By Lamin Njie
The Court of Appeal on Wednesday revoked Bubacarr Keita’s bail and ordered for his arrest and remand in custody over charges he raped his former wife’s 15-year-old sister.
The high court in Bundung last August freed Keita on a D100,000 bond, two sureties and his passport containing a valid US visa.
The state appealed the decision at the Court of Appeal – and in landmark judgment on Wednesday, the nation’s second highest court blasted that Judge Momodou SM Jallow’s decision to release the 29-year-old businessman is not supported by evidence.
Justice Kumba Sillah Camara leading a three-justice panel described four areas in the high court judge’s decision as ‘perverse and unsupportable’ by evidence. Firstly, she said the judge adopted both sides’ submissions against the grant of bail as his own.
“Unless the parties agree on issues or terms, the judge cannot adopt both sides’ submissions. A judge cannot adopt a method of adjudication alien to procedural rules of justice,” she blasted.
She then added: “It is unheard of or bizarre for a judge to adopt arguments of all parties at once with different perspectives and later determine their issues in favour of one. I hold the view the learned trial judge erred in law when he sought to adopt the applicant and respondent’s arguments as the court’s own.”
The top justice then went after the high court judge over his ‘reasonable time’ argument and said he ‘misdirected’ the facts.
She said: “The learned trial judge misapplied the facts by failing to have recourse to all the affidavits in support of the bail application. The learned trial judge failed to appreciate the fact that the respondent was arrested on 6th of November 2019 and granted bail on the 7th of November 2019. The amended information was filed on the 15th of June 2019 as stated above.
“The responded was arraigned on the 20th of July 2020 and he was remanded on the said date. The learned trial judge failed to read the averments on paragraph 6 and 7 of the affidavit in support. The respondent was only charged with the offence of rape on 15th June 2019 and barely over a month and the respondent was arraigned before the high court. Thus the learned [trial judge] was wrong to have said that the state failed to proceed with the case for more than a year. I hold that the learned trial judge misdirected the facts by holding that the appellant did not prosecute within reasonable time.”
Elsewhere, the justice said the high court judge misapplied the principle in Henry Gabriel where the Supreme Court granted bail to the man even as he was charged with the non-bailable murder offence. Also, the justice held the high court judge granted bail to Keita without ‘substantial’ reasoning.
She said: “The learned trial judge in determining the bail application failed to give reason for the fact that the matter was not tried within a reasonable time, he failed to apply the laws to the facts correctly, Section 19 of the constitution was mentioned in the ruling without putting it into proper context and there was no correlation between the facts and the law.
“The citing of the case of Henry Gabriel supra was done by the way side and no proper recourse of the case was made by the learned trial judge. The learned judge failed to apply the principle in the said case correctly. The learned judge failed to appreciate the fact that the respondent was charged with rape punishable with life imprisonment.
“The learned trial judge failed to cite Section 99 of the CPC which specifically deals with bail and the matter at hand. It is clear from the foregoing that the learned trial judge did not handle the matter properly, with due respect to the learned trial judge he misdirected material facts, misapplied principles and failed to apply the law correctly to the facts, therefore the ruling is completely flawed and devoid of reasoning and comprehension.
“I hold the view that the learned trial judge’s decision is not supported by evidence. The appeal succeeds and the ruling dated 11th August 2020 is hereby set aside. The respondent’s bail is hereby revoked. The respondent shall be arrested and remanded in custody pending the trial and determination of the charges against him.”
Fellow Justice Haddy Cecilia Roche agreed with her while Justice Basirou Vassili Portier Mahoney dissented.
