Wednesday, November 29

Justice Jobarteh warns Sainabou & co will be ‘automatically’ bailed if state fails…?

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Justice Sidi K. Jobarteh, the vacation judge who was appointed by the country’s Chief Justice to preside over the bail application filed by Sainabou Mbye, Cherno Mbye and Kibili Dembelly in the on-going manslaughter case involving the accused persons and the State, has denied all the three accused persons bail.
She, however, urged the state to file a bill of indictment, failure of which the accused persons will be “automatically” granted a bill with strict conditions.

The applicants’ lawyer had filed an application before the court, urging unconditional release of the trio from the State Central Prison pending any charge (s) that may be filed against them.

Delivering her ruling on the bail application on Thursday at the Banjul High Court, Justice Sidi K. Jobarteh said that the state has been mandated to file a bill of indictment within two weeks which elapses next week.

“The applicants can’t continue to be held in custody without being indicted at the High Court. Their continuous detention at remand after the expiration of the timeline stipulated by the court will be unjustified,” she ruled

The state, she added, would also be in flout of the court failure; to file an indictment after two weeks, adding that the applicants’ rights of presumption of innocence until proven guilty are guaranteed under Section 24 (3) (a) of the 1997 constitution.

She added: “Consequently, the state shall file a bill of indictment on or before the 19 August 2022 failing which the applicants shall be automatically granted bail in the sum of (1, 000, 000) one million dalasis each and that the applicants must provide one Gambian surety each in the like sum who must deposit to an affidavit of means, the sureties shall deposit with the principal registrar of the high court original copy of their title deed each in respect of their property (freehold or leasehold) valued not less than one million dalasis which valuation must be done by a government recognised estate valuer on a date not either than 19 August 2022.”

“The Principal Registrar of the High Court shall verify, and under her hand, approve the title to the properties and valuation reports deposited by the sureties before the release of the applicants from custody. The applicants shall surrender all their travelling documents with the registrar of the High Court and shall not travel out of the country without leave of court.”

The judge further ruled that the applicants shall be reporting to the Police Headquarters in Banjul every two days between 9am and 10am pending which an indictment is filed against them and the applicants when bailed, shall keep the peace and not commit any offence,” she posited.

“This shall elapse after 60 days from the date they are released from custody if the state fails to file a bill of indictment.”

From the date the applicants were remanded, Justice Jobarteh stated, to the day hearing notices were served for mention of the case at the High Court is three days. “The court then gave two weeks for the state to file a bill of indictment having regard to the criminal justice system of investigation and writing legal opinion.”

“The High Court Practice Direction No:1 of 2022 particularly Direction 7 (vi) states: “Where a criminal case has been transferred from the subordinate courts to the high court for trial, it shall be called up for mention by the high court within seven days of assignment and regularly thereafter in accordance with the rules. The court shall fix deadlines or timelines for the filing of indictment or information and other processes and expedite the hearing of the case.”

“Taking into consideration the instant case and provisions of the law cited above, the applicants were not only arraigned within a reasonable time and justified in a democratic society.”

It could be further recalled that the application of the applicants was supported by a 25 paragraph affidavit deposed to by one Muhammed Mbye, a businessman of Latrikunda Sabiji. Attached to the affidavit in support was a charge sheet from the Kanifing Magistrates’ Court marked ‘MM1’. The applicants filed a twenty-paragraph additional affidavit on the 9 August 2022 in support of the summons.

Accompanying the summons are medical documents of the second applicant which are collectively marked as exhibit MM1.

Meanwhile, the state filed a seven-paragraph affidavit in opposition deposed to by one Mariama Bah, senior Legal Clerk at the Attorney General’s Chambers. In reply to the affidavit in opposition, the applicants filed a nine-paragraph affidavit on 9 August 2022 deposed by Muhammed Mbye.