hc/066/11/cr/029/co in the high court of the gambia between mansa ...

BETWEEN
IN THE HIGH COURT OF THE GAMBIA
HC/066/11/CR/029/CO
MANSA BAH ……………………………………………….1 ST APPLICANT
BUBACARR BAH…………………………………………..2 ND APPLICANT
OMAR CAMARA……………………………………………3 RD APPLICANT
AND
THE STATE…………………………………………………….RESPONDENT
Friday 11 th February 2011
Before Hon. Justice E. A. Amadi
S. M. Tambadou for the Applicants
S. H. Barkum for the State
R U L I N G
By a Notice of Motion dated 28/1/2011 and filed on 1/2/2011, the 3
Applicants named above jointly prayed that they be admitted to bail “as to
their continued arrest and detention in cells by the National Drug
Enforcement Agency”. The Motion is supported by an affidavit of 18
paragraphs deposed to by one Alpha Kanteh who is said to be an uncle to
the 1 st and 2 nd Applicants. The contents of the supporting affidavit were
translated to him in Mandinka language and when he seemed perfectly to
have understood same he affixed his mark. That was the jurat at the foot
of the affidavit. There is also filed an Additional Affidavit of 5 paragraphs
sworn to by the same Alpha Kanteh on 7/2/2011. A photocopy of medical
report dated 3/2/2011 from the RVTH is annexed and concerned only the
1 st Applicant.

The Respondent filed an affidavit in opposition of 3 paragraphs dated
9/2/2011 and filed on 10/2/2011. Annexed thereto and marked ‘A’ is a
charge sheet containing 3 counts against the 3 applicants.
The application was fixed for hearing on the 8/2/2011. In Court, Counsel
for the Applicants, S. M. Tambadou Esq. was ready to move the Motion.
But I looked into the file to satisfy myself that the Respondent had been
served with the process. I saw an affidavit of service wherein it is deposed
that the process served was “Notice of Appeal”. The Process Server was
not nearby to explain whether or not there was a mistake. So I refused
the learned Counsel to move the Motion and adjourned the matter to
10/2/2011 and directed that proper service be affected on the Respondent.
From the second Affidavit of Service I was satisfied that the Respondent
had been served the proper process in the matter on 9/2/2011. They filed
an Affidavit in Opposition same day.
In moving his motion learned Counsel for the Applicants said the
application is brought pursuant to S.19 and S.21 of the Constitution for an
order to admit the Applicants to bail from their continued detention by the
NDEA. He referred to the affidavits and reviewed the facts deposed to in
the 2 affidavits in support. He pointed out that the Applicants have been in
detention since 3/1/2011 and submitted, in line with the argument in
paragraph 12 of the supporting affidavit, that the detention was wrongful
and unlawful. Counsel said the Applicants have not been charged to Court
but have been subjected to torture to force them confess that they

committed the offence. He referred me to paragraph 10 of the supporting
affidavit as to the nature of torture. He referred to the Additional Affidavit
and the document annexed thereto from the RVTH showing the health
situation of the 1 st Applicant, who he said collapsed in NDEA custody and
the officials took him to RVTH for treatment. Counsel referred to the
affidavit in support and said that the Applicants denied being in possession
of any type of drugs, and have done nothing wrong.
On the applicable law Counsel submitted that Applicants being in custody
for 38 days without being brought to Court, NDEA has violated of S.19(1),
& (3) (b) of the Constitution. Counsel referred to the Affidavit in
Opposition, and specifically to paragraph 3 (Viii) thereof and submitted that
the same is an attempt to mislead the Court. He pointed out that Ext A to
the Affidavit in Opposition (that is the charge) was prepared only because
of the application for bail. Counsel pointed out that the date on the stamp
on Ext A (30/2/2011) renders the document useless. He submitted that no
charge is filed against the Applicants in Court and urged me to ignore the
said Ext A, it being an after thought. Counsel urged that the Applicants
should be released on bail on reasonable terms.
Mr. S. H. Barkum, learned Counsel for the Respondent in reply said they
oppose the application vehemently and for that reason have filed an
affidavit in opposition. Counsel submitted that the issue of bail is at the
discretion of the Court; that the exercise of the discretion is guided by
statutes. He referred to paragraph 3 (viii) of the affidavit in opposition and

submitted that a charge has been filed against the Applicants. He referred
to the punishment consequent on conviction and submitted that both S.99
of the CPC and the Drug Control (Amendment) Act 2010 had removed from
the Court the jurisdiction to grant bail to the Applicants because the
offence carries capital punishment.
Counsel submitted that the Medical Report annexed to the Applicants’
Additional Affidavit is mere hearsay; that it is not certified, it being a
photocopy of a public document. He urged me to discountenance the
issue of the health of the 1 st Applicant as the facts presented are not
enough to grant bail in the circumstance. Counsel referred me to the
Nigerian case of Olatunji VS FRN(2002)2 NWLR (pt. 807)906, a case on
application for bail in respect of a charge on Drug offences. Finally,
Counsel submitted that, from the affidavit in support of the application, the
complaints of the Applicants is on violation of their fundamental human
rights; that their remedy lies on enforcement of their fundamental rights
and, like the complaint of torture, an application for bail is not the
procedure for the remedy. He said that investigations on the matter are
still on-going and that there are other suspects who are at large. Granting
them bail will jeopardise the investigations into the matter. He urged me
to refuse the application.
I will first comment on the affidavits filed in this matter. I am constrained
to do so because the success or failure of any application depends to a

very large extent on the accompanying affidavits wherein, the facts or
evidence are presented to help the Court come to a decision.
Let me first take the Affidavit in Support. The deponent, Mr. Alpha Kanteh
said he is an uncle to the 1 st and 2 nd Applicants and that “I am authorized
to depose to the matters herein”. He did not say who authorized him. He
also did not say the source of his information on facts deposed to in
paragraphs 2 to 7, 10,13,14,15,16,17 and 18 of the supporting affidavit.
He did not say whether the facts are within his personal knowledge or from
information supplied him by any person. If he believes on the information
supplied him by another, he must also state the ground of such belief.
These are no matters of fancy but are the requirements of sections 89 and
91 of the Evidence Act. In the case of Gamstar Insurance Co. Ltd. VS
Musa Joof (2002-2008)1 GLR 103 at 126, the Court of Appeal held that the
requirements of S.89 of the evidence Act are mandatory. None-compliance
to the section rendered the affected paragraphs in the affidavit in that case
incompetent and were struck out. For the same reason, I hold that
paragraphs 2 to 7, 10,13,14,15,16,17 and 18 of the affidavit in support
herein are incompetent and are hereby struck out.
Again, paragraph 9 has its own problem. I do not see how “all the
Applicants” will inform the deponent of the facts in paragraph 9 (a) (b) and
(c). The reason is this: A bail application is an individual matter. An
applicant has personal details and circumstances peculiar to him. Each of
the 3 Applicants is required to file separate application and depose to facts

personal or peculiar to him. The 3 applications could be consolidated at
the hearing. I am not aware of a joint application of persons for bail. In
respect to paragraph 9 of the supporting affidavit, the deponent cannot
state the grounds of his belief since he did not state who informed him. In
my humble view paragraph 9 of the supporting affidavit is worthless.
From the foregoing, the only paragraph of the Supporting affidavit that is
saved is paragraph 8 though the deponent did not state the grounds of his
belief. That paragraph concerns only the 1 st Applicant.
Coming to the Additional Affidavit, the same problem exists. The deponent
did not state the source of his information. The fact that 1 st and 2 nd
Applicants authorized him to depose to the affidavit is not the same thing
as saying how he came by the facts.
On the Medical Report annexed, the learned State Counsel submitted that
it be rejected because it is not certified. I noticed that the hand-written
report is photocopy of RVTH Headed paper signed by a named Doctor Njie.
I also noted the Court of Appeal decision in Banna Vs Ocean View Resort
Ltd. (2002-2009)1 GLR p. 1 at 16 where it was held.
“Being exhibit that is attached to an affidavit, it is part of the affidavit before
the Court. That is why in interlocutory applications, documents in an affidavit
must not be objected to until the substantive action comes up for hearing”.
It will not serve any useful purpose for me to discountenance that
document. I also do not agree that it is hear say.

Now let me examine Ext.A to the Affidavit in Opposition. I cannot
understand why a charge sheet dated 9/2/2011 and filed on 10/2/11
should carry the date of ’30 – 2 – 11”. on the Receive Stamp of the
Magistrate’s Court. I think it can be judicially noticed that February never
runs up 30 days. If the date inserted there is an error, it has not been so
explained even during oral argument. My conclusion is that the said Ext A
tells a lie on its face. In the circumstances I agree with Mr. Tambadou that
no charge is filed in the Magistrate’s Court.
Coming back to the request for grant of bail, I restate that the affidavit in
support cannot support the application.. But I take into account the
submission of the Applicant Counsel that the Applicants have been in the
custody of the NDEA since 3/1/2011. I also take account of paragraph 12
of the supporting affidavit and hold that NDEA grossly violated the
mandatory provision of S.19 (3) (b) of the Constitution which states as
follows:-
“Any person who is arrested or detained upon reasonable suspicion
of his or her having committed or about to commit a criminal offence under
the laws of The Gambia, and who is not released, shall be brought without
due delay before a Court and, in any event within seventy-two hours”.
This is a constitutional requirement which must be complied with. There is
no denial that the Applicants have been in NDEA custody since 3/1/2011
and were neither released nor brought before any Court. In view of this
constitutional violation, I will order for their release from NDEA custody.

However, in doing so, I also take note that the Applicants were arrested on
drug related offence and the Respondent say they are ready to prosecute
them. I will release them conditionally because drug offences are now
rampant in this country with their resultant damage to the health of the
citizens. To this end, I hereby order the NDEA to release the Applicants
from detention on the following conditions of bail.
1. Bail is hereby granted to each of the Applicants in the sum of
D500,000 with one surety each in like sum.
2. The surety shall be a prominent Gambian who owns landed
property in Banjul or in the Greater Banjul area.
3. The Applicants, each of them, must report to the NDEA office in
Banjul every Monday, Wednesday and Friday at 10am and present
himself to the officer in-charge of the case alleged against him.
This will continue until NDEA and the Sate decide to bring
Applicant to Court or decide not to prosecute him
4. Each Applicant and his surety will enter into a bond with the
Sheriff of the High Court to the effect that, until the Applicant is
charged in Court or the Authorities decide not to prosecute him,
the Applicant will comply with the Order (3) above.
5. The bond will state that if the Applicant runs away from
jurisdiction and fail to report to NDEA as directed above or cannot
be seen to be taken to Court when required, the amount of bail
hereby granted shall automatically be forfeited to the State
without further Order of the Court.

IT Is FURTHER ORDERED that, each surety shall deposit with the Sheriff,
the original of title deeds of his property aforesaid.
Similarly, each Applicant shall deposit with the Principal Registrar of the
High Court all his travel documents and his National Identity Card.
Finally, this bail is revoked when the authorities take the Applicants to the
Court for arraignment or decide to drop the charge.
...……………………..
Hon. E. A. Amadi
Judge