270
Case Note
[2003] J.A.L.
President of the Bamenda Court of Appeal, to lean on the magistrate not to
release the defendants. But the magistrate resisted the pressure and asserted
his independence by deciding the case according to ``the law and [his] con-
science'', as required by Article 37(2) of the Constitution. Sadly, as we now
know,19 he paid for this with his career. He was removed from the bench and
sent to serve as an of®cial in the of®ce of the Legal Department in the South
West Province.20 It is extremely likely that judges in the Court of Appeal,
seeing what happened to the magistrate as a result of his decision against the
wishes of the Government, needed no direct pressure or threats to know which
way to decide the appeal, if they wished to stay on the bench or even to
continue to aspire for promotion.
The Issue of Bail: Judicial Violation of the Right to the
Presumption of Innocence
The decision
The second judgment of the Court of Appeal in the same saga concerned
the decision of the magistrate to order the release of the defendants on bail. As
already indicated, the defendants were arrested and detained on 1 October,
2001. Three days later, they had not yet been charged or released. On
4 October, through their counsel, they ®led a motion on notice, praying the
court for an order that they be released on bail pending any charges against
them. The application for bail was supported by an af®davit which was served
on the respondents, the Legal Department, on 18 October. At the hearing, on
24 October, counsel for the respondents made a preliminary application for
the matter to be adjourned to enable the Legal Department to ®le a counter-
af®davit on which they claimed they were still working. The magistrate
refused the application, proceeded to hear the application for bail and
admitted each applicant to bail. On appeal by the prosecution, the Court of
Appeal (MORFAW, C.J., Bawak and Moutchia, J.J.)21 set aside the decision
of the magistrate. The appeal raised just one question; whether the magistrate
was wrong to have granted bail to the applicants when the prosecution had
asked for an adjournment in order to prepare their counter-af®davit. The
Court of Appeal answered that question in the af®rmative.
Two reasons were advanced by the court for its decision. The ®rst is that
one of the factors normally taken into account when deciding whether or not
to grant bail is whether the applicant had a previous conviction, and in the
absence of a counter-af®davit ``this vital information was unavailable to the
court.'' Therefore, the Court of Appeal said, it was wrong for the magistrate to
have granted bail without this information. The applicants had argued that
this was an urgent application in a case where ``some of the applicants are sick
and others are of old age''.22 Their argument was that by the applicable rules
19 See N. Enonchong, [2002] 46 J.A.L. 197, 215.
20 This is a punishment commonly visited upon judges who attempt to go against the govern-
ment line.
21 The People v. Dr Martin Luma (2002) BCA/MS/8c/2002, unreported.
22 Dr Luma & 18 Ors v. The People (2001) BA/13m/01-02, unreported, p. 1.