Tembisa Chichi Soares, a native of Brazil, who was apprehended at the Banjul International Airport in August by National Drug Law Enforcement Agency (NDEA) officers and subsequently charged on drug related offences was on Thursday, 19th December, sentenced to 6 years imprisonment and a fine of D300, 000 by Magistrate Dayoh S.M Dago of the Banjul Magistrates' Court, while her co- accused, Obiora John Nwobudu, a Nigerian national, was acquitted and discharged.
Delivering the judgment in a crowded court room, the trial magistrate indicated that the two acused persons Madam Soares, first accused, and Mr. Nwododo, second accused, were both arraigned before the court on a four (4) count charge; that on Count (1), the 1st ·accused Soares is charged for being in possession of prohibited Drugs for the purpose of drug trafficking contrary to section 43A (1) of the Drugs Control Act Amended recently again in 2011; according to the particulars of offence, Soares on or about the 20th of August 2013, at the Banjul International Airport in the West Coast Region of the Republic of The Gambia had in her possession 6 kilograms 780grams of cocaine, a prohibited drug, and thereby Committed an offence.
He said on Count 2, both the 1st and 2nd accused persons are charged with Conspiracy to commit an offence contrary to section 53 (1) (a) of the Drug Control Act 2003 as amended; that the particulars of offence stated that both accused persons on or about the 20th of August 2013, at the Banjul International Airport in the West Coast Region of the Republic of The Gambia conspired to traffick 6 kilograms 780grams of cocaine, a prohibited drug and thereby committed an offence. On Count 3, trial magistrate indicated that the 1st accused person, Soares, is charged with dealing in prohibited drugs contrary to section 33 (1) (d) of the Drug Control Act 2003 as amended; that the particulars of offence stated that Soares on or about the 20th of August 2013, at the Banjul International Airport in the West Coast Region of the Republic of the Gambia acquired and possessed 6 kilograms 780grams of cocaine, a prohibited drug and thereby committed an offence.
The magistrate said Count 4 states that the 2nd accused person, Nwododo, on or about the 20th of August 2013, at the Banjul International Airport in the West Coast Region of The Gambia, imported 6 kilograms 780grams of cocaine, a prohibited drug and thereby committed an offence.
The magistrate said in an attempt to establish the guilt of both accused persons, the prosecution called on a total of eleven witnesses and tendered a host of exhibits, whilst the accused persons in their defence testified as a lone witness in their case and tendering no exhibits, but were represented by counsels.
“The 1st and 2nd accused persons are both acquitted and discharged on count 2 and the 2nd accused person is hereby acquitted and discharged on count(4) accordingly,” he said. The magistrate further noted that the first accused person was in actual possession of 6 Kilograms 780grams of prohibited cocaine for the purpose of trafficking and dealing in prohibited drugs contrary to the laws of the Gambia.
“I therefore conclusively hold as a fact that the prosecution has fully discharged the legal burden of proof beyond reasonable doubt. The accused person Tembisa Chichi Soares is found guilty on count one being in possession of prohibited drugs for the purpose of drug trafficking and also found guilty on count 3 dealing in prohibited drugs,” said the magistrate Plea of Mitigation: Defence counsel Akimbo urged the court not to impose a custodial sentence on the convict; adding that the court has such powers not to impose custodial sentence under Section 29 of the Criminal Procedure Code, but a fine instead.
He said the convict is a first time offender without any criminal record and therefore appealed to the court to tamper justice with mercy. Counsel Akimbo further submitted that they shall also rely on the authority of the National Drug Law Enforcement Agency versus Muminatou Ceesay, a decision of the lower court in Banjul and a decision of the Gambia Court of Appeal in Nyabally versus the State 1997 Gambia Law Reports.
“We hereby urge the court to consider the age of the convict who is an elderly woman and a grandmother,” he appealed. He further submitted, “more importantly Your Worship, we urge the court to put into consideration the medical condition of the convict who is a diabetes patient and her medical reports both in Brazil and the Gambia were mentioned in court,” he disclosed. According to counsel, the convict has shown remorse of her act and has always pleaded for mercy. “In the light of the forgoing, I hereby urge the court to grant the convict an option of fine and for the counts to run concurrently,” he pleaded.
Passing his sentence on the convict, the trial magistrate indicated that due to the medical condition of the convict, he is incline to tamper justice with mercy. He then sentenced the convict on count one to 6yeras imprisonment without hard labour whilst on count two he asked the convict to pay a fine of D300,000 which after payment, 75% should go to the NDEA and 25% be given to the State.
He added that the convict should also be deported back to her country after serving her sentence. The trial magistrate finally stated that the convict has the right to appeal within 30 days.
State Counsel Abdourahman Bah disclosed to the court that the State intends to appeal against the decision of the court base on Section 285 E sub section 1 and 2 of the Criminal Procedure Code. “We are urging this court to issue an order for the 2nd accused (Nwobuhdu) to be detained pending the determination of the appeal,” Bah submitted.
According to counsel Bah, there is high likelihood that the accused person might flee the jurisdiction of the court and therefore the court should issue an order for the 1st accused to be in custody pending the determination of the appeal by the State. Hagum Gaye, counsel for Mr. Nwobuhdu, who was discharged and acquitted by the court, submitted that the law cited by the state to appeal against the decision of the lower court is what they are relying on to ask the court to grant bail to the 2nd accused person.
She said the 2nd accused was in detention close to 3 months, adding that the documents of the 2nd accused person have been surrendered to the NDEA. She added that the 2nd accused has a young family and a wife who is heavily pregnant. She finally urged the court to exercise its discretion and admit bail to the aforesaid person pursuant to Section 99 of the Criminal Procedure Code.
Replying to the application of the defence, counsel Bah objected for bail to be granted to the 2nd accused, adding that bail is at the discretion of the court and it is also trite law that it should be exercise judicially and judiciously.
The trial Magistrate upheld the objection on the bail application sought by the defence.
By Mamadou Dem, FOROYAA Newspaper