The High Court in Banjul presided over by the vacation Judge, Justice Abdulahi Mikailu, on Monday 31st December 2012 dismissed the bail application filed on behalf of Mamburay Njie by his legal counsel, Lamin S. Camara.
Mamburay Njie, a one-time minister of Finance and Economic Affairs, was arraigned before the Banjul Magistrates' Court on economic crime offences and was subsequently detained at the Mile Two State Central Prisons.
In a ruling delivered by Justice Abdulahi Mikailu on Monday, the Judge averred that the said bail application was brought pursuant to Section 19 of the Constitution of the Republic of The Gambia, Section 99(1) of the Criminal Procedure Code as well as Section 8 of the Economic Crimes (Specified Offences) Act.
Justice Mikailu further averred that the said application was by way of originating summons, which prayed the court for the following orders:
1- That the applicant be released from custody upon entering into recognizance with or without sureties on a condition for his appearance before any court where any charges preferred against him would be heard.
2- Any further order this court may deem fit to make.
He revealed that the said application is supported by 34 paragraphs affidavit deposed to by one Maimuna Njie, adding that the applicant relied on all the paragraphs of the affidavit.
He further revealed that in arguing the application, the applicant counsel referred the court to Section 19 of the Constitution of the Republic of The Gambia, Section 99(1) of the CPC as well as Section 8 of the Economic Crimes (Specified Offences) Act and submitted that it is not in contention that the offence charged and filed in the Magistrates' Court is a bailable one, adding that it is the law that since the Magistrates Court has no jurisdiction to try the case, bail in respect of the offence should be filed in the High Court which is vested with the discretion to grant bail.
Justice Mikailu disclosed that the applicant counsel submitted that (exhibit MN1) record of proceedings from the Banjul Magistrates' Court did not make any remand order even after taking the applicant's plea on the 14th December 2012.
He said the applicant counsel argued that since there is no charge before the High Court and no remand order as per exhibit MN1, the applicant ought not to be in remand.
According to him, the applicant's counsel recognised the fact that bail is at the discretion of the court and therefore prayed the court to admit the applicant to bail. The applicant counsel referred the court to paragraphs 28 of the affidavit in support and submitted that the applicant had been in police bail and had been reporting.
Justice Mikailu disclosed that the applicant counsel also referred the court to the affidavit in opposition and submitted that the depositions therein is a general denial which have not been controverted by the affidavit in support of the motion paper.
The High Court Judge said the applicant counsel submitted that paragraphs 3C of the affidavit in opposition that the applicant had been in police bail whilst investigation was still going on.
That the applicant counsel argued that the fact that more charges are likely to be brought against the applicant is not a ground for denial of bail.
The applicant's counsel referred the court to the case of Suleiman Paror Vs. the Commissioner of Police (Plateau State) 2008 3 NCL 334 at ratio 2, 3, 4, 5, 6, 7 and 8 and submitted that the purpose of bail is to grant pre trial liberty to the applicant until such a time the respondent files an indictment.
In addition, the applicant's counsel further submitted that the detention of the applicant is unconstitutional as it was not done in accordance with the procedure laid down by laws as provided in Section 19 of the Constitution of The Gambia, adding that the applicant is entitled to bail and finally urged the court to grant the applicant bail.
Justice Mikailu disclosed that in response to the arguments canvassed by the applicant counsel, the learned DPP submitted that the instruction given to him by his superiors is that although they had filed an affidavit in opposition, they are however conceding to an interim bail, pending the filing of a formal indictment.
The DPP however urged the court to attach stringent condition taken into account the depositions in paragraphs 15 - 20 of affidavit in support.
Justice Mikailu said the DPP drew the attention of the court to paragraph 3 of the affidavit in opposition and submitted that investigation into the case is on going that the respondent entertains fear that the applicant may temper with the investigation and interfere with the witnesses, but finally left the issue of the applicant bail at the discretion of the court.
Justice Abdulahi Mikailu in giving the court verdict, disclosed that as submitted and recognised by both counsel, bail is at the discretion of the court, such discretion must however be exercised judicially and judiciously.
He noted that in exercise of this discretion, the court is bound to examine the evidence before it without speculating or considering any extraneous matter.
According to him, the court cannot exercise its whims indiscriminately, similarly there is no room for the court to express or be swayed by sentiments, it is a hard matter of law, facts and circumstances which the court must consider without being emotional, sensitive or sentimental, pointing out that the exercise of discretion must be matched with attendant facts of each given case.
He cited the case of Udo Vs. Cop (2004) 8 NWLR PT^ 814 pg 47 at 64 paragraphs g - h, Suleiman Vs. Cop Supra at 739 - 740 ratio 6, Danbaba Vs. State (2004) 14 NWLR Pt 687 Page 396 at 408 paragraph B and Jimoh Vs. Cop 17 NWLR Pt 289 at 395 paragraph 4.
Justice Mikailu declared that in an application for bail such as this, it is the affidavit evidence placed before it that a court should consider and nothing else and cited the case of State Vs. AKAA (2002) 10 NWLR Pt 774 at 167 ratio 6.
He further declared that arguments of counsel no matter how brilliant it may be, if it is not ground by any paragraphs of the affidavit, it will certainly go to no issue.
According to the High Court Judge, like in all other applications seeking the order of the court, an applicant for bail must first place before the court for its consideration, material facts upon which to ground the exercise of its discretion. It is after the applicant for bail had discharged, the onus that rest on him for courts consideration that the onus will shift to the prosecution to show cause why bail should not be granted.
"Has the applicant in this case placed sufficient material facts as to be entitled to court discretion"? Justice Mikailu asked.
He said that a little voyage into the affidavits evidence will do good in the circumstances, adding that it is fundamental for the applicant to note that bail can only arise if the applicant has shown by credible evidence that he has been detained.
The applicant must show by credible evidence that he has been detained, it is only then that he will seek intervention of the court for release, and it is only then that the court may proceed to consider the merit of the application having regards to the evidence, facts and circumstances of the case.
The applicant exhibited the record of proceedings of the Magistrates' Court (MN1) in paragraph 4 of the affidavit in support and it is the submission of counsel also that the presiding Magistrate did not make any order for the remand of the applicant in prison custody.
Justice Mikailu pointed out that he studied exhibit MN1 but found that there is no order of remand made by the acting Principal Magistrate B. Secka who transferred the case to the High Court.
He further pointed out that the relevant portion of exhibit MN1 reads, "pursuant to Section 62 of the Criminal Procedure Code this case is hereby transferred to the High Court for trial".
He said from the above averment, it is clear that there is no order of remand, and therefore exhibit MN1 does not show that the applicant was detained by any person to enable the applicant to come under any of the Sections of the Laws relied upon in bringing this application, adding that the affidavit in support does not also help the applicant in this regard.
Justice Mikailu further said that the paragraphs of the said affidavit which would have been helpful in showing that the applicant is detained are paragraphs 7 of the affidavit in support and it reads: the applicant is detained at the State Central Prisons Mile II by the court on the 14th December 2012.
He averred that these depositions contradict the depositions in paragraph 6 of the same affidavit and deposed to by the same deponent, adding that Paragraph 6 reads: "That I am informed by counsel Lamin S. Camara and I verily believe same to be true that the applicant was not remanded on court order by the Banjul Magistrates' Court after his plea was taken on the 14th December 2012."
Justice Mikailu disclosed that the depositions in Paragraphs 6 and 7 contradict each other, adding that the affidavit in support is self-contradictory.
He pointed out that it is the law that in such circumstance, the court shall discountenance the contradicting depositions in the affidavit.
The Judge said the court cannot pick and choose a paragraph in a self-contradictory affidavit, stating that it is not a case where two affidavit contradict each other or are in conflict in which case the court may call for oral evidence.
He further said this is a case where two paragraphs in an affidavit are contradictory.
He noted that having discountenanced the two paragraphs, exhibit MN1 did not show any order of remand by the Magistrate and the two paragraphs of the affidavit in relation to the alleged detention of the applicant have failed because they contradict each other.
Justice Mikailu further noted that no detention warrant concerning the applicant is exhibited in the affidavit, no deposition is made by officer from any detention centre to show that the applicant is detained, on which evidence should the court act that the applicant is in detention to enable the court exercise its discretion to order release.
He said there cannot be an order of release without evidence of detention since Paragraphs 6 and 7 have been discountenanced and therefore found the remaining paragraphs in the affidavit in support of the application to sustain the prayers in the face of the summons.
The presiding Judge noted that one cannot put something on nothing and expect it to stand and therefore the prayers on the face of the summons is refused and the application dismissed.
Justice Mikailu however advised the counsel for the applicant to take the proper course of action to secure the release of his client, Mamburay Njie.