By Landing Ceesay
Justice Ebrima Jaiteh of the High Court of the Gambia earlier today rejected the oral bail application by the Lawyers of Sainabou Mbye, and two others.
The trio, Sainabou Mbye Cherno Mbye and Kibili Dambelly are charged with manslaughter contrary to section 186 of Criminal Code Cap: 10.01 Vol.III, Laws of the Gambia 2009.
The particulars of the offence stated that Sainabou Mbye, Cherno Mbye and Kibili Dambelly, on or about 3rd day of July 2022, at Kanifing and diverse places in the Republic of the Gambia, by unlawful act or omission, amounting to culpable negligence, left one Muhammad Mbye, a two-year-old boy, resident of Brusubi inside a car which caused his death, thereby committed an offence.
In her submission, Combeh Gaye, the Counsel for the accused persons submitted an oral application for the court to grant her clients bail, pending the conclusion of the State’s investigation; but Patrick Gomez, the lead counsel for the State said they would oppose any application that seeks the court to grant the accused persons bail.
Meanwhile, Justice Jaiteh, in response to the defence counsel’s oral submission for the court to grant the accused persons bail, said the practice in the court is that, in the event when an indictment is filed, the defence can make an oral application for bail as per their rules.
He said before an indictment is filed the defence should come by way of motion on notice.
“You come formally before the Court. But unfortunately, you have not filed any application that this court can consider. I would suggest you should have filed a formal application and serve the State. Regardless of the charge, not all charges. You have the right to file that application. I also have the right to consider that application. We will look at it and see, if I see that it is an issue, we could move it to the next level.
“The charges from the Magistrates Court are not applicable before this court. Literally, there is nothing before the court. So if you had brought your application, I would have entertained it formally, looked at your affidavit and then we would have dealt with that as we speak, but from now on, you should have come up with your formal application,” Justice Jaiteh said.
However, the defence counsel said: “May I tell this to the court that the issue here is bail?”
Justice Jaiteh replied “That’s what I am talking about, bail generally, you make an oral application, if there is an indictment, or bill of indictment, or a memorandum of indictment before the court and the plea taken has been done, you can make that application.”
Jaiteh insisted that, if there is an indictment, the defence would have made an oral application and he would look at it and deal with it at the material time.
“Just recently, you came with a similar application. How many of them there were no charges in a similar situation, and I granted them bail? But you came formally. You came with a similar nature of capital offence, and there is nothing before the court. So, what I’m saying is that you should have come formally with this application. I would have considered it, but because you have not done that, I do not think it will be fair under the circumstances to entertain this application,” he said.
The defence counsel said there was nothing stopping the court to entertain an oral application; but Justice Jaiteh said defence counsel couldn’t give evidence from the Bar.
Defence Counsel: “The laws are enshrined in the Constitution and the facts which would be indisputable as to the age of the accused persons, and the lack of any criminal record. These are indisputable things, based on those facts any court can entertain an oral application, especially in a situation where the State has misled. That is our position, my lord.”
“I think you should have done more by filing the necessary application even if the bill of indictment is filed. With or without the indictment you should have come formally with your application. I would have made a determination and we move with it,” Justice Jaiteh told the defence counsel.
Justice Jaiteh then adjourned the case to Friday for further mention.
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