By Mamadou Dem The Banjul Magistrates’ Court presided over by Principal MagistratePa Malick Ceesay Dawda Jallow yesterday, Tuesday, 14 April, denied the bail application for Pa Malick Ceesay and Ismaila Njie, erstwhile Coordinator of National Enterprise Development Initiative (NEDI) and former Accountant, respectively, based on fears raised by the prosecution in their objection.Ceesay is also the sitting National Assembly Member (NAM) for Lower Saloum Constutuency. Delivering the ruling in a congested court room, the trial magistrate indicated that the prosecution did raise fears that the accused persons will escape or tamper with prosecution witnesses but that the counsel for the accused did not provide the court with anything to allay those fears. “The court cannot close its eyes to the concerns of prosecution without any facts to the contrary. Consequently, this court is constrained to hold that the application for bail is discountenanced,” he said. The trial judge also upheld the application to have the matter transferred to the high court and consequently ruled that it be transferred to the office of the Chief Justice for reassignment. He also reminded the accused persons that they are entitled to appeal against the ruling. Earlier, Magistrate Jallow indicated that it is trite that bail is discretional and any court which is faced with the application for bail may exercise the discretion either in favour of the applicant or otherwise, bearing in mind certain important factors. He said section 99 (1) of the Criminal Procedure Code (CPC) provides for court bail and it provides that when any person other than a person accused of an offence punishable with death, or imprisonment for life, appears or is brought before a court on any process or after being arrested without a warrant, and is prepared at any stage of the proceedings to give bail, such person may in the discretion of the court be released on bail. It is therefore clear that the court has discretion on the matter and can decide to admit an accused to bail or withhold bail. The trial magistrate said the factors that must be taken into consideration by the court in granting bail are not expressly stated in the said section. Notwithstanding, he added, the common factors that courts do consider include¬¬: the nature of the offence with which an accused is charged and the punishment prescribe for the offence, the accused person’s criminal record, possibility of the accused committing further offences while on bail amongst others. “It is trite law that in all cases in exercise of discretion, the court is required to exercise its discretion judicially and judiciously. That means that a court is to exercise such discretion on the basis of the material facts placed before it,” said Magistrate Jallow. He continued: “In the instant case, other than the laws cited by counsel for the accused persons, no individual facts regarding the accused persons have been placed before this court in assisting the court reach a considered decision.” He then referred to the case of State versus Ebrahim Bun Sanneh where Justice Emmanuel Amadi held that “Even whereas the accused persons are charged together in one charge sheet, each of them has a personal case to answer; their private circumstances can never be the same, especially in an application for bail…. Application for bail seeking for a personal equitable relief requires that each applicant must present his case to the court…. If the applicants are all represented, by counsel, he could argue their application together but still keeping each applicant’s peculiar facts and circumstances clear. The general application before me here subsumed the personal individual aspect of each applicant to the general. In the circumstances, the applicants have not individually shown any special circumstances to warrant me exercise my discretion in favour of granting them bail.” The trial magistrate recalled that during counsel’s application for bail, he did not provide the court with any fact regarding the two accused persons in order to assure the court and allay its fears in the risks that naturally follow the granting of bail. He said granting bail is not automatic but discretional and the court before which such an application is made needs to be persuaded to exercise its discretion one way or the other. Readers would recall that the two accused persons are charged on sixteen counts ranging from economic crime, abuse of office, negligence of official duty and theft among others. Both of them have denied any wrong doing.]]>

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