The director of Public Prosecution (DPP), SH Barkun, has made an application for the re-arrest of a detained Gam-food employee if he should be guilty of false declaration of title deeds and photocopies meant to secure his bail condition.
Muhammed Muctarr, ex-exployee of Gam-food Company, was arrested and charged with three counts of stealing by clerk, fraud and false accounting, all contrary to the laws of The Gambia. He pleaded not guilty, hence the presiding judge, Justice Emmanuel Nkea, on 8th November 2012, granted him bail in the sum of D10M with two Gambian sureties who must each deposit a leasehold title deed located within the Greater Banjul Area.
However, the accused could not meet the bail condition, which prompted the defence counsel L.S Camara to make application requesting for review of the said bail condition. Meanwhile, when the review application came on 13th November 2012, the defence counsel, Lamin Camara, urged the court not to proceed with the hearing of submission on grounds that his client had already met the bail condition, and that as such, there was no need to proceed with the review application.
DPP Barkun drew the attention of the court to what he called defective and improper fulfilled bail condition. To that end, the DPP said the accused deposited a copy of the title deed instead of the original, hence the need for the court to verify the matter before making an order for the release of the accused on bail.
According to the DPP, the said photocopy of title deed was tendered at the court registry and there is the need for the court to make verification. The DPP further urged the court to verify the matter with a view to re-arrest the accused provided the allegation of the said photocopies are found to be true in line with criminal law procedures.
The defence counsel Lamin Camara replied that a certified true copy of a document is as good as an original copy and therefore urged the DPP to verify the matter with the registry of deeds as to whether the said title deed was encumbered or not. This paved the way for the presiding judge to deliver a brief ruling on the issue.
Justice Nkea said upon listening to both sides of the case and having looked at the document in question, it was confirmed that only a certified true copy was deposited at the court registry and there was no evidence before the court to explain as to where the original copy was and the court cannot conjecture or speculate about the original copy.
According to Justice Nkea, the issue of bail is two folded with one being the need to secure the presence of the accused person in future court sittings and in an event where the accused should jump bail, the court will have convenient order for forfeiture with a view to realise the terms of the bail.
"From the above, it follows that the property that should be used in securing the recognizance must be unencumbered. Presentation of the original copy of the leased title deed is an indication that the property is unencumbered, otherwise the opposite inference would be drawn and in this case, a certified copy has been deposited without a corresponding evidence to explain why the original copy cannot be produced," Justice Nkea remarked.
The Special Criminal Court judge further remarked that it's a fact that a bank will not accept certified true copy of deed as collateral to secure a loan, so too is his court in securing terms of bail bond. The judge later made an order directed to the principal court registrar and her associates not to allow photocopies or certified copies of deeds in lieu of the original.
Justice Nkea added that at least as far as the court is concerned, the concern raised by the DPP has been found and that he agreed with the DPP that the accused has not perfected the terms of the bail imposed by the court. At that juncture, he revoked what he called the released order made by his court and made an order for the continued detention of the accused in custody pending the time he meet the bail condition or comply with the terms of the bail.