By Mamadou Dem
The lower court in Banjul presided over by Principal Magistrate Omar Cham, yesterday rejected the defence application for his court to review the bail sum of D100, 000,000.00 with two Gambian sureties for Ansumana Jammeh, former Gambian Ambassador to Qatar, Sanna Bah and Assan Badjie.
Lawyers for Messrs. Jammeh, Sanna Bah and Assan Badjie currently standing trial on a joint charge of conspiracy and a single count of official corruption against Mr. Jammeh yesterday, by way of a motion, urged Magistrate Cham to review the bail bond of hundred million dalasi.
The defence submitted that the bail bond imposed on their clients is excessive and that that is why they are appealing to the same court to reverse it.
Prior to the defence’s application, police prosecutor Chief-Inspector Camara acknowledged receiving a notice of motion supported with an affidavit urging the court to review the order of the court dated the 21st April, 2016. He added that the affidavit contains thirteen paragraphs.
In moving the motion, barrister Uzuma Achigbue submitted that the motion dated 21st April, 2016 was asking the court for a review of its order when granting the accused persons bail on the same date.
According to counsel, their application is in line with the inherent jurisdiction as well as section 226 of the Criminal Code (CC), adding that the affidavit in support of the motion is sworn to by one Kebba Sanneh, a legal clerk, and that they wish to rely on all paragraphs, especially paragraph 4 to 12. “As we speak, we have not received any affidavit in opposition,” he said.
He added “The grounds of our application is that in as much as you have the powers to postpone this case to any date, as well as either remand or grant bail to the accused persons on such terms and conditions as you may decide, in accordance with the law, you also have such powers to review,” Lawyer Achigbue submitted.
Further trying to persuade the court, he argued that by looking at the charge sheet upon which the accused persons were arraigned, the alleged sum is less than forty six million dalasi which they are charged with jointly and severally. “With that arithmetic, Your Worship, you can see the difference with the amount of hundred million dalasi for each applicant as a bail bond. That amounts to three hundred million dalasi. This is why we’ve deposed to the facts that these terms cannot be fullfilled by the accused persons and these facts had not been controverted,” added the defence counsel.
The defence also said they have also made it clear in their affidavit that before being charged they were enjoying the sum of 30 million dalasi bail bond from the police. “Not each but for all of them. Once the court exercised its jurisdiction in favour of the accused persons there will be sureties willing and ready to take the accused persons on bail. All those facts had not been controverted and as for the purpose of the application, those are the only things necessary for the determination of the case. We therefore urged you to review the amount of the bail bond, taking into consideration section 99 subs 2 of the Criminal Code and exercise your discretion in favour of the accused persons,” submitted Lawyer Achigbue.
Replying to the defence, Prosecutor Camara informed the court that they are vehemently objecting to the application for bail condition of the accused persons to be reviewed.
At this juncture, Lawyer Achigbue quickly interjected and argued that the prosecution cannot react by way of facts but on points of law but the trial magistrate said he should be allowed to continue.
Mr. Camara then submitted that they are upholding the decision of the court on bail dated the 21st of this month. “The conditions given by the court are genuine enough and for the prosecution it seems just. The court has used its discretion which the prosecution has no limit to and it has made all abilities to make just order to grant them bail,” he argued.
The prosecutor further argued that on paragraph ten of the motion, they are not aware of any bail granted to the accused persons as far as prosecution is concerned. He said “since the prosecution is also minded with the fundamental rights of the accused persons, the prosecution will leave it with court to decide. Prosecution is still urging the court to maintain the conditions levied on the accused persons and set aside the motion filed by the defence.”
Counter replying on points of law, barristers Lamin S. Camara and Uzuma Achigbue referred the court to section 24 subsection 3 (c) of the 1997 Constitution and the case of Antuwan Banna against Ocean Bay Resort.
At this juncture, the trial magistrate said he wanted to be addressed on the law which gave him the powers to review a bail condition delivered by himself in the same court. “This is not a pre-bail but a post bail application. The bail was fixed and considered excessive and you cited section 99 subsection (2) with isolation.”
The defence counsel said the matter of bail is not a closed issue and can be brought from time to time during the course of proceedings.
Delivering the ruling, Magistrate Cham said he had listened to both the application of the defence and the prosecution’s objection. “I’m not convinced that I can review my own orders but the high court can do it,” said the trial magistrate.
Consequently, the matter was adjourned to Thursday 28th April 2016 for hearing.