Affaire Mouhamed Aly Srour : Derrière l'élan de solidarité, la réalité brutale des dossiers judiciaires
Evicted from his "home" for illegally occupying land by rice importer Moustapha Ndiaye, businessman Mouhamed Aly Srour's story touched the hearts of Senegalese people this week. In a show of solidarity, generous individuals launched a fundraising campaign, which raised 50 million CFA francs for him.
From the Dakar Magistrates' Court to the Court of Appeal, Seneweb obtained copies of the judgments rendered. Mr. Aly Srour seems to be deliberately withholding the essential details of these court decisions. Clearly, the outpouring of solidarity would have been different had they been aware of these rulings, which found Aly Srour guilty of occupying land belonging to others, failing to obtain a building permit, and entering into agreements on state-owned land. In light of these decisions, the denigration of Ms. Khady Diagne, who was convicted only as an accomplice of Aly Srour, the principal offender of the illegal occupation, is incomprehensible.
In this case, the Dakar Court of Appeal upheld, in its entirety, judgment No. 199/2020 rendered at first instance against Mouhamed Aly Srour and the entrepreneur Khady Diagne in a case of illegal land occupation concerning a plot located in Yoff. The ruling, issued on November 14, 2023, brings to a close legal proceedings initiated before the Dakar Magistrates' Court.
The case pitted Moustapha Ndiaye against Mouhamed Aly Srour and Khady Diagne. According to the procedure, Mouhamed Aly Srour was prosecuted for illegal occupation of land and construction of a building without prior administrative authorization, while Khady Diagne was accused of complicity in fraud, complicity in concluding an agreement relating to land registered in the name of the State and complicity in illegal occupation of land.
The defendants appeared in court at the hearing on November 25, 2019. The man admitted to the charges against him. As for Khady Diagne, who was represented by lawyer Ibrahima Mbengue, she denied the charges of complicity. She defended herself by claiming that she was merely a witness in the land sale and that she was simply supposed to build a building for Mr. Srour.
The memorandum of understanding is at the heart of the debates.
During the proceedings, a memorandum of understanding dated July 31, 2019, was added to the file. According to the evidence, this document indicated that Khady Diagne acted as a witness in the transaction between Aly Srour and Assane Teuw. The file also shows that the contractor participated in the construction work through her company, "Ecobat Construction," which was responsible for the building's structural work.
The cost of the structural work was estimated at 18 million FCFA, according to the evidence presented in the proceedings. The legal proceedings also addressed accusations of document forgery against Mouhamed Aly Srour. Khady Diagne accused him of attempting to alter the memorandum of understanding to show a sale price of 38 million FCFA, whereas the amount appearing on the document presented as authentic was 17 million FCFA. He was also accused of creating a false deed of sale in connection with the land dispute.
According to the evidence examined by the courts, after the intervention of the company Ecobat Construction for the main work, Mouhamed Aly Srour had personally continued the work on the disputed land.
In his submissions, the public prosecutor requested the application of criminal law.
Following the hearings, the court delivered its verdict on January 15, 2020. The judge acquitted Khady Diagne of complicity in fraud and complicity in entering into an agreement concerning land registered in the name of the State. However, she was found guilty of complicity in the illegal occupation of land. Mouhamed Aly Srour was found guilty on all charges against him.
The two defendants had each been sentenced to 3 months imprisonment, suspended.
In the civil case, the court accepted the civil claim filed by Moustapha Ndiaye, who was represented by lawyer Cheikh Faye. The judge awarded him the symbolic one franc he was claiming as damages. The court also ordered the demolition of the buildings erected on the disputed land.
Mouhamed Aly Srour appeals
Challenging this decision, Mouhamed Aly Srour filed an appeal on January 30, 2020, through his lawyer, Macodou Ndour. Before the Court of Appeal, the businessman maintained that he had acquired the disputed plot of land from Khady Diagne, claiming he was unaware that the land belonged to Moustapha Ndiaye. He explained that after the purchase, Khady Diagne informed him that another person was claiming ownership of the land on which he had already built. The appellant also stated that he had attempted, unsuccessfully, to mediate with Moustapha Ndiaye since the initial ruling.
Khady Diagne did not appear at the appeal trial.
The public prosecutor's office, for its part, requested the outright confirmation of the judgment.
The Court dismantles the good faith argument
In delivering its judgment, the Court of Appeal relied on Article 423 of the Penal Code, which punishes the illegal occupation of land, as well as on the provisions of the Town Planning Code relating to constructions without administrative authorization.
The magistrates noted that Mouhamed Aly Srour had acquired the disputed plot of land through a private agreement dated February 28, 2012, from Khalifa Ndoye and Assane Teuw. This transaction itself was based on a document drawn up on February 19, 2012, by several people presenting themselves as Lebou customary authorities of Yoff, attesting that the land belonged to the sellers according to Lebou customary law.
However, the Court found that the plot was in fact part of a 304,306 m² land parcel registered in the name of the State of Senegal under number 2013/GRD ex-5018/DG, and recorded in the Ngor-Almadies land register under number 5560/NGA. The judges also noted that the State had granted Moustapha Ndiaye a 30-year lease for an area of 200 m², pursuant to a contract concluded with the Governor of Dakar and registered on March 30, 2010, with the Ngor-Almadies Land Registry.
The Court considered that the appellant could not rely on his good faith, especially since the document given at the time of the sale clearly stated that it was unregistered land, therefore legally incapable of private appropriation at the time of the transfer.
Considering the sufficiently established offenses, the Court of Appeal upheld the lower court's judgment in its entirety. Thus, Mouhamed Aly Srour's conviction for illegal land occupation and unauthorized construction was maintained. Khady Diagne's conviction for complicity in illegal land occupation was also upheld. The order for the demolition of the structures built on the land remains in effect.
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