J.S. OLAWOYIN (APPELLANT)

v.

COMMISSIONER OF POLICE (RESPONDENT)

Division: High Court (North) (N.C. App. Div.)

Date of Judgment: 24th January, 1961

Case Number:

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 judicata 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.

Application for bail pending appeal granted.

Acts, Laws, Orders and Rules referred to:-

Constitution of the Federation, 1960, section 108.

Constitution of Northern Nigeria, Cap. IV.

N.R. High Court Law, 1955, section 59c.

N.R. Penal Code, 1959, section 113.

N.R. High Court (Appeals from Native Courts) Rules, 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.