IN THE MATTER OF REX
THEOPHILUS ADENUGA TUNW ASHE (ALIAS FOLAGBADE) EX AWUJALE OF IJEBU ODE AND OTHERS.
Application for Bail under Section 17 (2) of West African Court of Appeal Ordinance (Ordinance 47 of 1933) to single Judge of Court of Appeal--Conditions governing granting of bail. Sir William Geary for Applicant. Ivor Brace in opposition for Crown.
The following judgment was delivered:-- BUTLER-LLOYD, J.
This is an application for bail pending the hearing of an appeal and is made under section 17 sub-section 2 of the West African Court of Appeal Ordinance.
Appellant was convicted in the High Court on the 18th day of February, 1935, and sentenced to four years imprisonment under section 324 of the Criminal Code, four years imprisonment under section 513 of the Code, and one year's imprisonment under section 515, all the sentences to run concurrently. From this conviction he has lodged an appeal.
From a careful examination of the reported cases it is clear:--
(1) That bail will not be granted pending an appeal save in exceptional circumstances or where the hearing of the appeal is likely to be unduly delayed.
(2) That in dealing with the latter class of case the Court will have regard not only to the length of time which must elapse before the appeal can be heard but also to the length of the sentence to be appealed from, and further that these two matters will be considered in relation to one another.
To put it in another way, in the absence of special circumstances bail will not be allowed unless a refusal would have the result of a considerable proportion of the sentence being served before the appeal can be heard. The two local cases which have been cited in support of the present application are scarcely on all fours with it.
In Rex v. Lawrence the trial Judge stated a case for the opinion of the Full Court thus indicating some doubt as to the correctness of his own decision in point of law and allowed bail pending the decision of the Full Court upon that case.
In Rex v. Riegels the sentence was one of twelve months only and although the trial Judge refused to state a case an application was made to the Full Court to order him to do so and bail was granted on July 6th 1932 in view of the tact that the Full Court would not be sitting until late October. Moreover the case involved complicated questions of account for the investigation of which free communication between client and counsel was essential.
In the present case no special circumstances are alleged and I cannot consider a delay of two months in relation to a sentence of four years to come within the principle I have enunciated above and the application must be dismissed. As Lord Trevethin L.C.J., said in Rex v. Gott, C.A. Reports Vol. XVI “if we grant this application we could never consistently refuse bail.”