By Mamadou Dem
A businessman in the person of Yusupha Saidy was yesterday, 12th
January, 2016 arraigned before Magistrate Abdoulie Fatty of the lower
court in Banjul charged with two criminal counts of ‘Conspiracy tocommit a felony’ and ‘Obtaining money by false pretence’ contrary to
the laws of The Gambia.
However, Mr. Saidy has denied any wrong doing and was admitted to bail
with these conditions that he provides two Gambian sureties who shall
enter into recognizance in the sum of D1, 000,000 and that the
sureties shall depose to an Affidavit of means and one of them must be
the owner of a landed property within the Gambia, situated not beyond
Brikama in the W.C.R and not less than a value of D1, 000,000 which
must be covered by a valid and recognized title deed. The surety
shall deposit with the Registrar of the Court the original and
recognised title deed in respect of the said property, together with a
valuation report on the property on a date not earlier than the date
of this Order; and the police shall retain the Gambian national I.D
card and Passport of the accused pending the outcome of the case.
The Applicant to report to the Police Headquarters every Monday
between 9:00a.m and 1p.m.
The particulars of offence for count one states that the
aforementioned person “sometimes in the month of April, 2015 in the
city of Banjul and diverse places in the Republic of The Gambia, with
intent to defraud jointly conspired with one Mr. Watara (Ouatara), an
Ivoirian, Mr. Basir (Bashir), a South African, and Mr. Seedy Ahmed, a
Senegalese, all said to be at large, and obtained the sum of
€180,000.00 (one hundred and eighty thousand Euros) for the
transportation and customs clearance from one Omar Faruk Deniz,
thereby committed an offence.”
Count two alleges that the accused with “Mr. Watara
(Ouatara), Mr. Basir (Bashir) and Mr. Seedy Ahmed, all at large,
sometimes in the month of April, 2015 in the city of Banjul and
diverse places in The Gambia, with intent to defraud jointly obtained
the sum of €180,000.00 (one hundred and eighty thousand Euros) for
the transportation and custom clearance of 100 metal boxes containing
15 million American dollars, 10 tons of gold, some diamonds and
portraits from one Omar Faruk Deniz with the pretext of clearing and
transporting goods for him knowing same to be false, thereby committed
an offence.”
Applying for bail, Lawyer Loubna Farage, counsel for the accused,
submitted that her client has been in detention since the 28th of May,
2015, which is eight months now, and was never charged. She said in
November last year, when the accused was held in detention for five
months, the applicant filed a ‘habeas corpus’ and a ruling was
delivered by the high court. She said despite the fact that the state
was given the opportunity to respond, nothing was filed opposing their
application for the accused person to be produced by the authorities.
At this juncture, Ms. Farage read out the ruling to the court to
strengthen her application for bail. “All the travelling documents of
the accused are submitted to the National Intelligence Agency (NIA)
from the onset,” she disclosed.
Lawyer Farage argued that the Constitution of The Gambia has
guaranteed each and every person freedom of liberty, adding that three
people are said to be at large and that there is no evidence that the
accused will interfere with prosecution witnesses.
“The Constitution on its own is enough to guarantee any court in this
land. However, I referred this court to the cases of Abdoulie Tambadou
and William John Joof against the Inspector General of Police (IGP),
Where Justice Mahoney held that “No continuation of investigations, no
possibility of interfering with witnesses, especially when the
witnesses are foreign nationals when no evidence is put before the
court to support such assertions is enough to deny someone bail, the
burden is on the respondent i.e. the state to show why bail should be
refused,” she submitted.
The defence further submitted that the second count is a misdemeanor
and there is no reason before this court after eight months denying
someone liberty, access to family, making a living, as well as denying
him sanity. She argued that the accused should not be further detained
for even an hour.
At this point, Ms. Farage surrendered the ruling of the high court
together with the cases cited earlier to be part of the court records.
“We urged the court to uphold the Constitution of The Gambia and grant
the accused bail,” she concluded.
Police Prosecutor Inspector Almamy Manga submitted that the
prosecution was strongly objecting for Mr. Saidy to be released on bail
on the grounds that if he is granted bail, he will interfere with the
ongoing investigations because some of the alleged suspects are at
large and that efforts are being made to track them down and bring
them to face justice.
According to Manga, the investigators are working tirelessly to track
down the other suspects. He said granting the accused bail will
tantamount to giving him the opportunity to continue to network with
the other suspects.
The prosecuting officer further submitted that the accused is widely
known in the business arena and that there is the possibility for him
to interfere with witnesses within and outside the jurisdiction.
“We are aware that the granting or refusal of bail is at the
discretion of the court and it lies on the bosom of the court. We
urged the court to exercise that discretion in favour of the
prosecution and remand the accused in prison custody,” he submitted.
Replying to the prosecution’s submission, defence counsel Farage
submitted that with regards to the cardinal principle to convict, the
court is reminded that it is a bail application and the Constitution
further provides that anybody charged with any offence should be given
ample time and opportunity to prepare for his or her case.
Magistrate Fatty ruled that the habeas corpus dated 15th October as
well as the ruling of the high court are admitted by the court to be
part of the records.
Delivering the ruling in a congested court room, the trial magistrate
said “I have considered the submissions of the Applicant and the
Respondent. It is my legal and moral obligation to act judicially and
judiciously and that is what I intend to do here. It is the discretion
of this honourable court to grant or deny bail. Lest I go further, it
is important to state here that the two charges the accused is facing
are bailable. However, the court should also consider other factors
and the circumstances of this case as a whole in coming to a
conclusion that is fair and just,” said the trial magistrate.
He cited Section 19(1) of the Constitution of The Gambia 1997 which,
he said, expressly provides that no one shall be deprived of his or
her liberty except on such grounds and in accordance with such
procedures as are established by law.
He added that Section 99 (1) of the Criminal Procedure Code of the
Laws of The Gambia, provides that any person, other than a person
accused of an offence punishable with death or life imprisonment
brought before any Court on any process and is prepared to give bail,
such person may in the discretion of the Court be released upon his
entering into a recognizance conditioned for his appearance before
such Court at the time and place mentioned in the recognizance.
On the issue of interfering with witnesses and the investigations
being ongoing, the trial magistrate said the Respondent has not
offered any evidence of tangible substance to convince the court to
refuse the Applicant bail. He said “Firstly, principal suspects in
this case are all foreign citizens and at large. Secondly, in relation
to the investigations, I hasten to point to the observation made by
Justice Mbai in Abdoulie Tambedou v Inspector General of Police, supra
when he asked “What if the investigation takes another 6 weeks or 6
months?”
He added “Does the Applicant have to be in custody all this time at
the instance of the State? Counsel for the accused averred that the
latter has been in custody since May 2015. This fact was neither
admitted nor denied by the Respondent. It is well established that
where facts or evidence remain unchallenged and uncontroverted, the
court has no choice than to regard it as establishing the facts
alleged therein.”
Magistrate Fatty said “The Respondent’s grounds for refusing bail are
not well founded. There is insufficient material before the Court to
substantiate the grounds.”
The trial magistrate cited Section 24(3)(c) of the Constitution which, he
said, provides for all accused persons to be given adequate time and
facilities to prepare for their defence. “Thus, the Applicant has a
constitutional entitlement and in this instance, denying him that
benefit may be a denial of a basic constitutional right. Granting the
accused bail does not prohibit or limit the powers of the police to
continue their investigations. Consequently the accused was admitted
to bail with the conditions stated above. The case is adjourned to the
27th of this month for hearing,” he concluded.
