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Magistrate Tabally of the Kanifing Magistrates’ Court, on 15 January 2015 ordered one Modou Lamin Ndow and Musa Louis Bahoum to forfeit a bail bond of D100,000 each, for standing as sureties for one Omar Bah, who absconded.
In his ruling, Magistrate Tabally stated that an application was made by Sergeant 3560 Colley for forfeiture of the bail bond executed by the sureties in favour of the accused, Omar Bah.
The prosecutor argued that since the accused jumped bail and the sureties had failed to produce him, the bail recognizance executed by the sureties in favour of the accused ought to be settled.
The prosecutor also submitted that the application was made based on section 107 of the Criminal Procedure Code.
The first surety testified that he did not aid the accused in absconding the jurisdiction, and had made a series of efforts searching for the accused by travelling the length and breadth of the country, but without success.
The first surety said he had travelled to Senegal and Guinea Bissau, all in search of the accused and all efforts to locate the accused person proved futile.
The second surety, Magistrate Tabally went on, said he too tried to locate the accused, without success.
The second surety further told the court that he travelled to Dakar to find the accused.
The second surety indicated that he was informed by an uncle that he (the uncle) remitted the sum of D15,000 to the accused in Niger, where he was last heard from.
This was part of an effort to entice the accused to return and face the pending case, but he failed to return.
Lawyer M.F. Mbai, who was representing the first surety, submitted that the court has discretion to remit a portion of the bail sum.
Lawyer Mbai reminded the court that the sum of D1,000,000 which was part of the alleged sum in the charge sheet was still with the bank.
Lawyer Mbai, therefore, urged the court to remit part of the sum for the recognizance only.
Magistrate Tabally then stated that as a general rule, forfeiture of bail recognizance was at the discretion of the court.
He further adduced that the court took judicial notice of the fact that the sureties rarely received independent legal advice, as they would when entering into similar obligations in a civil context.
On the other hand, he said, the diligence of the surety was only one factor relevant to a forfeiture hearing.
In the end, the court must attempt to balance various considerations in exercising its discretion, adding that he was inclined to the view that the sureties did not appreciate the full implications of the recognizance in question, and their failure to fulfill the undertaking of producing the accused could be mitigated.
He further stated that, in his view, the circumstances of the matter dictated that the bail bond be forfeited in part.
He subsequently ordered that the sureties pay the sum of D100,000 each and in the following order: The sum of D50,000 to be paid on or before the 31 January 2015, and the balance thereafter monthly installments of D10,000 effective the 28 February 2015, and until the balance of the whole amount is fully liquidated.
They were granted bail in the sum of D100,000 each with a Gambia surety who should swear to an affidavit of means.
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