BAIL

This is the procedure by which a person arrested of an offence is

released on security being taken for his appearance on a certain day and
place. The issue of bail arises at 3 points in the process of administration
of justice.

Firstly, it arises after a person arrested with or without warrant is taken

to the police station. The officer in charge of the police station may
admit the suspect to bail pending further investigation into the matter.
This is called police bail.

Secondly, it arises after the suspect has been charged to court accused
of committing an offence. The accused may be admitted to bail by the
court pending the final determination of the case against him. This is
known as the court bail.

Thirdly, it arises after an accused person convicted of an offence has

filed an appeal against his conviction. The convicted person may apply
for bail pending the final determination of his appeal. This is known as
court bail pending appeal.

We will now consider in detail the 3 types of bail:

1. POLICE BAIL

S. 19 (3) (b) of the 1997 Constitution provides that any person who is
arrested or detained upon reasonable suspicion of his or her having
committed a criminal offence under the laws of the Gambia and who is
not released, shall be brought without undue delay before a court and,
in any event, within 72 hours.

Section 19(5) further provides:

‘If any person arrested or detained as mentioned in subsection 3(b) is
not tried within a reasonable time, then without prejudice to any further
proceedings which may be brought against him or her, he or she shall be
released either unconditionally, or upon reasonable conditions, including,
in particular, such conditions as are reasonably necessary to ensure that

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he or she appears at a later date for trial, or proceedings preliminary to
trial`.

Section 22(1) of the CPC also provides:

‘Where any person has been taken into custody without a warrant for an
offence other than an offence punishable with death, the officer in
charge of the police station or other place for the reception of arrested
persons to which such person is brought shall at once inquire into the
case, and if, when the inquiry is completed, there is no sufficient reason
to believe that the person has committed any offence, he shall be
released forthwith’

If upon such inquiry, there is reason to believe that the person arrested
has committed an offence and if the offence does not appear to be of a
serious nature, the said officer in charge of the police station may, and
shall, if it does not appear practicable to bring such person before an
appropriate subordinate court within 72 hours1 after he was taken into
custody, release the person on his executing a recognizance with or
without sureties for a reasonable amount, to appear before a
subordinate court at the time and place named in the recognizance. See
s. 22 (2) of the CPC. Thus once the police have reason to believe that
the person arrested did not commit a serious offence they may release
such a person on bail. The power to release such a person on bail is
therefore discretionary. Where such a person cannot, however, be taken
before a subordinate court within 72 hours, the police shall release him
on balance. No discretion is therefore exercisable by the police where
the offence is not a serious one and the accused cannot also be taken to
court within 72 hours. Note that by virtue of s. 3 (2) of the Economic
Crimes (Specified Offences) Act (Cap 13:07), s. 22 (2) above does not
apply to economic crimes.

S. 22(3) of the CPC further provides that where a person is taken into
custody as stated above and it appears to the said officer that the
inquiry into the case cannot be completed forthwith, such a police officer
may release the said person on his entry into a recognizance with or
without sureties for a reasonable amount, to appear at such a police

1
The law previously provided for 24 hours

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station and at such time as are named in the recognizance. Unless such
a person previously receives notice in writing from the officer in charge
of that police station or unless his presence is not required, any such
recognizance may be enforced as if it were a recognizance conditional
for the appearance of the said person before a subordinate court for the
place in which the police station named in the recognizance is located. In
other words such a bond or recognizance can be enforced as if it were a
bond or recognizance before a magistrate. The bail granted by the police
while investigations are continuing into the allegation against the
accused is to enable him to secure his release on condition that he
returns to the police station at the time specified in the bond or
recognizance. By virtue of section 22(3) of the CPC therefore the suspect
is expected to report back to the police station.

Section 22(4) of the CPC requires any person taken into custody as
aforesaid to be brought before a subordinate court at the earliest time
practicable whether or not the police inquiries are completed. It appears
that section 22 (4), which provides that where a person is arrested for a
serious offence he shall be brought before a court as soon as practicable,
is inconsistent with section 19(3)(b) of the Constitution which requires
such a person to be brought before a court within 72 hours. By virtue of
s. 4 of the 1997 constitution, the constitution is the supreme law of The
Gambia and any other law found to be inconsistent with any provisions
of the constitution is, to the extent of the inconsistency, void. Thus since
s.22 (4) of the CPC is inconsistent with this constitutional provision, it is
null, void and of no effect. Therefore for non-capital offences,
irrespective of the seriousness of their nature, whether felonies,
misdemeanour or simple offences, a suspect must be arraigned before a
court within 72 hours.

In the Nigerian case of Eda v Commissioner of Police of Bendel

State (1982) 3 NLR 291, it was held that s. 17 of the Criminal
Procedure Act of Nigeria and s. 17 of the Police Act of 1967 ( which are
similar to section 22 of the CPC of the Gambia) were inconsistent with
section 32(4) and section 32(5) of 1979 constitution of Nigeria, which
provided that an accused person shall be charged to court within 24
hours of the alleged commission of the offence and were therefore null
and void to the extent of the inconsistency.
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If a suspect remains in police custody after bail has been granted to him
by the police because he is unable to fulfil the conditions of the bail,
then his continuous detention in police custody is not in contravention of
the constitutional provisions since it is the duty of the suspect to comply
with the conditions of the bail. See Eda v. COP (supra).

In practice, in the Gambia, the police and other security agencies detain
those arrested for serious non-capital offences such as fraud, drug and
other offences beyond the constitutional time limit without granting
them bail on grounds that investigations are still going on or are
incomplete. This clearly contravenes the Constitution.

APPLICATION FOR POLICE BAIL

Where a suspect is in police custody, the police officer in charge of the

police station may grant the suspect bail. After bail has been granted, a
suspect may be required to appear at a court or police station depending
on whether investigations have been concluded. Where the suspect is
not offered bail by the police officer in charge of the station, the suspect
or his counsel or relations may apply for his bail. The application is
either written or made orally. In this jurisdiction, such applications are
usually made orally. The suspect has to satisfy the conditions of the bail
before he is released by the police. Where the police require the suspect
to provide surety or sureties before giving bail, the application for bail
and the bond entered into by the surety usually, by convention, includes
the surety’s ID card or phone number.

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2. COURT BAIL

Court bail arises in two instances:

1. On execution of warrant of arrest. Any court issuing a warrant for

the arrest of an offender in respect of any offence other than murder or
treason, may if it deems fit direct by endorsement on the warrant that
the offender so named on the warrant, upon arrest, be released on his
entering into a bond in a specified amount to appear before a court at
such time stated in the endorsement. The bond may or may not require
a surety. See sec. 82(1) of the CPC.

By virtue of section 82(2) of the CPC, the endorsement on the warrant

must state the following:
a. The number of sureties, if any;
b. The amount in which the sureties and the person named in the
warrant are respectively to be bound;
c. The court before which the person arrested is to attend or to
appear and
d. The time at which he is to attend including an undertaking to
appear at such subsequent time as he may be directed by the court.

There is no precedent form of such a warrant in the CPC. In practice,

however, the said endorsement is done by the magistrate issuing the
warrant writing the condition of bail on the reverse side of the warrant of
arrest. Such endorsement is therefore usually written at the back of a
bench warrant. The magistrate’s signature is then appended after the
endorsement. Where such an endorsement is made, the police officer in
charge of the police station to which the person arrested is taken must
release him upon his fulfilling the conditions of bail endorsed on the
warrant or arrest. See section 82(3) of the CPC. Please note that a police
officer has no power to give an accused bail if there is no such
endorsement or to vary the conditions in the endorsement. Whenever
security is taken under this section (s.82), the police officer who takes
the recognizance must transmit it to the court where the suspect is
directed to appear. See sec 82 (4) of the CPC.

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2. In the course of proceedings before a court. As noted above, s.
19(3) (b) of the Constitution requires that an arrested person or a
detainee is to be taken before a court within 72 hours. Where a suspect
is taken to court, such a court may admit him to bail. The need for bail
arises because of the interval of time between arraignment of the
accused, taking of evidence, conclusion of trial, return of verdict and
sentence.

Section 99(1) of the CPC provides for court bail. It provides that when
any person other than a person accused of an offence punishable with
death, 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. The bail can be with or without a surety or sureties
and is conditioned for the accused appearance before the court at the
time and place named in the recognizance.

Note that section 99(1) was amended by Act no. 2 of 2002 called the
Criminal Procedure Code (Amendment Act) to include offences
punishable with life imprisonment. The bail may be with or without a
surety or sureties and is for the accused person’s appearance before
such court at the time or place mentioned in the bond or recognizance.

APPLICATION FOR COURT BAIL

Application for court bail, after an accused person has been arraigned, is
usually made orally by counsel if the accused is represented. Application
for bail need not be in writing. Once the accused has been charged and
he pleads not guilty, the case may be adjourned until some future date.
Counsel applies orally for bail pending the final determination of the
case. The police may or may not approve the grant of bail by the court.
If an attorney represents the state, he seeks the view of the police on
the matter before determining his position. Note that the fact that the
prosecution does not oppose bail does not mean that bail will
automatically be granted. In the Ghanaian Fynn v. The State 1971
2GLR 433 at 443, Taylor J held:

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‘The fact that the Republic does not oppose the application means no
more that they are in no position to offer arguments to assist the court
against the grant, but there may well be argument against the grant
which an independent examination by the court may reveal.’

Even though this was a case of bail pending appeal the principle is
equally applicable to bail pending trial as shown in the Ghanaian case of
Dogbe v. Republic (1976) 2GLR 82 at 94 where the same judge
repeated this pronouncement in the earlier case. It was also held in
Dogbe v. Republic (supra) that even where the Attorney General (AG)
has written to the court that the bail should be granted in the particular
case, this does not conclude the issue.

Where an accused person is not represented by counsel, he may himself

apply for bail. In this jurisdiction, it is however customary for the courts
to ask the prosecutor if he has any objection to bail. Subject to whatever
the prosecutor might say in court, the court shall thereafter decide
whether to grant or withhold bail to the accused.

When bail is granted the amount of bail is fixed with due regards to the
circumstances and shall not be excessive. See section 99(2) of the CPC.
See also EYU v. STATE (infra). In the Nigerian case of STATE v.
AMAEFULE & ORS (1988) 2NWLR 75 at 156, the accused persons were
charged with various offences. They were granted bail by the court on
the following conditions. One surety in the sum of N20, 000 with the
accused, surety must produce a tax clearance certificate, surety must be
resident in the judicial division of the court, surety must file a copy of his
title deed in the court’s registry, surety must also swear to an affidavit
stating his residence, particulars of his developed property and tax
clearance certificate, and the accused and his surety must be
recommended by a solicitor. Dissatisfied with the conditions of the bail,
the accused applied to the court of appeal for a review of the conditions.
The court of appeal ruled that the conditions were not onerous.
However, it varied the conditions of bail by ruling that in lieu of
satisfying the conditions of bail, the accused person should deposit
N25000 in the court’s registry. The application was dismissed.

PRINCIPLES GOVERNING DECISIONS TO GRANT BAIL

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The police ought to offer bail to an accused person alleged to have
committed an offence not punishable with death or life imprisonment if
they cannot arraign him in court within the stipulated time limit. Since it
is a duty imposed on them, they have no discretion in the matter.
However, the arrested person must comply with the condition of the bail
before he can be released on bail.

Unlike the police, the court has a discretion on the matter and can
decide to admit an accused to bail or withhold bail. Please note that if an
accused is charged with other than an offence punishable with death or
life imprisonment, the factors that must me taken into consideration by
the court in granting bail are not expressly stated in s. 99 of the CPC
and amendment thereto which deal with the granting of bail to an
accused. Nonetheless the courts take some factors into consideration in
deciding whether to grant or withhold bail. These factors include:

1. Nature of the offence. The first thing the courts consider before
giving bail is the nature of the offence with which an accused is charged
and the punishment prescribed for the offence. Where the offence is a
serious one, carrying a heavy penalty, the court may not exercise its
discretion in favour of granting to the accused. Please note however that
under section 24(3) of the Constitution, an accused is presumed
innocent until proven guilty. Therefore an accused should not be
punished by being denied bail in the absence of cogent or compelling
reasons, but simply because of the nature of the offence alleged against
him. In the Nigerian case of DOGO V C.O.P. 1980 1NCR 14, it was held
that bail should not be denied as a form of punishment. OKAGDIBO J.
stated at page 19 that ‘It has been well established that bail is not to be
withheld merely as punishment, and furthermore, that the requirements
as to bail are primarily to secure the attendance of the accused person
at the trial.’
2. The accused person’s criminal record. The accused person’s
criminal record is also taken into consideration before bail is given. If an
accused can show that he is a person of good character and he has
never been convicted of an offence, the court ought to exercise this
discretion in favour of the accused and admit him to bail. A person of
good character who has no prior conviction is therefore more likely to be
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given bail than a habitual offender. In the Nigerian case of EYU V
STATE 1988 2NWLR (pt.78) 602. OJUNTADE J.C.A., after stating other
factors taken into consideration in deciding to grant or withhold bail
stated as follows: ‘Another important factor to bear in mind is the
criminal record of the accused and the likelihood of the repetition of the
offence.’
3. The possibility of the accused committing another offence.
The court also gives consideration to the possibility of the accused
committing further offences while on bail. If an accused is unlikely to
commit another offence while on bail, the court should exercise its
discretion and admit the accused to bail. In the Nigerian case of R V
JAMAL 16NLR 54, bail was refused to the accused because he
committed the offence for which he was arraigned while he was on bail.
BUTLER LLOYD, Acting CJ stated at page 55 thus:
‘I find that this offence is alleged to have been committed while the
accused was on bail on another equally serious charge. I think that I am
not putting it too strongly in saying that I should not be exercising my
discretion judicially if I made an order the effect of which would be to
restore the accused a second time to that liberty which according to the
deposition now before me, he has already abused so seriously.’
4. Possibility of inferring with the investigation of the offence.
A fourth consideration is the possibility of interfering with the
investigation of the offence. If the accused is likely to interfere with the
investigation of the offence, bail shall be refused. Interfering with the
investigation of the offence might involve trying to destroy evidence or
absconding, trying to tamper with evidence or the witnesses, or trying to
bribe the witnesses in the case. On the other hand, if there is no
evidence that the accused will infer with the investigation of the case,
bail ought to be granted. In the Nigerian case of DANTATA V POLICE
1959 NNLR 3, bail was refused to the accused because he offered a
bribe of N36000 to the police in other to retrieve evidence of the
commission of the offence in the custody of the police.

It follows from the above that the grant of court bail is the discretion of
the court. The principle test to apply when a court gives consideration to
the question whether or not to admit an accused to bail is whether he
will be able to appear to stand his trial. The most serious offence with

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which he is charged and the heavier the penalty, the more likely it is
that the accused will not when granted bail appear to stand his trial.

PROVISIONS AS TO RECOGNIZANCES GENERALLY

Both the police and the court may admit to bail a person alleged to have
committed an offence on such terms and conditions, as they deem fit.
The terms of bail are fixed with due regard to circumstances of the case.
As noted above, they should not be onerous or excessive. If bail is
granted on onerous terms, de jure, the accused has been granted bail,
but in fact because the terms are difficult to fulfil the bail amounts to no
bail and, de facto, bail has been denied.

Bail may be granted without sureties. See s. 99 of the CPC. This means
that a person may be granted bail on his own recognizance, i.e. on his
undertaking that he will appear to stand trial. No surety is required from
the accused person and in most cases no bond is prepared. However,
bail is rarely granted on personal recognizance except where the offence
with which the accused is charged is a minor offence or where the
person admitted to bail is of high social standing in the community, and
the court is satisfied that he will appear to stand his trial.

A person may also be admitted to bail on condition that he executes a

bond for a fixed sum. A bond is a written undertaken executed by the
person to be admitted to bail, that he will, while on bail, appear in a
designated place when his attendance is required as stated in section
100(3) of the CPC. In default of appearance, the person admitted to bail
may be required to pay the amount of money specified in the bond.

A person may be admitted to bail on condition that he produces one or

more persons to enter into a bond for a stated sum. Such a person is
known as a surety. The surety undertakes to pay the money by which
he is bound if the person admitted to bail fails to appear at the
designated place. Bail granted on the condition that the person admitted
to bail enters into recognizance or provides sureties or both is known as
bail on recognizance. For example where an accused person is
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granted bail on recognizance by the court, the court may require the
accused person to execute a bond in the sum of D1000 and to provide
two sureties each executing a bond of D500. A court order giving bail
may take this form: “The accused person is admitted to bail in the sum
of D600 with one surety in the like sum.”

As a matter of practice counsel appearing for the accused is not allowed

by the court to stand as surety for his client. Counsel is only permitted
to recommend to the court the suitable person to be admitted as surety
for the accused person.

The court may also require that the sureties have landed property in the
Gambia or the magisterial division concerned if the case is before a
Magistrate or in the case of a non-Gambian that a Gambian surety be
provided.

Once the amount in the bond in which the sureties, if any, are to be
bound has been fixed, the recognizance or the bond need not be entered
into before the court. It may, subject to any rules made in pursuance to
the CPC, be entered into by the parties (accused and surety) before any
other court or before any clerk of a court or before a Chief Inspector or
Inspector of Police or other police officer of equal or superior rank or in
charge of any police station. Where any of the parties is in prison, the
recognizance or the bond may be before the superintendent or other
keeper of such prison. After the above is done, all the consequences in
law shall ensue and the provisions of the CPC with respect to
recognizance shall apply, as if the recognizance had been entered before
the said court. See s.100 (1) of the CPC.

Where as the condition of a release of any person held in custody he is

required to enter into a bond with sureties, the recognizance of the
sureties may be taken separately and either before or after the
recognizance of the principal (the accused) and is if so taken the
recognizances of the principal and sureties shall be binding as if they
had been taken together and at the same time. See sec 100(2) of the
CPC.

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A recognizance for the appearance of any person may be conditioned for
his appearance at every time and place, to which, during the course of
the proceedings, the hearing may be from time to time adjourned.
However, the court has power to vary such an order at any subsequent
hearing. See sec 100(3) of the CPC.

Where the execution of a recognizance is a condition of a release of any

person, that person must be released as soon as the recognizance has
been executed and if he is in prison or police custody, the court shall
issue an order of release to the officer in charge of the prison or other
place of detention and such officer on receipt of the order shall release
him. See s.101 of the CPC. This however, does not mean that a person
detained for some matter other than that in respect of which the bond
was executed will be released as a result of this order. See s. 101(2) of
the CPC. A suspect may be kept in custody or re-arrested even though
he has a proper bond or recognizance in connection with one case, if
there is some other matter for which he may be lawfully held or
arrested.

Note that if a suspect or an accused person is unable to fulfill the terms

of bail, he must be detained in custody.

DEPOSIT IN LIEU OF RECOGNIZANCE

When any accused person is required by any court or officer to execute

a recognizance, with or without sureties, such court or officer may,
except in the case of recognizance for good behavior permit him to
deposit a sum of money or such amount as the court or officer may fix in
lieu of executing such a recognizance. This will serve as security for the
due performance of the conditions imposed on him by the court or
officer. See s. 102 of the CPC. Please note that the amount to be
deposited should not be excessive. S. 102 of the CPC further provides
that when any of the conditions stated in the recognizance are breached,
proceedings for the forfeiture of the deposit may be taken under section
107 of the CPC.

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 In the Nigerian case of EYU V STATE (supra), the accused was granted
bail on condition that N400, 000 be deposited with the registrar of the
court. He was further required to enter into a recognizance in the sum of
N5000 with one surety in the like sum. The accused appealed against
the conditions of bail. The court held that under section 120 of the
Nigerian Criminal Procedure Act, which is in pari materia with s.102 of
the Gambian CPC, a court could order an accused to deposit money
before bail is granted. The court however went on to state that the
amount ordered to be deposited should not be excessive. The court
further held that the amount of deposit required in this case is
excessive. It then set aside the conditions of bail and granted bail to the
accused in the sum of N100, 000 with two sureties each in the sum of
N50, 000, the sureties to be house owners, and to depose to affidavits of
means.

VARIATION OF A RECOGNIZANCE

If it appears to the courts at any time after a recognizance has been

entered into that for any reason the sureties are unsuitable or due to all
the circumstances of the case, the amount of the recognizance is
insufficient, the court may issue a summons or warrant for the
appearance of the principal. Upon the appearance of the principal before
the court, the court may order him to execute a fresh recognizance in
another amount or with another surety or sureties, as the case may be.
See s.103 of the CPC.

APPLICATION FOR DISCHARGE OF SURETY

Any surety for the appearance or behaviour of any person may at any
time apply to a magistrate to discharge the recognizance either wholly
or so far as it relates to the applicant. See s. 104(1) of the CPC. When
an application is made, the magistrate shall issue a summons or warrant
of arrest directing that the person given bail shall appear or be brought
before him. See s. 104 (2) of the CPC. When such a person appears
before a magistrate, the magistrate shall direct that the recognizance be
discharged either wholly or so far as it relates to the applicant or
applicants, and shall call upon such person to find other sufficient
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sureties. If he fails to do so, the magistrate may commit him to prison.
See s. 104(3) of the CPC.

RECOGNIZANCE IN RESPECT OF MINORS

When the person in respect of whom a court makes an order requiring

that a recognizance be entered into is a minor, the court shall not
require the minor to execute the recognizance or bond but shall require
a relative, guardian, or other fit person to execute a recognizance with
or without sureties on condition that the minor shall do what the court
order requires him to do. See s.105 of the CPC.

S. 211 of the Children’s Act also provides that where a child is charged
with an offence, the court shall inquire into the case and unless there is
a serious danger to the child, release him on bail on a court bond on the
child’s own recognizance. The court can also release the child on bail
with sureties, preferably the child’s parents or guardian who shall be
bound on a court bond, not cash. If the court denies the child bail, it
shall record the reasons for refusal and inform the applicant of his right
to apply for bail to the High Court. See s. 211 (2) of the Children’s Act.
Where a child is denied bail, a court may order that the child be
remanded or committed in custody in a secure home named in the
order. Detention pending trial should however only be used as a
measure of last resort and for the shortest possible period of time.

PERSON BOUND BY RECOGNIZANCE ABSCONDING.

When any court is satisfied on oath that any person bound by a

recognizance to appear any court or police officer is about to leave the
Gambia, the court may cause him to be arrested and may commit him to
prison until the trial, unless the court shall deem it fit to admit him to
bail upon further recognizance. See s. 106 of the CPC.

FORFEITURE OF RECOGNIZANCE

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When a person admitted to bail by a court fails to appear or stand trial,
he is said to have jumped bail. The consequence of an accused person
jumping bail is that his bail may be revoked by the courts. The court
may then issue a bench warrant for the arrest and detention of the
accused pending the final determination of the case. The court may also
order the forfeiture of the recognizance or the bail bond. Forfeiture of a
recognizance is provided in s. 107 of the CPC.

Section 107 (1) of the CPC provides that whenever it is proved to the
satisfaction of a court by which a recognizance under the CPC has been
taken, or when the recognizance is for appearance before a court, to the
satisfaction of that court, that the recognizance had been forfeited, the
court shall record the grounds of such proof, and may call upon any
person bound by the recognizance to pay the penalty attached thereto,
or to show cause why it should not be paid. However, before a bond can
be declared forfeited all conditions precedent to making the bond valid
and operating must have been fulfilled.

If sufficient cause is not shown and the penalty is not paid, the court
may proceed to recover the same penalty by forfeiting any sum
deposited in pursuance of section 102 of the CPC, or by issuing a
warrant for the attachment and sale of the moveable property belonging
to such person or his estate in the case of his death. See s. 107 (2) of
the CPC. The warrant for the attachment and sale of moveable property
belonging to other people may be executed within the local limits of
jurisdiction of the court which issued it. When endorsed by any
magistrate within the local limits of whose jurisdictions such property is
found, it shall authorize the attachment and sale of any moveable
property belonging to such persons without such limits. See s. 107 (3) of
the CPC.

If the penalty stated above is not paid and cannot be recovered by such
attachment and sale, the person bound by the recognizance shall be
liable, by order of the court which issued the warrant, to imprisonment
without hard labour for a term not exceeding six months. In the Matter
of Saikou Camara, in the Matter of Abou Betts and Maulana Betts
as Sureties (1994) GR 176, the applicants had taken Saikou camara on
bail and had entered into a bond of D30, 000 each to ensure his
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appearance in court in extradition proceedings relating to a criminal
offence in Sierra Leone. Saikou Camara absconded while on bail. The
court ordered that they should pay the forfeited bond of D30, 000each
or imprisonment for six months. The applicants applied for a review of
the order. They submitted that section 107 CPC sets out the steps to be
followed by the court before imposing a term of imprisonment. They
maintained that by virtue of section 107 (2) of the CPC, their properties
should have been attached before the court took the steps of
imprisonment under s. 107 (4) of the CPC. The applicant further
submitted that the sum should have been recovered as a civil debt on
the ground that the forfeiture of a recognizance is a civil matter. In
dismissing the applications Omusun CJ (as he then was) held that the
use of the word “may” in section 107 (2) vested the court with a
discretion as to whether to attach the sureties’ properties. The provision
did not require the court to take these steps before resorting to the
imposition of a term of imprisonment under section 107 (4). The order
was not varied.

Before the court proceeds to forfeit the bond, certain procedure must be
followed.
Firstly, the order of the court granting bail to the accused must be
exhibited. It’s the order of the court that will reveal the terms and
conditions under which bail was granted to the accused, and whether
bail was granted to the accused on recognizance with or without
sureties.

Secondly, the bail bond executed by surety must be exhibited. It must

be proved before the court that the bond was executed by the surety on
behalf of the principal. This means that the exact terms of the bond are
revealed. It can then be determined whether there had indeed been a
breach of the terms of the bond. Where there is an appeal against the
forfeiture of the bond, the bond must be exhibited in the appellate court.
This is to enable the appellate court to decide whether the trial court was
right in declaring the bond forfeited. In the Nigerian case of TEA V
COMMISSIONER OF POLICE (1963) NLR 77, the appellant was surety
to an accused. When the accused failed to stand his trial, the
recognizance of the appellant was forfeited. On appeal against the
forfeiture of the recognizance, it was held that the lower court erred in
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law in forfeiting the recognizance without exhibiting the recognizance. It
was also stated the bond must be exhibited before the appellate court to
enable it to decide whether the lower court rightly forfeited the bond.
Finally, the court stated that before a bond can be forfeited, it must be
exhibited in the court. Thus, the appeal was allowed and the order of
forfeiture was set aside.

In the Nigerian case of COP v JOHN and anor (1981) INCR 139, the
appellant stood surety for an accused. The accused failed to appear on
the date of the trial. The appellant was asked to produce the accused
and when he failed to do so, the trial court declared the bond forfeited.
On appeal against the forfeiture of the bond, the appellate court held
that the trial court erred in forfeiting the bail bond without exhibiting the
bond executed by the appellant. It cited with approval Tea’s case, and
stated that where the bond is not exhibited, it cannot be determined by
the trial court whether its terms have been breached. Furthermore, the
bail bond should be part of the record of appeal where there has been an
appeal against a forfeiture order. This is to enable the appellate court to
determine the correctness or otherwise of the order. The appeal was
allowed.

The third procedure is that the surety must heard by the court. The
court must allow the surety to explain why the bond should not be
forfeited. In the case of LAMIDI ABUDU in re A.K. KOTUN v IGP
(1961) LLR 53, the appellant stood as surety for an accused who
absconded. The lower court forfeited the bail bond. On appeal against
the order of forfeiture of the bail bond, the appellate court held that the
lower court acted prematurely in forfeiting the bail bond without proof of
the order of bail and of the appellant’s recognizance and without giving
the appellant the opportunity of being heard. Thus the appeal was
allowed and the order of forfeiture was set aside.

Please note that the court can also use its discretion to remit any portion
of the penalty mentioned above and enforce payment in part only. See
s. 107 (5) of the CPC.

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Where a surety dies before the recognizance is forfeited, his estate shall
be discharged from all liability in respect of the recognizance. See s. 107
(6) of the CPC.

When any person who has furnished security is convicted of an offence

the commission of which constitutes a breach of conditions of his
recognizance, a certified copy of the judgment of the court by which he
was convicted of such offence may be used as evidence in proceedings
under this section against his surety or sureties, and, if such certified
copy is so used, the court shall presume that such offence was
committed by him unless the contrary is proved. See s. 107 (7) of the
CPC.

When any surety to a recognizance becomes insolvent or dies or when

any recognizance is forfeited, under the provisions of s. 107 of the CPC,
the court may order the person from whom such recognizance was
demanded to furnish fresh security in accordance with the direction of
the original order. Where such security is not furnished, such court may
proceed as if there had been default in complying with such original
order. See s. 108 of the CPC.

Note that all orders passed under s.107 by any magistrate shall be
appealable and can therefore be reviewed by the High Court. See s. 107
(8) of the CPC. Note further that, the High Court may direct any
magistrate to levy the amount due on a recognizance entered into
before the High Court. See s. 109 of the CPC.

SOME RESTRICTIONS TO THE GRANT OF BAIL IN THE GAMBIA

It would appear that almost in all cases courts in The Gambia have a
discretion to admit an accused person to bail unless he or she is charged
with an offence not punishable with death or life imprisonment. In some
cases, however, restrictions are imposed to the grant of bail.

A. OFFENCES RELATING TO THEFT OR MISAPPROPRIATION OF

PUBLIC PROPERTY
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S. 289B of the CPC provides that:

“Notwithstanding the provision of this Code relating to bail and

recognizance, provisions of this Part shall apply to all offences relating to
theft, misappropriation and other similar offences in which public
property is affected and shall in particular apply to all cases relating to
offences specified with Chapters XXVI to XXXII and Chapter XXXIV of
this Code which affect public property.”

Sec 289D of the CPC further provides:

“(1) When any person is brought before the court charged with an
offence referred to under s. 289B of this Code such person shall not be
released on bail unless the court is satisfied that there are special
circumstances warranting the grant of bail.
(2) Before any person is released on bail under this section the court
shall order that such person shall as a condition for his release –
a. deposit into the court, an amount equal to one-third of the total
monies alleged to be the subject matter of the charge, or pledge other
property of equivalent amount as security ; or
b. find at least two sureties who shall deposit into court an amount
equal to one-third of the total monies alleged to be the subject matter of
the charge, or pledge properties of equivalent amount as security.
(3) Whenever it is proved to the satisfaction of the court that any
person to whom bail has been granted under this Part has jumped bail,
the court shall order that the money deposited shall be forfeited to the
State and shall issue a warrant for the attachment and sale of property
pledged as security.”

B. DRUG OFFENCES

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By virtue of s. 132 (a) of the Drug Control Act (Cap 13:05) bail may
only be granted, in the case of an offence under s. 35 of the Act2, by a
Narcotics Control Officer, in consultation with the Executive Director or
such officer designated by him if:
a. the accused person enters into a recognizance with a surety or
sureties, in a sum equivalent to the maximum fine prescribed for the
offence for which he is reasonably suspected of committing,
b. the accused person deposits title deed to real property, and
c. the accused person satisfies such other conditions as the Executive
Director may impose.

A person charged with any other offence can only be bailed by the High
Court. See s. 132 (b) of the Act.

The new s. 132 of the Drug Control Act3 is a clear departure from the old
s. 132 which it amended. Before this amendment was introduced by Act
No. 11 of 2005, bail was not available to any person charged with a drug
offence where the term of imprisonment prescribed for the offence
exceeded one year. Thus before the said amendment, court or police bail
was only available to persons charged under s. 36 (4) (c), s.40 (3) (c),
s. 41(3) (c) (i) and (ii) of the Act as they then were.

C. ECONOMIC CRIMES

The Economic Crimes (Specified Offences) Act (Cap 13:07) also provides
under s. 8 (1) that bail shall not be granted to a person brought before a
court for an offence under s. 5 of the Act, unless the following conditions
are met:
1. The accused and the surety provide such security as required by
the court; and
2. After signing the bond, the accused or the surety shall deposit with
the court or such person as the court may direct, the title deeds of any
property used as security for the bail, and in the case of cash security,
the actual amount on the face of the bond.

2
Section 35 of the Drug Control Act deals with possession of prohibited or controlled drugs.
3
Section 132 was amended by Act No. 11 of 2005

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Where the accused absconds after he has been granted or he is absent
from the court on any day where he is required to appear before it, he
shall be liable to forfeit to the State such of his property, if any, as the
court may determine. The surety shall also forfeit to the State every
security used to support the bail unless the surety can establish a
reasonable excuse for such absence. See s. 8 (2) of the Act.

Section 4 (1) of the Act further provides that any person who is
arrested and detained in connection with an economic crime shall be
brought before a court of competent jurisdiction within 30 days from the
date of his arrest and detention. Section 4(2) of the same decree further
provides that a court before which such a person is brought under
subsection (1) may remand such a person in custody for such a
reasonable period as the court may order. This provision too seems to
contravene s. 19 of the Constitution.

BAIL UNDER THE SEXUAL OFFENCES ACT

A. SPECIAL DUITES OF PROSECUTORS AND THE POLICE IN BAIL

APPLICATIONS UNDER THE SEXUAL OFFENCES ACT

The Sexual Offences Act imposes special duties on prosecutors and the
police in respect to bail for offences committed under the Act. Where an
accused standing trial is charged with an offence of a sexual nature, the
prosecutor is required to consult with the complainant in order to ensure
that all information relevant to the trial has been obtained from her,
including information relevant to the question whether the accused
should be released on bail and, if the accused were so released whether
any conditions of bail should be so imposed. See s. 10 (a) of the Sexual
Offences Act 2011.
Where an accused standing trial is charged with an offence of a sexual
nature, s. 11 of the Sexual Offences Act requires the police officer in
charge of the investigation:

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I. To forthwith inform the prosecutor in such proceedings of any
reason to believe that the complainant would be at risk if the accused is
released on bail and of any other investigations involving the accused;
II. If bail has been granted to the accused, to forthwith, after
becoming aware thereof, inform the prosecutor of any failure by the
accused to comply with his or her conditions of bail.

B. RIGHTS OF THE COMPLAINANT IN BAIL APPLICATION

Section 12 of the Sexual Offences provides for the following rights to

complainants in proceedings involving a rape charge:
a. A complainant has the right to attend any proceedings where the
question is to consider whether an accused who is in custody on a
charge of rape should be released on bail or, if bail has been granted to
the accused, whether any further conditions of bail should be imposed or
whether any such conditions of bail should be amended or
supplemented. See s. 12 (1) (a)
b. A complainant has the right to request the prosecutor in
proceedings involving a rape charge to present any information or
evidence to the court that might be relevant to any question under
consideration by the court in such proceedings. See s. 12 (1) (b)
c. Where the accused is in custody on a rape charge, s. 12 (2)
requires the person in charge of the police station the accused is
detained to inform the complainant as soon as possible of the place,
date and time of the first appearance of the accused in court and her
rights in paragraph (a) and (b) above.
d. Where an accused in custody on a rape charge intends to apply for
bail on a date or at a time the complainant is not aware of, the accused
or his or her legal representatives are required under s. 12 (3) to
request the person in charge of the police station the accused is
detained to inform the complainant accordingly. Upon such request from
the accused or his legal representative, the complainant is then informed
by the person in charge of the police station that the accused intends to
apply for bail.
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e. Any person required to provide information to the complainant
under s. 12 (2) and (3) of the Act must prepare an affidavit stating the
following:
i. Whether the provisions of s. 12 (2) and (3) as the case may be
have been duly complied with and, if they have not been so complied
with, the reasons for not complying with any such provisions;
ii. The manner in which the complainant has been so informed; and
iii. The date and time when the complainant has been so informed.
See s. 12 (4)

Note that such an affidavit is to be handed to the judge or judicial

officer presiding at the proceedings at which bail is considered, and such
affidavit shall form part of the record of such proceedings. See s. 12 (5)
f. If a complainant is present at a proceedings at which bail is
considered in respect of an accused who is in custody on a rape charge,
and such proceedings are postponed the court is required to inform the
complainant of the date and time to which such proceedings have been
postponed and of the complainant’s right under paragraphs (a) and (b)
above. See s. 12 (6)
g. If the complainant is not present at the proceedings at which bail is
considered in respect of an accused who is in custody on a rape charge,
the court is required to enquire into the question whether the
complainant has had knowledge of such proceedings and if it is satisfied
that it is likely that the complainant is aware of such proceedings, it shall
direct that the matter be dealt with in the absence of the complainant. If
the court is satisfied that the complainant is not aware of the
proceedings, it shall postpone the proceedings in order to obtain the
presence of the complainant. It should be noted that if it is in the
interests of justice (with due regard to the interests of the complainant)
that the matter should be dealt with forthwith, it may be dealt with in
the absence of the complainant. See s. 12 (7).
h. If a complainant is not present, as contemplated in s. 12 (7) above,
the prosecutor is required to inform the complainant that bail was
granted to the accused if that was the case and the terms of conditions
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of such bail. By virtue of s. 12 (8) (b), if the proceedings were
postponed, the prosecutor must inform the complainant of the date and
time to which such proceedings have been postponed and the
complainant’s rights in paragraphs (a) and (b) above. See s. 12 (8).
Note that the provisions of s. 12 (4) (5) referred to above must be
complied with (with necessary changes) in respect of any notification
given under s. 12 (8) (b). See s. 12 (9).
i. If the accused who is in custody on a rape charge is released on
bail, the court shall add such further conditions of bail as will, in the
court’s opinion, ensure that the accused does not make contact with the
complainant. See s. 12 (12) (sic).

3. BAIL PENDING APPEAL

As we noted above, bail pending appeal arises where a convicted person

applies for bail pending the final determination of his appeal by a higher
court.

BAIL PENDING APPEAL TO THE SUPREME COURT

Rule 42 of the Supreme Court Rules (Cap 6:05) provides:

“(1) The Court may, at any time during the pending of a criminal appeal,
on its own motion or on an application made by any person, grant bail to
the appellant of revoke or vary any order previously made.
(2) Where the Court grants bail to an appellant pending the
determination of his or her appeal, the Court specify the amount in
which the appellant and his surety if any, shall be bound by
recognizance and unless otherwise directed by the Court the
recognizance of the appellant or his or her surety shall be taken before
the Registrar.”

The recognizances stated above shall be in Forms 20 and 21 set out in

Part II of the Schedule to the Supreme Court Rules.4

4
See rule 42 (3) of the Supreme Court Rules

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An appellant who has been granted bail shall be personally present at
each and every hearing of his or her appeal and at the final
determination of the appeal unless the Court otherwise directs.5 Where
the appellant is not present at the hearing of his or her appeal after
having been granted bail under the said Rules, the Supreme Court may
either consider the appeal in his or her absence or make an order as it
thinks fit, or it may summarily dismiss the appeal and issue a warrant
for the arrest of the appellant Form 22 set out in Part II of the Schedule
to the Rules.6 It should be noted that rule 42 (5) shall apply with such
modification as the Supreme Court may direct in any case where the
appellant indicates that he or she desires to be present at the hearing of
his or her appeal but does not in fact attend.7

BAIL PENDING APPEAL TO THE COURT OF APPEAL

A Judge8 may, if he or she thinks fit, admit an appellant to bail pending

the determination of his or her appeal.9 An appellant who is not
admitted to bail shall, pending the determination of his or her appeal, be
treated in such a manner as may be directed by the rules made under
the Prisons Act. 10
The time during which an appellant, pending the determination of the
appeal, is admitted to bail, and subject to any directions which the Court
of Appeal may give to the contrary on any appeal, the time during which
the appellant, if in custody, is specially treated as an appellant under
this section, shall not count as part of any term of imprisonment under
his or her sentence.11
In the case of an appeal under the Act, any imprisonment under the
sentence of the appellant, whether it is the sentence passed by the High
Court or the sentence passed by the Court of Appeal, shall, subject to
any direction which may be given by the Court of Appeal, be deemed to
5
See rule 42 (4) of the Supreme Court Rules
6
See rule 42 (5) of the Supreme Court Rules
7
See rule 42 (6) of the Supreme Court Rules
8
Would this include a Judge of the High Court who convicted and sentenced the appellant?
9
See section 12 (1) of the Court of Appeal Act of The Gambia Act (Cap 6:02)
10
See section 12 (2) of the Court of Appeal of The Gambia Act
11
Section 12 (3) of the Court of Appeal of The Gambia Act

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be resumed or to begin to run, as the case requires, if the appellant is in
custody, as from the day on which the appeal is determined, and if he or
she is not in custody, as from the day on which he or she is received into
prison under the sentence.12

BAIL PENDING APPEAL TO THE HIGH COURT

S. 281 (1) of the CPC provided:

“After the filing of a petition of appeal by any person entitled to appeal,

and pending the hearing of the same, the High Court may, for reasons to
be recorded by it in writing, order that the execution of a sentence or
order appealed against be suspended and also, if he be in confinement,
that he be released on bail or on his own recognizance.”

S.281 (2) further provided:

”When the appellant is ultimately sentenced to imprisonment, the time

during which he is so released shall be excluded in computing the term
for which he is sentenced.”

The said section was, however, repealed by Act No. 2 of 2002. Thus
before Act No. 2 of 2002 was passed into law, a person convicted and
sentenced by a Magistrate Court or any other subordinate court
exercising its criminal jurisdiction could be granted bail by the High
Court pending the time his or her appeal was determined by the High
Court. Consequently, where a magistrate or the presiding officer of a
subordinate court erroneously applied the law and in the process
convicted and sentenced an offender to jail, the High Court could give
such a person bail pending the time such a mistake was corrected. Act
No. 2 of 2002 deleted the provisions of s. 281 from the CPC. Thus under
our current law, once an accused is sentenced to imprisonment by a
subordinate court, bail pending appeal does not arise. Thus no matter
the circumstances, an accused person who is convicted and sentenced to

12
Section 12 (4) of the Court of Appeal of The Gambia Act

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imprisonment by a subordinate court cannot apply for bail. This is
contrary to practice in most common law jurisdictions.

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