ASIEDU v. 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] 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