By Morlai Sesay
The Supreme Court has dismissed the application that was made by the state for a judge-alone trial on the alleged murder case between the State and the former Skye Bank General Manager, Ikubolaje Nicol, and ordered it to be done by a Judge and Jury.
The four Judges, Justices Vivian Solomon, Justice Mohamed Deen-Tarawally, Justice Alusine Sesay, and Justice Jamestina King, unanimously agreed on Tuesday, 30th January 2024, that the accused has the right to the same treatment for fair trial as others who have faced murder charges since the abolition of the death penalty in 2021.
The Presiding, Justice Solomon, in her twenty-seven {27} page ruling, said that the court had not been made aware of any greater risk to the public, any need for a trial by judge alone, any issue which requires a more specialist inquiry than a layman could make, any risk or actual incident of jury tampering, and in short, there is no demonstrable risk to the administration of justice.
Justice Solomon also said that the court had received no evidence and heard no submissions as to what distinguishes the case of Ikibolaje Nicol and what makes it one in which a jury should not be used.
In the absence of such evidence, she said the decision appears arbitrary and is to deny him his rights under the constitution.
“It is my view that in the interest of justice, the second respondent herein will not receive fair trial were I to accept that he can be tried by judge alone. To do otherwise will set a dangerous precedent. The interest of Justice is best served when all prosecutions are conducted and seen to be conducted objectively, fairly, impartially and with integrity to help secure justice for victims, witnesses, accused persons and the general public.” Justice Vivian Solomon.
A fair trial for murder before the passing of the abolition of the death penalty Act in 2021, she said, would have meant a trial by judge and jury, adding that such right has not been abrogated but only abolished the sentence and not the mode of trial for that special category of offenses.
On point thirty {30} of the ruling, she said, “The right to a jury trial is a fundamental right at common law. Even where parliament sought to limit that right, it retained it for some offenses. Murder is one of them and inserted a safeguard of the general interest of justice.”
“The constitution confers extensive powers on the AG. These discretionary and extensive powers must be exercised fairly, reasonably, and lawfully.”
Justice Solomon cautioned that it is not the prosecutor’s role to seek conviction at all costs but has, among other duties in a criminal trial, to present the case to the court by assisting the court in arriving at the truth and achieving justice for the victim and the community.
On the 19th June 2023, High Court Judge Justice Adrian Fisher made a thirty-nine-page application to the Supreme Court seeking interpretation for a judge-alone application by the Attorney General in the case of conspiracy to murder, murder, and perverting the course of justice, which had been objected to.
On Wednesday, 11th October, the Supreme Court heard oral submissions from principal state lawyer Ahmed James Bockarie and lawyer Roland Wright defending the accused Ikubolaje Nocol.
A lawyer for the state told the court that Paragraphs 61 and 62 of Justice Adrian Fisher’s ruling at the high court addressed the contention of a fair trial.
Trial by Judge alone, he said, is the sole discretion of the Attorney General or the Director of Public Prosecution.
"We're applying the law and not departing," he submitted.
Asked by Justice Vivian Solomon to reference any other matter of murder pending trial at the high court for which the attorney general has made an application for the judge alone, he said none so far.
The other matters relating to murder are before Justice Adrian Fisher pending the determination of Ikubolaje's, he told the court, which are all by judge and jury, but he said that the applications for those had been made earlier.
Justice Alusine Sesay informed him that setting a bad precedent has implications and that the matter at the Supreme Court is a big task.
Lawyer Roland Wright, defending Ikubolaje Nicol, argued that the state, in their written submission, did not address the questions and issues raised by the high court, which were before the Supreme court, and failed to distinguish between the principles generally and how such issues affect the accused personally thereby believing that they {the state} are restating their initial position.
He said that all cases after the abolition of the death penalty and even after his client Ikubolajeh had been charged with murder and two other counts had been tried by the judge and jury. Therefore, he asked why the case of Ikubolaje should be tried by a judge alone.
Even the attorney General's office, he further submitted, had not cited any case that has been tried without a judge and jury since the abolition of the death penalty.
The attorney General, Mr. Wright, said it is in contravention of section 23 of the Constitution, which provides for fair hearing.
“When you have established a precedent for due process and fair trial, such precedent should continue,” he affirmed.
But at the time, the now former Chief Justice Babatunde Edwards, who was Chairman of what was initially a five-member panel, interjected and said that it was because murder and treason were capital offenses that no longer fall under such categories that are punishable by death and rather had been replaced with life imprisonment.
Roland Wright, after that, said, "Treason and murder have always been treated as a special category of offenses which the laws have recognized throughout. "Just treat us as you have treated everyone else," he added.
He continued that a subjective power must be observed objectively. "We’re asking for to be treated equally before the law."
"The Attorney General was granted a Subjective Power. In the exercise of that power, he has consistently allowed all murder trials to go by Judge and Jury since the Abolition of the death penalty. Therefore, a precedent has been established,” he reechoed.
As a point of caution, Mr. Wright said that what he pointed out as a subjective power should be guided by the Supreme Court.
He envisaged a new dispensation might find it very convenient for political opponents to be tried by a Judge alone.
His client, former Skye Bank General Manager Ikubolaje Nicol, is accused of having conspired together with other persons unknown to murder Sinnah Kai Kargbo between 15th and 16th October 2022 at Leicester village in the Western Area.
On October 17, 2022, at the Criminal Investigation Department (CID), he is also alleged to have fabricated evidence intending to pervert the course of justice.
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