J.S. OLAWOYIN v COMMISSIONER OF POLICE [1961] NGHC 1 (24 January 1961)

**J****.S****.** **O****L****AWOYI****N** **(APPELLANT****)** **_v_.** **COM****MI****S****S****I****ON****E****R** **O****F** **P****O****L****I****C****E** **(****R****ES****P****O****N****DE****N****T****)** **Div****i****si****o****n:** High Court (North) (N.C. App. Div.) **D****at****e** **o****f** **Judgment:** 24th January, 1961 **C****as****e** **Num****b****er****:** **Before:** Smith, AG. C.J. Skinner, SH. CT. J. J. Shadik, SH. CT. J. In an appeal to the Native Courts Appellate Division of the High Court against conviction and sentence in the Provincial Court, Ilorin, the appellant applied for bail pending appeal. Application heard by a Judge of the High Court, acting under rule 10 of Order II of the Northern Region High Court (Appeals from Native Courts) Rules, 1960, was refused. Subsequently, in an application heard by the High Court sitting in the Native Courts Appellate Division, the appellant applied for an order under section 108(2) of the Second Schedule to the Nigeria (Constitution) Order in Council, 1960, that certain questions be referred to the Federal Supreme Court, and for an order for his release on bail pending appeal. Being of opinion that the questions raised by the appellant had raised a substantial question of law as to the interpretation of the Constitution of Northern Nigeria, the court referred the question to the Federal Supreme Court. The court then proceeded to hear the appellant's application for his release on bail. In reply to this application, it was submitted that no order for bail pending appeal could be made; _first,_ because the court was _functus_ _officio_ in the appeal until it received the directions of the Federal Supreme Court under section 108(3) of the Second Schedule; and _secondly,_ because the question of bail was _res_ _judicat_ _a_ by virtue of the refusal of the previous application for bail. **_HELD_**** _:_** While the court was precluded from hearing the appeal until it received the directions of the Federal Supreme Court, because the question of constitutional law must be decided first, nevertheless section 59C of the High Court Law, which created the court and gave it jurisdiction to hear appeals from Native Courts and matters incidental thereto, continued as the law in force until the Federal Supreme Court held otherwise. Therefore the court was not precluded from deliberating on matters, such as this application for bail, which were not directly affected by the question referred to the Federal Supreme Court; and, Rule 10 of Order II of the Northern Region High Court (Appeals from Native Courts) Rules, 1960, shows a clear intention that the question of bail be left open for consideration from the time an appeal is entered until it is determined and was not to be read as precluding the court from considering the question when an application for bail at an earlier stage in the appeal has been dismissed by a judge sitting alone, or _vice_ _versa._ _A_ _pplicatio_ _n_ _fo_ _r_ _bai_ _l_ _p_ _endin_ _g_ _appea_ _l_ _g_ _ranted_ _._ _Acts_ _,_ _L_ _aws_ _,_ _O_ _rder_ _s_ _a_ _n_ _d_ _Ru_ _l_ _e_ _s_ _re_ _f_ _erre_ _d_ _t_ _o:__-_ _Constitution_ _of_ _the_ _Federation,_ 1960, section 108. _Constitution_ _of_ _N_ _orthern_ _Nigeria,_ Cap. IV. _N_ _.__R_ _._ _Hi_ _g_ _h_ _Co_ _u_ _r_ _t_ _L_ _a_ _w_ _,_ 1955, section 59c. _N.R_ _._ _Pe_ _n_ _a_ _l_ _C_ _od_ _e_ _,_ 1959, section 113. _N.R_ _._ _Hig_ _h_ _Co_ _u_ _r_ _t_ _(__A_ _ppe_ _a_ _l_ _s_ _f_ _ro_ _m_ _N_ _at_ _i_ _v_ _e_ _C_ _o_ _urt_ _s_ _)_ _R_ _u_ _le_ _s_ , 1960. Order II, rule 10. _Williams_ , Q.C. (with him _Thanni_ and _Morohundiya_) for the Applicant; _Henderson_ , Crown Counsel (led by _H._ _H_ _._ _Marshall_ , Q.C. Attorney-General) for the Respondent. Smith, Ag. C.J., (delivering the opinion of the court): This application for bail is made in paragraph 2 of the motion paper filed on 28th December, 1960. It is ancillary to the application made in paragraph 1 of the same motion paper in respect of which F.R.A. Williams for the appellant submitted that the Native Courts Appellate Division of the High Court as at present constituted under section 59c of the High Court Law is contrary to the provisions of Cap. IV of the Third Schedule to the Nigeria (Constitution) Order in Council, 1960; and requested that this question as to the interpretation of the Constitution be referred to the Federal Supreme Court pursuant to section 108(2) of the Second Schedule. The learned Attorney-General for the respondent conceded that Mr Williams had raised a substantial question of law for the consideration of the Federal Supreme Court, and reserved his argument thereon. We found that a substantial question of law had arisen and it is now our duty to refer the question to the Federal Supreme Court. We then heard argument on the question of bail. This motion arose in the course of the appeal by the appellant, J. section Olawoyin, against his conviction and sentence by the Provincial Court, Ilorin, under section 113 of the Penal Code on 17th November. There has been a previous application for a grant of bail to the appellant in the course of this appeal. That application came before the Acting Chief Justice sitting as a single judge, who dismissed it on 9th December. This earlier application was made on the ground of undue delay before the appeal would be heard by this Court; and it was dismissed because the Affidavit in support of the application did not disclose any facts upon which the learned Counsel who then appeared for the appellant was able to found his submission. Mr Henderson who appeared with the learned Attorney-General opposed the present application for bail. We will take each of his points in turn. He submitted that as we have decided to make an order under section 108(2) of the Second Schedule to the Nigeria (Constitution) Order in Council, 1960, this Court is _functus_ _officio_ until it receives the directions of the Federal Supreme Court under section 108(3). It is true that this Court is precluded from hearing the substantive appeal until it receives the directions of the Federal Supreme Court, because the question of constitutional law must be decided first. But section 59c of the High Court law 1955, which has created this Court, as at present constituted, and given it jurisdiction to hear appeals from Native Courts and matters incidental thereto, continues as the law in force at the present time; and will continue in force until the Federal Supreme Court holds otherwise. This Court is not therefore precluded from deliberating on matters, such as this application for bail, which are not directly affected by the question of law to be referred to the Federal Supreme Court. It was also submitted that the question of bail is _res_ _judicata_ in that the appellant had previously made an application for the grant of bail which was dismissed by the Acting Chief Justice sitting as a single judge. Order II, rule 10, of the Northern Region High Court (Appeals from Native Courts) Rules, 1960 provides: At any time after an appeal has been entered until the determination thereof by the Appeal Court, the Appeal Court or a single judge thereof may, on the application of the appellant or of its own motion ... if the appellant is in custody, order his release on bail with or without sureties .... We do not read the word "or" in this context disjunctively; that is to say we do not read it as precluding the appeal Court from considering the question of granting bail to an appellant when an application for bail at an earlier stage in the appeal has been dismissed by a single judge, or _vice_ _versa_. We do not do so, because the opening words "At any time after an appeal has been entered until the determination thereof by the Appeal Court ..." show a clear intention that the question of bail be left open for consideration from the time the appeal is entered until it is determined. To construe it otherwise might well lead to an injustice if the Appeal Court was prohibited from granting bail, in circumstances brought to its notice which warrant the granting of bail, because an earlier application for bail had been dismissed by a single judge who had no notice of the circumstances of which the Appeal Court was later seized. The other ground for opposing bail by Mr Henderson was to the effect that the decision to refer the question of law to the Federal Supreme Court cannot affect the merits of the appeal. To accept that proposition is to ignore the effect upon the pending appeal of the question of constitutional law to be determined by the Federal Supreme Court. That is a question which has arisen in the course of this appeal; it is a question of law of great importance; it is a question that the appellant has a right to raise under the provisions of the Constitution. These are exceptional circumstances in which we consider that we ought to grant bail having due regard to the nature of the offence and the probability that the appellant will appear to argue his appeal. An offence under section 113 of the Penal Code carries a maximum sentence of one year or a fine which may extend to £50 or both. That is a bailable offence. There has been no suggestion that the appellant if granted bail is likely to abscond. Having regard to all the circumstances, we grant the appellant bail upon the following terms: upon his entering into a recognisance in £50 with two sureties in £50 to appear before the High Court, at such place, date and time to be notified, for the due prosecution of his appeal and for abiding the result thereof. Application granted.