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THOMAS ADE ODIWU AND ANOTHER
V.
COMMISSIONER OF POLICE
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
22ND DAY OF FEBRUARY, 1951
2PLR/1951/42 (WACA)
OTHER CITATION(S)
2PLR/1951/42 (WACA)
(1951) XIII WACA PP. 158-160
LEX (1951) – XIII WACA 158-160
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BEFORE THEIR LORDSHIPS:
VERITY, C.J., NIGERIA
DE COMARMOND, J.
HALLINAN, J.
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BETWEEN:
1. THOMAS ADE ODIWU
2. OLOWO OBE IKANYA — Applicants
AND
COMMISSIONER OF POLICE — Respondent
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ORIGINATING COURT(S)
Application for leave to appeal and for bail from a decision of the Supreme Court, W.A.C.A. CR.APP.3424.
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REPRESENTATION
Kaine — for Appellant
Falayi Williams — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CRIMINAL LAW AND PROCEDURE:- Criminal appeals – Application for bail in a case in which the applicants sought leave to appeal to the West African Court of Appeal from a decision of the Supreme Court in its appellate jurisdiction affirming a conviction in the Magistrate’s Court – How treated
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PRACTICE AND PROCEDURE ISSUE(S)
APPEAL:- Application for bail on application for leave to appeal against decision of Supreme Court in its appellate jurisdiction – West African Court of Appeal Rules, 1950, not applicable – Procedure governed by section 8 of the Magistrate’s Courts (Appeals) Ordinance (Cap. 123) Right of applicant to bail
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CASE SUMMARY
This was an application for bail in a case in which the applicants sought leave to appeal to this Court from a decision of the Supreme Court in its appellate jurisdiction affirming a conviction in the Magistrate’s Court. The applicants applied under Rule 59 of the West African Court of Appeal Rules, 1950, instead of the procedure provided by section 8 of the Magistrate’s Courts (Appeals) Ordinance, relating to appeals from a Magistrate’s Court to the Supreme Court and from the Supreme Court to this Court. Counsel for the applicant also submitted that the combined effect of sections 8, 24 and 26 of the Magistrate’s Courts (Appeals) Ordinance was that the applicants were entitled as of right to bail.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Application) that:
1. The West African Court of Appeal Rules are not applicable. The procedure relating to such appeals is governed by section 8 of the Magistrate’s Courts (Appeals) Ordinance. There was, therefore, no appeal before the Court and, in any event, if there had been an appeal before this Court it could not consider the question of bail.
2. If an appeal had been properly entered the procedure applicable imposes upon the Judge of the Supreme Court the duty of releasing the applicant on bail.
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MAIN JUDGMENT
The following Judgment was delivered:
VERITY, C.].
This is an application for bail in a case in which the applicants seek to appeal against a decision in the Supreme Court in its appellate jurisdiction affirming conviction in the Magistrate’s Court. In the affidavit in support of this application the applicants’ Solicitor avers that verbal notice of appeal was given and that bail was then applied for but refused by the Judge.
Counsel for the applicants opened by stating that this application is made under Rule 59 of the West African Court of Appeal Rules, 1950, which in itself raises the question as to whether such an appeal as is sought in this case is governed by those Rules. After proceeding with certain submissions as to the merits of the application, Counsel, on having his attention directed by the Court to certain provisions of the Magistrate’s Courts (Appeals) Ordinance (Cap.123), submitted that by reason of the combined effect of sections 24, 26 and 8 of the Ordinance, the applicants are entitled as of right to be admitted to bail. Section 24 provides in sub-section (1) that within thirty days after the pronouncement of the decision of the Magistrate an appellant to the Supreme Court shall, unless he remains in custody under section 26 (that is if he is sentenced to imprisonment and is unable to find the necessary sureties) enter into a recognisance, which by sub-section (2) is to be conditioned for the due prosecution of the appeal and for abiding the result. By sub-section (5) it is further provided that on complying with provisions the appellant, if in custody, “shall be released from such custody on bail”.
The effect of these unusual and somewhat curious provisions is, it is conceded by Counsel for the Crown, that where the appellant enters into recognisance as required by section 24, he is entitled to be released on bail, which cannot be refused.
This appears to us to be indeed the position in regard to appeals from the decision of the Magistrate to the Supreme Court. We have now to consider what the position as to procedure on appeal from the Supreme Court to this Court in such a case. No right of appeal to this Court in such cases is conferred by the West African Court of Appeal Ordinance (Cap. 229), which by section 10 confers rights of appeal only upon persons convicted by or in the Supreme Court or a Native Court.
A right of appeal is conferred, however, by section 8 of the Magistrate’s Courts (Appeals) Ordinance (Cap. 123), which provides by sub-section (1) that a person aggrieved by a decision of the Supreme Court in its appellate jurisdiction may appeal to this Court on a matter of law, but not on a matter of fact or of sentence save with the leave of this Court. As to procedure and the powers of this Court, provision is made by sub-section (2) which provides as follows:-
“Every such appeal shall be entered within thirty days of the order appealed against and subject to any rules of court made under the provisions of the West African Court of Appeal Ordinance, the provisions of this Ordinance relating to procedure on appeal from a decision of a Magistrate to the appeal court and the judgments which may be pronounced thereon shall mutatis mutandis apply to an appeal to the West African Court of Appeal.”
The first thing to observe about this is that no rules of Court have been made under the West African Court of Appeal Ordinance for the simple reason that the Ordinance does not provide for the making of any rules thereunder. So long, therefore, as section 8(2) remains in its present form no rules can be made as to procedure in appeals from the Supreme Court in such cases, and the procedure thereon is governed by the provisions of the Magistrate’s Courts (Appeals) Ordinance (Cap. 123), relating to appeals from a decision of a Magistrate to the Supreme Court.
It follows, therefore, that in the present case if the applicants have followed the prescribed procedure and have furnished the security prescribed by section 24 of the Ordinance (Cap. 123), they are entitled to be released on bail. There is nothing on the motion paper or in the affidavit, however, to assure us that the prescribed procedure has been followed, or that the required security has been given. It appears from the affidavit that verbal notice of appeal was given, as allowed by section 14, but there is nothing to show that the appellant within thirty days filed a memorandum of the grounds of this appeal with the Registrar of the Court below, as required by section 16 in the form prescribed by the Magistrate’s Courts (Appeals) Rules, Order I, rule 1. It does appear, however, that the applicants have filed what purports to be an application to this Court for leave to appeal, as though the proceedings were being commenced under the West African Court of Appeal Ordinance (Cap. 229), and the Rules of Court made under the West African Court of Appeal Order-in-Council, neither of which have application to such an appeal as this, which is governed by section 8 of the Magistrate’s Courts (Appeals) Ordinance (Cap. 123). There is nothing before us to show above all, that the applicants have given security as required by section 24 of the latter Ordinance upon which alone rests his right to bail.
There is, therefore, in our view, no ground for the release of the applicants on bail. Indeed, it appears to us that no appeal has, as yet been commenced or entered, and we would add that even had an appeal been properly commenced or entered there would have been no power in this Court to admit the appellant to bail. The application of the procedure on appeal from a Magistrate’s Court to the Supreme Court mutatis mutandis to such proceedings as the present, impose upon the Judge of the Supreme Court the duty of releasing the appellant on bail. The only powers conferred upon this Court to admit an appellant to bail are to be found in section 18 of Cap. 229 and are confined to cases where the appellant was convicted by or in the Supreme Court.
In any event, therefore, the application cannot be granted and must be dismissed.
Application dismissed.
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