HIGH COURT, ACCRA
DATE: 9 OCTOBER 1967
BEFORE: AMISSAH J.A.
CASE REFERRED TO
Owusu v. The State [1967] G.L.R. 435, C.A.
NATURE OF PROCEEDINGS
PRELIMINARY OBJECTION to the jurisdiction of the High Court to grant bail pending appeal from conviction by inferior court.
COUNSEL
J. K. Agyemang (for P. A. Adjetey) for the applicant.
E. A. Nelson, Assistant State Attorney, for the Republic.
JUDGMENT OF AMISSAH J.A.
On this application for bail pending appeal, learned counsel for the Republic has raised a preliminary objection. In effect he says that this court, though the proper court to determine the substantive appeal of the applicant, has, nevertheless, no jurisdiction to grant him bail pending his appeal. In support of this novel submission counsel has pointed out that the only relevant provision in our law covering bail pending appeal is to be found in paragraph 20 (2) of the Courts Decree, 1966 (N.L.C.D. 84), which provides as follows:
“The Court of Appeal, or the Judge before whom he was convicted, may, if it seems fit, on the application of an appellant, admit the appellant to bail pending the determination of his appeal.” Of course this provision makes no express mention of the High Court. And if it were the only provision dealing with the grant of bail pending appeal, the contention of counsel would appear to be unassailable, as I am neither the Court of Appeal nor the judge before whom the applicant was convicted. The implications of the objection are quite staggering. For it does mean that the High Court has been granting bail to convicted prisoners over the years without jurisdiction. According to counsel, section 332 (1) of the Criminal Procedure Code, 1960 (Act 30), which would on the face of it appear to give the High Court the power to give bail in such circumstances is neatly excluded by the judgment of the Court of Appeal in the Owusu v. The State [1967] G.L.R. 435 at p. 439 where the court said: “The case of R. v. Tunwashe ((1935) 2 W.A.C.A. 236) was cited to the judge of the High Court in the Djaba case ([1966] G.L.R. 327), but it was rejected by him on the grounds that the decision therein was based upon English authorities and old
[p.591] of [1967] GLR 589
decisions of the Ghana courts based upon enactments which are worded in terms quite different from the wording of the enactment which now gives power to the present courts of Ghana to entertain such applications. The learned judge so directed himself because he erroneously thought that the enactment which empowers the High Court to grant bail after conviction is section 332 (1) of the Criminal Procedure Code,1960 (Act 30), and not section 22 (2) of the Courts Act, 1960 (C.A. 9), now paragraph 20 (2) of the Courts Decree, 1966 (N.L.C.D. 84). We say erroneously, because the said section 332 (1) relates to bail before conviction and not bail after conviction.”
(The emphasis is mine.) By this pronouncement, says counsel, the Court of Appeal has definitely decided that section 332 (1) of the Criminal Procedure Code should be resorted to only in applications for bail before conviction. Turning now to the provisions of section 332 (1) we find that they read as follows: “After the filing of a petition of appeal by any person entitled to appeal, and pending the hearing, the High Court may, for reasons to be recorded by it in writing, order that the execution of a sentence or order appealed against be suspended and also, if he is in confinement, that he be released on bail or on his own bond.”
Clearly there is an error in the interpretation placed on this subsection by the Court of Appeal in the Owusu case (supra). Under our Criminal Procedure Code, one may not be sentenced unless he has been convicted. And if a person has not been sentenced he cannot appeal against his sentence. The court therefore cannot order that the sentence, which does not exist, be suspended, nor can a person be confined as a result of such a sentence whom the court may order to be released on bail on his own bond. Learned counsel for the Republic concedes to the force of this argument but submits that I am bound by decisions of the Court of Appeal.
I readily agree that by virtue of paragraph 2 (3) of the Courts Decree, 1966 (N.L.C.D. 84), I am bound to follow decisions of the Court of Appeal. But the question is whether every pronouncement in a judgment of that court is a decision or part of the decision which must necessarily bind me. I take it that what binds me is not everything said by the Court of Appeal, whether it be necessary to the conclusion arrived at by the court or not. It is only that which was necessary to the conclusion that forms part of the decision which is binding. The case before the Court of Appeal in the Owusu case
[p.592] of [1967] GLR 589
involved an application for bail pending an appeal from a conviction by the High Court. In this sort of application paragraph 20 (2) of the Courts Decree, 1966, is the relevant provision. The application had nothing to do with the exercise of an appellate jurisdiction by the High Court or directly with the power of the High Court to grant bail pending an appeal from any inferior court. Section 332 (1) of the Criminal Procedure Code, 1960, was therefore not up for consideration. The main issue before the Court of Appeal was the circumstances in which the court might exercise its recognised powers to grant bail pending appeal. Consequently, anything said in passing by the court about whether section 332 (1) gives power to a court to grant bail only before or after conviction was strictly unnecessary to the task they were called upon to perform. It is not part of that decision which is binding on this court and I do not therefore consider myself bound by the statement referred to. No doubt the Court of Appeal wanted to exclude the operation of section 332 (1) from applications for bail pending appeal from convictions by the High Court. But the distinction which the court ought, and I am sure intended, to draw was not a distinction between the provisions of our law dealing with bail before conviction and bail pending appeal. It was the distinction between the provisions both on bail pending appeal, but which on the one hand govern applications for bail made by persons appealing to the High Court from convictions by the inferior courts, namely, section 332 (1) of the Criminal Code, and on the other, those which govern applications made by persons appealing to the Court of Appeal from their convictions, which are to be found in paragraph 20 (2) of the Courts Decree, 1966.
I am sure the Court of Appeal will readily agree, if the passage is pointed out to them, that the pronouncement therein is an obvious error which should be ignored.
Accordingly I overruled the objection of counsel for the Republic.
DECISION
Objection overruled.
J. D.
