IN THE HIGH COURT OF THE GAMBIA HELD AT BANJUL

BETWEENIN THE HIGH COURT OF THE GAMBIA HELD AT BANJULON THE 22 ND DAY OF DECEMBER 2010 BEFORETHE HONOURABLE JUSTICE J.E IKPALA, HIGH COURT JUDGECRIMINAL CASE NO. HC/615/10/CR/170/COALHASSAN TOURAY - APPLICANTVsTHE ATTORNEY GENERAL - RESPONDENTApplicant - AbsentAppearancesS. M. Tambedou with E. Janneh for The StateSimeon Abi for RespondentRULINGThis is an application for bail. It is dated 7 th December 2010. Itprays thus:That the applicant be granted bail as to his continued arrestand detention by the National Drug Enforcement Agency.In support of the motion is a 17 Paragraphs affidavit of Jacob K.Touray wife of the applicant. The applicant relies on all theparagraphs of the affidavit. There is also a four paragraphsadditional affidavit of Mustapha Jammeh of Latrikunda and aClerk in the applicant’s Counsel Chamber. The applicant relies on allthe Paragraphs too.

Learned Counsel to the applicant submitted that the application isbrought pursuant to Section 99 of the C.p.c as well as S.19 of theConstitution 1997. Counsel drew the Court’s attention to Paragraphs3 and 16 of the affidavit in support and submitted that the applicanthas been held in detention continually for a period of 23 days whichis more than the 72 hours provided in the Constitution and thisconstitute a violation of the applicant’s constitutional right.Referring the Court to paragraphs 5, 6, 9, 11 and 12 of the affidavitin support, Counsel argued that the applicant was arrested with fourothers and they are all employees of the company PristineInvestments Company Limited adding that the applicants is neither aShareholder nor a director of the company.Referring to paragraph 3 (d) of the additional affidavit Counselargued that the Applicant is being held as hostage for the return ofthe Chief Executive Officer of the Company who is the brother.Referring to paragraphs 3 and 4 of the Respondent’s counteraffidavit, Counsel submitted that a bare denial of the depositions inthe applicant’s affidavits is not enough and that the Respondentfailed to prove that the applicant is the alter ego of the Company,more so that the applicant says he is an employee.

It is further argued in favour of the application that Exhibit MOJI ofthe Respondent never convey any admission by the applicant ascontended by the Respondent in paragraph 5 of the Count affidavitand that the fact that the Applicant hold a U.S.A Citizenship does notinhibit his right to bail as S.33(1) (3) and (4) of the Constitution makeno discrimination in Constitutional right guaranteed therein.However, Counsel argued that the applicant have dual Citizenship ofGambia where his family is and has strong family and social ties inhis community in The Gambia, and U.S.A. Counsel drew the Court’sattention to the presumption of innocence provided in S.24(3)(a) ofthe Constitution and argued that the Respondent has not shown anyreason why the applicant should not be admitted to bail and urge meto grant the Applicant bail.In his reply the Respondent submitted that they are opposing theapplication hence had filed a 9 paragraphs counter-affidavit with anexhibit marked MOJI. They are relying on all the paragraphs and theattached exhibit. Counsel submitted that for invoking thediscretionary powers of this Court under S.99 of the C.p.c the Lawenjoins the applicant to make available to the Court sufficientmaterial for the exercise of the discretion. According to Counsel, theapplicant has failed to do so in his application. That the affidavits ofthe applicant relates to his persons only and never offer reasons whythe Court should grant him bail. Such reasons absent in theapplicant’s affidavit according to Counsel are

• No charge sheet to show that he was charged before aCourt on 29-11-2010 where he denied the charge as perparagraph 5 of the affidavit in support.• No reason given why he did not apply for bail in thatCourt.• No undertaking to provide reasonable Surety should hebe given bail.• No undertaking that he will not jump bail should bail begranted him.On the efficacy of Exhibit MOJ1 as an admission, Counsel submittedthat a close study of the Exhibit will show that it amounts to anadmission and urge the Court to have such close look at it.On the assertion that the applicant is being held hostage, Counselsubmitted that it cannot be true by virtue of paragraph 5 of theaffidavit in support where it is deposed that the applicant wascharged before a Court.Finally it is contended on behalf of the Respondent that paragraph 7of the Counter affidavit is not denied by the applicant. That is to say

further investigation is on going on the role of Pristine Consulting andthe applicant, and if the applicant is release he will interfere withinvestigation. He urged me to refuse the application.There is no gain saying that in application for bail as this one thingthe applicant need do is allay the fear of his captors or detainers andassure them that he will not commit any offence, he will makehimself available anytime required, he will not interfere withinvestigation, he has reasonable Sureties or Surety to stand for himto mention but few. See S.99 of C.p.c. These are facts in addition towhat the applicant considers the reason or reasons why his captorsare holding him, the applicant would need to present to the Court topersuade the Court to exercise discretion in his favour. Once this isdone, the Respondent has a Herculean task to dissuade the Courtfrom granting bail. No doubt in criminal trial, the burden is on theProsecution to prove beyond reasonable doubt the guilt of theaccused person but in bail application, the burden is on the applicantto show that he is entitled to it. See OLAYIWOLA V FRN (2006) 8WRNPg. 108 at 145.In ALBERT SAMBOU V THE STATE Suit No. MISC. Appl 37/2002.Unreported delivered on 17 th June 2002, A. K. Savage J. (as he thenwas) listed the following factors for consideration in a Pre-trial bailapplication.

• Nature of the charge• The severity of the punishment prescribed for theoffence• The quality of the evidence available• The likelihood of the accused interfering withinvestigation• The likelihood of the accused repeating the commissionof the offence• The criminal record of the accused• The rate of occurrence of the offence• The likelihood of the accused appearing to stand trial.The question that now follows is what are the material facts in theaffidavit in support that are available to the Court for the exercise ofa discretion that is judicious and judicial in favour of granting theapplicant bail?

Firstly the applicant deposed that he was charged under S.292 of theCC on the 29 th November 2010 and he denied the charge. He did notmention the Court or exhibited the charge. A charge is documentaryand the primary evidence of a document is the document itself, seeS.97 of Evidence Act 1994.Secondly the applicant deposed that he is an employee of PristineInvestment Company Limited and not director but the Respondentjoin issue with him that he is the alter ego, that is to say theapplicant is the director and everything in the company. Curiously itis submitted that the Respondent did not show that the Applicant isthe alter ego of the company. On the facts it is oath of the applicantthat he is an employee of the company against oath of theRespondent that he is the alter ego. The burden is on the applicantto show that he is entitle to bail, he will do so on this point byexhibiting his letter of employment as employee and not the directoror chief Executive claimed by the Respondent and this he failed todo.In spite of the lapses in the applicant’s application what legaljustification can account for the continuous detention of a person notby order of Court and in a place designated for that purpose, foronward of 23 days without trial in view of S.19 of the Constitution1997.

Agreed that a transaction of Biometric Gambia National IdentityCards and National Driver’s License between the Respondent and theapplicant’s Company touches life nerve of the Nation. Also agreedthat the applicant is a dual national of The Gambia and the U.S.Awith a right to reside in either nation I am inclined to grant theapplicant bail.• The Applicant is admitted to bail in the sum of Twenty MillionDalasis (D20m) and one Surety in the like sum.• Surety to swear to affidavit of means and deposit the Title Deed ofhis Property valued not less than Twenty Million Dalasis with thePrincipal Registrar of the High Court.• The Applicant to surrender to the Principal Registrar hisinternational travel documents.Dated this 22 nd December 2010.J. E. Ikpala

JUDGE22/12/2010