IN THE HIGH COURT OF THE GAMBIA HELD AT BANJUL

ON THE 28th DAY OF MAY 2010 BEFORE

THE HONOURABLE JUSTICE J.E IKPALA, HIGH COURT JUDGE

CRIMINAL CASE NO. BDG/488/08

BETWEEN

THE STATE

Vs

MOUNIR ELKARNI, ABDULAZIZ MBYE, OUSMAN SAINE

1st Accuse – Present
2nd Accused – Present
3rd Accuses – Present

Appearances:-
S. H. Barkum Psc for State
with E. Jah

K. Sanyang: for All Accused persons

RULING
The Accused/Applicants brought this application motion on notice filed on
the 24th May 2010 praying as follows:-

1. An order granting the Accused persons/Applicants bail pending the

hearing and determination of the charges preferred against them in
the High Court of The Gambia.
2. Any further or other Orders as this Court may deam fit.

In support of the motion is 14 paragraphs affidavit of Sulayman Sanyang

Clerk of Kansala Chambers Counsel to the Accused/Applicants. There is no
affidavit in opposition filed by the Respondent. Moving the motion, the

1
applicants who are relying on all the paragraphs of the affidavit of Sulayman
Sanyang contended that they will not jump bail but attend Court to stand
their trial at all Court sittings adding that they have reliable sureties to stand
for them.

In response, the Prosecution says he is not oppose to bail but insisted that the
Court be guided by the provision of S.8 of the Economic Crimes
(SPECIFIED OFFENCES) Decree No.16 of 1994 when considering the bail
of the accused persons.

I have listened to the argument in favour of the bail of the accused/applicants

vis a vis the affidavit of Sulayman Sanyang which I find lacking in forensic
power of application of this nature. It is too simplistic to generalize the
reason or reasons why each of the accused/applicant should be entitle to bail
as deposed to by Sulayman Sanyang. Secondly the facts deposed are not
Cognitive of the risks that are handmaid of suretyship so as to expouse more
on the said sureties and their credentials. Ordinarily bail is a matter of
discretion which must be exercise by the Court Judiciously and Judicially
based on compellable facts which unequivocally support the exercise of the
discretion. It is immaterial that the Prosecution did not oppose, as bail is an
inherent mechanism of the Court to ensure that persons accused of offence
attend Court to stand their trial. Thirdly the affidavit of Sulayman Sanyang
never had in contemplation the conditions laid down under S.8 of the Decree
No.16 of 1994 charging the offence and providing bail conditions. If
paragraph 8 of the affidavit is taken as addressing the condition of
suretyship, why did Sulayman Sanyang not elicit undertaking for the Court

2
to consider the Capacity of the Applicants and their Sureties to meet the
condition of bail if bail is to be granted.

However, it would appear that S.8 (1) of Decree No.16 of 1994 has robbed
this Court of discretion in the matter of bail by setting mandatorily the
conditions of bail. It provides thus:

S.8(1)

1. No bail shall be granted to any person brought before a Court for

an offence under S.5 unless the following conditions are satisfied
by the applicant.

a) the surety and the accused shall provide such security as is

required by the Court and
b) the accused and the surety signing the bond shall deposit with
the Court or such person as the Court may direct, the title deeds
of any Property used as security for the bail, and in the case of
cash security the actual amount on the face of the bond”

It is not in doubt that the Accused/Applicants are charged under S.5 of

Decree No.16 of 1994 and this brings into force the conditions of bail
specified under S.8(1) of the Decree. Also the offence allegedly occasioned
a loss of $868,117.46 (Sixty-Eight Thousand One Hundred and Seventeen
Point Forty-Six USA Dollars) to GAMTEL a Company incorporated in the
Gambia. In the circumstance of this case I have no choice in the matter than

3
giving effect to the S.8(1) of Decree No.16 of 1994, Consequently bail is
granted the Accused/Applicants in the following Conditions.

i) All the accused/applicants to jointly deposit the sum of $868,117.46

with the Sheriff of the High Court of The Gambia.
ii) Each of the accused/applicants to provide one surety each and such
surety to deposit a title deed of his/her property value not less than
D4,000,000 (four million dalasis) and located in the greater Banjul Area
with the Sheriff of the High Court of The Gambia.

By Consent of both Counsel, this case is adjourned to the 16th June 2010
for hearing.

J. E. IKPALA
JUDGE