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PROSECUTION OPPOSE SAINABOU MBYE’S APPLICATION TO FREE HER

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Sainabou Mbye, Cherno Mbye and Kibily Dembelly have all asked the court to free them because the prosecution has failed to make out a case against them. They made a ‘no case submission’ saying the prosecution failed to prove the crimes as alleged. They want the court to acquit and discharge them.

On the other hand, the prosecution opposed her application and gave reasons as to why they should be called upon to open their defence. The prosecution said the allegations against them have been proven as a strong case has been made out against them. Below were the reasons given by the Prosecution.

For the prosecution, the guiding case in relation to the doctrine of ‘no case to answer’ in a criminal case is R versus Galbrath (1981) where his lordship Lord Lane 9Chief Justice) stated the principle and the Nigerian Supreme Court case of Emeka Ekwunugo versus the Federal republic of Nigeria. It is the position of the prosecution that no case submission is about whether a prima facie case has been made out.

On count 1, which is Manslaughter as provided under section 186 of the Criminal Code is “A person who by an unlawful act or omission causes the death of another person commits the felony termed manslaughter. An unlawful omission is an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health, whether the omission is or is not accompanied by an intention to cause death or bodily harm.”
The prosecution said in order to prove this charge of manslaughter they must prove the following: That the accused person had committed an unlawful act or omission; that the unlawful act or omission of the accused caused the death of the deceased; and that the unlawful omission on the part of the accused person amounts to culpable negligence to discharge a duty tending to the preservation of life or health, whether the omission is or is not accompanied by an intention to cause death or bodily harm.

In proving whether or not Sainabou, Cherno and Kibily committed an unlawful act or omission, the prosecution said evidence is led to show that Deceased child (Baby Muhammed) was in the same vehicle with the three accused persons together with Sainabou’s two daughters. In the vehicle, the prosecution said evidence is led to show Sainabou and Cherno sat in the front seats of the vehicle while Kibily was with the deceased child and two of Sainabou’s daughters at the back seat. The prosecution said evidence was led to show that the vehicle belongs to Sainabou Mbye. Also, the prosecution said evidence is led to show that Cherno Mbye was the driver of the vehicle.

Further, the prosecution stated that evidence is lead that all of the accused persons alighted from the vehicle to assist the mini-truck to offload the household materials and move them into the new apartment. The prosecution pointed out that these pieces of evidence are contained in the cautionary statements of the Accused Persons which are marked as Exhibits P1, P3 and P5.

The prosecution stated that it is clear from the evidence that all three children including the Deceased (Baby Muhammed) were in the charge and under the care of Sainabou Mbye and Cherno Mbye. The prosecution stated that Sainabou Mbye indicated in her cautionary statement to the police that the deceased child was always with Cherno Mbye and that she alighted from the vehicle with the impression that the Deceased was with Cherno. The prosecution submitted tha Sainabou’s two daughters were at the rear of the vehicle with the Deceased and Kibily Dembelly. The Deceased was also her nephew. The prosecution held that the Deceased child was under the case of Sainabou Mbye and at the material time she was aware that the Deceased was in her car with her two daughters. It is the position of the prosecution that both Sainabou and Cherno stood in the position of parent to the Deceased at the time. The prosecution pointed out that both Sainabou and Cherno admitted to this responsibility in their respective cautionary statements.
In connection to Kibily Dembelly, the prosecution submitted that he was also in charge of the Deceased. The evidence shows that he was in the vehicle to assist Sainabou and Cherno to offload their house materials from the min-truck to their new residence in Brusubi. He (Kibily) was sitting at the back of the vehicle together with the Deceased and the daughters of Sainabou Mbye

The prosecution submitted that the Accused Persons were under a duty to ensure that the life or health of the three children including the Deceased was protected. The prosecution further submitted that the Accused Persons were under obligation to ensure that they checked and make sure that the Deceased and the other children had alighted from the vehicle safely because they (the 3 Accused Persons) alighted from the vehicle. The prosecution held that the Accused Persons ought to have averted their minds that the Deceased was a two-year-old who could barely take care of himself or alight from the vehicle without the assistance of an adult. It was the submission of the prosecution that the three accused persons breached that duty by failing to ensure the Deceased, a two-year-old, had been taken from the vehicle before closing the doors. The prosecution held that this was a clear omission on the part of Sainabou Mbye and Cherno Mbye.

The prosecution submitted that it is certainly foreseeable that leaving a child of tender age in a vehicle that has its windows closed could cause serious injury or health hazards or even death. The prosecution said it is noted that a reasonable person would have also known that leaving a child of two years would need the assistance of an adult to alight from a vehicle.

The prosecution in their brief stated that prosecution witness six (6) Fatou Ngone Mbye, who is the mother of the Deceased, revealed that the Deceased is dead. Her evidence, according to the prosecution, is consistent to the extent that it has not been controverted, discredited or challenged by the Defence under cross-examination. The prosecution said there were no inconsistencies in her statement in court and at the police station. The prosecution stated that all the Accused Persons in their cautionary statements confirm the death of the Deceased child. The prosecution held that it is an indisputable fact that the Deceased had died.

The prosecution held that the cause of death has already been established as a prima facie case is made out. It is the position of the prosecution that the evidence clearly showed that the Deceased died as a result of being locked in a vehicle which caused him to suffer from a lack of oxygen.

On count two, which is Exposing Children to Danger, section 210 provides “If a person over the age of sixteen years, who has custody, charge, or care of a child under the age of fourteen years, wilfully assaults, ill-treats, neglects, abandons, or exposed in a manner likely to cause the child unnecessary suffering or injury to his or her health (including injury to or loss of sight, or hearing, or limb or organ of the body and any mental derangement), that person commits a misdemeanor.”

The prosecution submitted that for them to succeed in proving this charge, they are required to establish that: The Accused Person is over 16 years old and has custody, charge, or care of a child under the age of 14 years; and the Accused Person must willfully assault, ill-treat, neglect, abandon, or expose the child in a manner likely to cause unnecessary suffering or injury to the health of the child.
The prosecution stated that the cautionary statements of each of the Accused Persons indicated that Sainabou is 30 years old, Cherno is 24 and Kibily is also 24. The prosecution submitted that the evidence shows that the Deceased and the two daughters of Sainabou who boarded her vehicle were in the custody, charge and care of all the Accused Persons. The prosecution stated that the evidence showed that the vehicle was driven by Cherno while Kibily sat at the rear watching over the children including the Deceased. The prosecution pointed out that in the cautionary statement of Sainabou Mbye, she stated that the Deceased was always with Cherno and that was why when she alighted she thought he was with Cherno.

The prosecution submitted that evidence on record clearly showed that Sainabou and Cherno neglected and exposed the Deceased in a manner that caused unnecessary suffering and injury to the Deceased.  The prosecution has also provided evidence on the condition of the Deceased when he was taken to the Afrimed International Hospital, Brusubi on the 3rd of July 2022.  The prosecution stated that Sainabou Mbye was on her phone throughout starting from when they were about to leave Sinchu for Brusubi Phase 1 to even after when the Deceased was found in the vehicle by Kibily upon their arrival on the second trip. The prosecution further stated considering Sainabou was the only adult left behind, she had children in her care who were of tender age (between 2 and 8 years) and hence she ought to have been mindful. The prosecution held that had Sainabou been mindful she would have known the whereabouts of Baby Muhammed because he was not with her daughters at the time. Also, the prosecution said Cherno, since he was the driver, should have ensured everyone alighted before locking it.

In conclusion, the prosecution held that they have made out a prima facie case against the three Accused Persons. Moreover, the prosecution submitted that they have presented evidence establishing the essential parts of the offences which have neither been discredited under cross-examination nor is the evidence unreliable for the court to convict on it. It is their position that they have presented before the court cogent and reliable prima facie evidence against the Accused Persons. The prosecution submitted that once the prosecution has established minimum proof, then an explanation would be expected from the Accused Persons. As such they are required to be called upon to enter their defence. Finally, the prosecution submitted that the Accused Persons need to offer an explanation on the charge brought against them as the prosecution has placed before the court evidence worthy of belief. They urged the court to refuse the application of the Accused Persons.

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