IN THE HIGH COURT OF THE GAMBIA HOLDEN AT BANJUL

ON THE 8TH DAY OF NOVEMBER 2010 BEFORE

THE HONOURABLE JUSTICE J.E IKPALA, HIGH COURT JUDGE
CRIMINAL CASE. NO. HC/222/09/CR/050/AO

BETWEEN

PIUS PATRICK - 6TH

ACCUSED/APPLICANT
JOSEPH OKEKE (Alias Charles and D. S. Yahya) - 1ST ACCUSED
NONSO MBOSAH - 2ND ACCUSED
ANUWA IBIAM - 3RD ACCUSED
NONSO ADOWA - 4TH ACCUSED
ARINZE IZUCHUKWU - 5TH ACCUSED
AWA TOURAY - 7TH ACCUSED

AND

THE STATE - RESPONDENT

All Accused Persons and the Applicant - Present

Appearances:
M. Abdullahi for The State
st th
U. Achybue for 1 – 5 Accused
th
Mrs. S. Jahateh for 6 Accused
th
Miss H. Gaye for 7 Accused

RULING

The 6th Accused/Applicant hereafter referred to as Applicant simplicita

is charged with the other 6 Accused persons in count II for
conspiracy to commit a felony contrary to S.368 of the Criminal Code
and obtaining money by false pretence in Count IV contrary to S.288
of the Criminal Code.
The applicant brought this application purportedly pursuant to
Sections 10(5), 24(e), 33 and 37 of the Constitution of The Gambia
1997, Articles 1, 2, 3, 6, 7, of the African Charter and Section 99 of
the Criminal Procedure Code where he prays the Court as follows:

• That the Accused Person be admitted to bail pending the

hearing and determination of this suit on such reasonable
terms and conditions as this Honourable Court may deem
fit.

• For such further or other Orders as this Court might seem

fit.

Though not dated, the motion was filed on the 12th – 7 – 2010. In
support of the motion is a 40 Paragraphs affidavit sworn to by the
Applicant. Moving the motion on the 29th-7-2010 it is submitted that
the applicant relies on all the paragraphs of the affidavit especially
paras 5 - 40. Furthermore, that since the Applicant is not implicated
in the Counts alleged against him he is entitle to bail under S.99of
the C.p.c. Counsel further submitted that because the case had
prolonged and the Applicant is not on bail amounts to a continuous
violation of his right guaranteed under S.24 of the Constitution. He
referred the Court to Criminal Procedure in Nigeria, Law and Practice
by Aluwatoyin Dorherty at Page 129 on the guiding principle for bail.
He referred the Court also to Dogo vs C.O.P (1980) lNCR.14.
According to Counsel, the ultimate consideration in application for
bail is to secure the attendance of an accused in Court and not the
seriousness or otherwise of the crime alleged. He referred the Court
to SS.33 and 37 of the Constitution and drew the Courts particular
attention to paragraph 31 of the affidavit in support.

On the absence of an affidavit in opposition, Counsel submitted that,

the deposition in the affidavit in support be deemed to have been
admitted by the Respondent. Of particular note is the deposition by
the applicant that he has migrated to Gambia and has no where to
go again. Alternatively, Counsel submitted that being a foreigner
does not deny the applicant benefit under the Constitution. In
conclusion Counsel submitted that the 7th Accused is enjoying bail
though charged in the same Counts with the applicant, and therefore
see no reason why the applicant should not get a bail. He urged the
Court to grant bail to the applicant on term not excessive but liberal.

In his reply, the Prosecution argued that he is opposing the

application for bail though he did not file an affidavit in opposition.
He argued that S.99 of C.p.c confers on this Court unfettered
discretion to grant or refuse bail which discretion must be exercise
Judicially and judiciously having regard to not only the interest of the
accused but also the need of the society to be protected from
heinous crime. He referred the Court to
ODO v C.O.P.
(2002) INWLR (pt.874) Pg. 50 H.2.

Furthermore, Counsel argued that the burden is on the applicant to

place before the Court reasonable material for consideration which he
has failed woefully. On the Guidelines for granting or refusing bail
Counsel referred the Court to
ADEGBITE V C.O.P
(2006) B NWLR (PT.997) Pg. 269 Para B – D.

Counsel submitted that the applicant is standing trial on two Counts

charges which charges are serious and the fact that the Respondent
did not file an affidavit in opposition ipso facto does not entitle the
applicant to bail. He referred the Court to OLATUNJ v FG N
(2003) 3 NWLR (pt. 807) 406
at 425 at para E
He finally urged me to refuse the application.

I have read the 40 paragraphs affidavit in support of motion and the

argument in support canvassed by Counsel. I have equally noted the
argument against the application. This application is founded on a
galaxy of statutory provisions from the apposite to the nebulous. I
think S.99 of the C.P.C is apposite and sufficient for this application.
S.19(5) of the 1997 Constitution is totally inapplicable as it
contemplates situation where accused persons are held in detention
without trial. Here there is trial and from the Courts record the
Prosecution has called seven (7) witnesses. See Suit No. MISC App.
No. 37/02 ALBERT SAMBOU vs. THE STATE unreported delivered by
Justice A.J. SAVAGE on 17th June 2002.

On the other hand several Articles including Article 1,2,3,6 and 7 of

the African charter were cited as the basis of the application yet no
argument is preferred how these articles could assist the applicant.
More importantly, there are several African charters from the time of
O.A.U and now the African Union. Counsel much cites correctly the
law he wants to rely on and prefer argument how such law assist his
or her client.

This admonition also relates to citing case laws. However, if Counsel

meant African character on Human Right, I did not hear any
argument on that.

Having held that S.99 of the C.p.c is apposite and sufficient for this
application, then how far did the applicant fair in urging the Court to
apply it in his favour by granting him bail. The applicant contended
that the ultimate consideration of the Court in bail application is to
secure the attendance of the accused to Court and the seriousness of
the offence is immaterial relying on SS:33 and 37 of the 1997
Constitution. I do not see how these sections i.e. SS:33 and 37 inhibit
the Court from considering the seriousness of the crime alleged in
bail application.

After all, S.132(1) (b) of the 1997 Constitution empowers this court
thus:

(b) To interpret and enforce the fundamental right and

freedoms as provided in section 18-33 and section
36(5), and in the exercise of such jurisdiction, the
Courts shall have all such power and authority as
may be conferred by this Constitution or any other
law.

The Criminal Procedure Code Cap. 12:01 Laws of The Gambia 1990
comes within the other laws refers in the constitution. S.99 of the
C.p.c has been judicially pronounced on.

In ALBERT SAMBOU supra the Court stated thus:

“There are certain considerations the Court will look into
in exercising its discretion whether or not to grant bail
where there is a felony not punishable with death. These
include, inter alia, the nature of the charge against the
accused person, the severity of the punishment it carries
and the quality of evidence available”.
It is my humble view that the severity of the punishment impose on
any offence is synonymous with the seriousness of the crime.
Therefore the seriousness of the crime is a factor contrary to the
applicant submission for consideration. As said earlier, I have read
all 40 paragraphs affidavit in support and the argument urging me to
deem it admitted in the absence of an affidavit in opposition. On the
fact deposed, that may be so, but failure to file affidavit in opposition
does not mean party has conceded to the application. See THE
STATE v ABDOULIE CONTEH
(2008) 1 GLR. 148.

Paragraphs 5 – 15 of the affidavits chronicle the journey from arrest

through the ordeal at the Police Station, the arraignment at the
Magistrate Court to the Prison custody then to this Court. I do not
think these paragraphs are relevant for the purpose of this
application more so when the paragraphs did not add that trial has
commenced in this Court and the Prosecution has called seven
witnesses.

Counsel referred the Court to Paragraph 31 of the affidavit and

submitted that The Applicant was discriminated upon. Meanwhile in
Paragraph 17 of the affidavit it is deposed that the 7th Accused
person who is in the same Counts with the Applicant was given bail
long ago. Discrimination is vast; it could be as to sex, religion,
nationality, color, political view etc. I do not know which the
applicant meant. The applicant gave his Nationality as Nigerian and
even have in Paragraph 23 Sureties of Nigerian nationality but the
affidavit is silence on the nationality of the 7th Accused person.

Paragraphs 18 – 20 of the affidavit deposed to the ill health of the

applicant as a result of poor dietary system. The eyes have medical
complication he deposed. His doctor told him this, but curiously the
name of the doctor is not given as required by S.92 of the Evidence
Act 1994. He did not exhibit a medical Report. This will amount to
speculation and the Court does not act on speculation.

Finally and worthy of Comment are the depositions in Paragraphs 22

– 24 of the affidavit. The gist of these paragraphs is that the
applicant has Nigerian sureties to take him on bail and he will attend
Court at all times to stand his trial. Counsel submitted on his behalf
that the applicant has migrated to The Gambia and has no other
place to go. This submission is contrary to the deposition of the
applicant as a Nigerian with Nigerian sureties to sign for his bail. The
applicant at least still has Nigeria to go. Above all nowhere in the
affidavit did the applicant depose that he has migrated to The
Gambia. There is a demarcation line between Counsel and his client.
Parties i.e Counsel and client are advice to keep to his own side of
the divide. All facts save ones judicially noticed, belong to the clients
only to prove them, and not Counsel through addresses.
Though the Respondent did not file affidavit in opposition, the
applicant is not relieved of the burden of presenting cogent and
sufficient materials for consideration by the Court. This application
fails to meet just that and the consequence is that it is refused, and
its stead, it is hereby ordered that the case be given accelerated
hearing on a day to day basis.

This is my Ruling.

J. E. Ikpala
Judge
8/11/2010