IN THE MATTER OF REX
V.
THEOPHILUS ADENUGA TUNW ASHE (ALIAS FOLAGBADE) EX AWUJALE OF IJEBU ODE AND OTHERS.

JELR 80794 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
 · 
Other Citations
1934-35 2 WACA 236 - 237
CORAM
Cor. Butler-Lloyd, Acting C.J., sitting as a single Judge of the Court.
Core Terms Beta
application
bail
section
case
months
page
relation
sentence
trial judge
years imprisonment
18th day of february
absence of special circumstances bail
african court of appeal ordinance
careful examination of the reported cases
c.a. reports vol. xvi
correctness of his own decision
court
criminal code
decision of the full court
delay
doubt
exceptional circumstances
following judgment
gott
granting of bail
hearing of an appeal
high court
investigation
involved complicated questions of account
judge of court of appeal
july 6th
late october
latter class of case
lawrence
length of the sentence
length of time
local cases
lord trevethin l.c.j.
opinion of the full court
ordinance
present case
refusal
regard
result of a considerable proportion of the sentence
sentences
special circumstances
sub-section
support of the present application
way
west african court of appeal ordinance

*Page 236

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.

*Page 237

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.”