IN THE HIGH COURT OF THE GAMBIA HOLDEN AT BANJUL

IN THE HIGH COURT OF THE GAMBIA HOLDEN AT BANJUL
ON THE 7 DAY OF APRIL 2011 BEFORE
THE HONOURABLE JUSTICE J. E. IKPALA, HIGH COURT JUDGE
CRIMINAL CASE. NO. HC/017/10/CR/009/AO
BETWEEN
THE STATE
VS
1. TERRICK BRIGHT
2. MRS. LADY CHRIS NOBI
1 st Accused – Present
2 nd Accused – Present
Appearances:
S. H. BarkumDDPP for State
U. Achigbue for Accused
JUDGMENT
The two accused persons were arraigned on the 5 th March 2010
charged differently in the two Counts charge.
The 1 st Accused is charged in Count I for murder Contrary to Section
187 of the Criminal Code.
The 2 nd Accused is charged in Count 2 for Accessory after the fact of
murder Contrary to Section 202 of the Criminal Code.
They both pleaded not guilty to the charge. Proving its case, the
Prosecution called eight witnesses tendering 17 Exhibits numbered ‘A’

– Q. The accused gave evidence in their defence and tendered three
(3) Exhibits. They did not call any witness.
There is no eye witness and Pw1, – Pw5 and Pw8 are Police Officers
involved in the investigation. Pw6 and Pw7 are relative and friend of
the deceased Amie Bah. Exhibit Q, Statement of the 1 st Accused in
two parts is confessional though he tried to retract it in his oral
testimonies in Court, or impugned its voluntariness.
The summary of the case of the Prosecution is that on the 16 th day of
September 2009 the body of the deceased Amie Bah was found on
the street of Latrikunda with Cello tape wrapped all over her mouth
and nose. The police called at the house of the accused persons, the
1 st Accused being a boyfriend of the deceased and the deceased
being there the previous day with the accused persons for a
transaction concerning her younger sister Mariam Bojang. The Police
recovered Cello tape which resembles the type wrapped over the
mouth and nose of the deceased as well as posters which same Cello
tape was used to paste the wall of the 1 st Accused person. The
Medical Report gave the cause of death as –“Deep Asphyxia due to
air way obstruction”. The 1 st Accused made a confessional Statement
in which he implicated the 2 nd Accused person.
For the 1 st Accused case, he last saw the deceased his girlfriend on
the 14 th September 2009 when they were together but did not see

her when she called again in the house on the 15 th – September
2009 but was so informed by the 2 nd Accused. He said though he
and the deceased agreed to meet on the 16-9-2009, he waited
indefinitely without seeing her till he was arrested at midnight by the
Police and the Police did not tell him why he was being arrested. In
one breath, he denied making the confessional statement Exhibit ‘Q’
and in another breath he said it was made under-duress.
For the 2 nd Accused, after the introduction, and prompted by her
Counsel, she said she is adopting her extrajudicial statement to the
Police Exhibit ‘P’.
At the end of their respective cases, they settled for written
argument. The Defence filed a 3 unnumbered pages argument on
the 26 th January, 2011 while the Prosecution filed 16 pages argument
on the 9 th February 2011 where he formulated 6 issues though
labeled arguments.
These are:
• Whether the death of human being has taken place?
• Whether such death was caused (sic) the accused
person?

• Whether the accused knew that death would be the
probable consequence of his act?
• Whether the Court can convict on the resiled confession
of accused person?
• Whether the act was done with intention of causing
death?
• Whether the 2 nd Accused person had access to the fact
of the murder?
See page 7 of Prosecution argument. I shall not reproduce the
arguments canvassed by Counsel but references would be made to
the high points raised therein, in the cause of this Judgment.
Count I
Only the 1 st Accused is charged under this count which Court is
murder Contrary to S. 187 of CC. The particulars of the offence
stated thus:
“Terrick Bright on or about the 16 th day of
September, 2009 at Latrikunda German in the
Kanifing Municipality within the Jurisdiction of this
Honourable Court unlawfully caused the death of

Amie Bah by hitting her on the neck and sealing
her mouth and nose with Cello tape knowing that
death would be Probable consequence of such act
and thereby committed an offence”.
For the Prosecution to establish murder he will need to prove beyond
reasonable doubt not only that the accused caused the death of the
deceased Amie bah but that he did so with the requisite intent.
See AJOSE V STATE (2002) 7NWLR (pt. 766)302 at 319.
AKINYEMI V STATE (1999)6NWLR (pt. 607)449 at 469
Crim CASE No. HC/310/09/CR/09 IGP V OUSMAN MORO
DEMBA
Unreported dated 13-12-2010 Per Ikpala J.
The Prosecution can achieve proof beyond reasonable doubt by any
of the following four ways:
• By direct and positive evidence from eye witness or witnesses
who watch the accused hacked or killed the deceased Amie
Bah.
See HOUSA V STATE (1992)1NWLR (pt. ………)612.
• ITEDJERE V STATE (1984)9SC. 59 at 62.

• By confession of the accused person that he killed the deceased
Amie Bah and which confession appears to the Court to be
true.
See ACHABUA V STATE (1976)12SC 63.
• ABASI V STATE (1992)8BWKR (pt. 260)383 at 398.
• By circumstantial evidence which points irresistibly to the
commission of the offence by the accused thereby leaving no
room for conjectures or ground for reasonable doubt.
See AJOSE V STATE (2002)7NWLR (pt. 766) 302 at 320
• ESAI V STATE 11SC.39
• By the combination of (1) and (2) above, a Proof described as
ex-abundanti cautela.
See THE LAW OF EVIDENCE 2 nd EDITION
Hassan B. Jallow at Page 21.
ABASI V STATE Supra at 404.
Meanwhile that requisite intent described as Malice aforethought
under S.187 of CC is statutorily defined under S.190 of CC and is
established under the follow situations:
• Where there exists intention to cause death or do
grievous harm.

• Where there exists knowledge that the act or omission
would cause death or grievous harm.
• Where there exists the use of violent measures in the
commission at or attempt at a felony.
• Where there exists an intention by the act or omission
to facilitate the flight or escape from custody any
person who has committed or attempted to commit a
felony.
It follows that the resume of burden of Proof on the Prosecution are:
• that the accused person caused the death of the
deceased.
• that the killing was unlawful.
• that the accused person had the intention to cause the
death of the deceased or cause her bodily harm.
See AKINYEMI V STATE Supra at 469.

In my humble view the 6 issues formulated by the Prosecution can
be subsumed into four namely:
• Whether the accused caused the death of the deceased
Amie Bah
• Whether the killing was unlawful
• Whether the accused had the intention to cause her
bodily harm
• Whether the retraction by the 1 st
confessional statement Exhibit ‘Q’ is material.
Accused of his
ISSUE 1
Let me repeat that there is no eye witness or witnesses in this case
so such method of Proof is not available to the Prosecution. To the
Prosecution, the evidence are both confessional Exhibit ‘Q’ and
circumstantial that the accused caused the death of the deceased.
To the defence as per page 1 of their argument “……… The evidence
against the accused persons are mainly circumstantial that are not
strong enough to establish the guilt of the Accused person”.

S. 31(1) of the Evidence Act 1994 define confession as a voluntary
admission made at anytime by a person charged with a crime, stating
or suggesting the inference that he committed that crime.
Exhibit ‘Q’ the voluntary statement of the accused dated 25-9-2009 is
in two parts. The second past is titled “ADDITIONAL STATEMENT”.
The first part is comprehensive as to how the deceased was killed
and disposed off sole by the accused person. The 2 nd part deals
essentially on how the 2 nd Accused assisted him to dispose the body
of the deceased. This will be considered in Count 2.
The law is trite that a free and voluntary confessional statement
alone properly taken, tendered and admitted and proved to be true is
sufficient to support a conviction provided it satisfies the 6 tests
enunciated in
R V SYKES (1993) 8 Cr. APP. Report 333.
OBASI V STATE Supra at 398.
The 6 tests to look out for in a confessional statement can be
summarise as follows:
• Is there anything outside the confession to show that it
is true?
• Is it corroborated?

• Are the relevant statements of fact made in it true as
far as can be tested?
• Was the accused one who had the opportunity to
commit the offence?
• Is the confession possible?
• Is it consistent with other facts which have been
ascertained?
See AMOSHIMA V STATE
(2009) 4 N CC 280 at 345
NSOFOR V STATE
(2004) 18 NWLR (pt. 905)292 at 310 – 311
In addition to the positive and direct confession of the accused in
Exhibit ‘Q’ other relevant evidence and circumstance that accord with
the Exhibit ‘Q’ are:
In Exhibit ‘Q’ the accused described the deceased as wearing a white
top upon a Jean trousers and Exhibits ‘L’ photos of the deceased long
evacuated before the accused made Exhibit ‘Q’ shows that the
deceased was on a white top upon a Jean Trousers.

In Exhibit ‘Q’ the accused said he used a brown Cello tape Exhibit ‘M’
to seal the mouth and nose of the decease to stop her from
breathing heavily and making a noise he does not like. The same
type of Cello tape was seen used to paste posters Exhibit ‘D’
recovered in the house of the accused as well as Exhibit ‘G’.
In Exhibit Q the accused said he struck the deceased with his silver
bangle worn on his wrist and the same
without objection.
admitted as Exhibit ‘F’
In Exhibit ‘Q’ the accused said he sealed the mouth and nose of the
deceased with Exhibit M and Exhibit ‘R’ the Medical Report give the
cause of death as “Deep asphyxia due to airway obstruction which of
course is the consequence of sealing ones mouth and nose.
In Exhibit ‘Q’ the weaponry of the murder are silver bangle and the
Cello tape and both were recovered as Exhibits ‘F’ and M respectively.
Finally I hold that Exhibit ‘Q’ is a confession and did establish that the
accused caused the death of the deceased Amie Bah. Issue 1 is
therefore resolved in favour of the Prosecution.

ISSUE 2
The answer to this issue is in the affirmative, that is to say, the killing
of the deceased Amie Bah by the accused is unlawful. This is
because no iota of evidence is before this Court to justify the killing.
Lawful killing takes place if ordered by the Court to the appropriate
authority and in this case, there is no evidence that it was ordered or
that the accused is an appropriate authority. See SS. 27(a) and
28(1) of the Criminal Code.
Finally, I resolve this issue in favour of the Prosecution.
ISSUE 3
This issue is very crucial or central that I need to repeat it. It is
whether the accused had the intention to cause the death of the
deceased or caused her bodily harm? The centrality of this issue is
better expressed in the Latin maxim – actus non facit reum nisi
mens sit rea - “an act does not make a person guilty unless his
mind is guilty.”
The question is how guilty is the mind of the accused in the killing of
the deceased Amie Bah. The Prosecution at Pages 13 – 14 of his
argument urged me to presume amongst other things that the
accused intended the consequence of his act when he struck the

deceased with his wrist silver bangle Exhibit ‘F’ to the ground and
proceeded to wrap up her mouth and nose together and which
according to Exhibit ‘R’ Medical Report caused the deceased – Deep
asphyxia due to airway obstruction. He cited GARBA V THE
STATE (2002) 2SC NQR 402.
The Defence who never formulated issues, did not join issues with
the Prosecution, not even on rejoinder on point of law. The
argument of the Defence is floating without radar. It did not
highlight the ingredient of the offence of murder which he claims the
Prosecution has failed to prove. He did not use the ones highlighted
by the Prosecution yet in conclusion the defence at Page 2 submitted
thus:
“The Court is therefore urged to discharge and acquit the Accused
persons on all the Counts for the ingredients of murder have not
been established against them”.
Lest we forget, only the 1 st Accused is charged for murder, therefore
that conclusion by the defence is misleading. Back to the guilty mind
of the accused or otherwise, this can be ascertained from Exhibit ‘Q’
being the crux of the Prosecution case. It appears it does not matter
that the accused is trying to retract from it. This is because the Law
is settled that a Court is entitled to make finding from all the

evidence place before it though it was not specifically relied upon as
a defence.
See BULLARD V THE QUEEN
(1957) 42 Cr. APP. R1 at 5.
The accused is not disentitled for the consideration of this defence by
mere reason that he denied in his evidence on oath in Court.
See APPIANING V THE REPUBLIC
(1972) 1GLR.123
According to Exhibit ‘Q’ a quarrel ensued between the accused and
his girl friend the deceased with each accusing the other of infidelity
and it got to a crescendo when the accused specifically referred to a
boy to the annoyance of the deceased who retorted “he is ten times
better than you” – this time to the anger of the accused who reacted
by hitting the deceased with his bangle wrist causing her to fall down
and began breathing heavily. For clarity purpose, I hereby lift that
portion of Exhibit ‘Q’.
“At about 1100hrs she came to my place. She is dressed
in a jean trouser and white top. After few minutes, she
started alleging that I was dating with Binta Gibba which
was not true. She said because of that reason, she also
date with wily. I also told her that she had been lying
about one class mate which I found out and realize was

not true. I asked her about that and she became angry
and said –“he is ten times better than you”. This class
mate was Saidou. I was also angry about that statement
and hit on her neck at the right side. I was wearing some
bangles by the time. She fell down and was breathing
very heavily and making noise like “Uuth”. I left and sat
at the palour. She was still making the noise. I was and
took my remaining Cello tape from my bedroom and
cover her mouth and nose together in order to stop the
noise. This happened at around after mid day (1200hrs).
After when I did that, the noise and breathing stopped
altogether. After that I was very afraid. I did not inform
any one.
----------------------------------------------------------------------
----------------------------------------------------------------------
-------------“
From the above, can we say the Prosecution has establish malice
aforethought within the meaning of S.190(a) or (b) of the Criminal
code. The evidence of Pw6 and Pw7 show a conviviality of a
relationship between the accused and the deceased. On the 14 th and
15 th September 2009, the deceased and her younger sister Mariama
Bojang were with the 2 nd accused for the transaction of securing
admission for the kid in the 2 nd Accused’s School, above all the 1 st
Accused has consistently referred to the deceased as a girlfriend. A

question that beg for an answer is whether there exist intention to
cause death or do grievous harm or knowledge that death or
grievous harm would result when the accuse struck the deceased
with his bangled hand by the neck? My answer is in the negative,
because in my view, the strike by the accused is intended to register
a protest of comparing him with his rival. This explained why he left
the deceased on the ground to sit at the palour. The follow-up
question is when the accused returned from the parlour to wrap up
the mouth and nose of the deceased, was that in furtherance of the
earlier strike on the deceased! If it were, malice aforethought would
have been established. The answer is in the negative as the covering
of the mouth and nose is in the view of the accused to arrest the
noise. It is a smack of naiveness by the accused without malice
undertone. The Prosecution referred me to the case GARBA V THE
STATE Supra and urged me to pressure in favour of the Prosecution.
Am afraid I will not because of the factual difference. The murder
weapon used in GARBA V THE STATE and the way and manner it was
used coupled witt the age of the accused leaves the Court with no
other presumption than he intended the natural cause of his act.
Finally I hold that this issue is not established as I resolve it in favour
of the accused.
ISSUE 4

The statement of the Accused has been adjudged confessional and
so admitted as Exhibit ‘Q’. In Court and on oath in one breath, the
accused deny making Exhibit ‘Q’ and in another breath he made it
under torture of various kinds. This was contested during trial –
within trial and ruled in favour of the admissibility of the statement as
confessional. The defence dissipated his energy by repeating the
argument all over. It is trite law that mere repetition of an argument
does not improve an earlier arid, weak, or completely unacceptable
argument.
See. I. F. Ogbuagu Jsc in
OGBU V STATE
29 NSC QR 222 at 250.
CALABA EAST CO-OPERATIVE THRIFT & CREDIT SOCIETY LTD
VS
ETIM E. IKOT
(1999)12 SCNJ. 321 at 339 Per Achike JSC.
At any rate, the fact that the accused retracted his confessional
statement during his testimony in Court does not make it
inadmissible or that the trial court should not act on it.
See SHADE V STATE
22 NSCQR. 756 at 765 – 766
AMOSHIMA V STATE
(2009) 4 NCC 280 at 344

This issue is established and resolved in favour of the Prosecution.
Finally and on the strength of the evidence before me in Proof of
Count I, I find the 1 st Accused not guilty of Murder but guilty of
Manslaughter Contrary to S.186 of the Criminal Code.
COUNT 2
Only the 2 nd Accused is charged under this Count. She is charged
under S.202 of the Criminal Code. The particulars of the offence
read thus:
“Mrs. Lady Chris Nobi on or about the 16 th day of
September 2009 at Latrikunda German in the Kanifing
Municipality within the jurisdiction of this Honourable
Court assisted Terrick Bright to dispose the Corpse of
Amie Bah and thereby committed an offence.”
The Prosecution in issue 6 formulated thus:
Whether the 2 nd Accused Person had access to the fact of
the murder.
Meanwhile S.202 of the Criminal code creates the offence of
Accessory after the fact to murder thus:

S.202 CC.
“Any person who becomes an accessory after the fact to
murder is guilty of a felony, and is liable to imprisonment
for life”.
The Prosecution at Page 15 of his argument conceded that the 2 nd
Accused did not confess in her statement to the Police Exhibit ‘P’ but
urge me to note the testimony of Pw1, and the recovered Exhibit ‘H’
cloth of 2 nd Accused. Let me also add that there is no eye witness or
witnesses. However, I do not understand the submission of the
learned DDPP below and would want to lift it in my record just as it
is.
At Page 15 lines 10 - 15 it is argued thus: -“The evidence of Pw3 and
Pw4, who were led to the scene by the 1 st Accused in company of the
2 nd Accused and the evidence given in her defence are invigorating
factors to the confession of the 1 st accused where he narrated how
he confided in her and the kind assistance she rendered to dump up
the body”.
I had earlier said there is no eye witness. Pw1 – Pw8 are Police
Officers involved in investigation. The case of the Prosecution is
essentially on Exhibit ‘Q’ the confessional statement of the 1 st
Accused. Exhibit Q is in two parts. In the first part, the 1 st accused
narrated how he solely killed and disposed of the body of the

deceased. He never mentioned the 2 nd Accused. In the second part
of Exhibit ‘Q’ titled ADDITIONAL STATEMENT, the 1 st accused went
haywire and systematically implicated the 2 nd Accused person. I have
read Exhibit ‘Q’ over and over and found that part 2 of it did not flow
consequentially from the first part. It is mendacious. It is a
concoction. This is because, in the first part of Exhibit ‘Q’, the 1 st
Accused gave account of how the body of the deceased was disposed
thus:
“At about 2100hrs, I placed her body (Amie) on my
back catching both legs and went up to the corner
before my junction and dropped the body there
(Latrikunda German). The body was placed facing
downwards. I placed the plastic bag besides her
containing her shoe, purse and head tie. I then
walked to my room”.
The first part of Exhibit ‘Q’ cover three pages of a chronological
account which is conclusive as it were.
The second part of Exhibit ‘Q’ cover 1¼ pages is without preamble
and appeared to be designed for a specific purpose i.e implicate the
2 nd Accused person only. I reject it.

Furthermore, it is contended on behalf of the 2 nd Accused that I be
wary of Exhibit ‘Q’ since it proceeded from a co-accused, and there is
no corroboration. I did not find a reply by the Prosecution to this
serious point of law raised by the defence. While I agree with the
defence that a confession of one accused implicating the other is
inadmissible against that other accused except he adopts it, I do not
agree that corroboration would safe that fundamental defect as
contended by Counsel.
See S.32(2) of the Evidence Act 1994. I reject part 2 of Exhibit Q
or Additional Statement of the 1 st Accused as it is designed only to
implicate the 2 nd Accused person.
In EDEM AKPAN AKPO & ANOR VS THE STATE (1994)1 ALL NLR 369
an accessory after the fact is said to be one helping the culprit to
escape punishment. I find no iota of evidence in Proof of this Count.
Exhibit ‘H’ cloth of the 2 nd Accused has no nexus to the commission
of the offence. This is more especially when it is realize that the
Exhibit ‘H’ was not even described in Exhibit ‘Q’. In the light of the
above, I find Count 2 not proved and the 2 nd Accused is acquitted
and discharged.
For the 1 st Accused I find evidence overwhelming that he
unintentionally killed Miss Amie Bah his girlfriend and find him guilty
of Manslaughter.

Allocutus:
Court:
1 st Accused, what have you or your Counsel to say before
sentence is passed on you?
1 st Accused:- Apart from God, my life is in your hand.
You may liberate me or condemn me.
Defence Counsel:
He is a victim of circumstances. A young
man caught in naiveness. I urge you
temper justice with mercy by imposing
minimal sentence as not to eclipse his
potentials.
Prosecution:
No record about his conviction and thank my lord
for the judgment.
Court:
Young lovers should know that It takes majority to
appreciate the up and down of a love life. I have
taken note of the plea of the convict and his
Counsel and noted too that the deceased Amie Bah
is gone and will not have another opportunity to
evaluate her relation. She deserves justice even in
her grave. Consequently the accused will be
punished appropriately.

Sentence:
Court:- 1 st Accused you are sentence to 10yrs
imprisonment.
You are reminded of your right of appeal.
J. E. Ikpala
JUDGE
7 - 4 - 2011