require the court to
order mandatory sentences. Under the latter for example, the maximum must be imposed.
Furthermore, if an accused is charged under s.35 of the DCA, for example, the fine impose upon
conviction must not be less than D250, 000. Where an accused is convicted of drug trafficking
under s.43 of the Act the sentence imposed must not be less than D1000, 000 and 10 years
imprisonment with hard labour. It must be noted that the prison term under s. 43 is in addition to
the fine of not less than D1000000. S.57 of the Act further provides that if a fine is imposed and
not paid an accused would serve imprisonment for a further term of 5 years. As stiff as these
penalties may sound, we must observe them. Our duty is to apply the, not to make it.
However, if when the facts are stated the accused goes on to deny or disagree with some aspects
in the facts which are essential to the offence charged, a plea of not guilty should be entered and a
normal trial should ensue. This usually happens where for example the accused qualifies the facts
in such a way as to negative the mens rea of the offence charged.
b. He can plea not guilty under s. 164(3) CPC and the court shall continue to hear the case in
accordance with the CPC. If the accused or his lawyer refuse to plead, a plea of not guilty is entered,
s. 164(4). If the accused pleads that he was previously convicted or acquitted of the same offence
or that he was pardoned by the President, the court shall try the issue. If the accused does not prove
the plea he shall be required to plead to the charge.
4. ADJOURNMENT
The granting of an adjournment is discretionary and would depend on the circumstances. Where a
prosecutor who has notice of the hearing fails to appear, the court can either adjourn the case or
discharge the accused, s. 160 CPC. Where an accused person fails to appear, the court can proceed
in his absence as if he were present, provided he is not charged with a felony, s. 163 CPC. Thus if
an accused is charged with most offences under the DCA, he cannot be tried in abstentia.
However, the CPC seems to be silent on the non-appearance of a defence counsel. Non-appearance
of defence counsel can cause delay. What happens if a defence counsel deliberately fails to attend

issue. The Nigerian case of Shemfe v C.O.P18, even though merely persuasive, is helpful in this
18 1962 NNLR 87
We must also draw our attention to the mandatory provisions in s. 162 CPC. This section provides
that criminal cases shall not be adjourned beyond 15 days or if the accused is committed to prison,
for not more than 7 days.
5. BAIL
S. 132 DCA provides:
‘Notwithstanding the provisions of any other law, bail shall not be granted to a person arrested for
or charged with an offence under this Act, where the term of imprisonment prescribe for the
offence exceeds one year.’
Bail under the DCA is therefore only available to persons charged under ss. 36(4) (c),40 (3) (c),
41 (3) (i) & (ii). Thus, apart from these exceptions bail is not available to an accused person
arrested for or charged with any other offence under the DCA.
Neither court bail nor police bail is available to such and accused or a suspect.
6. THE TRIAL
‘Trial’ is used here to mean the procedure that follows after an accused pleads not guilty. If an
accused person does not plead guilty to the charge, the court shall hear the evidence of the
prosecution witnesses. They are cross-examined by the accused or his counsel after they give their
evidence. The court must ask the accused if he is cross-examining the prosecution witnesses and
must record his answer, s. 165 CPC.
At the close of the evidence in support of the charge, where it appears a case is made out against
the accused to require him enter into his defence, the court shall call the accused to enter into his
defence and shall inform him that if he so desires, he may give evidence on oath or make a

statement. The court shall then hear the accused if he desires to be heard and any evidence he may
adduce in his defence, s.167 (1) CPC. The accused person therefore has 3 alternatives. He can opt
to remain silent or give evidence on oath from the witness box, or make a statement from the dock.
In the last case, he will not take the oath and will not be cross-examined.
Where an accused is represented by counsel, the duty of the court is to call the defence counsel to
proceed because it s assumed that counsel knows the law. Where an accused person is not
represented by counsel or his counsel is absent in court at the close of the prosecution’s case, it is
the duty of the court to explain the three alternatives available to him in a language he understands.
The court must explain the 3 alternatives to the accused. It is not enough for the court to merely
read out the provisions.
After the defence closes its case, addresses follow, s. 168 CPC. Judgment then follows the
addresses. Sections 141 and 142 deal with the mode of delivering judgment and contents of
judgments respectively.
a. NO CASE SUBMISSION
At the end of the case for the prosecution, before the accused is called upon by the court to enter
his evidence, the court shall acquit the accused if it appears to the court that a case is not made out
against an accused person sufficiently to require him to make a defence, s.166 CPC. It appears
from the wordings of this section that only the court can rule that an accused has no case to answer.
Nothing in this section shows that counsel for the accused or the accused’s counsel can make such
a submission. It is submitted that this section should be amended o reflect the current practice
whereby counsel rely on the section as authority to make a no-case submission.
A submission that there is no case to answer may properly be made and upheld only:
i. When there has been no evidence to prove an essential ingredient of the offence charged;
or
ii. When the evidence adduced by the prosecution has been discredited as a result of cross-
examination or is so manifestly unreliable that no reasonable tribunal could convict upon it.
A no-case submission should therefore only be upheld in the two situations above. I have presided
over narcotic cases in the past in which defence counsel talked about the prosecution not proving
its case beyond reasonable doubt in making a no case submission. What is in issue at this stage is
whether the prosecution has made out a prima facie case to require the accused to enter into his
defence. As Hubbard J . observed:
‘The meaning of a submission that there is no case for an accused to answer is that there is no
evidence on which, even if the court believed it, it could convict. The question whether or not the
court does not believe the evidence does not arise, nor the credibility for the witnesses in issue, at
this stage. It is not proper for counsel at this stage to address the court on the weight of evidence.
The submission should be limited to a statement that on one or more of the essential elements of
the there offence charged is no evidence on which, if the court believed it, it could convict.’

b. WITNESSES
As stated above, after an accused pleads ‘not guilty’ the prosecution can call its witnesses. Before
an accused charged under the DCA can be convicted, the Magistrate must make sure that the
prosecutor calls material witnesses to prove its case. What the law requires from the prosecutor is
for him to call sufficient witnesses, not all material witnesses. A Magistrate should always bear in
mind that the number of witnesses called by the prosecutor is within his discretion.
If the prosecution closes its case and the accused wishes to call witnesses but they are not present
in court the court may adjourn the trial and issue process or take other steps to compel the
attendance of such witnesses. The court should however be satisfied that the absence of such
witnesses is not due to the accused’s fault and that there is a likelihood that the witnesses could
give material evidence, s.167 (2) CPC.
Irrespective of whether the accused gives evidence from the witness box or makes a statement
from the dock, he can call witnesses.
It must be noted that the attendance of any witness would depend on whether such a witness is
competent and compellable. I need not treat this area in detail because I believe the law on it is
clear.
Another issue I would want to address is where a witness remains in court after being ordered to
leave or where a witness remains in court because the court or the prosecution or the defence forgot
to tell the witness to leave before his evidence is taken in court. I have had situations in the past in
which prosecutors or defence counsel applied for the evidence of such witnesses not to be taken.
This is wrong. The refusal of a witness to comply with a court order to be out of court and out of
hearing does not render the evidence of the witness inadmissible by the court. The presence of a
witness in court would merely go to the weight to be attached to his evidence by the trial court.
c. TRIAL WITHIN A TRIAL

A confession made by an accused person is irrelevant in criminal proceedings if the making of the
confession appears to the court to have been caused by an inducement, threat or promise by a
person in authority in respect to the charge against the accused. When an accused charged with a
narcotics offence alleges that a statement sought to be tendered by the prosecution is not voluntary,
the trial court is obliged to conduct a trial within a trial to determine the admissibility of the
statement. The burden of proving the voluntariness of a confession is on the prosecution, and the
standard of proof is beyond reasonable doubt.
It must be noted however that a trial within a trial should not be conducted where the only objection
of the accused to the admissibility of a statement is that the statement was not read to him before
he signed it. Similarly, trial within a trial does not apply where the accused person denied making
or knowledge of its existence. The purpose of a trial within a trial is also not to determine whether
the accused made the statement but whether he made it voluntary.29
During the trail within a trial, a Magistrate has to look into the circumstances that led to the making
of the alleged confessional statement.

The Magistrate should also note that the trial procedure in a trial within a trial is very technical.
For guidance please see Amadou Badjie v The State (unreported) presided over by Ayoola CJ (as
he then was).
OTHER IMPORTANT ISSUES
a. PROOF
The offences as prescribed in the DCA give some people the impression that some of them are
offences of strict liability. The doubt was laid to rest by Chomba JA in the case of Sarr v The State
. Commenting on the old Drug Control Act, 1993 which has similar wordings in many respects
with the present DCA, he stated:
The Drug Control Act, 1993, in particular subsection 1 of section 12 thereof, does not state
expressly that it creates offences of absolute liability. The question therefore is whether the court
must impute to it such implication. Fortunately for this court we have the advantage of precedents
set by the Supreme Court of Canada in Beaver v The Queen, the South African case of R v Lunga
…in which legislation with our section 12 (1), Drug Control Act,
19993, have been held not to be punitive in the absence of a guilty mind…I would loath to impute
strict liability to it.’
As Magistrates, we should also bear in mind that in some instances the DCA imposes the burden
of proof on the accused. Mention can be made of ss. 40 (2), 41 (1), 43 (2), 44 (e) and 84 of the
DCA. The standard of proof in these cases is however the civil standard. An accused should not
be expected to prove the facts he is expected to prove in these sections beyond reasonable doubt.
b. CONSENT, WEIGHMENT AND ANALYST REPORT

Consent of the Attorney General is no longer required when an accused is a facing the charge of
drug trafficking. S. 76 DCA deals with the weighing of narcotics caught with an accused. The
same section requires that samples of drugs taken from an accused should be taken in duplicate for
scientific analysis within 7 days. S.83 makes such analyst report admissible in evidence. A
Magistrate should make sure the procedure s. 76 DCA is complied with.
c. FORFEITURES
Where an accused person uses a vehicle, vessel, aircraft or other means of conveyance to commit
an offence under the DCA, such means of conveyance shall, subject to some considerations, be
forfeited to the state, s. 94 DCA. Proceeds acquired from drug trafficking must also be forfeited to
the State. Thus even if a Magistrate imposes a sentence, whatever means of conveyance the
accused used should or whatever he acquired from drug trafficking must be forfeited to the State.
These are mandatory provisions and must be applied.

d. EXTRADITION AND ASSISTANCE TO FOREIGN COUNTRIES
Magistrates also have a role to play where there is extradition request under the DCA or where a
foreign country seeks assistance under the Act, Chapter VII, Part II & III.
e. FAIR TRIAL
A Magistrate presiding over a narcotic case should also bear in mind issues bordering on the
accused’s human rights, especially human rights provisions on fair trial. The 1997 Constitution
and many international treaties the Gambia is party to guarantee human rights provisions on fair
trial no matter the charge an accused is facing. These include the presumption of innocence till
proven guilty, making sure that the accused is given the opportunity to adequately defend himself,
making sure that he is represented by a legal practitioner of his choice and the provision of an
interpreter.
CONCLUSION
I tried restricting myself to the Magistrates’ Courts because if the proposed court is set up, it will
deal with all narcotics offences and would have Magistrates as Presiding Officers. A very
important role is therefore envisaged for the Magistrates. It is therefore important for us as
Magistrates not only to be conversant with the CPC and the DCA but also with all applicable laws
in presiding over narcotic cases. When a Magistrate is conversant with theses laws, confines
himself to them and the ethics of his profession and further acts objectively and transparently, his
competence would then go beyond reproach. This would not only ensure that justice is done at all
times, it would also earn respect not only for the Magistrate, but also for the Judiciary and all those
involved in the administration of justice. As I stated above, Magistrates are judges in the temple
of justice and should always be guided by the principle that justice is better served if ten men are
set free than to convict one innocent man. Thus we should deal with every case with diligence and
promptness considering the severity of the offences prescribed under the Act.
I thank you all for you attention.
GAYE SOWE (LL.B (Hons) (Ife), BL (Hons), LL.M (Essex)) Ag. Judicial Secretary

PRELMINARIES TO TRIAL
The Black Law Dictionary defines a trial as:
A judicial examination and determination of issues between the parties. A judicial examination in
accordance with the law of the land, or of a cause either civil or criminal, of the issues between the
parties, whether of law or fact, before a court that has proper jurisdiction.
A trial is therefore a judicial examination and determination of issues between the parties in
accordance with the law of the land. The issues between the parties may be civil or criminal. Where
the issues between the parties are criminal, then a criminal trial is being undertaken by the court.
We will now consider preliminary matters that are relevant to a criminal trial.
PLACE OF INQUIRY OR TRIAL

A court of The Gambia has the general authority to cause to be brought before it a person who is
within the local limits of its jurisdiction and is charged with an offence committed within The
Gambia, or which according to law may be dealt with as it if had been committed within The
Gambia, and to deal with the accused person according to its jurisdiction.
Where a person accused or having committed an offence within The Gambia has escaped or
removed from the Region or district within which the offence was committed and is found within
another Region or district, the court within whose jurisdiction he or she is found shall cause him
or her to be brought before it and shall, unless authorized to proceed in the case, send him or her
in custody to the court within whose jurisdiction the offence is alleged to have been committed.
The court within whose jurisdiction the accused was found could also require him or her to give
security for his or her surrender to the court within whose jurisdiction the offence is alleged to
have been committed to answer the charge and to be dealt with according to law.
Subordinate courts may be held at any place within the local limits of their jurisdiction. For a
Children’s Court, it shall, wherever possible, sit in a different building from the one normally used
by other courts. It should be noted that “A finding, sentence or order of any criminal court shall
not be set aside merely on the ground that that the inquiry, trial or other proceedings, in the course
of which it was arrived at or passed, took place in a wrong Region, district or other local area,
unless it appears that the error has in fact occasioned a failure of justice.”
The High Court may exercise its criminal jurisdiction at any place where it has power to hold
sittings. It may sit at such places in The Gambia as the Chief Justice may determine, and he or
she may establish permanent divisions of the court to sit at various places throughout The Gambia
and appoint judges of the Court to any such division. It shall also, except during vacation, be open
throughout the year for the hearing, trial and determination of any criminal and civil cases and for
the disposal of all legal business pending therein.
The High Court can, however, change venue if it appears that :
a. A fair and impartial inquiry or trial cannot be had in any criminal court subordinate thereto;
b. Some question of law of unusual difficulty is likely to arise;

c. A view of the place in or near which any offence has been committed may be required for
the satisfactory inquiry into or trial of the same;
d. An order under this section will tend to the general convenience of the parties or witnesses
or the more speedy or satisfactory administration of justice; or
e. Such an order is otherwise expedient for the ends of justice or is required by any provision
of this Code. In exercising its powers on s. 63 (1) (e), the High Court may order that :-
i. An offence inquired into or tried by a court not otherwise empowered or competent to
inquire into or try the offence,
ii. A particular criminal case or class of cases be transferred from a subordinate court to any
other criminal court of equal or superior jurisdiction,
iii. An accused person be tried by the High Court itself,
iv. An accused person committed to the High Court for trial be tried summarily in accordance
with Part V of the CPC by any court competent to try the offence with which the accused is
charged, including the court which committed the accused person.
In exercising its powers under s. 63, the High Court may act on the report of the subordinate court
or on the application of a party interested or on its own initiative. An application to the High Court
for it to exercise its powers under s.63 shall be made by motion and supported by an affidavit,
unless the Attorney General is the applicant. Where the application is made by an accused person,
he or she shall give to the Attorney General notice in writing of the application, together with a
copy of the grounds on which it is made. An order on the merits of the application shall not be
made unless at least 24 hours have elapsed between the giving of the notice and the hearing of the
application.
Where the application to change venue is made by an accused person, the High Court may direct
him or her to execute a recognizance, with or without sureties, on condition that he or she will, if
convicted, pay the costs of the prosecutor. An application made by the Attorney General under s.
63 shall be granted as of course. Where the High Court decides to try an accused person by itself
for an offence triable by a subordinate court, it shall follow the procedure provided for in Part V
of the CPC.
The President of the Court of Appeal may, in consultation with the Chief Justice, establish such
divisions of the Court of Appeal as he or she thinks fit to sit at such places in The Gambia as he or
she may determine. The Supreme Court may sit at any place in The Gambia appointed by the
Chief Justice.
TRANSFER OF CASES
If on the hearing of any proceedings under the Criminal Code it appears that the cause or matter is
outside the limits of the jurisdiction of the court, the court shall, on being satisfied that it has no
jurisdiction, direct the case to be transferred to the court having jurisdiction.
If the accused person is in custody and the court directing the transfer thinks it expedient for him
to remain in custody, or if he is not in custody but the court directing the transfer thinks he should
be, the court shall direct that the offender be taken by a police officer before the appropriate court
having jurisdiction. The court making such an order shall give a warrant to the said police officer
for onward delivery to the other court along with the complaint or charge sheet and any executed
recognisances, if any. The complaint or charge sheet and recognisances shall be treated as if they
were taken before the court the case is transferred to.

If the accused person is not continued or placed in custody as stated above, the court shall inform
him, or her that it has directed the transfer of the case and thereafter, it shall transmit the documents
stated above to the court the matter is transferred to.
Where a charge has been brought against any person for an offence not triable by a subordinate
court, the Magistrate may subject to s. 99 of the CPC remand that person into custody until such
time the matter is mentioned in the High Court.
OTHER PRELIMINARY ISSUES TO CONSIDER BEFORE A TRIAL

TRIAL AT PLACE WHERE ACT DONE OF WHERE THE CONSEQUENCE OF OFFENCE
ENSUES
Where a person is accused of the commission of an offence by reason of anything which has been
done or of a consequence which has ensued, the offence may be inquired into or tried by a court
within the local limits of whose jurisdiction the thing has been done or the consequence has ensued.
TRIAL WHERE OFFENCE IS CONNECTED WITH ANOTHER OFFENCE
When an act is an offence by reason of its relation to any other act which is also offence or which
would be an offence or which would be an offence if the doer were capable of committing an
offence, a charge of the first-mentioned offence may be inquired into or tried by a court within the
local limits of whose jurisdiction either act was done.
TRIAL WHERE PLACE OF OFFENCE IS UNCERTAIN
When it is uncertain in which of several local areas an offence was committed or when an offence
is committed partly in one local area and partly in another, it may be inquired into or tried by a
court having jurisdiction over any of the local areas. Again when an offence is a continuing one,
and continues to be committed in more local areas than one, or when an offence consists of several
acts done in different local areas, it may be inquired into or tried by a court having jurisdiction
over any of the local areas.
OFFENCE COMMITTED ON A JOURNEY
Where an offender commits an offence in the course of a journey or voyage, the offence may be
inquired into or tried by a court through or into the local limits of whose jurisdiction the offender
passed in the course of that journey or voyage.
HIGH COURT TO DECIDE IN CASES OF DOUBT

When there is a doubt as to the appropriate court a matter is to be inquired to or tried, the court
having such doubt may, in its discretion, report to circumstances to the High Court and the latter
shall decide the court the matter should be referred to. The decision of the High Court on such
matters is final, unless where the accused shows that no court in The Gambia has jurisdiction in
the case.
PLACE OF SITTINGS OF THE HIGH COURT
PUBLICITY OF TRIAL
The general rule by virtue of s. 61 CPC is that criminal trials are to be held in open court to which
the general public may have access, so far as the same can conveniently contain them. This is
reinforced by s. 24 (2) of the 1997 Constitution which provides that “all proceedings of every court

and proceedings relating to the determination of the existence or extent of civil rights or obligations
before any other authority, including the announcement of the decision of the court or other
authority, shall be held in public”
Note that this rule is not absolute because the proviso to s. 61 provides thus:
“Provided that the presiding Judge or Magistrate may, if he or she thinks fit, order at any stage of
the inquiry or trial of any particular case that the public generally or any particular person shall not
have access to or be or remain in the room or building used by the court.”
The proviso to s. 24 (2) also provides:
“Provided that the court or other authority may, to such extent as it may consider necessary or
expedient in circumstances where publicity would prejudice the interests of justice or interlocutory
civil proceedings, or to such extent as it may be empowered or required by law to do so in the
interest of defence, public safety, public order, public morality, the welfare of persons under the
age of eighteen years or the protection of the private lives of persons concerned in the proceedings,
exclude from its proceedings persons other than the parties thereto and their legal representatives.”
Note further that in cases before the Children’s Court, “the child's right to privacy shall be
respected throughout the proceedings, and accordingly, proceedings shall be held in camera or
where necessary by video links.” Apart from members and officers of the Court and subject to s.
72 (1) (f) of the Children’s Act, only the following persons may, at the discretion of the Court,
attend a sitting of a Children’s Court:
a. the parties to the case before the Court, witnesses and other persons directly concerned in
the case;
b. the parent or guardian of the child before the Court;
c. a Social Welfare Officer;
d. a Probation Officer; and any other person whom the Court authorizes to be present.
The publication of any information that may lead to the identification of a child in any matter
before the Children’s Court is prohibited, except by permission of the Court.
PRESENCE OF PARTIES
The accused person is required to appear in court throughout his trial unless his personal attendance
is dispensed with under s. 78 of the CPC. Where the accused does not appear personally and pleads
guilty in writing pursuant to s.78 of the CPC, the court may proceed to convict him even in the
absence of the prosecutor or the accused’s counsel. The court cannot however proceed with a case
in the absence of the accused person if he or she is charged with a felony, unless he or she consents.
Thus, unless the accused person consents the trial shall not take place in his or her absence, unless
he or she so conducts himself or herself as to render the continuance of the proceedings in his or
her presence impractical and the court has ordered him or her to be removed and the trial to proceed
in his or her absence.
For case before a subordinate court , where the prosecutor does not appear at the hearing of the
charge, after having notice of the time and place named for the hearing, the court shall discharge
the accused person, unless for some reason it thinks it proper to adjourn the hearing of the case
until some other date, upon such terms as it thinks fit. Where both parties appear or the personal
attendance of the accused is dispensed with, the court shall proceed to hear the case.

The CPC seems to be silent on the non-appearance of a defence counsel. Non-appearance of
defence counsel can cause delay. What happens if a defence counsel deliberately fails to attend
issue. The Nigerian case of Shemfe v C.O.P , even though merely persuasive, is helpful in this
MANDATORY LEGAL REPRESENTATION

A person accused of an offence has a right to the right to be defended by a counsel of his or her
choice. Note, however, that it is mandatory for legal aid to be provided at the expense of
Government to children involved in any criminal matter and accused persons charged with
offences that carry the death penalty or life imprisonment. Persons who earn not more than such
minimum wage as the Government may specify and desire legal representation in any civil or
criminal matter may be entitled to legal aid at a date to be fixed by the Attorney General.
COMMENCEMENT OF TRIAL
THE ACCUSED PERSON’S PLEA
If the accused person is personally present, the substance of the charge shall be read stated and
explained to him and if he not present, to his counsel. The accused could take any of the following
actions:
a. STAND MUTE/FAILURE TO PLEAD

For cases before a subordinate court, s. 164 (4) of the CPC provides:
“If the accused person or his counsel, as the case may be, refuses to plead, or if he or she does not
appear and the court decides to hear the case in his or her absence under the provisions of
subsection (1) of section 163 of this Code, a plea of “not guilty” shall be entered and the plea so
entered shall have the same force and effect as if the same had been actually pleaded.”
For cases before the High Court, s. 223 of the CPC provides:
If an accused person being arranged on any information stands mute of malice, or neither will, nor
by reason of infirmity can, answer directly to the information, the Court, if it thinks fit, shall order
the Registrar of the High Court or other officer of the Court to enter a plea of “not guilty” on behalf

of the accused person, and the plea so entered shall have the same force and effect as if the accused
person had actually pleaded the same, or else the Court shall thereupon proceed to try whether the
accused person is of sound or unsound mind, and if he or she is found of sound mind, shall proceed
with the trial, and if he or she is found of unsound mind, and consequently incapable of making
his or her defence, shall proceed in the manner provided by section 132 of this Code.”
In the Nigerian case of Gaji v. The State , the accused was charged with culpable homicide
punishable with death for assaulting and killing the deceased. During his trial, the accused refused
to plead to the charge and a plea of not guilty was recorded by the court. The accused rested his
case on that of the prosecution. He was convicted of a lesser offence and on appeal the Nigerian
Supreme Court observed that the trial judge was right in entering a plea of not guilty when the
accused stood mute and failed to plead.
PLEA OF GUILTY
S. 164 (2) provides:
“If the plea is one of guilty, the plea shall be recorded nearly as possible in the words used, or if
there is an admission of guilt by letter under the provisions of subsection (1) of section 78 of this
Code, the letter shall be placed on the record and the court shall convict the accused person or pass
sentence or make an order against him or her, unless there appears to it sufficient cause to the
contrary.”
S. 224 provides:
“(1) If the accused person pleads “guilty” the plea shall be recorded and he or she may be convicted
thereon.
(2) Where an accused person is arraigned on an information for an offence and can lawfully be
convicted on that information for some other offence not charged in the information, he or she may
plead “not guilty” of the offence charged in the information but “guilty” of the other offence and
upon the plea of guilty the Court may, with the consent of the Attorney General, acquit the accused
person of the offence with which he or she is charged and convict him or her of the other offence
to which he or she pleads guilty.”
Where an accused person pleads guilty pursuant to ss. 164 (2) and 224 of the CPC, the following
conditions must be fulfilled before the accused is convicted. Firstly, the court dealing with the case
must be clear that the accused understands the charge against him. In Kebba Bojang v The State,
the records of the Magistrate disclosed thus:
“Court: Charge read and explained to the accused in Mandinka.
Plea: Guilty.”
The Gambia Court of Appeal called the plea as recorded by the Magistrate the shorthand way of
stating what the accused stated in Mandinka. The Court of Appeal further held that the accused
plea as recorded by the Magistrate clearly violated s.164 (2) of the CPC because the word ‘guilty’
could not have been the exact words by the accused.
other reasons.

The court’s record must therefore show that the substance of the offence charged is read and
translation is not complete or full. As stated by Chomba JA in Kebba Bojang v State :
court.’
Secondly, the court must hear the prosecution state the facts of the case. The accused would then
be asked to react to the facts as stated by the prosecution. He should be asked whether he agrees
or does not agree with the facts. In Osuji v. Inspector General of Police, the accused pleaded
guilty to a charge of unlawful assault. The charge was not explained to the accused. The
prosecution stated the facts against the accused, and the trial magistrate, without asking the accused
whether he admitted the acts as stated by the prosecution convicted him. On appeal, the conviction
was quashed. In Ahmed v. Commissioner of Police, the conviction of the accused for a road traffic
offence upon a plea of guilty was quashed on appeal because the charge was not explained to the
accused.
Thirdly, the court must be satisfied that the accused intended to admit the commission of the
offence charged. The accused’s plea must therefore be an unequivocal plea of guilty.
Where the accused enters an equivocal or ambiguous plea, the court must reject such a plea and a
conviction must not be entered against the accused on the basis of the plea. In the Nigerian case of
Aremu v. Commissioner of Police the accused was charged with the offence of escaping from
lawful custody. He pleaded “guilty with certain reasons”. The trial magistrate, without inquiring
from the accused if he admitted the facts stated by the prosecution, convicted him on his plea. On
appeal against conviction, the appellate court held that the plea of the accused did not amount to a
plea of guilty, on the basis of which the trial court could record a conviction. The appellate court
further stated that the trial court should have taken into consideration the statement made by the
accused in mitigation, that he was never in lawful custody, as a refutation of the facts stated by the
prosecution. Thus a plea of not guilty should have been entered for the accused. His appeal was
therefore allowed.
Where an accused makes an unequivocal or unambiguous plea of guilty and denies at any stage of
the proceedings before being sentenced that he was criminally liable, the court shouldn’t convict
based on his plea. This is because his denial of criminal liability indicates that he did not intend by
his plea to admit the charge against him. In the Nigerian case of Onuoha v. Inspector General of
Police , the accused was charged and convicted of stealing. He appealed against his conviction on
the ground that he did not intend to admit the charge and that he did not plead guilty. Evidence

before the appellate court showed that the accused the accused had pleaded not guilty and a plea
of guilty had been mistakenly recorded by the trial magistrate. When the trial magistrate asked the
accused if he took the money alleged to have been stolen, he responded in the affirmative and was
convicted by the magistrate for the offence. The appellate court held that the accused’s statement
that he took the money did not amount to an admission of theft. He could, as was the revealed in
that case, have taken the money in order to keep it safe for the complainant. Thus the trial court
ought to have questioned the accused further to elicit whether he intended to keep the money for
himself, in other words to steal it. It is only when the answers received by the court showed that
the accused intended to keep the money for himself that the court should have convicted for
stealing. The appeal was therefore allowed.
Fourthly, the facts stated by the prosecution and admitted by the accused must sustain the charge
against the accused. Therefore all the ingredients of the offence alleged must be contained in the
facts stated by the prosecution, before the court will convict on the accused’s guilty plea. In the
Nigerian case of Idan v. Police , the facts stated by the prosecution on a charge of receiving stolen
property did not include the fact that the accused knew or ought to have known that the property
was stolen. On appeal against conviction for receiving stolen property, the court held inter alia that
the facts stated by the prosecution could not sustain a charge or receiving stolen property. The
appeal was therefore allowed.
In Abele v Tiv Native Authority (another Nigerian case) , the accused persons pleaded guilty to a
charge of brigandage and rioting, armed with deadly weapons. The prosecution stated that the
accused persons were armed with sticks. No sticks were tendered in evidence. The accused persons
were convicted on their pleas of guilty. On appeal against conviction, on the charge of rioting
armed with deadly weapons, the court held that the facts merely disclosed the offence of rioting,
not the offence rioting armed with deadly weapons. Since no sticks were tendered in evidence, it
was impossible to state whether the sticks would qualify as deadly weapons. The court held that
the facts adduced by the prosecution could only sustain a conviction for rioting. The court therefore
substituted a conviction for rioting for that of rioting armed with deadly weapons.
Where expert evidence is required to prove an offence, as in drug offences, the court must not
convict an accused on his plea in the absence of such evidence. In the Nigerian case of Stephenson
v Police , the accused pleaded guilty inter alia to a charge of being in possession of Indian hemp
and was convicted. On appeal against conviction, it was held that the conviction could not stand
because the plants alleged to be Indian hemp were not tendered in evidence. Furthermore, there
was no expert evidence, in the form of a “Government chemist’s report”, certifying the plants as
Indian hemp. The appeal was allowed and a retrial ordered.
The prosecution must also prove that the thing to be used as evidence was kept in safe custody
before it was sent for scientific analysis, before the court can convict an accused on a guilty plea.
If there is any evidence that the evidence was tampered with or it was substituted with something
else, the court must not convict an accused on his guilty plea even where there is expert evidence.
In Isola v The State , the accused was convicted on his plea of guilty of being in possession of
Indian hemp. The plant that was recovered from the accused was taken to the police station, and
sent to the forensic laboratory for scientific analysis, after having been kept at the police station
for 24 hours. On appeal against conviction, it was held that there was a real possibility of the plant
having being tampered with during the period it was kept at the police station. Thus the absence
of absolute authority certainty that it was the plant recovered from the accused that was sent for
scientific analysis led the court to appeal the appeal.

Where there is a doubt as to whether the thing found in the accused’s possession was that tendered
in court, the doubt should be resolved in favour of the accused. Even if the accused pleads guilty
to the charge and admits the facts as stated by the prosecution, the court shouldn’t convict. In the
Nigerian case of Essien v R (a WACA decision), the accused was convicted on his plea of guilty
of possession of forged currency. Evidence showed that the currency notes tendered at the trial
were in fact genuine. There was, however, doubt as to whether the genuine currency was that found
in possession of the accused. The appellate court held that the doubt ought to be resolved in favour
of the accused. The court therefore assumed the currency found with the accused was genuine and
the appeal was allowed.
PLEA OF NOT GUILTY AND EFFECT THEREOF
For criminal matters being heard before a subordinate court, s. 164 (3) provides:
“If the plea is one of “not guilty” the court shall proceed to hear the case…”
The procedure a subordinate court should follow after a plea of not guilty is as spelt out in s 165
of the CPC thus:
“(1) If the accused person does not plead guilty to the charge, the court shall proceed to hear such
evidence as the prosecutor may adduce in support of the charge.
(2) The accused person or his counsel may put questions to each witness produced against him or
her.
(3) If the accused person does not employ a counsel, the court shall, at the close of the examination
of each witness for the prosecution, ask the accused whether he or she wishes to put any questions
to that witness and shall record his or her answer.”
For criminal matters before the High Court, s. 221 of the CPC provides:
“An accused person, upon being arraigned on any information, by pleading generally thereto the
plea of “not guilty” shall, without further form, be deemed to have put himself or herself upon the
country for trial.”
Where an accused arraigned before the High Court pleads not guilty to a charge, his plea is entered
as such and the Court then proceeds to try the case.
PLEA OF AUTREFOIS ACQUIT AUTREFOIS CONVICT
This is a distinct plea provided for in s. 164 (5) (a) of the CPC for criminal matters before a
subordinate court and s. 222 of the CPC for matters before the High Court. S. 164 (5) provides
thus:
“If the accused pleads that he or she has …been previously convicted or acquitted, as the case may
be, of the same offence… the court shall try whether the plea is true in fact or not. If the court
holds that the facts alleged by the accused do not prove the plea, or it if finds that it is false in fact,
the accused shall be required to plead to the charge.”
“…An accused person against whom an information is filed may plead that he or she has … been
previously convicted or acquitted, as the case may be, of the same offence….If denied…to be true
in fact, the Court shall try whether the plea is true in fact or not… If the Court holds that the facts

alleged by the accused person do not prove the plea, or it finds that it is false in fact, the accused
shall be required to plead to the information.”
Thus where a plea of autrefois acquit or autrefois convict is invoked by a accused person on trial
before a subordinate court or the High Court , the court shall try the issue and if the accused does
not prove the plea he shall be required to plead to the charge.
The said provisions of the CPC are reinforced by s. 24 (6) of the 1997 Constitution which provides:
No person who shows that he or she has been tried by any competent court for a criminal offence
and either convicted or acquitted shall again be tried for that offence or for any other offence of
which he or she could have been convicted at the trial for that offence save upon the order of a
superior court made in the course of appeal or revision proceedings relating to the conviction or
acquittal:
Provided that nothing in any law shall be held to be inconsistent with or in contravention of this
subsection by reason only that it authorizes any court to try a member of a defence force for a
criminal offence notwithstanding any trial or conviction of the member under service law; but any
court so trying such a member and convicting him or her shall, in sentencing him or her to any
punishment, take into account any punishment awarded him or her under service law.
It should be noted that for the plea autrefois acquit autrefois convict to succeed, the accused must
have been tried previously on a criminal charge. A trial for a breach of an internal regulation of an
association or body does not constitute a trial on a criminal charge. Thus in the Nigerian case of R
v Jinadu (a WACA decision), the accused was tried by a police Orderly Room for a breach of
police regulations. It was alleged that he used unnecessary violence on persons in his custody. He
was convicted and ordered to be downgraded in rank by the Police Orderly Room. Subsequently,
he was charged before a court and convicted of offences of compelling action by assault, and
assault. He raised the defence of autrefois acquit autrefois convict. The trial court rejected his plea
and he was subsequently convicted. On appeal, it was held that the plea was rightly rejected by the
trial court because the charge before the Police Orderly room was not a criminal charge, but a
breach of regulation.
It must also be noted where an accused pleads the defence, the former trial must be before a court
of competent jurisdiction. Thus if the court that presided over the case lacked jurisdiction, the
verdict of the court cannot be pleaded in a subsequent charge for the same offence or for an offence
for which the accused could have been convicted at the first trial. In R v Hodge , the accused was
convicted of various offences by a Magistrates’ Court. The conviction was quashed on the ground
that the magistrate had no jurisdiction to try the offences. A fresh charge was preferred against
the accused. In answer to the charge, he pleaded autrefois acquit. The court rejected the plea and
stated that where a conviction is quashed on the ground that that the court below had no jurisdiction
to deal with the case, a plea of autrefois convict will not be available to the accused.
Note further that for a plea under this head to succeed, the previous trial must have ended with an
acquittal or a conviction. Therefore, where the accused was merely discharged (as in where, for
example, the prosecution withdraws a case under s. 68 (1) of the CPC), the trial has not ended in
an acquittal or a conviction and consequently the plea of autrefois acquit or autrefois convict will
not stand.

Note also that where an accused is acquitted and discharged on the merit, the plea of autrefois
acquit can be invoked to a subsequent action based on the same facts. Thus where an accused
person is merely discharged following the quashing of the criminal proceedings for being invalid,
the plea of autrefois acquit will not stand. In the case of Donaldson v Commissioner of Police , the
Gambia Court of Appeal dismissed the appellant’s appeal against conviction for forgery because
the plea of autrefois acquit he raised was not sustainable in that in his previous trial on the same
charge of forgery, he was not acquitted of the offence but merely discharged, following the
quashing of the committal proceedings for being invalid.
Again, a discharge based on a no-case submission by counsel or the accused or suo motu invoked
by the court is a discharge on the merit. In the Nigerian case of Inspector General of Police v Marke
, the accused was tried in a Magistrates’ Court for stealing. After the close of the prosecution’s
case, the magistrate ruled that a prima facie case has not been made out against the accused
sufficiently to require him to make a defence. The accused was subsequently discharged but
subsequently charged again before another magistrate with the same offence. He pleased autrefois
convict which was upheld. The court held that his discharge amounted to an acquittal. An appeal
by the prosecutor was dismissed.
Note finally for such a plea to succeed, the criminal charge for which the accused was tried should
be the same as the new charge against him or alternatively the new charge should be one in respect
of which the accused could have been convicted at the former trial, although not charged with it.
If the accused is charged with the same offence at the latter trial as the former trial, this would be
easy for him to prove. However, where the subsequent charge is not identical to the earlier charge,
the accused has to prove that if he had been charged at the former trial with the subsequent offence,
he may have been convicted. The accused has to establish that some or all the ingredients of the
offence charged at the first trial could sustain a conviction for the subsequent charge, if he had
been so charged at the former trial. For example, if the accused is charged with the offence of
assault causing actual bodily harm and was convicted, he cannot subsequently be charged on the
same facts with the offence of assault. This is because the ingredients of the offence of assault
causing bodily harm include that of assault, and the accused could have been convicted of assault
at the former trial.
In R v. Noku (a WACA decision), the accused was acquitted of murder because the prosecution
failed to prove that it was the wound inflicted by the accused that caused the death of the deceased.
The accused was subsequently charged with the offence of committing an act intended to cause
grievous harm. He pleaded autrefois acquit to the charge on the ground that he had been previously
acquitted of a charge of murder. The court rejected the plea holding that the accused could not
have been convicted at the former trial of the subsequent offence charged if he had been so charged.
In R v. Edu , the court rejected the plea of autrefois acquit where the accused was acquitted of
stealing a postal packet, but was subsequently charged with negligently losing the same packet.

In Connelly v. DPP , it was held that the acquittal of the accused on a murder charge did not debar
a subsequent trial for aggravated robbery. The House of Lords held that the appellant could not
have been convicted of robbery at his trial for murder. Thus his plea of autrefois acquit to the
charge of aggravated robbery was rejected.
PLEA OF PARDON
S. 164 (5) of the CPC provides:

“If the accused pleads that he or she has … obtained the President’s pardon for his or her offence,
the court shall try whether the plea is true in fact or not. If the court holds that the facts alleged by
the accused do not prove the plea, or it if finds that it is false in fact, the accused shall be required
to plead to the charge.”
“…An accused person against whom information is filed may plead that he or she has … obtained
the President’s pardon for his or her offence….If denied…to be true in fact, the Court shall try
whether the plea is true in fact or not… If the Court holds that the facts alleged by the accused
person do not prove the plea, or it finds that it is false in fact, the accused shall be required to plead
to the information.”
These provisions of the CPC are reinforced by s. 24 (7) of the 1997 Constitution which provides:
“No person shall be tried for a criminal offence if he or she shows he or she has been pardoned for
that offence.”
Thus, if the accused proves to the satisfaction of the court (the burden of proving the defence is on
the accused) that a pardon has been granted and he or she produces the relevant instruments of
pardon, the plea must be sustained. This means the charge would have to be dismissed and the
accused acquitted. Where the plea is rejected, the accused will be asked to plead to the charge
against him.
PLEA TO THE JURISDICTION OF THE COURT
The accused person may also challenge the jurisdiction of the court that is to try him. If the court
rules it has no jurisdiction, it should dismiss the charge and discharge the accused. Note the
provisions of s. 62 of the CPC on transfer of cases where a court does not have jurisdiction. Note
also that if an accused is discharged because the court rules it does not have jurisdiction, he or she
can be subsequently be rearrested and arraigned before a court vested with jurisdiction.
PLEA TO DEFECT IN CHARGE
An accused person can object to the charge preferred him or her. He or she may state that the
charge contravenes any or a combination of the rules of drafting of charges. If the plea of the
accused is sustained, the accused may be discharged at that stage. Alternatively, the court may
amend or permit the amendment of the original charge and proceed with the trial, provided that
proceeding with the trial immediately after the amendment would not prejudice the accused person.

It must, however, be noted that s. 161A of the CPC provides that an objection to a charge or any
formal defect on the face thereof shall be taken immediately after the charge has been read over to
the accused and not later. This section only applies to trials before a subordinate court. S. 217 of
CPC has a similar provision for criminal trials before the High Court.
THE COURSE OF THE TRIAL
After the accused pleads not guilty to the charge or charges preferred against him, issues are joined
between the accused and the prosecution. The prosecution must adduce sufficient evidence to
prove the guilt of the accused beyond reasonable doubt.
INTERPRETER
The language of a Magistrates’ Court or the High Court when presiding over a criminal case shall
be English. Where the accused does not understand English he or she must be provided with an
interpreter at the expense of the state. S. 24 (3) (b) the 1997 Constitution provides that every person
who is charged with a criminal offence shall be informed at the time he or she is charged, in a
language which he or she understands and in detail, of the nature of the offence charged. S. 24 (3)
(f) further provides that every person charged with a criminal offence “shall be permitted to have
without payment the assistance of an interpreter if he or she cannot understand the language used
at the trial of the charge…”
The interpreter must correctly interpret to the accused person anything said in a language that he
does not understand. Simultaneously, there should be adequate interpretation to the court of
anything said by the accused. It is punishable for a court interpreter to willfully make false
statements during in any judicial proceedings. Since the charge is written in English, it has to be
read in English and if the accused does not understand English, it must be interpreted to the accused
in a language he understands. If the court interpreter or any officer of the court does not understand
the accused’s language, then the proceedings should be adjourned until an interpreter is provided
to interpret the charge and the proceedings to the accused. Note that even though the court
interpreter or court clerk may assist in ascertaining whether the accused understands the language
of the court, it is the primary responsibility of the accused or his counsel to bring to the notice of
the court that the accused does not understand the language of the court. If the trial court is not
informed by the accused or counsel or his counsel, the accused is estopped from complaining about
having been denied the right to an interpreter.
In Ajayi v. Zaria Native Authority , the appellant’s counsel argued that the appellants were denied
a fair trial because the proceedings of the court, which were conducted in Hausa, were not properly
interpreted to the appellants. The appellants spoke and understood English and Yoruba, and not
Hausa, the language of the court. At various stages of the proceedings, 5 interpreters were engaged.
There was evidence that the interpreters were incompetent, and in at least instances, misinterpreted
the proceedings. The Federal Supreme Court of Nigeria allowed the appeal on the ground that the

appellants did not have a fair trial because the proceedings of the court were inadequately and
incorrectly interpreted to them.
In The State v. Boka , the respondent was acquitted of culpable homicide not punishable with
death. The State appealed against the acquittal. In allowing the appeal, the Nigerian Court of
Appeal held inter alia that failure of the trial judge to record the language in which the charge was
read and to certify that the proceedings were interpreted to the respondent were a violation of the
1979 Constitution of Nigeria.
Compare the above cases with the case of The State v. Gwonto (supra). In this case, the accused
persons were charged and convicted before the Jos High Court. On appeal to the Nigerian Court
of Appeal, they appeal was allowed because of the failure to interpret proceedings in Hausa for the
benefit of the appellants. When the State further appealed to the Supreme Court, it was held that
the evidence on the record showed that the respondents understood English, the language of the
court. It was further held that at any rate, neither the respondents nor counsel informed the trial
court that they did not understand the language of the court. If was held that the absence of notice
to the court by the accused persons or their counsel of their inability to understand the language of
the court, the accused persons were estopped from relying on the failure of the court to provide
them with an interpreted as a denial of fair trial to them. Nnamani JSC observed at page 148 of the
judgment that:
Perhaps emphasis ought to be placed on the words if he cannot understand the language used at
the trial of the offence. The right to an interpreter only arises in such circumstances. This is why it
is the duty of the accused person, or counsel acting on his behalf, to bring to the notice of the court
the fact that he does not understand the language in which the trial is being conducted. Unless he
does, it will be assumed that he has no cause for complaint and the question of violation of his
right to an interpreter will not arise.
WITNESSES
S. 24 (3) (e) of the 1997 Constitution provides that every person who is charged with a criminal
Offence shall be afforded facilities to examine in person or by his or her legal representative the
witnesses called by the prosecution before the court and to obtain the attendance and carry out the
examination of witnesses to testify on his or her behalf before the court on the same conditions as
those applying to witnesses called by the prosecution. Thus after a plea of not guilty, the case
against the accused open’s with the prosecution calling its witnesses. The attendance of witnesses
in court could be secured through a subpoena issued by the court at the instance of the party
wishing to call that witness.
The penalty for non-attendance of a witness is a fine not exceeding D200. The fine is levied by
attachment and sale of any property belonging to the witness and found within the local limits of
the court’s jurisdiction. Where the fine cannot be recovered by attachment and sale, the witness
may be imprisoned for 15 days, unless the fine is paid before the expiry of the 15 days. The High
Court is also empowered to remit or reduce any fine a subordinate court imposes on a witness.

If, without sufficient cause, a witness does not obey a witness summons, the court may issue a
warrant for him to be arrested and brought before it on proof of proper service of the summons.
Where a court is informed on oath that a person might give material evidence in a case and will
not attend unless he is compelled to do so, the court may at once issue a warrant for the arrest and
production of the witness before it at a time and place to be named in the warrant. Where a witness
is arrested under a warrant, the court may release him after he furnishes security, with or without
sureties. If such security is furnished, the court then orders the witnesses release from custody but
where security is not furnished, the court orders for his detention for production at the hearing.
Where the witness to be examined is a prisoner, a court presiding over a case may issue an order
to the officer in charge of the prison requiring him or her to bring the prisoner before the said court
for examination at a time to be named in the order. The officer in charge of such a prison as
aforesaid shall, on receipt of the court order, act in accordance therewith and shall provide for the
safe custody of the prisoner during his absence from the prison for the purpose of being examined
by the court.
At the commencement of a trial, witnesses are ordered out of court and out of hearing by the court
officials. This is to ensure that evidence of one witness does not influence the evidence of another
witness. The law permits the parties to the case to remain in court, even though they intend to give
evidence for themselves as witnesses.
Where a witness remains in court after being ordered to leave or where a witness remains in court
because the court or the prosecution or the defence forgot to tell the witness to leave before his
evidence is taken in court, the refusal of a witness to comply with the court order to be out of court
and out of hearing does not render the evidence of the witness inadmissible by the court. The
presence of the witness in court would merely go to the weight to be attached to his evidence by
the trial court.
PRESENTATION OF CASE FOR PROSECUTION
If the accused person pleads not guilty to the charge, the court shall then proceed to hear the
evidence adduced by the prosecution.
By virtue of s. 168 (1) of the CPC the prosecutor and the accused are entitled to address the court
at the commencement of their respective cases. In spite of this legal provision, in practice
prosecutors in this country hardly open their cases by making an opening address.
The prosecution then calls witnesses to prove its case. Witnesses in a criminal case “shall be
examined upon oath and the court before which any witness appears shall have full power and
authority to administer the usual oath.” Where a witness objects to being sworn in and states the
grounds for such objection to be either that he or she has no religious belief or that the taking of
an oath is contrary to his religious beliefs, he shall be allowed to testify on affirmation instead of
taking an oath. The affirmation is as good as an oath.

Thus evidence has to be given on oath unless the court believes a witness does not hold any
religious belief or that oath taking is against a witness’s religious belief. In these two instances,
the witness will be allowed to affirm before giving his evidence. A witness must therefore take an
oath before giving evidence unless the witness falls under either of the following situations:
a. Witness of tender years

Where, in any proceedings a child of tender years called as a witness does not, in the opinion of
the court, understand the nature of the oath, his or her evidence may be received, though not given
upon, if, in the opinion of the court, he or she is possessed of sufficient intelligence to justify the
reception of the evidence, and understands the duty of speaking the truth.
Note that a conviction cannot be based on the sole evidence of a child pursuant to s. 124 (3) of the
CPC. Such evidence must be corroborated by some other material evidence in support thereof.
b. Witness is a non-believer or his religions forbids the taking of an oath
Note that the fact that evidence received was not given on oath and the reasons therefore has to be
recorded Note also that where a witness offers to give evidence on oath or affirmation in any form
common amongst, or held binding by, persons of the race or persuasion to which he or she belongs,
and not repugnant to justice or decency, and not purporting to affect a third person, the court may,
if it thinks fit, tender such oath or affirmation to him.
EXAMINATION OF PROSECUTION WITNESSES

After an oath or an affirmation is administered, prosecution witnesses must be examined-in- chief
by the prosecutor, then if the defence so wishes, he shall be cross-examined . The prosecuting
counsel may then be re-examined by the prosecutor if he so wishes. In Police v. Nwabueze , the
case was sent back to the lower court for trial because in acquitting the accused, the trial magistrate
did not allow the prosecuting counsel to re-examine the second prosecution witness.
ORDER OF WITNESSES
The order in which witnesses are produced and examined shall be regulated by the law and practice
for the time being relating to criminal procedure and in the absence of such law, by the discretion
of the court.
There are no statutory provisions regulating the order in which witnesses should be called. Since
the conduct of a criminal case is the duty of a prosecutor, it is his responsibility to decide in what
order witnesses should be called. In practice, the prosecutor adopts a logical order so that his case
would unfold easily before the court. Normally, when the complainant is available, the prosecutor
calls the complainant as the first prosecution but there’s a no law requiring the prosecutor to call
the complainant first. In homicide cases it is advisable for the prosecutor to call eye witnesses to

testify first before calling other witnesses. The prosecutor should therefore call his witnesses in an
order which will ensure that the evidence adduced is sequential.
NUMBER OF WITNESSES
Before the accused is convicted, the court must make sure that the prosecutor calls material
witnesses to prove its case, whether their evidence will favour the prosecution’s case or not. If a
court is satisfied that any person is likely to give material evidence for the prosecution or defence,
it may issue a witness summons for such a person.
Note that what the law requires from the prosecutor is for him to call sufficient witnesses, not all
material witnesses. Where the prosecution fails to call sufficient witnesses to establish the case
against the accused, the accused should be discharged and acquitted. In Momodou Mbenga v. The
State (supra), the appellant was convicted for unlawful possession of drugs. The prosecution’s case
was that the drugs had been discovered when a search squad raided the appellant’s home. The
drugs were said to have been discovered by a particular police officer who was not called as a
witness. At the trial and on appeal the accused denied the charged and maintained the police officer
who allegedly caught him should have been called as a witness. The appeal was allowed and the
Court of Appeal held the case against the accused was not proved beyond reasonable doubt because
the accused was denied the opportunity to cross-examine a key witness.
Thus if there is a vital point in issue and there is one witness whose evidence will settle it one way
of the other, that witnesses out to be called by the prosecution. This however does not mean that a
host of witnesses must be called upon the same point. A court should therefore always bear in
mind that the number of witnesses called by the prosecutor is within his discretion because there
is no stipulated number of witnesses required to be called to prove the accused’s guilt.
There are however instances in which a conviction cannot be based on the evidence of one witness.
At least two witnesses are required in order to secure the accused person’s guilt in the following
instances:
a. Cases of rape and other sexual offences against complainants.
b. Cases of perjury.
c. Cases of exceeding speed limit under the Motor Traffic Act.
d. Cases of sedition
e. Cases treason, concealment of treason and spying.
It is also provided for in the Evidence Act and the CPC that an accused cannot be convicted on the
unsworn evidence of a child, without the independent evidence of another witness.
Note that in a trial on information before the High Court, the prosecutor does not have to call all
the witnesses whose names are listed on the back on the information. All the prosecution needs to
do is to call enough material witnesses in order to establish its case.

Note, however, that if a witness has some important evidence to give which could have tilted the
case on way or the other to the benefit or detriment of the accused, then if the prosecution does not
call that witness it has the duty to make him available to the accused for the purposes of cross-
examination. In the case of Omar Sey v The State (supra) the Gambia Court of Appeal held that
the prosecution had discharged its duty by providing the name and regular address of a witness.
The Court stated:
“Making a witness available does not mean that the prosecution, not needing a witness should
bring or subpoena him to court and hand him over to the accused. All the prosecution can do and
should do is to tell accurately where to find the witness, his name and any special characteristics
of the witness for identifying him if he has any.”
Note further while there is a duty to call relevant witnesses, the court is also required, especially
in criminal cases, to afford the parties a reasonable chance of calling their witnesses. In the case of
Ebrima Sanusi v. C.O.P , the Gambia Court of Appeal allowed the appellants appeal and quashed
his conviction because of the refusal of the trial magistrate to grant the appellant an opportunity of
calling witnesses in his defence amounted to a denial of justice.
Note also that the court may comment on the absence of the evidence given which might have
been given, including the failure of the prisoner to exercise his right to give evidence – if in the
discretion of the court such comment appears to be fair and just.
Note further that in criminal cases, the court can suo motu call or recall witnesses because s. 123
of the CPC provides that:
“A court may at any stage of any inquiry, trial or other proceeding under this Code call any person
as a witness or recall or re-examine any person already examined, and the court shall examine or
recall and re-examine such person if his or her evidence appears to be essential to the just decision
of the case.”
Note finally that by virtue of s. 225 of the Evidence Act, the court may put questions to witnesses
or order the production of a document. The power to call or recall witnesses and the power to put
questions to witnesses or order the production of a document does not, however, mean the court
should take over the conduct of a case. The accused is presumed innocent until proven guilty and
since the prosecution, not the court, is required to prove the accused’s guilt beyond reasonable
doubt, the court should always act as an impartial adjudicator or umpire. It should never descend
to the arena of conflict.
REFACTORY WITNESSES
“When a person, appearing either in obedience to a summons or by virtue of a warrant, or being

present in court and being verbally required by the court to give evidence –
(a) refuses to be sworn or affirmed;

(b) having been sworn or affirmed, refuses to answer a question put to him or her;
(c) refuses or neglects to produce a document or thing which he or she is required to produce;
or
(d) when lawfully required to do so refuses to sign his or her deposition, without in any such
case offering any lawful or reasonably sufficient excuse for the refusal or neglect, the court may
adjourn the case for any period not exceeding eight days , and may in the meantime commit the
person to prison, unless he or she sooner consents to do what is required of him or her.”
If such a person after being brought before the court at or before the adjourned hearing, again
refuses to do what s required of him or her, the court may, if it thinks fit, again adjourn the case
and commit him or her for the like period, and so again from time to time until the person consents
to do what is so required of him or her. Nothing contained in s. 125 of the CPC, however, affects
the liability of the person to any other punishment or proceeding for refusing or neglecting to do
what is so required of him or her, or shall prevent the court from disposing of the case in the
meantime according to any other sufficient evidence taken before it.
ADJOURNMENTS
The granting of an adjournment is discretionary and would depend on the circumstances. A

criminal cause before a court may be adjourned for several reasons. Firstly, the court dealing with
a criminal case may not sit on the day the matter comes up. In that case the matter would
automatically have to be adjourned and a new date taken. Alternatively, the court may sit but
decides to adjourn a matter for compelling reasons.
Secondly, the prosecution may apply for an adjournment because the prosecution witnesses are
not available in court to enable the prosecutor to proceed with his case. In that case an adjournment
is granted to enable to witnesses to appear and testify so that the case will be determine on the
merits. Where there is evidence that the witnesses might not be available, the court may decide not
to adjourn a matter. In that case, if may discharge the accused. It should also be noted that where
a prosecutor who has notice of the hearing fails to appear, the court can either adjourn the case or
discharge the accused, s. 160 CPC.
Thirdly, the defence may apply for an adjournment in order to call defence witnesses. The court
will grant an adjournment for the defence to call its witnesses , especially if the witness sought to
be produced by the defence is a material one. However, where the defence is guilty of negligence
or laches in procuring the witness, and if there is a reasonable expectation that the witness would
not be produced on the next adjourned date, then the court may deny an application for
adjournment. In the Nigerian case of Yanor v. The State , the accused was charged and convicted
on murder. During the trial, several adjournments were granted at the request of the defence. This
was to enable counsel to secure the attendance of a material witness for the defence. At the resumed
resuming, the defence again applied for a further adjournment of the trial but the application was
rejected. The proceedings then continued and the accused was convicted. On appeal it was argued
that the failure of the court to grant the accused an adjournment was a denial of a fair trial to the
accused. The Nigerian Supreme Court that the trial court properly exercised its discretion by

refusing to further adjourn the matter. The defence was granted several previous adjournments but
the witnesses were never produced and there was no likelihood of the witnesses being produced at
all. The appeal was therefore dismissed because the court held that a further adjournment of the
case would have delayed the dispensation of justice.
It should be noted that that where an accused person fails to appear, the court can proceed in his
absence as if he were present, provided he is not charged with a felony, s. 163 CPC.
The CPC, however, seems to be silent on the non-appearance of a defence counsel. Non-
appearance of defence counsel can cause delay. What happens if a defence counsel deliberately
fails to attend court to defend an accused person he is meant to represent? Like I said the CPC is
silent on the issue. The Nigerian case of Shemfe v C.O.P , even though merely persuasive, is
helpful in this regard. In this case, counsel of the accused sent a telegram to the court seeking an
adjournment of this matter. No reason was given by counsel in the telegram as to the necessity for
an adjournment and his failure to appear in court. The prosecutor opposed the application for an
adjournment on the ground that several adjournments have been granted in the past and that the
prosecution witnesses were present in court to testify. The court refused the application and
proceeded with the case. The accused conducted his defence and was convicted. On appeal against
conviction it was contended that the appellant was denied a fair trial, because of the refusal of the
trial court to grant an adjournment to enable counsel to appear for the accused. The court dismissed
the appeal. It held that the appellant had a fair trial and that the failure of the appellant to be
represented by counsel was not the fault of the court but that of the defence counsel.
It must be noted, however that, if counsel is unavoidably absent from court for cogent and
When deciding on an adjournment, the mandatory provisions of s. 162 CPC should always be
borne in mind. This section provides that criminal cases shall not be adjourned beyond 15 days or
if the accused is committed to prison, for not more than 7 days. Note that for criminal matters
before the High Court, no such time limit is provided for. Adjournments of criminal matters before
the High Court are governed by s. 226 of the CPC which provides:
“If, from the absence of witnesses or any other reasonable cause to be recorded in the proceedings,
the Court considers it necessary or advisable to postpone the commencement of or to adjourn any
trial, the Court may from time to time postpone or adjourn the same on such terms as it thinks fit
for such time as it considers reasonable, and may by warrant remand the accused person to some
prison or other place of security.”

LIMITATION OF TIME FOR INSTITUTION OF CRIMINAL
PROCECEEDINGS
When a person commits an offence, a charge may be preferred against that person. The right to
institute criminal proceedings against the offender is a right in perpetuity. That is, criminal
proceedings can be instituted against the offender at any time, irrespective of when the offence
was committed. The criminal cause of action does not become statute barred so as to extinguish
the right of action.
However, there are a few exceptions to the said general rule. Sometimes a statute creating an
offence provides that criminal action in respect of offences created by the statute or by certain
provisions of the statute shall be instituted within a specified time period. Action must therefore
be instituted within the specified time period, otherwise the criminal cause of action would be
statute barred and thus the right of action extinguished. For example:
a. Criminal proceedings in respect of offences under section 52 of the Criminal Code

(sedition) must be instituted within 6 months after the offence is committed. See section 53 of the
CPC. It should be noted, however, that where a person commit an offence under section 52 CC
from outside The Gambia or where a person leaves The Gambia within six months of committing
such an offence, the prosecution for the offence may be begun within six months from the date
when the person first arrives in or returns to The Gambia after committing the offence or leaving
The Gambia, as the case may be.
b. Section 174 of the CPC provides:

“Except where a longer period is specially allowed by law, no offence, the maximum penalty of
which does not exceed a fine of D500 or imprisonment for a term of 6 months or both such fine
and imprisonment, shall be triable by a subordinate court, unless the charge or a complaint relating
to it is laid within 12 months from the time when the matter of such charge or complaint arose.”
c. Section 213 of the Customs Act (Cap 86:01) Volume VIII, Laws of The Gambia provides:
”No proceeding civil or criminal shall be instituted under the customs laws in respect of any act or
omission done or made or offence committed except within the period of seven (7) years from the
day of such act, omission or offence.”
Thus for customs offences, criminal proceedings must be instituted within seven years after the
offence is committed.

The issue of limitation of criminal action is fundamental. Where it is alleged by the accused person
that the criminal action instituted against him is statute barred it has to be resolved before further
steps are taken in the proceedings. The court before whom the accused is arraigned must resolve
the issue of limitation or otherwise of the criminal action by computing the time within which the
alleged offence was committed. In the computation of time, the day on which the alleged offence
was committed is excluded. Time begins to run from the following day until the day when the
criminal proceedings are instituted against the accused person. For example, a statute might
provide that criminal proceedings in respect of an offence should be commenced within one month
of the commission of the offence. D is alleged to have committed the offence on the 2nd January
2005. By the said statutory provision, for the right to institute criminal action to subsist, criminal
proceedings must be brought against D on or before but not later than 2nd February 2005. This is
because in the computation of time the day the offence is alleged to have been committed, i.e., 2nd
January 2005 is excluded and time begins to run from the 3rd January 2005.
In Radcliffe v. Bartholomew (1892) 1 QB 161,a criminal action was instituted against the accused
under an Act which stipulated that criminal proceedings for offences constituted under the Act
must be instituted within one Calendar month. It was alleged that the offence with which the
accused was charged was committed on the 30th of May and criminal proceedings were instituted
on the 30th June. Counsel for the accused raised a preliminary objection that the criminal action
was statute barred because the action was commenced outside the statutory period of one calendar
month. The court rejected counsel’s contention and held that in reckoning the time within which
an action was to be instituted, the day on which the alleged offence was committed was excluded.
Therefore the objection was overruled. On a case stated to the English High Court, it held that
there was no difference in the reckoning of time for the institution of both civil and criminal
proceedings. In both types of proceedings, the day on which the cause of action arose was
excluded. Thus the English High Court affirmed the decision of the lower court.

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ABDOU A.

MANNEH, GAMBIA LAW SCHOOL

THE NATURE AND DEFINITION OF CRIMINAL PROCEDURE

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3. ENGLISH HIGH COURT PROCEDURE AND PRACTICE IN CRIMINAL

Section 3 (3) of the CPC provides:

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4. JUDICIAL INTERPRETATION OF ENACTMENTS

We can therefore deduce the following from Lord Herschell’s judgment:

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1. THE SUPREME COURT

a. the Chief Justice;

CRIMINAL JURISDICTION OF THE SUPREME COURT

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APPEALS WITH THE LEAVE OF THE COURT OF APPEAL

APPEALS WITH LEAVE OF THE SUPREME COURT

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2. THE COURT OF APPEAL

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RIGHT OF APPEAL IN CRIMINAL CASES

DETERMINATION OF APPEALS IN ORDINARY CRIMINAL CASES

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POWERS OF THE COURT OF APPEAL IN SPECIAL CRIMINAL CASES

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TIME FOR APPEALING

SUPPLEMENTARY POWERS OF THE COURT OF APPEAL

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RIGHT OF APPELLANT TO BE PRESENT

An appellant, notwithstanding that he or she is in custody, shall be entitled to be present, if he or

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THE HIGH COURT

ORIGINAL JURISDICTION OF THE HIGH COURT

APPELLATE JURISDICTION OF THE HIGH COURT

SUPERVISORY JURISDICTION OF THE HIGH COURT

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3. THE SPECIAL CRIMINAL COURT

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S. 14 (1) of the Courts Act (Cap: 6.01) provides:

A Magistrates’ Court is duly constituted by one Magistrate lawfully empowered to adjudicate

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Magistrates in The Gambia are of three classes:

CRIMINAL JURISDICTION OF MAGISTRATES

JURIDICTION OVER OFFENCES

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a. Imprisonment for a term not exceeding ten (10) years.

Section 9 of the District Tribunal Act (Cap 6:03) provides:

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1. Members of the Armed forces of the Gambia

POWER TO SUMMON WITNESSES

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PUNISHMENTS, FINES AND COMPENSATION

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Persons sentenced by a District Tribunal to imprisonment may be detained in a place authorised

REPORT OF CASES TO BE SUBMITTED TO THE GOVERNOR

REVISIONARY POWERS OF GOVERNORS

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