DOKPESI & ANOR v. FRN (2020)

DOKPESI & ANOR v. FRN

(2020)LCN/14605(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, September 04, 2020

CA/A/1114C/2018

RATIO

PLEADINGS: COMPETENCY OF A COURT TO DETERMINE APPEAL BEFORE IT.

The issue of competence of an appeal is definitely and directly an issue of jurisdiction. Jurisdiction is fundamental in every given case and when such an issue is raised, the Court must timeously address it. See the cases of Kwatte v. Isah (1999) 1 NWLR (Pt. 588) 638, Kasikwu Farms Ltd. v. A.G. of Bendel State (1986) 1 NWLR (Pt. 19) 695, Galadima v. Tambai & Ors. (2000) LPELR – 1302 (SC).
In Nwankwo & Ors. v. Yar’adua & Ors. (2010) LPELR – 2109 (SC) Pp 36 – 37 the Supreme Court per Ogbuagu, JSC, held:
“As firmly settled, where issue of a Court’s jurisdiction is raised in any proceedings and at any stage, it must be taken first, immediately, promptly or expeditiously. See the case of First City Merchant Bank Ltd & 4 Ors. v. Abiola & Sons bottling Co. Ltd (1991) 1 NWLR (Pt. 165) 14 @ 27 C.A, Nalsa & Team Associates v. NNPC (1996) 3 NWLR (Pt. 439) 621 @ 633, (1996) 3 SCNJ 50, 61, Chief Ukwu & 3 Ors. v. Chief Bunge (1997) 8 NWLR (Pt. 678) 527 @ 541, 542, 544; (1997) 7 SCNJ 262 @ 273, Galadima v. Alhaji Tambai & 11 Ors. (2000) 6 SCNJ @ 200, 203; Jeric Nig. Ltd v. Union Bank of Nig. Plc (2000) 12 SCNJ 184 @ 193 and two many other. This is because, a Court has jurisdiction to decide whether or not, it has jurisdiction. See also the case of Shitta-Bey v. Attorney General of the Federation & Anor (1998) 10 NWLR (Pt. 392); (1998) 7 SCNJ 264. In fact, in the case of Alhaji Matari & 6 Ors. v. Ahmadu Dangaladima & Anor. (1993) 2 SCNJ 122 @ 130, this Court – per Karibi-Whyte, JSC, stated inter alia:- “It is of the utmost importance in the administration of justice that where the jurisdiction of the Court is raised and is an issue, to dispose of that issue. Jurisdiction is a radical and fundamental prerequisite for adjudication. See Adeigbe v. Kusimo (1965) 1 ANLR 248. If the Court is shown to have no jurisdiction the proceedings however well conducted are a nullity. See Madukolu v. Nkemdilim (1962) 1 ANLR 587”.
The stake is that jurisdiction is a peripheral issue and must be addressed to clear the way for further steps to be taken in the case. The steps to be taken would depend on the outcome of the issue of jurisdiction. A Court is competent when:
(1) It is properly constituted as regards members and qualifications of the members of the bench and no member is disqualified for one reason or another, and (2) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and (3) The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication”. See Madukolu & Ors. v. Nkemdilim (1962) All NLR (Pt. 4) 587, 595, Anyaoke & Ors. v. Adi & Ors. (1985) 1 NSCC 461; (1985) LPELR 518 (SC), per Irikefe, JSC.
A joint notice of appeal in criminal matters is not what our laws prescribe. Filing of a joint notice of appeal is therefore, indicative of a failure of due process in the initiation of this appeal. Any appeal originated without following the law is incompetent. The effect of a defect in competence is well known. In Oloruntoba-Oju & Ors. v. Abdul-Raheem & Ors. (2009) LPELR – 2596 (SC), the Supreme Court held as follows:
“It is trite that the competence of a Court to adjudicate upon a matter is both a legal and a constitutional prerequisite. Hence any defect in the competence and jurisdiction of a Court or an action is fatal. The proceedings therein would result in a nullity howsoever well conducted and determined, because such defect is not just extrinsic, but intrinsic to the adjudication. Where a Court lacks jurisdiction it lacks the necessary competence to try the case. Kalogbor v. General Oil Ltd. (2008) All FWLR Pt. 418 page 303, Forestry Research Institute of Nigeria v. Gold (2007) 5 SCNJ 302 (2007) 11 NWLR Pt. 1044 page 1, Uzoho v. National Council on Privatization (2007) All FWLR Pt. 394 page 370, Oke v. Oke (2006) 17 NWLR Pt. 1008 page 224, S.P.D.C. Nig. Ltd. v Isaiah (2001) NWLR Pt. 723 page 168, Peenok Investments Ltd. v. Hotel Presidential Ltd. (1983) 4 NCLR page 122”. Per STEPHEN JONAH ADAH, JCA

RATIO

PLEADINGS: JOINT APPEAL.

It is not in doubt that the two Appellants have jointly presented or filed one solitary Notice of Appeal, purporting it to be for both of them in this criminal Appeal. (See pages 860 – 873 of the Record). This is a fundamental error which is not expected to be made in filing any criminal appeal in this Court.
For our purposes, Order 17 Rules 3(1), and 4 (1) & (6) of the Court of Appeal Rules, 2016 provides thus:
“3(1) A person desiring to appeal to the Court against any judgment, sentence or order of the Court below, whether in the exercise of its original or Appellate Jurisdiction, shall commence his appeal by sending to the Registrar of the Court below a notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given, as the case may be, in the form of such notice respectively set forth as forms 1, 2, 3, 4, 5 or 7 in the Second Schedule to these Rules.
Rule 4(1) Every notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which notice shall be given, shall be signed by the Appellant himself or by his legal representative except under sub rules (5) and (6).
4(6) In the case of a body corporate, where any notice or document is required to be signed by the Appellant himself, it shall be sufficient compliance therewith if such notice or other document is signed by the Secretary, Clerk, Manager or Legal Representative of such body corporate.”
The Rules adumbrated above clearly require that each Appellant file a separate notice of appeal and sign same by himself or his legal representative in criminal matters if such is to be competent in law. A joint notice of appeal is a deviation and an anomaly.
In POPOOLA & ANOR v. PEOPLE OF LAGOS STATE (2016) LPELR 41429 (CA), this Court per Obaseki-Adejumo JCA, put it succinctly thus:
“The filing of a joint notice of appeal by more than one Appellant in a criminal appeal is grossly and fundamentally defective so as to be incapable of invoking the jurisdiction of this Court to determine such appeal. Order 17 Rules 3(1) & (2) of the Court of Appeal Rules, 2011 is to the effect that every notice of criminal appeal shall be signed by the Appellants individually and not jointly.” Per ABDU ABOKI, J.C.A.

Before Our Lordships:

Abdu Aboki Justice of the Court of Appeal

Stephen Jonah Adah Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

1. DR. RAYMOND DOKPESI 2. DAAR INVESTMENT AND HOLDING COMPANY LIMITED APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court, Abuja, delivered on 21st November, 2018, Coram: J. T. Tsoho J., (now Chief Judge), in respect of a No-case Submission made by the appellants (herein) after the close of the Prosecution’s case.

The appellants were first arraigned on a Six Counts Charge dated and filed on 08/12/2015. Thereafter, the said Charge was amended by the extant Amended Charge of Seven Counts dated and filed on 09/05/2018, before the trial Court.

The Amended Seven Counts Charge reads as follows:
Count 1:
That you DR. RAYMOND DOKPESI and DAAR INVESTMENT LIMITED AND HOLDING COMPANY LIMITED between 22nd January, 2015 and 19th March, 2015 in Abuja within the jurisdiction of this Honourable Court, directly took control of an aggregate sum of N2,120,000,000 (Two Billion, One Hundred and Twenty Million Naira) paid into the account of Daar Investment and Holding Company Limited with First Bank of Nigeria Plc., from the account of the Office of National Security Adviser with the Central Bank of Nigeria which sum you reasonably ought to have

known to be a proceed of an unlawful act of Colonel Mohammed Sambo Dasuki (Rtd.) (the then National Security Adviser), to wit: criminal breach of trust and you thereby committed an offence contrary to Section 15 (2) (d) of the Money Laundering (Prohibition) Act, 2011 (as amended) and punishable under Section 15 (3) & (4) of the same Act.
Count 2:
That you DR. RAYMOND DOKPESI and DAAR INVESTMENT LIMITED AND HOLDING COMPANY LIMITED between 22nd January, 2015 and 19th March, 2015 in Abuja within the jurisdiction of this Honourable Court, directly converted to your own use, an aggregate sum of N2,120,000,000 (Two Billion, One Hundred and Twenty Million Naira) paid into the account of Daar Investment and Holding Company Limited with First Bank of Nigeria Plc., from the account of the Office of National Security Adviser with the Central Bank of Nigeria which sum you reasonably ought to have known to be a proceed of an unlawful act of Colonel Mohammed Sambo Dasuki (Rtd.) (the then National Security Adviser), to wit: criminal misappropriation and corruption and you thereby committed an offence contrary to Section 15 (2) (b) (sic) of the Money Laundering (Prohibition) Act, 2011 (as amended)

and punishable under Section 15 (3) & (4) of the same Act.
Count 3:
That you DR. RAYMOND DOKPESI and DAAR INVESTMENT LIMITED AND HOLDING COMPANY LIMITED between 22nd January, 2015 and 19th March, 2015 in Abuja, within the jurisdiction of this Honourable Court, directly acquired an aggregate sum of N2,120,000,000 (Two Billion, One Hundred and Twenty Million Naira) paid into the account of Daar Investment and Holding Company Limited, with First Bank of Nigeria Plc., from the account of the Office of National Security Adviser with the Central Bank of Nigeria which sum you reasonably ought to have known to be a proceed of an unlawful act of Colonel Mohammed Sambo Dasuki (Rtd.) (the then National Security Adviser), to wit: criminal breach of trust and you thereby committed an offence contrary to Section 15 (2) (d) (sic) of the Money Laundering (Prohibition) Act, 2011 (as amended) and punishable under Section 15 (3) & (4) of the same Act
Count 4:
That you DR. RAYMOND DOKPESI and DAAR INVESTMENT LIMITED AND HOLDING COMPANY LIMITED between 22nd January, 2015 and 19th March, 2015 in Abuja, within the

jurisdiction of this Honourable Court, directly took possession of an aggregate sum of N2,120,000,000 (Two Billion, One Hundred and Twenty Million Naira) paid into the account of Daar Investment and Holding Company Limited, with First Bank of Nigeria Plc., from the account of the Office of National Security Adviser with the Central Bank of Nigeria which sum you reasonably ought to have known to be a proceed of an unlawful act of Colonel Mohammed Sambo Dasuki (Rtd.) (the then National Security Adviser), to wit: criminal breach of trust/corruption and you thereby committed an offence contrary to Section 15 (2) (d) of the Money Laundering (Prohibition) Act, 2011 (as amended) and punishable under Section 15 (3) & (4) of the same Act.
Count 5:
That you DR. RAYMOND DOKPESI and DAAR INVESTMENT LIMITED AND HOLDING COMPANY LIMITED between October, 2014 and 19th March, 2015 in Abuja, within the jurisdiction of this Honourable Court, conducted procurement fraud by means of fraudulent and corrupt act, to wit: receipt of payment into the account of Daar Investment and Holding Company Limited with First Bank of Nigeria Plc., of public funds in the sum of

N2,120,000,000 (Two Billion, One Hundred and Twenty Million Naira), from the account of the Office of National Security Adviser with the Central Bank of Nigeria, for the funding of media activities for the 2015 Presidential election campaign for the Peoples Democratic Party (PDP) and you thereby committed an offence contrary to Section 58 (4) (b) of the Public Procurement Act, 2007 and punishable under Section 58 (6) & (7) of the same Act.
Count 6:
That you DR. RAYMOND DOKPESI and DAAR INVESTMENT LIMITED AND HOLDING COMPANY LIMITED between October, 2014 and 19th March, 2015, in Abuja, within the jurisdiction of this Honourable Court, entered into a purported contract with the office of the National Security Adviser on presidential media initiative and received payment in the sum of N2,120,000,000 (Two Billion, One Hundred and Twenty Million Naira), into the account of Daar Investment and Holding Company Limited with First Bank of Nigeria Plc., from the account of the Office of National Security Adviser with the Central Bank of Nigeria, on account of the purported contract without a ‘Certificate of No Objection’ to Contract

Award’ duly issued by the Public Procurement Bureau and you thereby committed an offence contrary to Section 16 (1) (b), (4) & (5) of the Public Procurement Act, 2007 and punishable under Section 58 (6) & (7) of the same Act.
Count 7:
That you DR. RAYMOND DOKPESI and DAAR INVESTMENT LIMITED AND HOLDING COMPANY LIMITED between October, 2014 and 19th March, 2015, in Abuja, within the jurisdiction of this Honourable Court, submitted a purported proposal for the contract on presidential media initiative and received payment in the sum of N2,120,000,000 (Two Billion, One Hundred and Twenty Million Naira), into the account of Daar Investment and Holding Company Limited with First Bank of Nigeria Plc., from the account of the Office of National Security Adviser with the Central Bank of Nigeria, on account of the purported contract without a Written and comprehensive request to you by the Federal Government of Nigeria, and you thereby committed an offence contrary to Section 45 (3) & (46) of the Public Procurement Act, 2007 and punishable under Section 58 (6) of the same Act.

The Appellants herein as Defendants before the trial Court

pleaded not guilty and the matter went into full trial. The Prosecution in order to prove his case called 14 witnesses (i.e. PW1 – PW14) and tendered several Exhibits (Marked as Exhibits A1 to K12) and thereafter, closed his case.

The Appellants through their counsel filed a No-Case Submission dated and filed on the 19th day of June, 2018, on which the trial Court ordered parties to file their respective Written Addresses.

In a considered ruling delivered on the 21st day of November, 2018, the trial Court held that the Appellants had case to answer and directed that the Appellants enter their defence in respect of the charge against them.

Dissatisfied with the said ruling, the appellants appealed to this Court vide two Notices of Appeal, one filed on the 26th day of November, 2018 and another dated and filed on the 30th day of November, 2018. The Record of Appeal was transmitted to this Court on the 7th day of December, 2018.
In line with the rules of this Court, parties filed their respective briefs of argument.

Kanu G. Agabi, SAN, of counsel for the Appellants submitted Six (6) issues for the determination of this appeal in the

Appellants’ Brief of Argument dated and filed on the 11th day of February, 2020 but deemed properly filed and served on the 27th April, 2020. The issues are:-
1. Whether the learned trial judge erred in law when he refused to give effect to the provisions of Section 303(3)(a) of the Administration of Criminal Justice Act which is to the effect that in considering the submission that the prosecution has not made out a case warranting an answer from the defendant, the Court shall have regard to whether an essential element of the offence has been proved. (Distilled from Ground 1 of the Notice of Appeal).
2. Whether the learned trial judge erred in law when he held that “considering the provision of Section 303 (3) of the ACJA in its entirety, it is more appropriate to construe the word proved in subsection 303(a) to connote proof of the existence of prima facie case against the Defendant without more and that “…it would be too radical and incongruous to perceive of the codification in Section 303(3) to produce a far departure from the settled position of the law on no case submission. The provision is a typical instance of inelegant

legislative drafting”. (Distilled from Grounds 2, 3 and 6 of the Notice of Appeal).
3. Whether the learned trial judge erred in law when he held that the prosecution had made out a case warranting an answer from the appellants on the ground that the appellants knew that the money must have been received as part of the unlawful acts of the NSA and that the appellants ought reasonably to have known that such money formed part of the unlawful activity of the then NSA – without specifying what those unlawful activities were and without any evidence whatsoever that the activities of the NSA were unlawful. (Arising from Ground 4 of the Notice of Appeal).
4. Whether the learned trial judge erred in law when he held that there was a prima facie case against the appellants which requires at least some explanation from them on the ground that the facts and charges in the present case were identical with those of METUH V. FRN (2017) 4 NWLR (Pt. 1627 272 wherein the trial Court’s ruling that a prima facie case was disclosed, was affirmed by the Court of Appeal and the Supreme Court. (Distilled from Ground 5 of the Notice of Appeal).

Whether the learned trial judge erred in law when he held that under the circumstances the failure to call vital Witnesses was not fatal. (Distilled from Ground 7 of the Notice of Appeal.)
6. Whether the learned trial judge erred in law and whether such error occasioned a failure of duty and of jurisdiction when he merely recounted the issues raised by the Appellants in their submission that the prosecution had not made out a case warranting an answer from the appellants but failed to give any or any due consideration and to resolve those issues one way or another. (Distilled from Ground 8 of the Notice of Appeal).

In response, Oluwaleke Atolagbe, Esq., of counsel for the Respondent distilled a sole issue for the determination of this appeal, in the Respondent’s Brief of Argument dated and filed on the 16th June, 2020 but deemed properly filed and served on the 18th day of June, 2020. The Respondent also filed a Notice of Preliminary Objection dated and filed on the 16th day of June, 2020. The sole issue is:
Whether the trial Federal High Court was not right when it held that a prima facie case was established against the Appellants, sufficient

enough to call upon them to enter into their defence. (Distilled from Grounds 1, 2, 3, 4, 5, 6, 7 and of the Notice of Appeal).

On the 25th day of June, 2020, when the appeal came up for hearing, counsel for the Respondent, O.A. Atolagbe Esq., moved the Respondent’s Preliminary Objection dated 16th June, 2020, supported by a 6 Paragraph Affidavit and a Further Affidavit of 7 paragraphs and urged the Court to allow the Objection and dismiss the appeal.

In opposition to the Preliminary Objection of the Respondent, counsel for the Appellants filed a Counter Affidavit and a Written Address on the 19th June, 2020. He urged the Court to dismiss the Preliminary Objection.

I shall first consider the Preliminary Objection of the Respondent and resolve it one way or the other before considering the appeal on its merit, if need be.

PRELIMINARY OBJECTION
The Preliminary Objection dated 16th June 2020 and filed on the same day, is seeking the order of Court to dismiss/strike out this appeal as being incompetent on the following grounds:
(1) The 1st and 2nd Appellants are two separate entities
(2) Criminal liabilities are not joint

liabilities
(3) Notice of Appeal in a criminal appeal must be filed separately and independently by and in respect of each of the parties and cannot be jointly filed by the parties.
(4) The notices of appeal filed (on 26th and 30th November, 2018, see pages 860 to 873 of the record of Appeal) by the Appellants herein are not separately filed but jointly filed.
(5) The Appellants notices of appeal are invalid.
(6) The subject matter of the Appellants/respondents is an interlocutory appeal which borders on mixed law and facts.
(7) The instant Appeal of the Appellants/Respondents requires that leave of the trial Court be first sought and obtained.
(8) The Appellants did not seek or obtain the required leave of the trial Court in respect of the instance appeal.
(9) The instant appeal is incompetent.
(10) This Honourable Court lacks the requisite jurisdiction to entertain the instant appeal.

Counsel for the Respondent stated that the first issue to be determined is whether the instant appeal is not incompetent and whether this Honourable Court is robbed of the requisite jurisdiction to entertain this appeal. He pointed

out that before a Court can adjudicate on any matter, it must first be clothed with the requisite jurisdiction. He relied on the cases ofMadukolu v. Nkemdilim (1962) 2 SCNLR 341, Ngere v. Okuruket “XIV” (2017) 5 NWLR (Pt.1559) 440 at 499 to 500, Sule v. Nigeria Cotton Board (1985) 2 NWLR (Pt.5 )17 at 35 and Eleja v. Bangudu (1994) 3 NWLR (Pt.334) 534 at 542.

On the competence or validity of defective Notice of Appeal, counsel submitted that the Originating Process for an appeal is the Notice of Appeal and it must be properly filed before the appeal is valid. He cited the case of Nwanwata v. Esumei (1998) 8 NWLR (Pt. 563) 650 at 667, Okeke Amadi v. Okeke Okoli (1977) 7 SC 57 and Tukur v. Governor of Gongola State (1988) 1 NWLR (Pt. 68) 39. He stated that the law does not permit filing of a joint notice of appeal in a criminal matter, that the right of appeal is conferred on a person in a criminal matter is personal and it is exercisable severally or individually and not jointly. He cited the case of Orji v. FRN (2007) 13 NWLR (Pt.1050) 55 at 81-82 and Manasseh Japhet v. The State (2014) LPELR (22996) 1 at 16-17. The appeal lacks the

jurisdiction of this Honourable Court having filed a joint notice of appeal. He cited the case of Popoola & Anor v. People of Lagos State (2016) LPELR 41429 (CA).

Counsel submitted that the position of the law on joint notice of appeal does not change even where a natural person and a Notice of Appeal filed by the Appellants on 30th November 2018 is totally incompetent and that the substantial justice does not arise at all. He cited the case of Popoola & Anor v. People of Lagos State (supra). He urged this Court to dismiss or strike out this appeal as being incompetent.

On the competence or validity of an Interlocutory Appeal on mixed law and facts in respect of which leave was not sought and obtained, learned counsel referred this Honourable Court to Section 241(1) and 242 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which provides for when appeals from High Court and Federal High Court would lie as of right and with leave respectively. He cited the case of Lovleen Toys Ind. Ltd v. Komolafe (2013) 14 NWLR (Pt. 1375) 542 at 554-556, Metuh v. FRN (2017) 4 NWLR (Pt. 1554) 108 at 119- 121.

The instant appeal which is in all fours with the appeal in Metuh’s case is an interlocutory appeal where the trial Court has directed the appellants to enter their defence after having found no merit in their no-case submission and over ruled same. Even though the appellants’ grounds of appeal are stated on the face of the notice of appeal as grounds of law, a careful look at the grounds and particulars show that all the grounds are of mixed law and facts. (Pages 865-871 of the record of appeal).

Furthermore, as held by this Honourable Court in Metuh’s case, a look at the record of the trial Court would show that this appeal is against the decision of the trial Court directing the appellants to enter their defence after their no-case submission was refused. The decision is not final but interlocutory and it relates to the evaluation of the facts and evidence adduced before the trial Court.

Counsel submitted that the appeal is based on mixed law and facts. The appellants’ notices of appeal having been filed without leave being first sought and obtained is incompetent. He cited the cases of Mobil Oil (Nig.) Plc v. Yusuf (2012) 9 NWLR (Pt.1304) 47 at 57,

Lastma v. Ezezoobo (2012) 3 NWLR (Pt.1286) 49 at 54 to 55, Metuh v. FRN (2018) 4 NWLR (Pt.1628) 399 at 413-414, Dankofa v. FRN (2019) LPELR- 46539 (SC) Pp. 8-12, para C-C, Rufai v. Iliyasu (2018) LPELR- 45372 (CA), Organ v. N.L.N.G. LTD (2013) 16 NWLR (Pt.1381) 506 at 531 (SC), Iwunze v. F.R.N, (2014) 6 NWLR (Pt.1404) 580 at 596 (SC) and Garuba v. Omokhodion (2011) 14 NWLR (Pt.1269) 145 at 182.

Counsel finally submitted that the appellants herein filed the instant appeal without seeking and obtaining the leave required in an interlocutory appeal bordering on mixed law and facts, and as a result that the appeal is therefore incompetent and this Court is robbed of the requisite jurisdiction to hear it. He urged this Court to dismiss or strike out this appeal.

The appellants in response filed a reply to the Respondent’s Preliminary Objection. This was filed on 19/06/2020. In the reply, the appellants canvassed that the appeal is competent and that this Court has jurisdiction to entertain it.

On the issue of whether Leave was a necessity, the appellants contended that the appeal raises issues of law alone. That the appeal did not raise any

issue of mixed law and fact but an issue of jurisdiction and law alone. That the leave of the Court was not required.

On the issue of filing a joint notice of appeal, the appellant argued that the 2nd appellant was not arraigned and that there could not be said to have any criminal liability with the 1st Appellant. The learned senior counsel opined that the hallmark of the commencement of a criminal trial is the arraignment of the Defendant. That in the instant case, the 2nd Defendant was never arraigned and never participated in the trial. No person was brought forward by the prosecution as representing the 2nd Defendant. That if such a person was brought forward his name should appear in the records. That the 2nd Defendant did not take any plea and thus the issue of criminal liability with the 2nd Defendant does not take any plea and thus the issue of criminal liability with the 2nd Defendant does not arise. That being charged jointly, the failure to produce the 2nd Defendant means that the trial would not proceed with the 1st Defendant alone if the 2nd Defendant was not produced. That the mere occurrence of the name of the 2nd Defendant in the charge

without his actual production in Court to plead to the charge does not mean that the 2nd Defendant was arraigned. That upon the failure to produce a representative of the 2nd Defendant, the charge should have been amended to enable the trial Court proceed without the 2nd Defendant. That is not what happened. That nobody was produced by the Respondent to represent the 2nd Defendant. That the record of the Court shows that the 2nd Defendant was never arraigned and was never present in Court throughout the trial.

The learned senior counsel canvassed that in a criminal trial, it is the duty of the prosecution to secure the attendance and ensure arraignment of the defendant. That no statement was obtained from the 2nd Defendant and that none was tendered in evidence. That the Respondent proceeded on the basis that the 1st and 2nd Defendants were one and the same.

The learned senior counsel for the appellants relied on further authorities listed as: Ajudua v. FRN (2017) 2 NWLR (pt. 1548) Pg. 1, Olayinka v. The State (2007) 9 NWLR (Pt. 1040) 561, (2007) 4 SC (Pt. 1) 223 Paras 20 – 30, Adebayo Idowu vs. The State (2011) LPELR-CA/AE/43/C/2010 and

Section 379(1)(A), (IV) of the Administration of Criminal Justice Act, 2015.

The parties to this appeal have in their respective briefs argued elaborately on the issue of whether this appeal is competent or not. The issue of competence of an appeal is definitely and directly an issue of jurisdiction. Jurisdiction is fundamental in every given case and when such an issue is raised, the Court must timeously address it. See the cases of Kwatte v. Isah (1999) 1 NWLR (Pt. 588) 638, Kasikwu Farms Ltd. v. A.G. of Bendel State (1986) 1 NWLR (Pt. 19) 695, Galadima v. Tambai & Ors. (2000) LPELR – 1302 (SC).
In Nwankwo & Ors. v. Yar’adua & Ors. (2010) LPELR – 2109 (SC) Pp 36 – 37 the Supreme Court per Ogbuagu, JSC, held:
“As firmly settled, where issue of a Court’s jurisdiction is raised in any proceedings and at any stage, it must be taken first, immediately, promptly or expeditiously. See the case of First City Merchant Bank Ltd & 4 Ors. v. Abiola & Sons bottling Co. Ltd (1991) 1 NWLR (Pt. 165) 14 @ 27 C.A, Nalsa & Team Associates v. NNPC (1996) 3 NWLR (Pt. 439) 621 @ 633, (1996) 3 SCNJ 50, 61, Chief Ukwu & 3 Ors. v. Chief Bunge

(1997) 8 NWLR (Pt. 678) 527 @ 541, 542, 544; (1997) 7 SCNJ 262 @ 273, Galadima v. Alhaji Tambai & 11 Ors. (2000) 6 SCNJ @ 200, 203; Jeric Nig. Ltd v. Union Bank of Nig. Plc (2000) 12 SCNJ 184 @ 193 and two many other. This is because, a Court has jurisdiction to decide whether or not, it has jurisdiction. See also the case of Shitta-Bey v. Attorney General of the Federation & Anor (1998) 10 NWLR (Pt. 392); (1998) 7 SCNJ 264. In fact, in the case of Alhaji Matari & 6 Ors. v. Ahmadu Dangaladima & Anor. (1993) 2 SCNJ 122 @ 130, this Court – per Karibi-Whyte, JSC, stated inter alia:- “It is of the utmost importance in the administration of justice that where the jurisdiction of the Court is raised and is an issue, to dispose of that issue. Jurisdiction is a radical and fundamental prerequisite for adjudication. See Adeigbe v. Kusimo (1965) 1 ANLR 248. If the Court is shown to have no jurisdiction the proceedings however well conducted are a nullity. See Madukolu v. Nkemdilim (1962) 1 ANLR 587”.
The stake is that jurisdiction is a peripheral issue and must be addressed to clear the way for further steps to be taken

in the case. The steps to be taken would depend on the outcome of the issue of jurisdiction.

In the instant case, it is the Originating Process that is being challenged. The challenge is on whether the notice of appeal was properly filed before the Court. Under Order 17 of the Rules of this Court, 2016, the Rules of this Court, provides:
3.-(1) A person desiring to appeal to the Court against any judgment, sentence or order of the Court below, whether in the exercise of its original or of its appellate jurisdiction, shall commence his appeal by sending to the registrar of the Court below a notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given, as the case may be, in the form of such notice respectively set forth as forms 1, 2, 3, 4, 5 or in the Second Schedule to these Rules.
Then Rule 4 of the said Order 17 provides:
4-(1) Every notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which notice shall be given, shall be signed by the Appellant himself or by his legal representative

except under the provision of sub-rules (5) and (6) of this Rule.
Sub-Rule 6 mentioned therein reads as follows:
(6) In the case of a body corporate where any notice or other document is required to be signed by the Appellant himself, it shall be sufficient compliance therewith if such notice or other document is signed by the secretary, clerk, manager or legal representative of such body corporate.
A closer look at the provisions of the Rules of this Court 2016, clearly shows that for a notice of appeal in criminal matters to be competent, it must be done personally by the appellant. Where the appellant is not a human being, it is required that it signs the notice of appeal through its human agents such as the Secretary, Clerk, Manager or the legal representative of the corporate body. In our appellate jurisdiction, it is well settled and clear that the law requires an appellant in a criminal appeal to sign and file personally a notice of appeal. The Rules of this Court as per Order 17 and Rules 3 prescribes that a notice of appeal in criminal matters shall be given in the form of such notice set forth as forms 1,2, 3, 4, 5 or 7 in the Second

Schedule to the Rules. From the Rules what is expected is for an appellant in criminal matters to personally file a notice of appeal. There is no provision sanctioning the filing of joint notice of appeal. There are decisions that forbid the filing of a joint notice of appeal in criminal matters where there are more than one appellant. In Ubani v. The State (2003) 4 NWLR (Pt. 809) 51, this Court per Ogebe, JCA, (as he then was) held that the notice of appeal must be filed separately in respect of each appellant in a criminal matter. In the case of Manasseh Japhet v. The State (2014) LPELR (40003) (SC), Galadima, JSC, at pp. 16 – 17 (F – A) held as follows:
“It is now clear that while it may be permissible for counsel to the appellant to sign the Notice of Appeal, in some certain circumstances, the law does not allow the filing of a Joint Notice of Appeal in Criminal matters and therefore, the joint Notice of Appeal filed in the instant case, on behalf of the two appellants was incurably detective and therefore, incompetent. This is beyond doubt.”
In the instant case, the notice of appeal filed are at pages 860 to 873 of the Record of

Appeal. A look at the notices of appeal indicates that there are two appellants. One who is the 1st appellant is Dr. Raymond Dokpesi, is a natural person while the 2nd appellant Daar Investment and Holding Company Ltd is an artificial person. The record shows clearly that the notices of appeal filed are joint notices of appeal from the decision of the Federal High Court. Under our Rules as earlier captured in this judgment, the right of appeal in criminal matters is exercisable severally or individually and not by any means jointly.
The argument of the learned senior counsel for the appellants that the 2nd appellant was not properly arraigned before the trial Court does not with all due respects address the issue of the competence of the Originating Process which is the notice of appeal. A Court is competent when:
(1) It is properly constituted as regards members and qualifications of the members of the bench and no member is disqualified for one reason or another, and (2) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and (3) The case comes

before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication”. See Madukolu & Ors. v. Nkemdilim (1962) All NLR (Pt. 4) 587, 595, Anyaoke & Ors. v. Adi & Ors. (1985) 1 NSCC 461; (1985) LPELR 518 (SC), per Irikefe, JSC.
A joint notice of appeal in criminal matters is not what our laws prescribe. Filing of a joint notice of appeal is therefore, indicative of a failure of due process in the initiation of this appeal. Any appeal originated without following the law is incompetent. The effect of a defect in competence is well known. In Oloruntoba-Oju & Ors. v. Abdul-Raheem & Ors. (2009) LPELR – 2596 (SC), the Supreme Court held as follows:
“It is trite that the competence of a Court to adjudicate upon a matter is both a legal and a constitutional prerequisite. Hence any defect in the competence and jurisdiction of a Court or an action is fatal. The proceedings therein would result in a nullity howsoever well

conducted and determined, because such defect is not just extrinsic, but intrinsic to the adjudication. Where a Court lacks jurisdiction it lacks the necessary competence to try the case. Kalogbor v. General Oil Ltd. (2008) All FWLR Pt. 418 page 303, Forestry Research Institute of Nigeria v. Gold (2007) 5 SCNJ 302 (2007) 11 NWLR Pt. 1044 page 1, Uzoho v. National Council on Privatization (2007) All FWLR Pt. 394 page 370, Oke v. Oke (2006) 17 NWLR Pt. 1008 page 224, S.P.D.C. Nig. Ltd. v Isaiah (2001) NWLR Pt. 723 page 168, Peenok Investments Ltd. v. Hotel Presidential Ltd. (1983) 4 NCLR page 122”.
In the instant case, there is defect of competence of this appeal pending before this Court. The two notices of appeal filed as earlier captured have two appellants. The 1st is a natural person while the 2nd is an artificial person. The two appellants are jointly on one notice of appeal contrary to our laws. This defect cannot be excluded or explained away. The defect is fatal and the fatality must end the proceedings in this appeal.
From the foregoing therefore, I come to the conclusion that this appeal having been initiated in a joint notice of appeal is

incompetent. This appeal therefore, being incompetent cannot activate the jurisdiction of this Court. The appeal is accordingly struck out.

ABDU ABOKI, J.C.A.: l have read before now, a draft of the lead judgment just delivered by my Learned Brother STEPHEN JONAH ADAH, JCA. I agree that the Notice of Appeal is incompetent and should be struck out.

shall be given, as the case may be, in the form of such notice respectively set forth as forms 1, 2, 3, 4, 5 or 7 in the Second Schedule to these Rules.
Rule 4(1) Every notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which notice shall be given, shall be signed by the Appellant himself or by his legal representative except under sub rules (5) and (6).
4(6) In the case of a body corporate, where any notice or document is required to be signed by the Appellant himself, it shall be sufficient compliance therewith if such notice or other document is signed by the Secretary, Clerk, Manager or Legal Representative of such body corporate.”
The Rules adumbrated above clearly require that each Appellant file a separate notice of appeal and sign same by himself or his legal representative in criminal matters if such is to be competent in law. A joint notice of appeal is a deviation and an anomaly.
In POPOOLA & ANOR v. PEOPLE OF LAGOS STATE (2016) LPELR 41429 (CA), this Court per Obaseki-Adejumo JCA, put it succinctly thus:
“The filing of a joint notice of appeal by more than

one Appellant in a criminal appeal is grossly and fundamentally defective so as to be incapable of invoking the jurisdiction of this Court to determine such appeal. Order 17 Rules 3(1) & (2) of the Court of Appeal Rules, 2011 is to the effect that every notice of criminal appeal shall be signed by the Appellants individually and not jointly.”
It is for this reason and the more detailed reasons given in the lead judgment that I am constrained to agree with my Learned Brother STEPHEN JONAH ADAH, JCA that this appeal, having been initiated in a joint notice of appeal, is grossly defective and incompetent, and thus liable to be struck out. It is accordingly struck out by me.

MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; STEPHEN JONAH ADAH, JCA. I agree with the reasoning, conclusion and orders therein.

Appearances:

CHIEF KANU AGABI, SAN with him, UCHENNA EDE, ESQ., MARYFRANCES ORJI, ESQ., and AYO OGUNDELE, ESQ. For Appellant(s)

O.A. ATOLAGBE, ESQ., with him, O.D. MESE, ESQ. For Respondent(s)