FRANCIS v. FRN
(2020) LCN/4938(SC)
In The Supreme Court
On Friday, May 22, 2020
SC.810/2014
Before Our Lordships:
Olabode Rhodes-Vivour Justice of the Supreme Court of Nigeria
Musa Dattijo Muhammad Justice of the Supreme Court of Nigeria
Kudirat Motonmori Olatokunbo Kekere-Ekun Justice of the Supreme Court of Nigeria
Chima Centus Nweze Justice of the Supreme Court of Nigeria
Ejembi Eko Justice of the Supreme Court of Nigeria
Between
NWEKE CHIBUEZE FRANCIS APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO
WHETHER OR NOT ONCE A ATTER IS NOT PROPERLY CONSTITUTED, THE COURT HAS JURISDICTION TO ENTERTAIN IT
This appeal is prima facie incompetent, having been brought out of time. Once a matter is not properly constituted the Court lacks jurisdiction to entertain it: MADUKOLU v. NKEMDILIM (1962) ALL NLR 587; ALAFIA & ORS. v. GBODE VENTURES NIG. LTD (2016) LPELR – 26066 (SC).
My Lords, this point is touching on the competence of the appeal and the jurisdiction of the Court to entertain. It is a substantial point of law that can be raised and dealt with suo motu: ODIASE v. AGHO (1972) 3 SC 73; DICKSON OGUNSEINDE VIRYA FARMS LTD. v. SOCIETE GENERAL BANK LTD & ORS. (2018) LPELR – 43710 (SC); SODIPO v. LEMMINKAINEN OY. & ANOR. (1985) LPELR – 3088 (SC); BEIVAR FINANCE CO. LTD. v. HAROLD COLE (1909) 2 ALL E.R. 904 at 908; PHILIPS v. COPPING (1938) 1 KB 15. PER EKO, J.S.C.
WHETHER OR NOT A APPELLANT CAN HAVE HIS INCOMPETENT APPEAL MADE COMPETENT BY AN ORDER OF COURT
The Notice of Appeal filed over one year after the judgment of the Court of Appeal is incompetent. But by Subsection (4) of Section 27 of the Supreme Court Act, the Appellant can have his incompetent Appeal made competent by an order of Court. Subsection 4 of Section 27 supra states that:
(4) The Supreme Court may extend the periods prescribed in Subsection (2) of this Section.
This is done by the Appellant filing an application for extension or enlargement of time in which to appeal. The application shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period and grounds of appeal which prima facie show good cause why the appeal should be heard. See:
Federal Housing Authority v Abosede (1998) 2 NWLR (Pt.537) p.117.
FHA v Kalejaiye (2010) 19 NWLR (Pt. 1226) p. 147.
By the provisions of Order 2 Rule 31 of the Supreme Court Rules both facts in the affidavit, i.e. good and substantial reasons for failure to appeal within the prescribed period; and grounds of appeal which prima facie show good cause why the appeal should be heard must co-exist for the application to succeed.
An application for extension of time to appeal would succeed no matter how long after it is brought provided there are good and substantial reasons for the delay.
Once a genuine ground on jurisdiction is the reason for the appeal, good and substantial reasons for the delay are no longer necessary. PER RHODES-VIVOUR, JS.C.
EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): The charge the Appellant, at page 6 of the Record, pleaded guilty to, reads thus-
CHARGE
That you, NWEKE CHIBUEZE FRANCIS male, adult on or about the 14th day of May, 2009 during the outward clearance of a Royal Dutch Airline flight to Holland at the Murtala Mohammed International Airport, Ikeja, Lagos exported 1.416 kilograms of cocaine without lawful authority and you thereby committed an offence contrary to and punishable under Section 11(b) of the National Drug Law Enforcement Agency Act Cap. N30 Laws of the Federation of Nigeria, 2004.
The charge was part of the Proofs of Evidence served on the Appellant before his arraignment before the Federal High Court, Lagos, on 5th November, 2009. The Appellant was represented by a Counsel of his choice. On the said date, upon the charge read and explained to him, the Appellant pleaded Not Guilty and both the prosecuting and defending Counsel requested that hearing be adjourned to 7th December, 2009, to commence. The trial Court (O.C. Abang, J) obliged.
At the resumed sitting, on 7th December, 2009, the Appellant, in the presence of his
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Counsel, Mrs. Ngozi Ekwensi, changed his Not Guilty plea to the plea of Guilty after the charge was again read and explained to him. Thereafter the defence acquiesced in the Prosecution’s tendering from the Bar of 11 documents, frontloaded in the Proofs of Evidence. They include the following incriminating documents-
– The confessional statement he made on 14th May, 2009,
– Four separate statements he made in the course of excretion of the substances
– His duly signed Packing of Substance Form
– The receipt of seizure he signed on the 4 separate occasions
– Drug analysis Report showing that the substance recovered from him was infact cocaine
– The excreted substance contained in four separate transparent pouches
– A large envelope containing the analysed specimen from the laboratory
– Evidence Pouch containing 3,050.00 Euros, 413,000.00 CFars recovered from the Appellant
– Appellant’s International Passport No. A3820735A, KLM Flight ticket
Upon the documents/items admitted in evidence without objection, the prosecuting Counsel prayed the trial Court to summarily convict the Appellant as charged. He was
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accordingly, “convicted as charged”. At this juncture, Mrs. Ngozi Ekwensi, defence Counsel, sought adjournment to enable her “tender some materials in Court in support of my plea for leniency”. She stated that “This application is based on compassionate ground since there is no provision in the Criminal Procedure Act in support”. The Prosecuting Counsel, conceding the adjournment, announced that he had “no objection”. The trial Court, without hesitation, refused the application and then invited the Appellant to “present his allocutus and thereafter sentence will be passed.”
I pause awhile. Adjournment remains within the judicial discretion of the trial Court. Like all discretions it is exercised judicially and judiciously. Exercise of discretion, as it is stated in the Lexicon Webster Dictionary, Encyclopedic Edition, Vol. 1 at page 286, discretion includes a judgment that is sound, prudent and tactful.
A judgment or decision is said to be judicious if it was rendered wisely or prudently. When a trial Court or judge is called upon to act judicially, it must have some facts on which to predicate a prudent or wise decision. Mrs. Ngozi Ekwensi, learned
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defence Counsel, in the application for adjournment, did not consider it prudent to specify the documents the defence intended to avail the trial Court as the basis for the adjournment sought. The learned trial Court was left to speculate, and that should not be.
Mrs. Ngozi Ekwensi, in the application for adjournment appeared to suggest that her application had no backing of law, particularly the Criminal Procedure Act. An application that has no backing of law would ordinarily seem or appear to be an abuse of Court’s process: R-BENKAY (NIG.) LTD. v. CADBURY (NIG.) LTD. (2012) 3 SC. (pt. 3) 169; (2012) 9 NWLR (pt. 1306) 596.
From the Bar, Mrs. Ngozi Ekwensi defence Counsel, testified as it were (contrary to Rule 20 of the Rules of Professional Conduct for Legal Practitioners, 2007 that prohibits a lawyer as a witness for the client) thus-
The convict is the first offender who has not wasted the time of this Court in going through the whole trial of the charge. He is the bread winner of the family, with an aged mother in the village to take of. He has been in detention since 14/5/2009 without any financial assistance from anybody. He is a young
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man of 25 years old. If given a further opportunity (he) would be useful to the society at large and to himself. The essence of sentencing has been decided in plethora of authorities is not to punish an offender but to rehabilitate and reform the offender especially when the offender has pleaded guilty. The convict has no previous record known to me. Based on this, I humbly urge the Court to be lenient while pronouncing sentence. I urge the Court to temper justice with mercy.
“Allocutus”, as defined in Earl Jowitt: The Dictionary of English Law, is what the convict has to say why the Court should not proceed to sentence him. That is, what the convict shows “why the sentence should not be passed”. The convict, not the defence Counsel pleads his allocutus. In other words, it is for the convict himself to show cause why the prescribed sentence for the offence he was convicted of be not passed or imposed on him.
The learned trial Judge after the purported allocutus proceeded, at page 16 of the Record, to sentence the Appellant “to imprisonment for life”. The Appellant’s appeal, at the lower Court, against the sentence, majorly on the
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issues-
1. Whether the trial Judge properly exercised the Court’s discretion in overruling Appellant’s Counsel’s application for adjournment to enable the Appellant present some materials in allocutus, in mitigation of sentence.
2. Whether in the circumstances of this case the sentence of life imprisonment passed on the Appellant was excessive, was dismissed on 21st June, 2013. He has further appealed to this Court.
The Appellant’s Notice of Appeal was filed on 10th September, 2014 – more than one year from 21st June, 2013. I have no evidence on Record that the Appellant obtained an order to bring this appeal out of time. Section 27(2)(b) of the Supreme Court Act, 2004 prescribes a period of “thirty days from the date of the decision appealed against” as the period within which an appeal in a criminal matter may be brought. This appeal is prima facie incompetent, having been brought out of time. Once a matter is not properly constituted the Court lacks jurisdiction to entertain it: MADUKOLU v. NKEMDILIM (1962) ALL NLR 587; ALAFIA & ORS. v. GBODE VENTURES NIG. LTD (2016) LPELR – 26066 (SC).
My Lords, this point is touching on the
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competence of the appeal and the jurisdiction of the Court to entertain. It is a substantial point of law that can be raised and dealt with suo motu: ODIASE v. AGHO (1972) 3 SC 73; DICKSON OGUNSEINDE VIRYA FARMS LTD. v. SOCIETE GENERAL BANK LTD & ORS. (2018) LPELR – 43710 (SC); SODIPO v. LEMMINKAINEN OY. & ANOR. (1985) LPELR – 3088 (SC); BEIVAR FINANCE CO. LTD. v. HAROLD COLE (1909) 2 ALL E.R. 904 at 908; PHILIPS v. COPPING (1938) 1 KB 15.
The incompetence of the Notice of Appeal warrants an order striking out the appeal. I so order.
Ex gratia, I will consider other issues relating to this appeal. No leave was first sought and obtained for the Appellant to bring forth grounds 1, 3 and 4 in the Notice of Appeal. The grounds require leave by virtue of Section 233(2) & (3) of the 1999 Constitution, as amended. Ground 1, raising issue of wrong exercise of discretion, is predicated on mixed law and facts. So also Ground 3 of the grounds of appeal. Ground 4, complaining that the decision of the Court of Appeal was unwarranted, unreasonable and cannot be supported having regard to the evidence, is an omnibus ground raising issue of pure facts.
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Grounds 1, 3 & 4 are therefore incompetent.
Ground 2 purportedly complains the Appellant was denied fair hearing contrary to Section 36 of the 1999 Constitution. The ground complains that the Court of Appeal denied the Appellant fair hearing when the learned Justices of the Court “failed to interfere with the exercise of the discretion of the trial Court, and affirmed its decision in refusing to grant an adjournment to the Appellant to tender materials in support of his plea of leniency which application was not objected to by the Respondent…”. No particulars of error alluded to any circumstance whereby the Court of Appeal denied the Appellant fair hearing in the manner his appeal was heard. Rather, it is averred that “the learned Justices of the Court of Appeal OUGHT to have interfered with the exercise of discretion of the trial Court in the balanced interest of justice” and that the decision of the trial Court was perverse. The said ground 2, ingeniously, seeks the Apex Court’s interference with the concurrent findings of fact or the exercise, by the two Courts below of their undoubted discretion. In substance, it is not a complaint
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that the Court of Appeal denied the Appellant fair hearing, which apparently is a mislabel for complaint against concurrent exercise of discretion and/or concurrent findings of fact. This ingenious artifice, that ground 2 is, is no doubt incompetent. On the challenge to the exercise of discretion; it has to be borne in mind, my Lords, that judicial discretion must be exercised judicially and judiciously. It cannot be exercised in vacuo. A judicial discretion, as stated by Onnoghen, JSC (as he then was) in AMOSHIMA v. THE STATE (2011) 14 NWLR (pt. 1268) 530 at 534 D – E, ought to be founded upon the facts and circumstances presented before the Court, from which it must draw a conclusion which must be governed by law. See also TANKO v. THE STATE (2009) 4 NWLR (pt. 1131) 430. Sections 131 and 132 of the Evidence Act, 2011 become relevant here.
The burden of producing evidential materials entitling him to favourable decision of a Court of justice lies on the party who would fail if no evidence at all were given on either side. The Appellant’s Counsel applied for adjournment to enable her “tender some (unspecified) materials – in support of my plea for
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leniency”. Since adjournment lies within the discretionary powers of the Court, the applicant for adjournment has the bounden duty to produce or adduce evidential materials in support of his application for adjournment. In ADIGWE v. FRN (2015) 18 NWLR (pt. 1490) 105 this Court reiterated the point that “the exercise of discretion is not based on mere judgment of the person doing so but upon facts on circumstances necessary for the proper exercise of that discretion”. See also OYEGUN v. NZERIBE (2010) 41 NSCQR 127 at 147.
By dint of Section 11(b) of the NDLEA Act, 2004 a term of life imprisonment is the maximum sentence the convict, of the offence the Appellant was charged with, should expect. The complaint of the Appellant that the trial Court did not properly exercise its discretion in the imposition on him of the sentence of “imprison for life” is not supported by any empirical fact. The opportunity for plea of allocutus offers the Appellant the occasion to show cause why the sentence prescribed by Section 11(b) of NDLEA Act should not be passed or imposed on him. He failed to testify to utilise the opportunity. Rather, it was his Counsel who made bare
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statement from the Bar. That bare statement from the Bar has no force of legal evidence: ONU OBEKPA v. C.O.P. (1980) 1 NCR 113; NIGER CONST. LTD. v. OKUGBENI (1987) 4 NWLR (pt. 67) 787 at 792. on what facts, therefore, did the Appellant complain that the trial Court did not properly exercise its discretion in the sentence mandating that he served “imprisonment for life”? I find none.
If the appeal were competent my verdict would have been one dismissing it in its entirety. The appeal, not competent, shall be, and is hereby struck out.
OLABODE RHODES-VIVOUR, J.S.C.: Section 27 (2)(b) of the Supreme Court Act, Vol.13 Laws of the Federation of Nigeria states that:
27 (2) The periods prescribed for the giving of notice of appeal of application for leave to appeal are-
(b) in an appeal in a criminal case, thirty days from the date of the decision appealed against.
The Court of Appeal dismissed the Appellant’s appeal on 21 June, 2013, and the Appellant’s Notice of Appeal was filed on 10 September, 2014. That is to say the appeal to Supreme Court was filed over one year after the decision of the Court of Appeal, instead of within
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thirty days after 21 June 2013.
The Notice of Appeal filed over one year after the judgment of the Court of Appeal is incompetent. But by Subsection (4) of Section 27 of the Supreme Court Act, the Appellant can have his incompetent Appeal made competent by an order of Court. Subsection 4 of Section 27 supra states that:
(4) The Supreme Court may extend the periods prescribed in Subsection (2) of this Section.
This is done by the Appellant filing an application for extension or enlargement of time in which to appeal. The application shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period and grounds of appeal which prima facie show good cause why the appeal should be heard. See:
Federal Housing Authority v Abosede (1998) 2 NWLR (Pt.537) p.117.
FHA v Kalejaiye (2010) 19 NWLR (Pt. 1226) p. 147.
By the provisions of Order 2 Rule 31 of the Supreme Court Rules both facts in the affidavit, i.e. good and substantial reasons for failure to appeal within the prescribed period; and grounds of appeal which prima facie show good cause why the appeal should be heard
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must co-exist for the application to succeed.
An application for extension of time to appeal would succeed no matter how long after it is brought provided there are good and substantial reasons for the delay.
Once a genuine ground on jurisdiction is the reason for the appeal, good and substantial reasons for the delay are no longer necessary.
The Appellant was out of time in filing his appeal by over a year and did not bother to invoke the provisions of Section 27 (4) of the Supreme Court Act, to ask for extension of time to regularise his appeal.
When no excuse is given for filing his appeal out of time, no indulgence can be granted. The appeal is incompetent and it is hereby also struck out by me.
I agree with my learned brother EKO JSC conclusions.
MUSA DATTIJO MUHAMMAD, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother EJEMBI EKO JSC just delivered. I agree with the reasoning and conclusion therein that the appeal is incompetent. I shall amplify.
By virtue of Section 27 (2) (b) of the Supreme Court Act 2004, an appeal against a decision in a criminal mater such as this one,
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except where time for doing so has been extended by the Court, must be filed within thirty days from the date the decision appealed against was delivered. The instant appeal evidently filed outside the statutorily prescribed time is incompetent. Having not initiated his appeal by due process of the law and fulfilled the condition precedent to the exercise of jurisdiction by the Court, the Court is bereft of the necessary competence to proceed. I so hold. See P.D.P. & ORS V. BARR SOPULACHUKWU EZEONWUKA (2017) LPELR – 42563 (SC), CHIEF IKECHI EMENIKE V. P.D.P. (2012) LPELR – 7802 (SC) and MADUKOLU & ORS V. NKEMDILIM (1962) NSCC 374 at 379.
It is particularly for the foregoing reason that I hereby equally strike out the incompetent appeal. I abide by the consequential orders made in the lead judgment on costs.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the privilege of reading in draft, the judgment of my learned brother, EJEMBI EKO, JSC, just delivered. I agree with the reasoning and conclusion that the appeal is incompetent and should be struck out.
A competent notice of appeal is like having the right key for
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a particular door. The notice of appeal is the key to the door to this Court. Without the right key, any effort to gain entrance through the door is an exercise in futility. It is void and therefore a nullity.
In the immortal words of Lord Denning, MR in McFoy vs UAC (1961) 3 ALL ER 169 @ 172:
“If an act is void, then it is in law, a nullity. It is not only bad but incurably bad … And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”
See also: Madukolu Vs Nkemdilim (1962) 2 SCNLR 341; Skenconsult Vs Ukey (1981) 1 SC 6.
By Section 27 (2) (b) of the Supreme Court Act, 2004, an appeal in a criminal case shall be filed within thirty days from the date of the decision appealed against. The judgment appealed against was delivered on 21/6/2013 while the notice of appeal was filed on 10/9/2014. As rightly observed by my learned brother, Ejembi Eko, JSC, there is nothing on the record to show that the appellant sought or was granted an extension of time within which to appeal. It follows that he lacked the competence to approach
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this Court ab initio. The notice of appeal filed on 10/9/2014, even if it contained valid grounds of appeal, is incurably bad. It is a nullity and cannot sustain this appeal, having been filed out of time.
I therefore join my learned brother in striking out the appeal for incompetence.
Appeal struck out.
CHIMA CENTUS NWEZE, J.S.C.: My Lord, Ejembi Eko, JSC, obliged me with the Draft of the leading judgement delivered now. I agree with His Lordship that, being incompetent, this appeal deserves to be struck out. Accordingly, I hereby an order striking it out for being incompetent.
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Appearances:
PHILIP NDUBUISI, ESQ., with him, CHIKEZIE OBIEFULE, ESQ. For Appellant(s)
MOHAMMED S. DIRI, ESQ., Director Legal Services (Federal Ministry of Justice), with him, D. E. KASAWE, ESQ., Principal State Counsel (Federal Ministry of Justice) For Respondent(s)
