The Court of Appeal has reserved its ruling in a motion filed by the Inspector General of Police (IGP) seeking to strike out an appeal lodged by Yankuba Darboe, after both parties adopted their respective briefs of argument before the Court of Appeal panel.
The case pits Yankuba Darboe as Appellant/Respondent against the IGP as Respondent/Applicant. At the heart of the matter is the IGP’s motion dated 4th May 2026 seeking dismissal of Yankuba Darboe’s appeal on the grounds of want of diligent prosecution.
Moving the motion, counsel for the IGP Counsel Wakawa told the court that their brief of argument was filed on 26th May 2026 and formally adopted the same as their argument.
Counsel Wakawa urged the court to grant the prayers sought and give effect to the authorities cited in support.
“The Appeal, as it is our contention, has been overtaken. The supposed affidavit letters attached would not have made it to the Appeal. On that, we argue the court to hold that the Appellant must be diligent,” Counsel Wakawa submitted.
In its filed brief, the IGP’s motion contends that the appeal has been pending for an inordinate and inexcusable period of time, that the delay is attributable to the deliberate act or inaction of the Appellant (Yankuba Darboe), that the Respondent (IGP) has suffered or is likely to suffer prejudice as a result, and that it would not be in the interest of justice to allow the appeal to continue.
The four ingredients, the State argued, must each be established cumulatively for an application of that nature to succeed, and it submitted that they had all been made out.
The State pointed to the fact that after the appeal was filed at the High Court, more than nine months elapsed without the record of proceedings being transmitted from the Magistrate Court, a delay that had already prompted the High Court judge to dismiss the appeal, the very decision that now forms part of the subject matter of the appeal before the Court of Appeal.
Relying on the Appeal Court’s own decision in Babou Cisse v. Eli Osaka (2002-2008) 2 GLR 538, the State argued that an appellant desiring diligent prosecution of his appeal is required, contemporaneously with or immediately after filing his notice of appeal, to send a written application to the Registrar of the trial court requesting the compilation and transmission of the records.
It is submitted that this is settled practice across many jurisdictions and that the Appellant’s failure to do so in the requisite manner amounted to an abandonment of his appeal.
Appearing for Yankuba Darboe, Counsel Kaddijatou Jallow of Dandimayo Chambers opposed the motion. She informed the court that the Appellant had filed an 18-paragraph affidavit in opposition on 10th March 2026, sworn by one Catherine Fatty, a clerk of their chambers. Counsel Jallow indicated that the Appellant relied on all the averments contained therein, particularly paragraphs 5 to 14, and formally adopted the Appellant’s brief of arguments.
Addressing the bench, she submitted that striking out the appeal would not be in the best interest of justice and drew the court’s attention to Rule 16(1) of the Court of Appeal Rules, arguing that the proper course of action, even where non-compliance is found, is to direct the party to remedy the defect, not to dismiss the appeal outright.
Further in her submission, counsel K. Jallow refers the court to the Supreme Court decision…
“Also, the respondent has not disclosed to the court any compelling reasons as to why the appeal should be struck out. We respectfully argue that the court should hold the same,” Counsel K. Jallow submitted.
She also referred the court to a decision of the Supreme Court of Nigeria delivered on 15th January 2021 in further support of her arguments.
“My Lady, in light of all the authorities, we argue that your Ladyship exercises your discretion in favour of the Appellant pursuant to Rule 68 of the Court of Appeal Rules and refuse the motion of the 27th January 2026. This is our submission,” she told the court.
In the Appellant’s written brief, filed on 19th May 2026 by Counsel K. Jallow, argued that the delay in the progress of the appeal was attributable not to the Appellant but solely to the administrative failure of the Court Registry to perform its statutory duty.
The brief presented an undisputed chronology to establish that fact; that Yanks Darboe filed his Notice of Appeal timeously on 25th July 2023; that on 12th August 2023, he filed an application for a stay of proceedings before the Magistrate Court, demonstrating active engagement with the appellate process; and that after several oral follow-ups with the Registry proved unsuccessful, he took the further step of writing two formal letters dated 11th March 2024 and 4th April 2024 to the Registrar of the lower court, formally demanding the compilation and transmission of the record of proceedings.
“Those are not the acts of a party that has abandoned or neglected its appeal,” the brief submitted. It further argued that the Applicant/Respondent had not deposed, and could not depose, to any fact that a Notice of Settlement of Record was ever served on the Appellant in accordance with the Court of Appeal Rules, nor that upon such service, the Appellant had failed to appear or take any required step.
On the question of which party bears the duty to transmit records, the Appellant’s brief drew the court’s attention to Order LIII Rule 7 of the High Court Rules, which provides that on the expiration of fourteen days after entry of an appeal, the court below shall make up the record of appeal.
It further cited Rule 16(1) of the Court of Appeal Rules, which places on the Registrar of the court below the duty to summon the parties to settle documents to be included in the record, and Rule 19(1), which provides that the Registrar of the court below shall transmit to the Court of Appeal the record when ready.
“These provisions place the duty to summon the parties, settle the records, and effect transmission squarely upon the Registrar of the lower court and not upon the Appellant,” the brief submitted.
Addressing the State’s reliance on Babou Cisse v. Eli Osaka, the Appellant’s brief argued that that decision, properly read, confirmed only that an appellant should write to the Registrar to trigger the record preparation process, which is precisely what Yankuba Darboe did.
The court in that case, the brief noted, acknowledged that the practice exists “to galvanise the Registrar into action,” plainly recognising that the primary operative duty remains with the Registry.
It further pointed out that the Applicant/Respondent had not established that the Registrar ever issued a summons to the Appellant to settle the record.
The brief also cited the decision of the Supreme Court of Nigeria in Waziri v. Geidem (2014) 11 NWLR (Pt. 1523) 230, which held that a non-compliance by an officer of the court without fault on a litigant cannot visit a sanction upon the innocent litigant who had done his part.
It further relied on the Court of Appeal of Nigeria’s ruling in PAM & Anor v. JIBA & Ors (2019) LPELR-48436(CA), which held that appellants cannot suffer on account of the errors or mistakes of a tribunal secretary in the compilation and transmission of records, and that it would inflict injustice to refuse to hear and determine their appeal because of such errors.
On the constitutional dimension, the Appellant’s brief cited Section 130(3) of the 1997 Constitution of The Gambia, which provides that an appeal shall lie as of right to the Court of Appeal from any judgment, decree or order of the High Court, and the Supreme Court of The Gambia’s decision in Jarra v. The State [1997-2001] GR 966, which emphasised that a fundamental right of appeal cannot be extinguished by a failure not considered in light of the circumstances and the cause for such failure.
“The right of appeal belongs to the aggrieved party as of right, and may not be extinguished on account of shortcomings not of his making,” the brief submitted.
On the question of appropriate remedy, the brief argued that even if the court were to find some default on the Appellant’s part, which was firmly denied, Rule 68 of the Court of Appeal Rules authorised the court to direct the appellant to remedy the non-compliance rather than dismiss the appeal.
It urged the court to exercise that power in the interest of justice, noting that the substantive issue in the appeal, whether the Appellant had a properly sustainable basis for his no-case-to-answer submission before the Magistrate’s Court, had never been determined on its merits by any court of competent jurisdiction.
At the close of arguments, the President of the Court of Appeal, Justice Sallah-Wadda, indicated that all briefs filed before the court were deemed properly filed and that the court would proceed to deliver its ruling on Monday, 6th July 2026.
The outcome of that ruling will determine whether Darboe’s substantive appeal, which challenges the High Court decision that he has a case to answer, is heard on its merits.
By way of background, Yankuba Darboe had made a double application before both the Magistrate Court and the High Court, arguing that he had no case to answer and also seeking the recusal of the presiding magistrate from the case.
He lost on both counts at both levels. The Magistrate Court refused the applications, and the High Court affirmed that decision. Yankuba Darboe has now brought the same matter before the Court of Appeal, maintaining that he has no case to answer and that the magistrate ought to recuse himself.
Yankuba Darboe is standing trial before the Magistrate Court on a charge of sedition arising from comments he allegedly made at the Police Headquarters in Banjul during his detention in connection with the 3-Year Jotna protest.
The prosecution in that matter has closed its case, and the court called on Yankuba Darboe to open his defence. However, instead of proceeding to testify, his counsel informed the magistrate that there was an appeal pending before the Court of Appeal and urged the lower court to await the outcome of that appeal before proceeding further with the case.
The Court of Appeal’s ruling will therefore have direct consequences not only for the appeal itself but for the question of whether the trial at the Magistrate’s Court can resume in the interim or not.
