Bail pending appeal is one form of bail in Ghana’s criminal jurisprudence; others are bail pending trial and police enquiry bail bond. Although bail is generally dependent on an authority being satisfied that a person will appear when required to, bail pending appeal has special grounds developed from previous decisions, and aptly summarized by Taylor, J (as he then was) in the celebrated case of Fynn and Another v. The Republic¹. Bail pending appeal when granted pauses the sentence of a convict while their appeal is being determined by an appellate court. In this post, I use case law to analyze each ground and the circumstances that have previously satisfied the requirements of the grounds. More interestingly, I provide a practical perspective for new lawyers, and those who may be dealing with such an application for the first time. Note that an applicant need not rely on all grounds to qualify for bail pending appeal. Arguing one ground can be sufficient for the grant of bail.

Before delving into the grounds, let’s quickly review the prerequisites for the application:

a. Capacity: the applicant must have been convicted and sentenced to a term of imprisonment by a court.

b. Appeal pending: the applicant must have filed an appeal against the conviction and sentence, or the sentence only before an appeal will be deemed to be pending.

c. Forum: the application must be brought before the convicting court or the appellate court.

These prerequisites may seem commonplace, but experience has taught me that nothing is basic in criminal justice. Two questions will demonstrate my view: for crimes which are only punishable by imprisonment, would an appeal against conviction alone satisfy the requirement for bail pending appeal? Let’s think through this for a moment. Bail pending appeal is a remedy for a detained person contesting his conviction and/or sentence. The reason for their detention in the first place is the conviction for which the sentence was imposed. Should you be appealing against the conviction only or the sentence as well? From a commonsensical perspective, the answer is yes, because if the conviction goes away, the sentence for that conviction does too because the sentence is tied to the conviction.

While it may seem intuitive that appealing a conviction alone qualifies, procedurally it’s advisable to challenge the sentence too — especially since it forms the basis of detention; the custodial sentence is the basis for the warrant of commitment in section 315 of the Criminal and Other Offences (Procedure) Code, 1960 (Act 30) that authorizes your detention at a correctional facility. As the next paragraph will show, appealing against a custodial sentence only is easier to grasp since bail halts the detention. Let me know your thoughts on this in the comments. In any case, when an appeal against conviction fails, a second ground of appeal against the sentence can still be helpful, and a custodial sentence may be replaced with a fine. This procedural emphasis does not change the fact that courts of law value substance over form, but you are still required to know the right procedure.

The second question is imbedded in the first: did you know that bail pending appeal can be filed in respect of an appeal against sentence only? Although less common, not every appellant has misgivings about their conviction as some argue for a noncustodial sentence such as a fine. In the case of Rosemond Alade Brown alias Akuapem Poloo v. The Republic², the appellant pleaded guilty at the trial and was sentenced to a term of 90 days imprisonment. She filed an appeal for mitigation of sentence: the appellant prayed the court to consider imposing a noncustodial sentence in place of the sentence of the imprisonment. The High Court refused, but the Court of Appeal granted the appeal.

On the second prerequisite, concerns over where to file an appeal have been discussed in a previous post. In that post, I explained that filing in the wrong registry can lead to procedural challenges. Failure to attach a filed copy of the Petition of Appeal (from the lower courts to the High Court) or Notice of Appeal (appeals above the High Court) to the application may result in an adjournment, where the appeal has been filed but not attached. The adjournment is to allow the proof of the pending appeal to be filed; this is done by way of a supplementary affidavit. Where no appeal has been filed prior, the application is subject to a dismissal on the basis that this grave omission makes the application incompetent.

A practice note on the third prerequisite is that when the appellate court is the High Court at the Court Complex, Accra, the bail application may be assigned to any one of the five criminal courts. The assignment of the application is not a guarantee that the appeal will be determined by the same criminal court that hears the bail application. The same applies to application for extension of time to file an appeal (needed when the appellant failed to file his appeal within one month of the conviction and sentence complained of). Other high court locations like Amasaman, Adenta and Gbestsile have the continuity of judge advantage because of the limited or fewer number of high courts in the location (some are just one).

Grounds for the Grant of Bail Pending Appeal

Section 33(1) of the Courts Act, 1993 (Act 459) provides the legal basis to file the application. It reads:

(1) The court before which a person is convicted or the court to which an appeal is made may if it thinks fit on the application of an appellant grant the appellant bail pending the determination of his appeal. (Emphasis mine)

The grant of bail is discretionary. The courts through many judicial pronouncements beginning from the case of R v. Tunwanshe³ to Fynn v. The Republic and beyond have defined the parameters within which a court may think it fit to grant the application. Some lawyers make the mistake of making arguments similar to the provisions in section 96 of Act 30 without more. They often focus on appearance at the appeal but this is not a ground for the grant of such applications. In practice, the only usefulness of section 96 to an application for bail pending appeal, is to reinforce actual grounds by adding that the appellant will pursue the appeal, because many people abandon their appeals after they are granted bail.

Bear in mind that under section 96 of Act 30, the presumption of innocence in article 19(2)(c) of the 1992 Constitution is still active. The legal position at the appeal stage is that a court of competent jurisdiction has determined the convict’s guilt, and the presumption of innocence has been rebutted, that is, the prosecution successfully proved that the appellant is not innocent of the charges. Until that decision of guilt has been reversed, the conviction remains good in law and the imprisonment is justified under article 14(1)(a). Thus, bail pending appeal is not automatic.⁴ It is also not the type of application that courts grant with laxity.

Another point to note is that, as many Judges can attest, granting bail pending appeal can influence the substantive appeal. Justice Taylor noted in the Fynn decision that after a convict is released from custody, sending that convict back to jail is undesirable for courts, and so there is a likelihood that the court granting the application will also grant the appeal for humanitarian reasons. He therefore cautioned against granting such applications. Justice Taylor further urged that these types of applications must not be dealt with lightly “because it involves the proposition that a person who has been found guilty and convicted by a court of competent jurisdiction and whose sentence of imprisonment has not been set aside must nevertheless be let loose on the community instead of his staying in prison to serve a sentence which is prima facie deserved.”⁵

Also note that an applicant need not rely on all grounds to qualify for bail pending appeal.

With this background and understanding, we can examine the four grounds in the Fynn case:

Ground One: That there are exceptional or unusual grounds for the application. Justice Taylor did not define the nature of the exceptional or unusual grounds in the case, and courts have refrained from doing so to provide room for the exercise of judicial discretion. Thus, courts determine what amounts to exceptional circumstances on a case by case basis. In the case of The Republic v Mensah⁶, the respondent had been on bail pending appeal granted by the High Court for over four and half years due to the failure of the trial court registry to transmit his appeal records, and so the appellate court was reluctant to send him back to jail. The Court of Appeal held that the situation of the respondent fell within the criteria of exceptional or unusual circumstances or both which entitled him to bail pending appeal. As a reference, we may consider the Court of Appeal’s ruling in an application for stay of proceedings in The Republic v. Stephen Kwabena Opuni and Others⁷. Amadu (JA) (as he then was) in his concurring opinion noted that “the meaning and scope of the word ‘exceptional’ is imprecise. Suffice it to say that it admits of a circumstance or situation which is unique and beyond the ordinary course of events.”

Ground Two: That the conviction is prima facie wrong and the appeal therefore has obvious prospects of success. Justice Taylor in Fynn explained that since a conviction by a court of competent jurisdiction is prima facie right, the contrary must be established by the arguments at the hearing of the application. In the case The Republic v. Registrar of High Court; Ex Parte Attorney-General⁸, it was held that an error of law implied a mistake, and to succeed it ought to be shown that there was a mistake in the judgment or in the ruling or the decision which made it erroneous. Indeed, the bail application is not the hearing of the substantive appeal. Often, the Record of Appeal would still be at the trial court awaiting transmission at the time of moving the application. Although courts can rely on affidavit evidence to make a decision, where this ground is raised in practice, the courts ensure that a copy of the judgment is placed before them to help in determining whether the judgment is prima facie wrong. In the Fynn case where a copy of the trial court judgment was not before the court, Justice Taylor could not determine that the said judgment was prima facie wrong or that the appeal is likely to succeed based on the affidavit evidence alone. A similar situation occurred in the case of Abodakpi v. Republic where the absence of the judgment precluded the analysis of this ground.⁹

The confines of what is prima facie wrong has also received judicial pronouncement. In Isa v The Republic¹⁰, it was held that the term “prima facie wrong” means that on the preliminary arguments made at the hearing of the application, the judgment is “obviously wrong and is most likely to be reversed on appeal”. Examples of such obvious wrongs were given as a lack of jurisdiction, an imposition of a wrong sentence, a breach of principles of natural justice, a breach of fundamental human rights of the appellant at the trial, or an application of a wrong proposition of the law in the judgment. In the view of the court, these can be demonstrated by a careful review of the judgment, and many lawyers have demonstrated these points successfully. In Okyere And Another v. The Republic¹¹, bail pending appeal was granted because of a breach of the fundamental human rights of the appellants: the court’s inference of guilt from the exercise of the appellants’ constitutional right to remain silent.

Ground Three: That the case is of such a nature where it would be of real assistance for the preparation of the appeal that the appellant should be free to confer with his counsel in order to facilitate the preparation of the appeal. This ground may be distinguished from the right of an accused person to be afforded reasonable facilities to aid in his defence under article 19(2)(e). As earlier indicated, the presumption of innocence has been rebutted at this stage. Regardless, the appeal process is intricate and demanding, requiring communication between an appellant and his counsel to enable them to successfully persuade an appellate court to overturn a reasoned trial judgment. Defense counsels will agree that logistical impediments can be a nightmare, and the inability to adequately prepare may result in an unfairly unsuccessful appeal. Thus, on a case by case basis, where this ground of appeal is raised, courts have a duty to determine the nature of the appeal before making a decision.

Lawyers in Accra tend to raise this ground because the appellant is imprisoned at the Nsawam Medium Security Prison, and judges in Accra rarely agree with them. It is my view that the nature of the case should determine whether being held in Nsawam would be a challenge to the preparation of the appeal or not, and not the distance between Nsawam (in the Eastern region) and Accra. In other words, the distance should not be the benchmark, or else every lawyer in Accra with a client out of Accra must be given the same regard, and every appellant held outside Accra must be granted bail pending appeal when they apply. Rather, the nature of the appeal and how it can be impacted by distance and frequency of communication must be the benchmark, having regard to reasonableness of the kind of efforts required of a lawyer and his client. For instance, if a lawyer needs to meet his client more times and for longer hours than usual to facilitate his appeal, distance and frequency of communication may affect the preparation of the appeal. This is more evident in cases where new evidence will be adduced on appeal, or court records are challenged, or lost and need to be reconstructed. If you mean to argue this ground, you must demonstrate the type and nature of the conference you require with the appellant and how that can impact the preparation of the appeal.  

Ground Four: That, having regard to the length of the sentence, there is going to be a considerable delay either in preparing the record of appeal, or that, because of the long vacation, the hearing of the appeal is likely to be unduly delayed resulting in the appellant serving the whole or substantial portion of his sentence. This ground has two heads that work in tandem¹²: the first considers the length of the sentence and the second weights it against the period of determination of the appeal. In Akrong And Another v. The Republic¹³, it was added that the court must be satisfied that the whole or a substantial portion of the sentence will be served before the appeal is heard. In the Akuapem Poloo case¹⁴ for instance, she had been sentenced to a term of 90 days imprisonment, which compared to the usual 3 to 12 months turnaround time (sometimes longer), even for cases with guilty pleas, was a suitable fit for this ground of appeal. She was convicted on 16th April 2021, she filed the Petition of Appeal on 19th April 2021 and her appeal judgement was delivered on 1st December 2021. Since a sentence on imprisonment commences on the day it is imposed, it is obvious that she would have finished serving her 90 days custodial sentence in July, several months before the determination of her appeal.

What courts do is to assess the prevailing situation at the Registry of the trial court as some are notorious for delays in transmitting records despite several court directives and orders indicating that records should be transmitted timeously. For very long sentences, the courts usually do not consider this ground of appeal to be sufficient. In Abodakpi v. Republic¹⁵ , the Court of Appeal did not think that the applicant’s appeal will not be heard within the ten years sentence imposed on the applicant. Also, in the case of The Republic v. Patricia Asieduaa alias Nana Agradaa¹⁶, the High Court, Amasaman noted as follows:

“There is no indication that the appeal would not be ready for hearing for some time and I do not think that taking into consideration the sentence of fifteen years the appeal would not be heard before a substantial portion of the sentence is served for me to exercise my discretion in favour of the applicant.”  (Emphasis mine)

The court further made an order for the record to be transmitted within 14 days of the determination of the application for bail pending appeal.

In my experience, the criminal courts at the High Court Complex, Accra proactively summon the responsible Registrar of the Circuit Court, Accra to produce the Records of Appeal and ensure that they are transmitted, to avoid any delays with the determination of the appeals.

Conclusion

In practice, the courts sometimes play a balancing act between the four grounds discussed above. For instance, where a court finds that a judgment is prima facie right with no likelihood of success, the argument about the length of sentence may not matter. In the same vein, a sentence of 15 years imprisonment will not matter where there are exceptional circumstances, or when a conviction is prima facie wrong and is unlikely to be upheld at the hearing of the appeal; the application may be granted. Even when one ground of appeal is raised and not the other, courts must still scrutinize and consider other grounds where they are applicable to the appellant’s case. Additionally, regardless of the position of the Republic/Respondent, the courts still maintain a duty to exercise their discretion judiciously.

1. [1971]2 GLR 433 ↩︎
2. Suit No.: CR 0392/2021 dated 1st December 2021 ↩︎
3. (1935) 2 WACA 236 ↩︎
4. Okyere And Another v. The Republic [1972] 1 GLR 99; Attey And Another v. The Republic [1972] 2 GLR 352; Daniel Abodakpi v The Republic Criminal Motion No. H3/17/2007 dated 1st November, 2007 ↩︎
5. [1971]2 GLR 433 @ 438 ↩︎
6. [1999-2000] 1 GLR 47 ↩︎
7. [2020] CRIM.LR 581 @ 586 ↩︎
8. [1982-83] GLR 407 ↩︎
9. [2007] GHACA 1 (1 November 2007) https://ghalii.org/akn/gh/judgment/ghaca/2007/1/eng@2007-11-01 ↩︎
10. [2001-2002]1 GLR 128  @ 140 ↩︎
11. [1972] 1 GLR 99 ↩︎
12. Owusu And Another v. The State [1967] GLR 435 ↩︎
13. [1972] 2 GLR 244 ↩︎
14. https://ghanaiantimes.com.gh/akuapem-poloo-granted-bail-pending-appeal/ ↩︎
15. [2007] GHACA 1 (1 November 2007) https://ghalii.org/akn/gh/judgment/ghaca/2007/1/eng@2007-11-01 ↩︎
16. Suit No.: F/CRA/AHC/15/2025 dated 15th July 2025. https://233legal.com/full-bail-ruling-of-patricia-aseidua-aka-agradaa/ ↩︎