Alhaji Sulaiman Mohammed v. Lasisi Sanusi Olawunmi & 11 Ors

read in advance the judgment of my brother Uwais, J.S.C I agree with him entirely before hand and I adopt his reasons as mine for dismissing the appeal on 15th day of February, 1993. I had made the same consequential orders as he did on that day.

I have read before now the lead judgment of my learned brother Uwais, J.S.C. I entirely agree with the reasons given by my learned brother for dismissing the appeal and I adopt same as mine. The appeal lacks merit and same is dismissed with N1,000.00 costs to the defendants.

I had a preview of the judgment of my learned brother Uwais. J.S.C. just delivered. My learned brother has set out in great details the facts which led to this appeal. I need not go over them. I entirely agree with his reasoning and conclusions. My contribution will be limited to issues 2, 4 and 5 of the issues raised by the appellants. These issues read thus:

“2. Were the Justices of the Court of Appeal right in granting a stay of further proceedings in the High Court in view of the proceedings of the High Court on 9th May

P.22

1991 by which the Judge put finality to the trial before him?

4. Whether there being no appeal filed by the respondents against the sentence of 9th May 1991 the respondents hence cannot ask for bail?
5. Were the Justices of the Court of Appeal right in listening to the respondents on their application dated 10th May 1991 while the respondents were definitely in contempt of the Orders of the Supreme Court in suit S.C. 61/81 and the Order of the High Court?”

Issues 2:

Mr. Bashua the learned counsel for the appellants in his brief of argument posed a question: With the passing of sentence on the respondents on 9th May, has the judge got anything more to do with the trial for contempt of the respondents? He quickly provided an answer. Learned counsel submitted that the learned trial Judge had nothing more to do in so far as the trial was concerned, once there had been conviction and sentence, there was nothing more for the Judge to stay. The rush to sentence notwithstanding the application in the Court of Appeal was a clear case of fait accompli. The record of proceedings shows that the learned trial Judge was aware of the application dated 8th May 1991 filed in the Court of Appeal a day before he delivered his ruling of 9th May 1991, the substance of that application was to stay all the proceedings which include the issue of sentence before him pending the determination of the appeal. The learned Judge left nobody in doubt about his awareness of the application filed in the Court of Appeal, because in his ruling of 9th May 1991 the learned trial Judge said inter alia:

P.23

“What the defendants/respondents were asked to do were spelt out and are 3 in number. I went further on the same page: In default of the purge within the time stipulated, will pronounce my sentence in accordance with the law taking into consideration the gravity of offence.’ Within the stipulated days, the defendants/respondents went to the Court of Appeal and since then the legal battle started. Today however, the court is possessed with the order of the Court of Appeal dated 4th April, 1991, refusing Order for Stay of further proceedings. A new motion has again been filed at the Court of Appeal asking for another Order for Stay of Proceedings. It appears to me that although the motion has just been filed there, this court can proceed with the sentence as no interim order is made or obtained from the Court of Appeal. I therefore proceed to sentence.”

The respondents’ counsel in their brief argued and this was not rebutted before us that the attention of the learned trial Judge was drawn to the case of Vaswani Trading Co. v. Savalakh & Co. (1972) All NLR 922 or (1972) 12S.C. 77. In that case, this court in a clear language frowned at the attitude of a lower court that will render the order being sought nugatory. The court said:-

“We think also that it is idle for the respondents to argue, as learned counsel on their behalf has attempted to do, that they were not aware of the pending proceedings in this court.”

No argument was advanced before him that that authority should not be followed. In this appeal, the Judge from the passage quoted above from his ruling was aware of the

P.24

application but deliberately chose to ignore the process. This unfortunate attitude in disregarding the process of the Court of Appeal borders on judicial impertinence. It is an affront to the authority of the Court of Appeal. All the courts established under our Constitution derive their powers and authority from the Constitution. The hierarchy of courts show the limit and powers of each of each court. To deft the authority and powers of a higher court appears to me undesirable and distasteful. Even without the ratio of the Vaswani’s case, the best and reasonable course of action was to have adjourned the matter before him pending the determination of the application before the Court of Appeal.

It was the argument of the appellants that since sentence had not been passed, after the conviction, the proceeding was interlocutory requiring leave to appeal. There cannot be a sentence without a conviction. Once a conviction is set aside it follows that any sentence passed cannot stand. Where a sentence was passed in utter and flagrant disregard of the application pending before the Court of Appeal for a stay of the proceedings a bail should be granted. Once the subject matter of the contempt, which invariably are the orders made as a result of the contempt, is still on appeal and until the Court of Appeal affirms the orders made, the Court of Appeal was right in granting the application for stay. A litigant that only appeals against sentence agrees with the judgment which led up to his conviction. The rules of court are made for the orderly conduct of trials. A litigant will be allowed to pursue his rights in so far as he acts within the law and the rules. To deny him that right will be to deny him

P.25

justice. It is better to await the decision of a higher court in respect of matter pending in the lower court so as to avoid embarking on an exercise in futility. What is of considerable importance is that there must be respect for the authority of each court. Even if a Judge disagrees with the decision of a higher court, he is constitutionally bound to accord it respect until it is set aside. A lower court should try to avoid defiance of the order or process of a superior court.

Issue 4.-

The respondents were convicted on 9th May 1991 notwithstanding their application for stay of proceedings filed on 8th May 1991 asking for stay of further proceedings pending their appeal against the ruling of the High Court of 4th April, 1991. It was part of the prayers of their application that the orders of the High Court made on 20th and 21st September 1988 be stayed. The order of this court in S.C. 61/80 of 1981 declared the appellants to be the owners of the land in dispute. That much is clear and it is no longer challengeable. But their conviction for contempt of court led to the application before the lower court. Whilst the application for the contempt of court in the High Court is a follow-up of the order of this court in S.C./61/80, their application for a stay of the proceedings before the Court of Appeal cannot be a justifiable reason for the High Court to shut its eyes to the application in the Court of Appeal. It is true the conduct of Fernandez, J. was not an issue before the lower court, it was the learned judge’s disregard of the proceedings before the Court of Appeal that led to the comment of the Court of Appeal. Fernandez, J. had already sentenced them.

P.26

Where there is an application before a higher court for a stay of proceedings in the lower court, a decision by the lower court which will render the result of such application nugatory should be avoided. It will amount to a mere speculation for the trial court to come to the conclusion that an appeal or application before the higher court or Appellate Court will fail. An appeal against a judgment or ruling is a complaint against the decision, The lower court should not be any means silence the complaint or force a party to abandon or renounce his right.

Issue 5:

A party convicted of an offence has the right of appeal. It is a constitutional right. A man whose appeal is pending in a higher court can apply for bail. Under section 29 of the Court of Appeal Act 1976. the Justices of the Court of Appeal have a discretion to grant or refuse bail. Mr. Bashua has predicated his objection on the failure of the appellants to apply first to the lower court. This submission has read into section 29 of the Court of Appeal Act a provision not within contemplation of the Legislature. What is important under section 29 of the Court of Appeal Act is the way and manner the court exercises its discretion. Mr. Bashua’s attack on the exercise of discretion is a general statement that the court must exercise its disrection on established criteria without setting on these out criteria. I find it difficult to fault the basis of the decision of the lower court without stating the grounds why the decision to grant the bail should be set aside. We cannot as a result of this generalisation substitute our own discretion for that of the lower court. The invocation of Order 8 rule 17 of the Supreme Court

P.27

Rules is misconceived and irrelevant to the matter before the lower court. The judicial and judicious exercise of the lower Court’ s discretion was based on the sum total of the events that led to the respondents’ conviction and sentence and the harm they will suffer if bail was refused. However suffice it to say that I will refrain from making any pronouncements on the ethics of the profession raised in the respondents’ brief. I will, for these reasons and the fuller reasons set out in the lead judgment of my learned brother Uwais. J.S.C., dismiss the appeal. I abide by the order for costs in the lead judgment.

I have had the advantage of reading in draft the judgment of my learned brother Uwais J.S.C just read. I agree with his conclusion that this appeal be dismissed. I however, wish to say a few words of my own. My learned brother has set out in his judgment the chequered history of the dispute between the parties herein leading to the appeal now before us. I do not wish to go over it again except to refer in the course of this judgment. Where necessary, to any event in the said history. Six questions have been set out in the appellants’ brief as calling for determination in this appeal.

The questions are:-

1. Whether the respondents are not estopped from filing the motion dated 10th May, 1991. praying for a stay of further proceedings in the High Court, when exactly the same prayer was earlier argued and refused on the merit by the same Court of Appeal on 4th April, 1991.
2. Were the Justices of the Court of Appeal right in granting a stay of further proceedings in the High Court in

P.28

view of the proceedings of the High Court on 9th May 1991 by which the Judge put finality to the trial before him.

3. (a) Whether the learned Justices of the Court of Appeal were right in contravention of Order 3 Rule 3(iv) of the Rules of the Court of Appeal, to have heard the application for bail without ordering it to be first heard at the High Court.

(b) And whether the mere fact that the High Court will refuse the application for bail because he had sentenced the respondents to prison constitutes “special circumstances which make it impossible or impracticable to apply to the court below” within Order 3 Rule 3(iv) Court of Appeal rules, and particularly when the applicants did not give any evidence supporting special circumstances.

4. Whether there being no appeal filed by the respondents against the sentence of 9th May 1991 the respondents hence cannot ask for bail?
5. Were the justices of the Court of Appeal right in listening to the respondents on their application dated 10th May 1991 while the respondents were definitely in contempt of the Orders of the Supreme Court in suit SC61/81 and the Orders of the High Court”
6. Did the Justices of the Court of Appeal exercise their discretion in granting bail to the respondents, judicially and judiciously without proper notice of appeal filed against the ruling of 9th May 1991? I shall now proceed to consider these questions as they are set out above.

QUESTION 1,’ The thrust of the learned counsel for the appellant’ argument, both in his brief and in oral argument

P.29

at the hearing of this appeal, is to the effect that the order made by the Court of Appeal on the 4th of April 1991 refusing the application for a stay of proceedings pending appeal was based on the merits and as such the refusal in the circumstance amounted to a dismissal; that being so the respondents are estopped from bringing their later application dated 8th May 1991 as this would amount to fe-opening the same issue. With respect to learned counsel however, I find myself unable to agree with him that the order of 4th April 1991 was made on the merits. In his lead ruling of the 4th April, 1991 on the respondents’ motion dated 27th April 1990 (with which Ademola and Awogu, JJCA, agreed), Kalgo J ,CA, observed:- “In respect of the stay of all further proceedings in the case now pending in the High Court. I entirely agree with the learned respondent” counsel that there is no basis upon which it should be granted. There is no appeal yet pending in the matter and the application for leave to appeal has now been heard,” (See pages 66-67 of the record), Thus the reason for refusing the application for stay of proceedings was because there was no appeal then pending before the Court of Appeal. Whether it is necessary for an appeal to be pending before an order for stay of proceedings or stay of execution is granted is beyond the issue before us now as the correctness of the learned Justices pronouncement is not being challenged in this appeal.

However, one point is clear, and that is, that the refusal of the application for stay was not made on its merits as was erroneously, with profound respect to learned counsel for the appellants, contended, I do not think that the refusal of

P.30

the application for stay by the court below on 4th April 1991 for the reason given by that court would be a bar to fresh application for the same prayer if an appeal is subsequently lodged in the matter. Consequently therefore, I will answer Question I in the negative. All the authorities cited in the brief are not, in my respective view, relevant to the facts of the matter now before us.

QUESTION 2,’ The respondents filed an application on 8th May 1991, The learned trial Judge on 9th May, 1991, with full knowledge of the application made to the Court of Appeal dated 8th May, proceeded to pass sentence on the respondents. The Court of Appeal, notwithstanding that sentence was passed on 9th May, proceeded to hear the respondents’ application for stay of further proceedings in the High Court. It is contended by learned counsel for the appellants that as the learned trial Judge had nothing more to do with the trial of the respondent for contempt, the court below, that is, the Court of Appeal was wrong to have entertained and granted the application for stay of proceedings in the High Court. Learned counsel referred us to a number of authorities including the judgment of this court in Mohammed & Ors v. Olawumi and Ors (1990) 2 NWLR (Pt. 133)458; (1990) 2 NSCC 361. It is not in dispute that the latest application of the respondents leading to this appeal was filed on the 8th of May, 1991. It is equally not in dispute that on 21st September 1988 the learned trial Judge found the respondents guilty of contempt of court but suspended sentence for 14 days to give room to the respondents to purge themselves of their contempt. Passing of sentence was not proceeded with at the time stipulated by the

P.31

learned Judge because of intervening applications by the respondents for stay of further proceedings in his court which the respondents finally lost on 4th April, I990 as heretofore mentioned.

In passing sentence however, on 9th May 1991 the learned trial Judge observed as follows:-

“With the stipulated days, the defendants/respondents went to the Court of Appeal and since then the legal battle started. Today however, the court is possessed with the order of the Court of Appeal dated 4th April, 1991, refusing Order for Stay of further proceedings. A new motion has again been filed at the Court of Appeal asking for another Order for Stay of Proceedings. It appears to me that although the motion has just been filed there, this court can proceed with the sentence as no interim order is made or obtained from the Court of Appeal. It therefore proceed to sentence.” (See pages 87-88 of the record)

Being aware of the motion dated 8th May 1991, and unless the learned trial Judge wanted to pre-empt the Court of Appeal, one would expect that having waited almost three years to pass sentence, he would have waited a little longer to have the application of the 8th of May 1991 disposed of by the Court of Appeal more so that his attention was drawn to it before passing sentence. The question arises- was the Court of Appeal justified in the circumstance, in proceeding to hear and determine the application before it dated 8th May 1991 for stay of further proceedings? I rather think so. Indeed I would also say that the Court of Appeal would be justified in setting aside the order of sentence made by the learned trial Judge on 9th May 1991. What the learned trial Judge did

P.32

on 9th May 1991 was to foist on the Court of Appeal a fait accompli thereby rendering it impossible for that court to arrive at a decision one way or the other on the merits of the application before it or render any decision it might lake on the application nugatory or futile. The courts have always frowned on such conduct. See Vaswani v. Savalakh (1972) 1 All NLR 922, where G.B.A. Coker J.S.C., in circumstances not dissimilar observed at pages 927-930 of the report:- “In the present case there in no doubt that the writ was executed and possession wrested from the applicants whilst their motion to this court for a stay of execution was pending and awaiting a date to be assigned by this court for the hearing of the application.

It is true and correct to observe that the notice of appeal filed would not operate as a stay of execution and section 24 of the Supreme Court Act makes this more clear; but, it is equally correct to point out that the section does not prescribe in favour of any execution being carried out during the pendency of an appeal. Indeed, by its provisions it postulates that during the pendency of an appeal the Supreme Court has got the jurisdiction to accede to an application for stay of execution conditionally or otherwise. The section does not give any licence, directly or indirectly, for the issue and execution of any processes which may ultimately be offensive. The section simply de-limits the scope of the statutory position for the parties after the filing of a notice of appeal. Clearly therefore to employ this section as a spring-board for the issue and process of an inopportune execution would be an abuse of the process of the court.

Speaking of the attitude of the courts to an abuse of

P.33

process, Lord Blackburn said in The Metropolitan Bank Ltd. e.t.c v.. Pooley (1885) 10 App. Cas. 210. at page 220:- ‘But from early times (I rather think, though I have not looked at it enough to say, from the earliest times) the court had inherently in its power the right to see that its process was not abused by a proceeding without reasonable grounds, so as to be vexatious and harassing – the court had the right to protect itself against such an abuse (See also Logan v. The Bank of Scotland No.2 (1906) 1 KB 141. We think that in the circumstances of the present case, the action of the respondents constitutes an abuse of the process of the court More important, however, is the duty of this court, as indeed that of other courts, to ensure that its orders are not nugatory. The applicants are exercising their undoubted right of appeal. The respondents are well aware of this and the applicants are certainly entitled so to exercise that right as long as they do so in accordance with the provisions of the statute conferring the right. If they in transgression of these terms go outside them or anyone of them, they are not exercising an undoubted right for all rights of appeal are statutory and no question of abuse can arise. There has been no suggestion before us that the present applicants were acting outside their scope or terms of the statute and it is manifestly the duty of the court to protect the exercise of that right and to ensure that its own orders in that connection at any stage of the lawful and regular proceedings are not rendered useless by the action or conduct of either of the parties.

Thus, although section 24 of the Supreme Court Act states that an appeal shall not operate as a stay of

P.34

execution it does not interfere with proceedings or an application for a stay of execution and by the same token any action or conduct of one or the other of the parties to the action taken whilst an application for a stay of execution is pending in this court, for the obvious or subtle purpose of stultifying the exercise by this court of its jurisdiction, and indeed its duty to consider the application on its merits, must not be countenanced by this court.

Section 24 concerns the filing of an appeal and the effect in law of such an act on the execution of the judgment under appeal; the section also concerns the application for a stay of execution of the judgment appealed against for it gives the court the power to grant such an application. But the section, perhaps deliberately, does not say anything concerning the effect on such application to this court for a stay of execution of the judgment. Whilst by virtue of the provisions of the section, an appeal or the filing thereof could not eo ipso operate as a slay of execution, clearly in practice, the position should be different where apart from filing an appeal, the prospective appellant also files an application in this court, by which a stay of execution of the same judgment is sought. In such circumstances. a general appraisal of the whole situation is absolutely necessary and it is most desirable that the court should ensure that, at that stage of the proceedings, it is not possible for any party to present it with a fait accompli.

We still observe, however, that despite this, this court will interfere in a case involving an abuse of the process of the court and we propose to do so here. We will set aside the writ of possession which was executed in this case

P.35

with such manifestly irregular design and purpose.” See also Sanni v. Otesanya S.C. 8/1970 decided by the Supreme Court on the 3rd February 1970 (unreported).

Furthermore, the learned trial Judge in passing sentence ruled:-

“In default of the purge and the order of this court made on the 21st September, 1988, the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 19th, 11th, 12th defendants are now committed to prison until each and every one purge himself as directed in my Order made on the 21st September. 1988.” (See page 88 of the record)

That sentence is apparently indefinite and it will need further reference to the learned trial Judge to put an end to it when the respondents have purged their contempt. It would therefore, not be correct to say that the learned trial Judge has nothing more to do after passing sentence. Of course he has yet to entertain an application by any or all of the respondents for release from prison and has to determine on such an application whether or not the respondents are purged of their contempt.

For the reasons I have given above therefore, I would answer Question 2 in the affirmative.

Question 3: Both the trial High Court and the Court of Appeal have concurrent jurisdiction to grant bail where there has been a conviction. It would appear to me that by the correct interpretation of Order 3 Rule 3(4) Court of Appeal Rules which provides:-

“Where under these Rules an application may be made either to the court below or to the Court, it shall not be made in the first instance to the Court except where there are special circumstances which make it impossible or

P.36

impracticable to apply to the court below”

an application for bail ought to be made first to the court of trial. Special circumstances will have to be shown for bringing an application in the first instance to the Court of Appeal. The words “where under these Rules” can only be interpreted by ignoring “under these Rules” since the Rules, in my respectful view, have not provided for the bringing of applications both in the court below and in the Court of Appeal. Applications for bail, stay of execution, stay of proceedings, e.t.c. are provided for either in specific Acts or Laws or under the inherent jurisdiction of the courts.

In my respectful view, therefore, in order to avoid absurdity, I would interprete Order 3 Rule 3(4) as meaning:

“Wherever an application may be made either to the court below or to the Court of Appeal it shall not be made in the first instance to the Court of Appeal except there are some special circumstances which make it impossible or impracticable to apply to the court below.”

It is the contention of learned counsel for the appellants that the application for bail dated 10th May, 1991 and taken along with the respondents’ application for stay of proceedings dated 8/5191 ought not to have been entertained by the Court of Appeal as a similar application was not first made to the court of trial. Learned counsel further submitted that the respondents failed to show special circumstances which would make it impossible or impracticable to apply for bail, first to the High Court. Learned counsel placed relevance on Ojosipe v. Ikalaba (1972) 3 S.C. 1. The Court of Appeal, per Awogu J.C.A.,

P.37

in its ruling observed:- “On the second application, the applicants seek bail pending the decision just delivered for stay of further proceedings. It would appear that between the ruling of 4th April, 1991, and the order for briefs of 18th April, 1991, this matter came up before Fernandez, J. on 9th May, 1991. His attention was drawn to the motion for stay of further proceedings pending in this court. In the ruling of 9th May, he said:-

“Today, however, the court is possessed with the order of the Court of Appeal dated 4th April, 1991, refusing order for stay of further proceedings. A new motion has again been filed at the Court of Appeal asking for another order for stay of proceedings. It appears to me that although the motion has just been filed there, this court can proceed with the sentence as no interim order is made or obtained from the Court of Appeal. I therefore proceed to sentence.”

Having said so he committed the applicants to prison until each one of them purged himself as directed in the order he made on 21st September, 1988. In other words, in spite of his knowledge that a fresh application for stay of proceedings was pending in this court, Fernandez, J. proceeded to sentence the applicants in respect of the order he made on 21st September, 1988, now on appeal before this court. Bashua for the respondents suggests in the course of his argument that the applicants being in contempt should not be heard by us. In  my view, it was Fernandez J. who would appear to be in contempt for disregarding an application pending in this court in accordance with the now accepted principle in Vaswani v Savalakh (supra). This is rather unfortunate. Bashua for

P.38

the respondents also suggests that in accordance with our rules of court this application ought to have been made first to the trial Judge, I pause to ask what purpose the application would serve when the Judge has passed a sentence for contempt. In my view the entire proceedings create the special circumstances envisage in Order 3 Rule 3(iv) (sic) of the Rules of this court and the present application is properly before us:’ (See pages 101-103 of the record) Learned counsel for the respondents in his brief lists the circumstances which according to counsel, cumulatively make it impossible or impracticable to apply for bail to the High Court in the first instance.

I have given careful consideration to the submissions made by learned counsel for the parties and the views  expressed by the Court of Appeal particularly in the lead judgment of Awogu J.C.A. I think the Court of Appeal was right to have considered the application for bail before them having regard to the circumstances of this case. While I do not agree that the trial Judge from his disposition might refuse an application for bail, as a special circumstance, I however, take into consideration the totality of the facts in this case. I have referred earlier in this judgment to portions of the ruling of the learned trial Judge when imposing sentence on the respondents and I have remarked that by so doing the learned trial Judge. rather innocently. I dare say, was foisting on the Court of Appeal a fait accompli. I also take into consideration that fact as disclosed in the proceedings before the Court of Appeal that that court was already seised of the appeal against the respondents’ conviction for contempt.

I am satisfied from all the surrounding circumstances of

P.39

the case that special circumstances existed why it was impossible or impracticable for the respondents to apply in the first instance to the trial High Court. Such special circumstances were not shown in Ojosipe v. Ikalaba (supra) but they existed in Ojora v. Odunsi (1964) 1 All NLR 55 as time for appeal had elapsed. I am of the view that in the circumstances of the present case the Court of Appeal was justified and entitled to authorise a departure from a strict adherence to Order 3 rule 3(4) Court of Appeal Rules 1981. I therefore answer the first limb of Question 3 in the affirmative.

QUESTION 4: Would appear to have been argued along with Question 6.

QUESTION 5: It is the contention of learned counsel for the appellants that the respondents having defied and were in contempt of the judgment of the Supreme Court in the main suit. their application for bail made on 10th of May 1991 ought not to have been entertained by the Court of Appeal. In 1988 the learned trial Judge found the respondents guilty of contempt of the judgment of this court. The respondents are on appeal to the Court of Appeal against that conviction and have applied for bail pending the determination of that appeal. I cannot see anything wrong in the Court of Appeal entertaining the application for bail. The respondents’ posture seems to me to be this. We agree there is a judgment by the Supreme Court awarding an injunction against us but we are not doing anything in contravention of that injunction: what the trial Judge sees as a contravention does not amount to such a contravention as may make us to be in contempt. This is different from a posture where the

P.40

respondents admit the existence of the injunction but maintain that notwithstanding it they are entitled to maintain a conduct in defiance of the injunction.

In my respectful view, it is not perpetrating contempt, to appeal against the finding of the trial Judge in the case of the first posture and I can see no justification in the circumstances of this case why the application for bail should not be entertained. In conclusion I answer Question 5 in the affirmative.

QUESTION 6: Learned counsel for the appellants contends that as there was no appeal against the ruling of the learned trial Judge of 9th May, 1991 imposing sentence on respondents, it was wrong of the Court of Appeal to have granted them bail on their application dated 10th May, 1991. In exercising his discretion to grant bail, the Court of Appeal, per Awogu, J.C.A. said:- “However, in view of the sentence flying in the face of an appeal pending in this court, the applicants are hereby granted bail… . (page 103 of the record) Tobi J.C.A. in his own judgment observes:-

“In the case of bail pending appeal, the courts consider some other criteria, including likelihood of the appeal I succeeding, the need for the appellant to assist counsel in post trial preparation of the appeal and the probable duration of the appeal. See generally R. v. Tunwashe (1935) 2WACA 236, Fynn and Another v. The Republic of Ghana (1971) I GLR 433 R v. Warman (1931) 22 CAR 81. I would like to note here that the imprisonment of the applicants is timeless. By the 9/5/91 order of the learned trial Judge, they have to be in prison until they purge themselves. After a very careful

P.41

examination the criteria for granting bail in the circumstances of this case, I am also inclined to granting bail and. I hereby grantthe applicants bail.” (Pages 109-110 of the record). Kalgo J.C.A. in his own contribution said:- “I however agree with the respondents’ counsel that the appellants did not appeal against sentence. But there is an appeal against conviction and in view of the fact that the sentence in this case was not specified (i.e. until the appellants purge their contempt) there is no need in the circumstances of this case to file any appeal on sentence.” (Pages 112-113 of the record)

True enough, there is no appeal against the order of sentence made by the learned trial Judge on 9th May, 1991, but there is an appeal against the conviction of the respondents for contempt. The application for bail, predicated as it would appear to be on the respondents’ conviction for contempt, the Court of Appeal was in order to entertain it. I have considered the reasons given by the learned Justices of the Court of Appeal for exercising their discretion to grant bail in favour of the respondents.

Having regard to the totality of the reasons given by learned Justices, more particularly that the duration of the sentence subsequently passed by the learned trial Judge was unlimited, I am not prepared to interfere or disturb the exercise of their discretion to grant bail. It is the contention of learned counsel for the appellants that as there was no appeal against sentence the Court of Appeal would have no jurisdiction to grant bail.

In my view, as there has been a conviction in this matter the Court of Appeal would have jurisdiction to grant bail. A

P.42

conviction is a finding of guilt. This the learned trial Judge did in 1988. Our attention was drawn to portions of the judgment of Unaemeka-Agu and Wali J.J.S.C. in Mohammed & ors v. Olawunmi & ors. (supra) which would suggest that there could be no conviction until there had been sentence, in my respectful view, these would be obiter dicta as that was not the basis of the judgment of this court in that case. Section 220( I) of the Constitution gives a right of appeal from decisions of the High Court to the Court of Appeal. “Decision” is defined, in section 277(1) as meaning, in relation to a court:-

“Any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation,” I agree with the definition of the word “conviction” given by Atkinson J. in R v. London County Quarter Sessions Appeals Committee Ex p Metropolitan Police Commissioner (1948) 1 KB 670, 679-680 wherein the learned judge said:- . a conviction is an act of a court of competent jurisdiction adjudging a person to be guilty of a punishable offence. The sentence or resulting order is something distinct from the conviction. A conviction is nonetheless a conviction because an ensuring penalty is not imprisonments, nor fine, but the finding of sureties for good behaviour.”

In my respectful view to speak of a conviction, there must be a determination of guilty by an act of a competent court and this is irrespective of whether or not a sentence is imposed even though the sentence normally follows such a determination. By the definition of “decision” in section 277(1) of the Constitution, it is possible for an appellant to appeal against his conviction without appealing against

P.43

the sentence imposed on him where he intends to contest the determination of his guilt without wanting the sentence interfered with in case he loses on the issue of guilt.

Similarly, it is possible for a convicted person to appeal against the sentence imposed on him without contesting the correctness of his conviction. I do not therefore, agree with learned counsel for the appellants that bail could be granted by an appellate court only where there was an appeal against sentence. Section 29(1) of the Court of Appeal Act empowers the Court of Appeal to admit an appellant to bail pending the determination of his appeal. The section does not provide that bail can only be granted where there is an appeal against sentence.

All the issues canvassed having been disposed of, I find no merit in this appeal which I too accordingly dismiss. I affirm the judgment of the Court of Appeal and abide by the order for costs made in the lead judgment of my learned brother Uwais, J.S.C.

Appeal dismissed.