The Banjul High Court presided over by Justice Simon Abi Tuesday granted
alleged homosexuals bail of D2 million (each D1M) with two Gambian sureties.
Defence counsels L.S. Camara, Gaye-Coker and S Jahateh represented
Momarr Sowe and Alieu Sarr, while B.S. Touray represented Modou Lamin Bittaye.
In his ruling, Justice Abi recalled that the defence led by counsel Gaye-Coker, representing Alieu Sarr and Momarr Sowe, had said the application for bail pending before the court was filed on 28 January 2015.
She said the motion was supported by a 7-paragraph and they intended to rely on all paragraphs, and the state responded with a five-paragraph of affidavit in opposition.
She said the application for bail was brought under section 19 of the constitution and section 99 of the CPC, which supports the applicants’ right to bail.
She said they pointed out that all the offences the applicants are charged with are bailable offences.
Counsel Coker argued that, in section 24 of the constitution, the applicant is presumed innocent until proven guilty; therefore his right to bail ought not to be restricted.
She said paragraph 4 of the affidavit in support of the motion stated that the applicants were arrested since 9 November 2014 in Senegambia, Kololi, and detained at the NIA up to 24 December 2014 and were not brought before any court of law.
She said the applicants are Gambians and have friends and families within the community, as well as sureties who could post bail, and who would ensure the accused made himself available in court at all times during the trial.
She said the applicants could not at this stage interfere with any investigations since the investigations have been concluded.
She said the applicant did not wield any power or influence to interfere with the witnesses or any investigations, and the applicants are not liable to abscond if granted bail by the court.
Justice Abi said, in response, the state represented by AM Yusuph, replied that they filed an affidavit in opposition dated 5 February 2015 and filed it in court on the same day.
He said it is trite law that all motions should be accompanied by supported affidavits, and there are rules and obligations governing the affidavits.
He added that paragraph 4 did not comply with section 92 of the Evidence Act and said the name of the informant, the time and the place were not mentioned.
He said the motion could not stand on its own without the affidavit and urged the court to strike out the motion and dismiss the application.
According to Justice Abi, he had listened to both sides and in paragraph 4a of the affidavit in support - the name of the informant - he did not think it was in doubt as to who the informant was.
He said the only thing missing was the time of the information, which could not render it invalid.
He said paragraph 4p of the affidavit in opposition stated that investigations were ongoing and others were at large, but it did not state fears of the accused tempering with the investigations.
He said the court had discretion to grant bail and the discretion should be exercised judiciously.
He said sickness is good grounds for bail, but there was no evidence in the affidavit in support that the applicant was sick.
The applicants, Momarr Sowe, Alieu Sarr and Modou Lamin Bittaye, were subsequently granted bail as follows: the applicants are granted court bail of D2 million with two Gambian sureties who shall depose to an affidavit of means in the sum of D1 million each with a title deed in the Greater Banjul Area valued at D1 million each.
The applicants shall provide evaluation report to be approved by a judicial staff not earlier than the date of the ruling.
The applicants shall deposit their Gambian passport and all other documents with the court’s registrar.
The applicants shall report to the National Intelligence Agency (NIA) every Monday and Thursday and the Director of NIA shall facilitate that.
After the ruling, defence counsel B.S. Touray said he was craving the indulgence of the court to adjust paragraphs 3 and 4 of the bail conditions with regard to reference to land ownership.
B.S. Touray also said paragraph 4, which was for the applicants to report to the NIA, instead of the court, could allow the applicants to report to the Principal Registrar of the high court.
He said the reason being that the NIA office is a busy office where they investigate serious cases, and the applicants could suffer from the lack of attention and spend the whole day there because “when you enter the NIA office you leave upon permission.”
He said when they reported to the registrar he could record their attendance and provide it to the court whenever the court needs it for confirmation.
Justice Abi then reviewed it as follows: that the applicants’ sureties would now depose to a property within the Greater Banjul Area valued at D2 million and
