Apr 28, 2009, 8:47 AM
state represented by the Director of Public Prosecutions (DPP), S.H. Barkun,
yesterday urged the court presided over by Justice O. Ottaba of the Special
Criminal Court to exercise its discretion in favour of the state, and refuse
Sira Wally Ndow-Njie, Nuha Touray and Momodou O.S Badjie bail.
When the case was called, DPP S.H. Barkun responding to the bail application of Sira Wally Ndow, Nuha Touray and Momodou O.S. Badjie said, to begin with, the application was not dated and there was no counter affidavit filed by the state.
He said the bail application was brought pursuant to section 99 of the CPC, adding that the mere fact that the offence with which the applicants were charged with had been brought under section 99 of the CPC, “does not make it automatic”.
“My lord, sufficient materials should be laid before the court for consideration. Taking into account that I have gone through the affidavit in support of the summons, and from what I can gather I have not seen anything that can warrant the court to rule in favour of the accused persons,” he said.
The DPP added: “My lord, the most important evidence in the affidavit in what was exhibited as exhibit BN1, which is the charge dated 22 and 12 July 2016, and the name of the applicants has been stated throughout the transactions.
“The applicant, Sira Wally Ndow-Njie, held very high positions in the Government as she was the Minister of Energy and Petroleum and to whom much is given, much is expected.
“The level of the involvement of the applicant in the transactions could be seen throughout, which all emanate from Energy and Petroleum, where she served as Minister of Energy and Petroleum.”
At that juncture, counsel ID Drammeh representing Sira Wally and Nuha Touray, objected on the grounds that the DPP must be restricted to points of law.
Continuing his submission, the DPP said the offences with which the applicants were charged are bailable and they were not disputing that, but that alone was “not a ground to grant bail”.
“What the court should take into account is the nature of the case,” he said, adding that the nature of the transactions showed that there was a “serious economic crime”.
“A counter affidavit has not been filed by the prosecution and in this regard, my lord, we are submitting that with or without a counter affidavit and with or without opposition from the respondent, the discretionary powers of the court can refuse the application and cannot be shaken for the fact that a counter affidavit has not been filed or the respondent did not object. I urge the court to refuse the application,” he said.
In response, senior counsel Ida Drammeh representing Sira Wally Ndow Njie and Nuha Touray said it was her submission that discretion is required by law to be exercised judiciously and in a judicial manner.
A court could only act on facts presented to it, and in this case uncontroverted facts, she submitted, adding that in as much as her learned friend had urged the court to exercise its discretion, that discretion should be exercised within the walls of the application.
Counsel Drammeh also informed the court that the applicant, Sira Wally Ndow, has a serious health issue and that she wanted the court to order for her to have urgent medical attention.
However, the trial judge said the counsel’s application was late.
Counsel Drammeh insisted that the applicant’s health issue is a serious one, and it has to do with a kidney and once it breaks, “it is irreversible”.
She made an application for the court to make order for the applicant to be admitted to hospital for urgent medical attention so that her condition could be stabilised.
The trial judge granted the application, which was directed to the Director General of the NIA, where the applicant is being held.
Moving Momodou O.S. Badjie’s bail application, counsel L.S. Camara said the application was supported by a 25-paragraph affidavit with exhibits attached.
He said they rely on all the paragraphs and in particular paragraphs 4 to 25, adding that the applicant “does not pose a flight risk” since his documents are with the NIA.
He said with regard to the arguments contained in the affidavit in support on section 8 of the Economic Crime Specify Offences Act, the court should exercise its discretion in favour of the applicant having regards to the fact that there was no counter affidavit of opposition and the burden of proof is very light.
“I want the court to take judicial notice of the following in exercising its discretion: that the matter was meant to be heard on 14 July and adjourned until 18, 21 and 27 July 2016 and that the applicant had been in custody since 22 June 2016 without a proper indictment before the court,” counsel Camara said.
“In the circumstances, I enjoin your lordship not to free or quit and discharge him, but to grant him pre-trial liberty, that’s all we are asking for,” he said.
The case was then adjourned until 1 August 2016, at 11 a.m., for ruling.