A defective notice renders the whole appeal incompetent
It is settled that a notice of appeal is the important step in the initiation of an appeal. Where it turns out to be defective, the appeal would be considered incompetent. So held the Supreme Court Holden at Abuja in a unanimous leading judgment delivered by His Lordship C.C Nweze with his Learned brothers John A. Fabiyi, Clara B. Ogunbiyi, Kudirat M.O Kekere – Ekun and John I. Okoro JJSC concurring while allowing the appeal.
The parties were represented by Dr. Olumide Ayeni, Ezenwa Ibegbunam, Ayodeji Olanipekun and Affis Alatanmi for the Appellant and Adewale Alade, Arnold Oshiade, Inna Ali and Solo Babajide for the Respondent.
C. C. NWEZE, JSC: (Delivering the leading judgment).
The Appellant herein (as Accused person) was arraigned before the High Court of Justice, Ondo State, Okitipupa Judicial Division, on a two – count charge of conspiracy to commit armed robbery and armed robbery contrary to Sections 1 (2) and 5 (b) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, Laws of the Federation of Nigeria, 1990. Sequel to his not-guilty plea, the Prosecution opened its case and called five witnesses in proof of its allegations against him. In the course of the trial, the said court (hereinafter referred to as “the trial court”) admitted several exhibits, namely, Exhibits A-G. The Accused person, who testified in his defence, did not call any other witness.
The trial court, in its judgment of January 12, 2007, following its affirmative findings in favour of the Prosecution’s witnesses and the above exhibits, found the Accused person guilty as charged. In consequence, it convicted and sentenced him to death pursuant to Section 1 (2) of the said Act. His appeal to the Court of Appeal, Benin Division, was unsuccessful, hence, this further appeal to this court. However, his notice of appeal, dated September 16 and filed on September 28, 2010, was signed by
his counsel, Dr. Olumide Ayeni. He distilled four issues from his eleven Grounds of appeal.
They were framed thus: (1) Whether the Court of Appeal was incorrect when in the circumstances it affirmed the conviction and sentence of death imposed upon the Appellant by the trial court when the defence of alibi which was set up by the Appellant vide Exhibit F-F12 was not investigated by the police and was so found by the trial high court?
(2) Whether the Court of Appeal was incorrect when in the circumstances it affirmed the conviction and sentence of death imposed upon the Appellant by the trial high court on the ground that the Prosecution proved the case against the Appellant beyond reasonable doubt?
(3) Whether the Court of Appeal was incorrect when in the circumstances, it affirmed the conviction and sentence of death imposed upon the Appellant by the trial high court when it failed to judicially notice that the Appellant was a beneficiary of the Amnesty/pardon in terms of the Amnesty Proclamation S1 No. 196 of 25th June, 2009 issued, made, proclaimed and pronounced by the President of Nigeria, pursuant to Sections 36(10) and 175 (of the) Constitution of the Federal Republic of Nigeria, 1999?
(4) Whether the Court of Appeal was incorrect when in the circumstances, it affirmed the conviction and sentence of death imposed upon the Appellant by the trial high court when the whole process of the Prosecution of the
Appellant upon which his conviction was based was an utter nullity?
On his part, counsel for the Respondent formulated only two issues couched in these terms in the Respondent’s brief of argument:
(1) Whether in the circumstances of this case where the Prosecution witnesses have fixed the Appellant at the scene of the crime, the lower court ought not to have affirmed the judgment of the trial court in spite of the fact that the alibi set up by the Appellant was not investigated by the police:
(2) Whether the Prosecution proved its case beyond reasonable doubt against the Appellant?
RESPONDENT’S PRELIMINARY OBJECTION
In Paragraph 6.0, (Page 4 of the brief), of the said Respondent’s brief of argument, the Respondent incorporated a notice of preliminary objection. It reads thus: Take Notice that at or before the hearing of this appeal, the Respondent shall pray the Supreme Court to strike out the Appellant’s notice of appeal dated the 16th day of September, 2010 and a fortiori dismiss the issues for determination distilled in the Appellant’s brief of argument from the incompetent grounds of appeal. In Paragraph 6.2 of the said brief, the grounds were set out as follows:
(1) By virtue of Order 9 Rule 3 (1) of the Supreme Court Rules (as amended), the Appellant’s notice of appeal herein dated 16th September, 2010, and filed on 28th September, 2010, being a criminal appeal, must be signed by the Appellant himself personally;
(2) The Appellant’s notice of appeal dated 16th September, 2010, and filed on 28th September, was not signed by the Appellant personally; (3) The Appellant’s notice of appeal herein dated 16th September, 2010, and filed on 28th September, 2010, was signed by the Appellant’s solicitor, Dr. Olumide Ayeni, FCI Arb; (4) Order 9 Rule 3 (1) of the Supreme Court Rules (as amended) does not permit the Appellant’s solicitor to sign the notice of appeal herein being a criminal appeal; (5) The Supreme Court lacks the jurisdiction to entertain this appeal; (6) This appeal is incompetent.
ARGUMENTS ON THE PRELIMINARY OBJECTION
Adewale Atake, for the Respondent, firstly, drew attention to the notice of preliminary objection incorporated in the brief, (Pages 4-10). He adopted the arguments proffered in Paragraphs 7.0-7.18 of the said brief in support of the said objection. The main thrust of his submissions was that the Appellant should have personally signed his notice of appeal dated September 16, 2010, and filed on September 28, 2010, since it is a criminal appeal. He pointed out that the said notice of appeal was signed by the Appellant’s solicitor, Dr Olumide Ayeni and not the Appellant himself.
He canvassed the view that by virtue of Order 9 Rule 3 (1) of the Supreme Court Rules (as amended), the Appellant is the only legally recognized person to sign the said notice of appeal, citing: Uwazurike v. A.G. Federation (2007) 2 S.C. 169 and a host of other cases.
He invited the court to distinguish the facts and decision in: Ikpasa v. A.G. Bendel State (1981) 9 S.C. 7 from the facts of the instant case. He explained that, unlike in the above case, there is evidence on record that counsel had every access to the Appellant here for the purpose of signing the notice of appeal. He pointed out that this court, in: Uwazurike v. A.G. Federation (supra), also, distinguished the facts and decision in Ikpasa’s case because of the “extenuating circumstances” in the latter case. He detailed the circumstances warranting his contention that counsel had unfettered access to the Appellant herein in Paragraphs 7.9 (i)-(iii), Pages 7-8 of the brief.
In his view, the Appellant’s failure to sign his notice of appeal personally rendered it fundamentally defective, incurably incompetent, since the condition precedent to the invocation of this court’s jurisdiction had not been fulfilled, Madukolu v. Nkemdilim (1962) 1 All NLR 587, 594. He maintained that the Appellant’s notice and grounds of appeal are incompetent and, as such, this court lacks the jurisdiction to entertain his appeal. He urged the court to strike out the said notice of appeal.
In his view, since the Appellant’s issues were formulated from the said incompetent notice, they have become worthless, Agbaka v. Amadi (1998) 7 S.C. (Pt. II) 18. He urged the court to uphold the preliminary objection and dismiss the appeal.
Appellant’s Response To The Objection
As noted earlier, the Appellant filed a reply brief on February 4, 2015, although deemed properly filed and served on February 5, 2015. In the said reply brief, counsel invited the court to dismiss the said preliminary objection. Citing Order 4 Rule 4 (1) of the Court of Appeal Rules, 2002, counsel contended that where a notice of appeal was signed is irrelevant: Duru v. FRN (2013) 2 S.C. (Pt. IV) 134.
He maintained that the notice of appeal in the instant case, scrupulously, complied with Form 24 to the First Schedule to the Supreme Court Rules, 1985 (as amended). He observed that the Appellant is a convicted prisoner. He noted that, unlike in Uwazurike’s case, where a joint notice of appeal was filed for seven Appellants, the present notice of appeal was filed on behalf of a single person, namely, the Appellant herein, citing: Kpema v. The State (1986) 2 S.C. 30. He, further, canvassed the view that the Proviso to Order 9 Rule 3(1) of the Supreme Court Rules, 1985 (as amended) together with Form 24, First Schedule, Supreme Court Rules, 1985will cumulatively operate to validate the notice of appeal. He cited and relied on: Amadi v. NNPC (2000) 6 S.C. (Pt. I) 66 on the interpretation of the word “shall,” He, equally, prayed in aid the decisions of this court which emphasise the importance of substantial justice over technicalities, Aigbobahi & Ors. v. Aifuwa & Ors. (2006) 2 S.C. (Pt. I) 82; Akpan v. Bob & Ors. (2010) 4-7 S.C. (Pt. II) 57.
In response to the objector’s contention that the court should depart from the decision in Ikpasa (supra), counsel urged the court to discountenance the said submission as it is, clearly, in violation of Order 6 Rule 5 (4) of the Supreme Court Rules, 1985 (as amended). He contended that the objection is unmeritorious and should be dismissed: Williams v. Mokwe & Anor. (2005) 7 S.C. (Pt. II) 153.