By Mamadou Dem
The Banjul Magistrates’ Court presided over by Principal Magistrate
Dawda Jallow yesterday, Tuesday, 14 April, denied the bail application for Pa Malick Ceesay and Ismaila Njie, erstwhile Coordinator of National Enterprise Development Initiative (NEDI) and former Accountant, respectively, based on fears raised by the prosecution in their objection.Ceesay is also the sitting National Assembly Member (NAM) for Lower
Saloum Constutuency.
Delivering the ruling in a congested court room, the trial magistrate
indicated that the prosecution did raise fears that the accused
persons will escape or tamper with prosecution witnesses but that the
counsel for the accused did not provide the court with anything to
allay those fears.
“The court cannot close its eyes to the concerns of prosecution
without any facts to the contrary. Consequently, this court is
constrained to hold that the application for bail is discountenanced,”
he said.
The trial judge also upheld the application to have the matter
transferred to the high court and consequently ruled that it be
transferred to the office of the Chief Justice for reassignment. He
also reminded the accused persons that they are entitled to appeal
against the ruling.
Earlier, Magistrate Jallow indicated that it is trite that bail is
discretional and any court which is faced with the application for
bail may exercise the discretion either in favour of the applicant or
otherwise, bearing in mind certain important factors. He said section
99 (1) of the Criminal Procedure Code (CPC) provides for court bail
and it provides that when any person other than a person accused of an
offence punishable with death, or imprisonment for life, appears or is
brought before a court on any process or after being arrested without
a warrant, and is prepared at any stage of the proceedings to give
bail, such person may in the discretion of the court be released on
bail. It is therefore clear that the court has discretion on the
matter and can decide to admit an accused to bail or withhold bail.
The trial magistrate said the factors that must be taken into
consideration by the court in granting bail are not expressly stated
in the said section. Notwithstanding, he added, the common factors
that courts do consider include¬¬: the nature of the offence with
which an accused is charged and the punishment prescribe for the
offence, the accused person’s criminal record, possibility of the
accused committing further offences while on bail amongst others.
“It is trite law that in all cases in exercise of discretion, the court is
required to exercise its discretion judicially and judiciously. That
means that a court is to exercise such discretion on the basis of the
material facts placed before it,” said Magistrate Jallow.
He continued: “In the instant case, other than the laws cited by
counsel for the accused persons, no individual facts regarding the
accused persons have been placed before this court in assisting the
court reach a considered decision.”
He then referred to the case of State versus Ebrahim Bun Sanneh where
Justice Emmanuel Amadi held that “Even whereas the accused persons are
charged together in one charge sheet, each of them has a personal case
to answer; their private circumstances can never be the same,
especially in an application for bail…. Application for bail seeking
for a personal equitable relief requires that each applicant must
present his case to the court…. If the applicants are all represented,
by counsel, he could argue their application together but still
keeping each applicant’s peculiar facts and circumstances clear. The
general application before me here subsumed the personal individual
aspect of each applicant to the general. In the circumstances, the
applicants have not individually shown any special circumstances to
warrant me exercise my discretion in favour of granting them bail.”
The trial magistrate recalled that during counsel’s application for
bail, he did not provide the court with any fact regarding the two
accused persons in order to assure the court and allay its fears in
the risks that naturally follow the granting of bail. He said granting
bail is not automatic but discretional and the court before which such
an application is made needs to be persuaded to exercise its
discretion one way or the other.
Readers would recall that the two accused persons are charged
on sixteen counts ranging from economic crime, abuse of office,
negligence of official duty and theft among others. Both of them have
denied any wrong doing.]]>
