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Thursday, September 29, 2022

Sainabou and Co. to get automatic bail if state fails to file charges

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By Bruce Asemota

Vacation Judge, Justice Sidi K.Jobarteh of the High Court in Banjul has given the state law office until the 19th August, 2022 to file bill of indictment against Sainabou Mbye, Cherno Mbye and Kibili Dembelly.
Justice S.K Jobarteh ordered that failure of the state law office to file bill of indictment on or before the said date will result to the suspects accorded automatic bail in the sum of one million Dalasi each with one Gambian surety each in like sum who must depose to an affidavit of means.
Justice Sidi K. Jobarteh made this declaration yesterday in a ruling on a motion filed by these applicants seeking for their unconditional release from the state central prisons, in the alternative for them to be admitted to bail on such terms and conditions the court may deem fit to ensure their appearance in court to answer any charge that may be filed against them.
The trial Judge ordered that the sureties shall deposit their title deeds in respect of their properties with the Principal Registrar of the High Court.
She further ordered that the applicants surrender all their travelling documents with the Principal Registrar of the High Court and shall not travel out of the country with the permission of the court.
She ordered that the Applicants shall be reporting to the Police Headquarters in Banjul every two days between 9am to 10am pending when an indictment is filed against them.
The bail shall elapse after 60 days from the date they are released from custody if the state fails to file a bill of indictment.
The Presiding Judge asserted that if Cherno Mbye has any complaint of health issues at Mile 2 prisons, the Director General of the state central prisons is directed to ensure that he is taken to the hospital for medical attention.
Justice Sidi K. Jobarteh disclosed that she formulated two issues for determination after going through and listening to the submissions of both the state and the Applicants counsels.
The issues are whether the averments in the Applicants’ affidavits are in compliance with the rules of affidavit evidence, and whether the applicants should be granted bail.
Justice S.K.Jobarteh said having carefully gone through the averments in the affidavits of the Applicants it was clear that legal arguments were raised noting that the legal arguments raised were unjustifiable by law and that paragraphs 14(b)(c) and 15 of the Affidavit in support of the originating summons was in contravention of section 90 of the evidence act.
She held that paragraphs 5,6 and 8 of the Affidavit in reply does not comply with the rules of affidavit evidence and were accordingly struck out.
On the issue whether they should be granted bail, Justice S.K.Jobarteh said the applicants have been charged and arraigned before the Kanifing Magistrate’s Court on the 26th July 2022 for manslaughter. The Magistrate acting under section 62(1) of the CPC transferred the matter to the High Court for want of jurisdiction.
She also said the case was mentioned at the High Court and the state applied for two weeks adjournment to file a bill indictment which was granted.
Justice Sidi K.Jobarteh disclosed that the Applicants have been brought before the court within reasonable time.
She further said that section 99(1) does not require accused persons tried with offences that attract death penalty or life imprisonment to be bailed.
She stated that the application for bail at this stage lacks merit and was therefore refused but noted that the state has been mandated to file a bill of indictment within two weeks which duration elapses next week.
She pointed out that applicants cannot continue to be held in custody without being indicted at the High Court.
She said their continuous detention after the expiration of the two weeks stipulated by the court will be unjustified.
Presiding Judge noted that the state shall file a bill of indictment on or before the 19th August, 2022 and failing which the Applicants shall be automatically granted bail in the terms and conditions mentioned above.

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