MV PEACE & ORS v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/13549(CA)
In The Court of Appeal of Nigeria
On Monday, the 24th day of June, 2019
CA/L/1333C/2018
RATIO
SHARP PRACTICE: COUNSEL: IT IS WRONG FOR A COUNSEL TO WRONGLY QUOTE THE JUDGMENT OF ANY COURT CONTRARY TO RULES 15 AND 32 OF THE RULES OF PROFESSIONAL CONDUCT FOR LEGAL PRACTITIONERS
Let me start by saying that it is unethical for learned counsel to mislead the Court by misrepresenting what was decided in a matter. It is even worse where learned counsel in quoting the dictum of a Court deliberately incorporates what is not part of the dictum as though it emanated from the Court. That is patently wrong and a sharp practice that is contrary to the stipulations of Rule 15 (3) (g) and Rule 32 (1) & (3) (f) and (k) of the Rules of Professional Conduct for Legal Practitioners. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
COUNSEL: A LEGAL COUNSEL SHOULD COMPORT HIMSELF AS A MINISTER IN THE TEMPLE OF JUSTICE
Learned counsel as an officer of the Court should comport himself as such and should not misguide or mislead the Court. He should be sufficiently detached as a minister in the temple of justice and appreciate that the case is not to be won at all costs. See CCB vs. OKPALA (1997) 8 NWLR (PT 518) 673, ORJI vs. ONYEMERE (2015) LPELR (25649) 1 at 7-8, PERE ROBERTO NIG. LTD vs. ANI (2008) LPELR (4839) 1 at 13 or (2009) 13 NWLR (PT 1159) 522 at 535, AGORO vs. AROMOLARAN (2011) LPELR (8906) 1 at 21-23 and USMAN vs. FRN (2018) LPELR (45629) 1 at 26-29. The exhortative and sagely words of Lord Denning are apposite. This is what he said of a legal practitioner inRONDEL vs. WORSLEY (1967) 1 QB 443 thus:
As an advocate he is a Minister of Justice equally with the Judge. He has a monopoly of audience in the higher Courts. No one save he can address the Judge, unless it be the litigant in person. This carries with it a corresponding responsibility…. He must accept the brief and do all he honourably can on behalf of his client. I say all he honourably can because his duty is not only to his client. He has a duty to the Court which is paramount. It is a mistake to suppose that he is the mouthpiece of his client to say what he wants or his tool to do what he directs. He is none of these things. He owes an allegiance to a higher cause. It is the cause of truth and justice. He must not consciously misstate the facts. He must not knowingly conceal the truth. He must not unjustly make a charge of fraud, that is, without evidence to support it. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
NOTICE OF APPEAL: WHAT IT IS AND ITS IMPORTANCE
It seems settled law that a notice of appeal is an originating process and any defect therein goes to the root of the appeal and would rob the appellate Court of the jurisdiction to hear the appeal: IWUNZE vs. FRN (2015) 6 NWLR (PT 1404) 580 and FRN vs. DAIRO (2015) 6 NWLR (PT 1454) 141 at 166 and 177. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
NOTICE OF APPEAL: WHO SIGNS IT IN A CRIMINAL TRIAL OR PROCEEDINGS
The legal position has always been that under the hitherto prevailing Rules of Court, the Notice of Appeal in a criminal matter must be signed by the Appellant himself except where the appellant is of unsound mind, or is a body corporate, or is in a condemned cell and access to him is difficult or impossible. See IKPASA vs. BENDEL STATE (1981) 9 SC 7, IWUNZE vs. FRN (supra), UMEZINNE vs. FRN (supra) at 20 and IKECHUKWU vs. FRN (2015) LPELR (24445) 1. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
1. MV PEACE
2. JAMES ABATAN
3. WASIU ABDUL OWONIKOKO
4. PATRICK AMEH
5. JOHNSON ADEMOLA
6. FELIX OTTO
7. CHIGOZIE OGUIKE
8. OLU SALISU
9. JOMO GADAGBE
10. KUNLE OBA SAHEED
11. RASHEED ADIO Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The Appellants were the defendants before the Federal High Court, Lagos Division, in CHARGE NO. FHC/L/287C/2015: FEDERAL REPUBLIC OF NIGERIA vs. MV PEACE & ORS. They were tried and convicted on the three counts of conspiracy to deal in petroleum products without appropriate licence and dealing with and storing 200 metric tonnes of petroleum products without appropriate licence or lawful authority. The Appellants were dissatisfied with the decision of the lower Court. They appealed against the same by Notice of Appeal filed on 2nd October, 2018.
The scarified judgment of the lower Court which was delivered on 6th July 2018 is at pages 479-540 of the Records, while the Notice of Appeal is at pages 548-554 of the Records. The Notice of Appeal, which is a Joint Notice of Appeal, was signed on behalf of all the eleven Appellants by their Counsel. The Records of Appeal having been compiled and transmitted, briefs of argument were filed and exchanged. The AppellantsBrief was filed on 20th February 2019 but deemed as properly filed on 28th February 2019. The Appellants
1
further filed a Reply Brief on 9th April 2019. The Respondent filed its brief of argument on 26th March 2019. Both the Respondents Brief and the AppellantsReply Brief were deemed as properly filed on 9th May 2019.
The Respondent filed a Notice of Preliminary Objection on 26th March 2019. The Notice of Preliminary Objection which challenges the competence of the appeal was argued in the Respondent?s Brief. The Appellants filed an eight paragraph counter affidavit in opposition to the preliminary objection on 9th April 2019. The Appellants? Reply Brief was exclusively devoted to submissions in reply to the preliminary objection. At the hearing of the appeal, E. O. Ajah, Esq., learned counsel for the Appellants and O. I. Rotimi, Esq., of counsel for the Respondent urged the Court to uphold the submissions in their respective briefs in the determination of the issues raised in the appeal.
The Appellants formulated seven issues for determination in the appeal, namely:
?1. ?whether or not the 2nd-11th Appellants as Seamen/Employees of the owners of the 1st Appellants are suppose to obtain licence in dealing in
2
petroleum product?.
2. whether or not the facts of the case between MV LONG ISLAND VS. FRN used by the trial Court to convict the Appellants is applicable to this case.
3. Whether or not the Appellants can conspire with each other to commit an unlawful act to wit: dealing in petroleum product without lawful authority or appropriate license.
4. Whether or not it is not bias for the Honourable Court to base his judgement on hearsay evidence or rumours going on in the newspapers by the government against indigenous petroleum operators in Nigeria
5. Whether or not the trial Court can base its decision on the statement of crews who know nothing about petroleum license or dealing in petroleum product other than their navigational duties as seamen.’
6. Whether or not the trial Court can convict a vessel for storing petroleum product knowing that a Vessel is not a storage facility and that even Department of Petroleum Resources has no storage license for vessel but filling stations, tank farms and barge used in jetties not a sea going. Department of Petroleum Resources has no
3
distribution License for a vessel.’
7. Whether or not the loading of the vessel at escravous was unlawful seeing that it is one of the places approved by Nigerian Port Authority for STS in its Regulations.
The Respondent crafted two issues for determination on the merits of the appeal as follows:
?1. WHETHER IN THE LIGHT OF THE EVIDENCE OF PW1, PW2, PW3 AND EXHIBITS A1-A9,B,C,D-D1,E-E1,F,G-G1,H1-H9,I.J,K AND L TENDERED BY THE RESPONDENT AND THE FINDINGS OF FACTS MADE BY THE COURT BELOW, IT COULD BE SAID THAT THE CONVICTION AND SENTENCE OF THE APPELLANTS BY THE LOWER COURT WAS NOT PROPER.
2. WHETHER IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THIS CASE, IT CAN BE SAID THAT THE ORDER OF FORFEITURE [sic] MADE BY THE COURT BELOW WAS NOT IN LINE WITH THE LAW.
The Respondents preliminary objection seeks for an order dismissing the appeal for being incurably defective. The grounds upon which the preliminary objection is predicated are as follows:
1. That by the Rules of this Honourable Court every notice of appeal shall be signed by the each of the Appellant.
2. That the instant notice of
4
appeal was signed by learned counsel for the Appellant.
3. That this appeal is incurably defective and liable to be dismissed.
4. That this Honourable Court has power to grant this application.
The issue distilled for determination in the preliminary objection and which was adopted by the Appellants is as follows:
Whether in view of the current position of the law, it can be said that this appeal is compitent [sic] and not liable to be dismissed by this Honourable Court.?
The preliminary objection challenges the competence of the Notice of Appeal, the originating process by which this appeal was initiated. The preliminary objection having raised a threshold question will be our starting point in the consideration of this appeal. The manner of resolution of the question raised in the preliminary objection will be determinant of whether to consider the issues raised on the merits of the appeal. This is so because it is only if the Notice of Appeal is competent that it can activate the jurisdiction of the court to entertain the appeal.
5
SUBMISSIONS OF LEARNED COUNSEL ON THE PRELIMINARY OBJECTION
The Respondent submits that by virtue of Order 17 Rule 3 (1) to (4) of the Court of Appeal Rules, 2016, each of the Appellants is to sign his Notice of Appeal and that the Appellants are not to file a Joint Notice of Appeal. The appeal, it was contended, is incurably defective and ought to be dismissed. The cases of A-G FEDERATION vs. OMOMOH (2018) LPELR – 43945 at 11-12, NIGERIAN ARMY vs. SAMUEL (2013) LPELR – 20931 (SC), ORJI vs. FRN (2007) 13 NWLR (PT 1050) 55 at 83-84 and AKINWUNMI vs. THE STATE OF LAGOS (2017) LPELR – 41997 (CA) were referred to. It was conclusively submitted that the Notice of Appeal in this matter signed by the Appellants counsel was contrary to the stipulations of the Rules of Court vide CHIBUZOR vs. FRN (2017) LPELR – 41852, UMEZINNE vs. FRN (2018) LPELR – 46334 and PATRICK vs. THE STATE (2017) LPELR 43409.
The Appellants? submission is that there is nothing in Order 17 Rules 3 (1) to (4) of the Court of Appeal Rules, 2016 which stipulates that an appellant must not sign a notice of appeal jointly and that a notice of appeal must be signed separately by the Appellants. It was opined that an appellant is the person who
6
appeals and that it includes the counsel representing the appellant. The case of OKARIKA vs. SAMUEL (2013) 7 NWLR (PT 1352) 19 at 37 and the stipulations of Order 5 [sic] of the Court of Appeal Rules 2016 and Section 2 [sic] of the Supreme Court Rules on the definition of Appellant were relied upon. It was asserted that where in an appeal appellant is mentioned, it refers to both the party or accused and the Counsel; and that it is therefore immaterial whether the appellant is mentioned without mentioning legal representative.
It is the further submission of the Appellants that Order 17 Rules 3 (1-4) of the Court of Appeal Rules does not stipulate that each appellant should file a separate notice of appeal and that the legal representative representing all the appellants can sign for all the appellants. The Appellants likened a Notice of Appeal to a complaint under Section 367 of the Administration of Criminal Justice Act and submitted that just as it is with a Court hearing several complaints on the same matter in the same proceedings, so also is an appeal by the same Appellants on the same matter of the same complaints within the Rules of this Court. It
7
was maintained that the Rules of Court recognise the filing of joint briefs and that Rules of Court are directed towards the achievement of a just, efficient and speedy dispensation of justice. The Rules, it was stated, are not to be applied technically so as to defeat the cause of justice vide OSIFO vs. OKOGBO COMMUNITY BANK LTD (2006) 15 NWLR (PT 1002) 260 at 276. The Notice of Appeal it was opined can be amended with leave of Court in the interest of justice.
The Appellants further contend that it is immaterial whether an appellant or his counsel signs a notice of appeal in a criminal appeal. The case of ALINTAH vs. FRN [no reference supplied] was cited in support. It was conclusively submitted that under Order 17 Rule 4 (1) of the Court of Appeal Rules, 2016, a Notice of Appeal can now be signed by the legal representative of an Appellant.
RESOLUTION OF THE PRELIMINARY OBJECTION
Let me start by saying that it is unethical for learned counsel to mislead the Court by misrepresenting what was decided in a matter. It is even worse where learned counsel in quoting the dictum of a Court deliberately incorporates what is not part of the dictum
8
as though it emanated from the Court. That is patently wrong and a sharp practice that is contrary to the stipulations of Rule 15 (3) (g) and Rule 32 (1) & (3) (f) and (k) of the Rules of Professional Conduct for Legal Practitioners. In paragraph 2.21 of the Appellants? Reply Brief, it is submitted as follows:
?2.21 My Lords, in the case of Alintah V. Federal Republic of Nigeria the court held that:
?It is immaterial whether an appellant or his counsel signs a notice of appeal in a criminal appeal. This is because the appeal the notice of appeal is the first step in the exercise of the constitutional right of the citizenry to challenge any legal decision against his interest which should not be stifled by technicality.”
Now the words ?in a criminal appeal? which is underlined above neither appears in the dictum of Hussein Mukhtar, JCA in ALINTAH vs. FRN (2008) LPELR (3788) 1 at 20, nor does it appear in the dictum of Olagunju, JCA in CHRISDON IND CO. LTD vs. AIB LTD (2002) 8 NWLR (PT 768) 152 at 182 which was referred to in ALINTAH vs. FRN (supra). Such misrepresentation and sharp practice is not
9
good for the integrity of counsel. Every learned counsel is duty bound to be honest and upright in his submissions in Court and should not mislead the Court. Learned counsel as an officer of the Court should comport himself as such and should not misguide or mislead the Court. He should be sufficiently detached as a minister in the temple of justice and appreciate that the case is not to be won at all costs. See CCB vs. OKPALA (1997) 8 NWLR (PT 518) 673, ORJI vs. ONYEMERE (2015) LPELR (25649) 1 at 7-8, PERE ROBERTO NIG. LTD vs. ANI (2008) LPELR (4839) 1 at 13 or (2009) 13 NWLR (PT 1159) 522 at 535, AGORO vs. AROMOLARAN (2011) LPELR (8906) 1 at 21-23 and USMAN vs. FRN (2018) LPELR (45629) 1 at 26-29. The exhortative and sagely words of Lord Denning are apposite. This is what he said of a legal practitioner inRONDEL vs. WORSLEY (1967) 1 QB 443 thus:
?As an advocate he is a Minister of Justice equally with the Judge. He has a monopoly of audience in the higher Courts. No one save he can address the Judge, unless it be the litigant in person. This carries with it a corresponding responsibility…. He must accept the brief and do all he honourably can
10
on behalf of his client. I say ?all he honourably can? because his duty is not only to his client. He has a duty to the Court which is paramount. It is a mistake to suppose that he is the mouthpiece of his client to say what he wants or his tool to do what he directs. He is none of these things. He owes an allegiance to a higher cause. It is the cause of truth and justice. He must not consciously misstate the facts. He must not knowingly conceal the truth. He must not unjustly make a charge of fraud, that is, without evidence to support it. He must produce all relevant authorities even those that are against him. He must see that his client disclose, if ordered, the relevant documents, even those that are fatal to his case. He must disregard the most specific instructions of his client if they conflict with his duty to the Court. The code which requires a barrister to do all this is not a code of law. It is a code of honour …
The legal profession is an honourable profession. It is the duty and responsibility of all counsel to maintain that honour. In an article titled ?The Law as a Dynamic Profession?, published in the American Bar Association Journal in January 1955 (41 ABA 18),
11
the American jurist, J. Wesley McWilliams, stated:
?We belong to an ancient, to a great, to an honoured profession. The practice of Law is a worthy calling. It has rewarded us with financial success and with prestige and leadership in our communities. It has given us much happiness and the good life. From it we have received the gratitude and respect of our friends and neighbours whom we have served. Our word affords intellectual pleasure with dignity and independence, in competition with our fellow Lawyers with whom we have cemented warm friendships and enjoyed happy companionships. For these blessings, we cannot but have a sense of gratitude and of obligation. The most productive, unselfish and wholly satisfying repayment of the obligation is constructive work to increase the effectiveness of our judicial system and the welfare of the profession.?
See also KINGSLEY vs. EMEH (2018) LPELR (45633) 1 at 29 -30 and YAHAYA MAI CHEMIST vs. MESSRS FATLUBSY VENTURES LTD (2015) LPELR (40894) 1 at 29-30.
I am not being Delphic; if learned counsel cannot improve on the honour and
12
traditions of the profession, it should at the very least be maintained. It should not be debased because of lucre. I do not intend to escalate the matter any further, so I will say no more. A word is enough for the wise.
Now, there are two limbs to the Respondents challenge to the competence of the Notice of Appeal. The first limb is premised on the contention that the fact that the Appellants failed to personally sign the Notice of Appeal rendered the Notice of Appeal defective and incompetent. The contention in the second limb is that the Joint Notice of Appeal filed by the Appellants is incompetent and that the Appellants should have filed separate notices of appeal in order to have competent appeals.
It seems settled law that a notice of appeal is an originating process and any defect therein goes to the root of the appeal and would rob the appellate Court of the jurisdiction to hear the appeal: IWUNZE vs. FRN (2015) 6 NWLR (PT 1404) 580 and FRN vs. DAIRO (2015) 6 NWLR (PT 1454) 141 at 166 and 177. Where the Respondent succeeds on either of the two limbs it has predicated its preliminary objection upon, then the substratum of the appeal
13
would have been eroded and the Notice of Appeal would not have activated the jurisdiction of the Court to entertain the appeal.
On the first limb, it is limpid that the Notice of Appeal was signed by the Appellants? counsel. The legal position has always been that under the hitherto prevailing Rules of Court, the Notice of Appeal in a criminal matter must be signed by the Appellant himself except where the appellant is of unsound mind, or is a body corporate, or is in a condemned cell and access to him is difficult or impossible. See IKPASA vs. BENDEL STATE (1981) 9 SC 7, IWUNZE vs. FRN (supra), UMEZINNE vs. FRN (supra) at 20 and IKECHUKWU vs. FRN (2015) LPELR (24445) 1. The 1st Appellant is an artificial person. It is a Vessel, a Ship; so even under the hitherto prevailing adjectival law, the notice of appeal can be signed on its behalf. Indeed such was the settled state of the law requiring that the Notice of Appeal in a criminal appeal be signed by the appellant himself, in circumstances where the recognized exceptions are inapplicable, that the apex Court in UMEZINNE vs. FRN (supra) decried being made to write yet another judgment on the
14
well-settled principle of law as a result of the failure of learned counsel to concede the appeal. At pages 13-17, Nweze, JSC quipped:
HMore appositely, the point must be made here that the jurisdiction of the Court of Appeal to entertain appeals does not derive from the sky or, to put it in the old Latin expression, in nubibus. It is rather statutory; it is, equally, guided by its Rules. Section 243 (1) (b) of the Constitution of the Federal Republic of Nigeria (as amended) provides thus:
243 (1) Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be-…
(b) exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force regulating the powers, practice and procedure of the Court of Appeal. [Italics supplied for emphasis]
Pursuant to this subsection, rights of appeal from the High Court to the lower Court are exercisable in accordance, inter alia, with the Court of Appeal Rules. Order 6 Rule 2 (1) of the Court of Appeal Rules, 2011 prescribes that every appeal shall be initiated through a Notice
15
of Appeal. Such a notice is thus the most important foundational step in the building block in the appeal pyramid. Thus, any defect in it would render the appeal incompetent: Okeke Amadi v. Okeke Okoli [1977] 7 S C 57,58; Adelekan v. ECU-Line NV [2006] 12 NWLR (pt. 993) 33; Okolo v UBN Ltd. (2004) 3 NWLR (pt. 859) 87; Ikweki v Ebele [2005] 11 NWLR (pt. 936) 397; Akpan v Bob (2010) 17 NWLR (pt. 1224) 421; General Electric Co. v Akande (2010) 18 NWLR (pt. 1225) 596; Thor v FCMB Ltd (2002) 2 SCNJ 85; Ebokam v Ekwenibe and Sons Trading Coy Ltd (1997) 7 SCNJ 77; Uwazurike v AG, Federation (2007) LPELR -3448 (SC) 14, D-E.
My Lords, it is regrettable that learned counsel for the appellant, instead of conceding to the defect in the Notice of Appeal, decided to drag this Court into the drudgery of writing yet another judgement on this well-settled principle. For instance, this Court in Iwunze v FRN [2014] 6 NWLR (pt 1404) 580, 599, approvingly, re-affirmed Uwazurike v AG, Federation (supra) as ?authority for the position…that a notice of appeal in a criminal appeal must be signed by the appellant.? In effect, ever since the old decision in
16
Umar Cham v Gombe Native Authority (supra) to the most recent decision in Iwunze v FRN (supra); Ikuepenikan v The State (2015) LPELR this Court has been consistent in its position that a notice of appeal in a criminal appeal must be signed by the appellant personally; see, also, Ugochukwu Duru v FRN(2013) LPELR -19930 (SC) 16-7, paragraphs B-E; Okey Ikechukwu v FRN (supra); Ikuepenikan v The State (2015) LPELR – 24611 (SC).
The exceptions are, of course, where he [such an appellant] comes within the beneficent exceptions set out in Order 17 Rules (5) and (6) or where there are extenuating circumstances which warrant his counsel discharging such a duty on his behalf. See, for example, Ikpasa v AG, Bendel State (supra). While the exception in Sub-rule 5 relates to an appellant who is insane; Sub-rule 6 permits certain categories of bodies corporate to sign notices of appeal in criminal appeals, Umaru Cham v Gombe Native Authority (supra). None of these applies to the present appellant who is yet to take his trial…
At this point, my lords, I crave Your Lordships’ indulgence to repeat the point I had made in Ikuepenikan v The State (supra) that:
Appeals,
17
such as the instant one, which, wearisomely and injudiciously, re-cycle the self-same issues that have received numerous magisterial pronouncements of this Court should not be accommodated in our ever-congested Cause Lists. They, indeed, conduce to the proverbial delays in the hearing and determination of concrete appeals on recondite questions of law, anxiously, yearning for determinative answers from this final Court.
… it is my earnest hope and prayer that prospective appellants should not be permitted the unwarranted indulgence of irritating Your Lordships with this settled issue any longer. This Court has pronounced upon the above rule requiring an appellant, in a criminal appeal, to sign his Notice of Appeal, personally, not once, but, at least, seven times [Umaru Cham v. Gombe Native Authority (supra); Ikpasa v. AG, Bendel State (supra); Uwazurike v. Attorney-General of the Federation (supra); Ugochukwu Duru v. FRN (supra); Iwunze v FRN (supra) and Okey Ikechukwu v FRN (supra); Ikuepenikan v The State (supra)].
A word is enough for all wise and industrious counsel who have the rare privilege of pursuing their appeals up to this rare, and
18
infrequently-attained, judicial altitude! This Court ought to be allowed to devote its precious time to the resolution of, evidently, contentious issues that eventuate from the interpretation or misinterpretation of statutes and sundry issues by lower Courts.?
The Court of Appeal Rules referred to in UMEZINNE vs. FRN (supra) is the Court of Appeal Rules, 2007. The stipulations and legal position remained the same with the Court of Appeal Rules, 2011. By the 2011 Rules, the Notice of Appeal had to be signed by the Appellant himself. See CHIBUZOR vs. FRN (2017) LPELR (41852) 1 at 3-6 and PATRICK vs. THE STATE (2017) LPELR (43409) 1 at 6-13. As magisterially pronounced by the apex Court ex cathedra in UMEZINNE vs. FRN (supra), the exercise of the constitutional right of appeal is equally guided by the rules of Court for the time being in force, regulating the powers, practice and procedure of the Court of Appeal. In this wise, Order 17 Rule 4 (1) of the Court of Appeal Rules, 2016 seems to have introduced a new legal regime with respect to signing of the Notice of Appeal. The Court of Appeal Rules, 2016 came into force on 1st day of December, 2016.
19
So it was the extant and regnant Rules of Court when the Appellants filed their Notice of Appeal on 2nd October 2018. Order 17 Rule 4 (1) of the Court of Appeal Rules, 2016 provides as follows:
?4 ? (1) Every notice of appeal … 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.? (Underlining supplied)
So the 2016 Rules introduced and sanctioned the signing of the Notice of Appeal by the Appellant?s legal representative. The phrase ?or by his legal representative? is an innovation of the 2016 Rules. Legal representative is defined in Order 1 Rule 5 of the Court of Appeal Rules as:
?Legal Representative means a person admitted to practise in the Supreme Court who has been retained by or assigned to a party to represent him in the proceedings before the Court.?
From an integral and community reading of Order 17 Rule 4 (1) and Order 1 Rule 5 of the Court of Appeal Rules, 2016, it is effulgent that a Notice of appeal can now be signed by the Appellant or his Counsel. Accordingly, the signing of the Notice of
20
Appeal in this matter by the Appellants? counsel is acceptable and proper by virtue of the provisions of Order 17 Rule 4 (1). The first limb of the contention in the preliminary objection consequently fails. We segue to the second limb.
The quiddity of the contention under the second limb is that the Joint Notice of Appeal filed by the Appellants is incompetent. It was asserted that the Appellants ought to have filed separate Notices of Appeal in order to have a competent notice of appeal that would activate the jurisdiction of the Court. By all odds, the Notice of Appeal in this matter is a joint notice of appeal filed on behalf of all the eleven Appellants. It seems that the hornbook law in this regard is that in a criminal appeal each and every appellant, who desires to appeal against the decision of the court, shall file a separate notice of appeal. Any joint notice of appeal filed by several appellants is incompetent. The authorities in this regard are multitudinously legion. I will mention a few. See MBEH vs. C.O.P (2013) LPELR (2013) 1 at 11 (per Garba, JCA), NIGERIAN ARMY vs. SAMUEL (2013) LPELR (20931) 1 at 12-13 (SC), A-G, FEDERATION vs.OMOMOH
21
(2018) LPELR (43945) 1 at 11-12 (per Iyizoba, JCA), UWAZURIKE vs. A-G FEDERATION (2007) ALL FWLR 514 at 539 and BOLAJI vs. THE STATE (2009) LPELR (11901) 1 at 21-23 (per Sankey, JCA). I recently had cause to expound the law in this regard in AKINWUNMI vs. THE STATE OF LAGOS (2017) LPELR (supra) at 5-14. This is what I said:
?The Notice of Appeal filed by the Appellants is at pages 186-189 of the Records. The said notice of appeal is a joint notice of appeal and signed by both Appellants. The critical question is whether the Appellants can file a Joint Notice of Appeal in criminal matters and if a joint notice of appeal is competent in criminal appeals.
The legal position in this regard is abecedarian and has long been settled beyond peradventure. The decided cases on the point are legion. The right of appeal conferred on a person in a criminal matter is personal and it is exercisable severally or individually and not jointly. InORJI vs. FRN (2007) 13 NWLR (PT 1050) 55 at 81-82, this Court held that a joint notice of appeal filed in a criminal matter is defective. Order 17 Rules 3 (1) & (2) of the Court of Appeal Rules, 2011,
22
which was the extant adjectival law when the notice of appeal in this matter was filed, (it still remains Order 17 Rules 3 (1) & (2) of the Court of Appeal Rules, 2016) provides as follows:
?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 7 in the Second Schedule to these Rules.
(2) A person sending any notice or notices under this Rule shall answer the questions and comply with the requirements set forth therein.?
The above provision is clear and unambiguous and has been construed to mean that the right of appeal in criminal cases is exercisable severally or individually and not jointly. In UBANI vs. THE STATE (2003) 4 NWLR (PT 809) 51, this Court per Ogebe, JCA (as he then was)
23
held that the law is that notice of appeal must be filed separately in respect of each appellant in a criminal matter. Rules of Court are meant to be complied with in the observance and not in the breach.
In MANASSEH JAPHET vs. THE STATE (2014) LPELR (22996) 1 at 16-17, Galadima, JSC stated as follows:
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 defective and therefore incompetent. This is beyond doubt.?
In POPOOLA vs. PEOPLE OF LAGOS STATE (2016) LPELR (41429) 1 at 7-11, this Court (per Ogakwu, JCA) held that the legal position with regards to filing a joint notice of appeal in criminal matters is so rudimentary that the law has crystallized and become fixed like the Rock of Gibraltar; and that a joint notice of appeal is incompetent. I am aware of the very strong views expressed by my learned brother, Garba, JCA in the said case of POPOOLA vs. PEOPLE OF LAGOS STATE (supra) at 15-21 as follows:
?The community purport of the above provisions of Rules 3 (1) and 4(1) & (2) [of Order 17 of the Court of Appeal Rules, 2011] is ?
24
that a Notice of Appeal shall be in the form set out in the Schedule and be signed by the Appellant himself; personally, and that the Court, if satisfied that the intending Appellant has exhibited a clear intention to appeal to the Court, is to entertain the appeal even when the Notice of Appeal is not in the form named or was not signed personally by him.
Although the Rules use the singular term ?a person? in respect of a Notice of Appeal to the Court, the term undoubtedly includes the plural term ?persons? who are desirous of appealing to the Court, where, as in criminal trials, two (2) or more persons are tried and convicted on joint charges of commission of offences or crimes. I am unable to find any provisions in the Rules of Court that expressly or by reasonable presumption, state or even suggest that two (2) or more persons cannot file a joint Notice of Appeal to the Court for the proper and valid invocation of its jurisdiction over an appeal which clearly exhibit the intention by them to appeal against the decision of a lower Court, to the Court. The
25
provisions of the Rules of the Court are very clear and precise such that they should be interpreted and applied in the ordinary and plain meaning, always bearing in mind, that they are mere handmaids for the attainment of justice and not masters to the Court that shall be obeyed blindly even if they would impede or render justice grotesque.
?In the present appeal, the complaint against the Notice of Appeal filed by the two (2) Appellants is not that it was not personally signed by each of them or that it did not exhibit a clear intention by each of the appellants to appeal to the Court against the decision of the High Court which convicted them or even that it did not conform or comply with the form set out in the Schedule to the Rules. The only attack on the Notice of Appeal is that it is a joint one signed individually and personally, by each of the Appellants. In my respectful view, since the Notice of Appeal has substantially (if not fully) complied with the manner and form provided for and prescribed by both Court of Appeal Act and Court of Appeal Rules, pursuant to the constitutional provisions on the exercise of the right of appeal, it is a
26
valid and competent process for the invocation of the jurisdiction of the Court over the appeal, in respect of which it was issued or given by the Appellant.
In my further respectful opinion, the fact that the Notice of Appeal was a joint one signed personally by each of the Appellants is a mere procedural irregularity or defect in the form it was issued, which has nothing to do with its substance and validity under the relevant provisions of the Court of Appeal Act and the Court of Appeal Rules which regulate the practice and procedure for the giving of Notice of Appeal to the Court. It is an irregularity that is condonable in the overall interest of the primary object of the Court of affording access to justice by the parties desiring to appeal to it against decisions of lower Courts. To drive away Appellants from the seat of justice on the ground of the form in which they give their notice of appeal to or in the Court, only reminds me of the exhortation of the Supreme Court in the case of Nwosu v. The State (1990) SCNJ 97, when it said:-
?As we have stated several times, the days when parties would pick their ways in this Court through
27
naked technical rules of procedure the breach of which does not occasion a miscarriage of justice, are fast sinking into the limbo of forgotten things.?
?The practice of filing or giving an individual and separate notice of an appeal to the Court by persons who were tried and convicted jointly for the same offence(s) may be desirable where there were many of them even if for convenience and proper individual identification, but it should not be elevated to the pedestal of a requirement by substantive law, capable of, in all cases affecting the validity/competence of the Notice of Appeal. As an issue of procedure, it admits of flexibility to be regulated by the peculiar facts and circumstances of each case.
Because the objection has the backing of the extant position of the judicial authorities cited in the lead judgment, and more, which bind me and the Court, I join in striking out the Appellants Notice of Appeal for being incompetent on the ground that it is joint one.?
See also APPEAL NO. CA/L/1186C/2015: PEACE ONUORAH & ORS. vs. THE PEOPLE OF LAGOS STATE (unreported) (per Garba, JCA) delivered on 17th March, 2017.
28
Undoubtedly, by the doctrine of stare decisis, this Court is bound to follow the decisions of the apex Court, which my learned brother, Garba, JCA, was constrained to do after the sapient exposition of his views on the issue. Howbeit, I have reflected further on the rationale and wisdom behind the position of the apex Court and I find more reasons, apart from the doctrine of stare decisis to kowtow to the position of the apex Court. It has to be remembered that even where accused persons are tried jointly, they take their plea separately. Indeed it may be fatal to a trial where the plea of accused persons is not taken separately. See SHARFAL vs. THE STATE (1992) LPELR (3038) 1, EYISI vs. THE STATE (2000) 12 SC (PT I) 24, DIBIE vs. THE STATE (2007) ALL FWLR (PT 363) 83 at 113 and OKIMBA vs. THE STATE (2012) LPELR (9697) 1. So from the outset, at the point of arraignment, the trial of more than one accused person even though joint is separate, so it is a joint but separate or several trial. Even so, upon a decision in the matter, the verdict is usually imposed separately and in respect of each count, where there are multiple counts on the charge. So
29
the trial is consummated by a separate verdict. So the common thread in a criminal trial of more than one accused person, is that even though the charge may be a joint charge, it is indeed a separate trial. Allied to this is that the evidence against and defences open to accused persons in a criminal trial may be different. It therefore seems to make compelling sense that since the trial is in point of fact joint but separate, any appeal against the decision must necessarily be by a separate notice of appeal…
Consequently, even when the constraints of binding precedent are laid aside, I remain allegiant to the legal position as expounded by the apex Court. Now, since the settled legal position is that a joint notice of appeal is incurably defective and incompetent, what is the effect on an appeal? In IKUEPENIKAN vs. THE STATE (2015) LPELR (24611) 1 at 48 (SC), it was held that a defective notice of appeal is dead or non-existent in the eyes of the law and there will be no competent appeal for the Court to entertain. See also ADEKANYE vs. FRN (2015) 15 NWLR (PT 949) 433. This being so, and having held that the joint notice of appeal filed by the
30
Appellants in this matter is defective and therefore incompetent, the jurisdiction of this Court has not been activated and the only option open is to strike out the appeal in its entirety.”
The foregoing remains the legal position. It has not changed. The Respondent?s preliminary objection therefore succeeds on its second limb. The joint Notice of Appeal filed in this matter is incompetent. It has not activated the Appellants? right of appeal and a fortiori the jurisdiction of this Court to entertain the appeal. The success of the preliminary objection obviates the need to consider the appeal on the merits: ONYEMEH vs. EGBUCHULAM(1996) 5 NWLR (PT 448) 255, A-G FEDERATION vs. ANPP (2003) 12 SCNJ 67 at 81-82 and JIM-JAJA vs. C.O.P. RIVERS STATE (2012) LPELR (20621) 1 at 10.
The merits of and substance of the conviction of the Appellants shall therefore abide the enlistment of a competent appeal, if and whenever such a competent process is initiated. That day may yet come when the jurisdiction of the Court would be brought to bear. See IKUEPENIKAN vs. THE STATE (supra) at 32-33 and UWAZURIKE vs. A-G FEDERATION (supra). I will
31
anchor this judgment on the dictum of my Lord, Augie, JSC in UMEZINNE vs. FRN (supra) at 22-23. Hear my Lord:
“A Notice of Appeal is an originating process; thus, any defect therein goes to the root of the appeal and robs an appellate Court of jurisdiction to hear the appeal – see Nonye Iwunze V. FRN (2015) 6 NWLR (Pt. 1404) 580 SC, wherein Rhodes-Vivour, JSC, observed ?
The Constitution confers on the Court of Appeal Jurisdiction to hear and determine appeals – – The Court of Appeal would lack jurisdiction to hear an appeal if an Appellant fails to comply with Statutory Provisions or the relevant rules of Court. The originating process in all appeals is the Notice of Appeal. Once it is found to be defective, the Court of Appeal ceases to have jurisdiction to entertain an appeal in whatever form.
See also FRN V. Dairo (2015) 6 NWLR (Pt. 1454) 141 at 166/177 SC, wherein C. C. Nweze, JSC, likened a defective Notice to a virus, thus:
The notice (actually a competent notice of appeal) is the foundational process that triggers off an appeal from a High Court to the lower Court – – As such, any virus in this process would, invariably,
32
corrode or taint the entire appeal thereby rendering it incompetent – – The effect of such a viral corrosion is, usually, far-reaching as it nibbles at the jurisdiction of the appeal Court which must, as of necessity, strike out such a process – – In effect, the absence of a competent Notice of Appeal, simply, translates to the non-existence of an appeal – – This must be so for it is a condition precedent to any valid exercise of appellate jurisdiction.
The importance of a notice of appeal in the process of an appeal is, therefore, tremendous because it is the substratum of the appeal. Thus, if it is defective, it must be struck out on the ground that it is incompetent – see First Bank Plc. V. T.S.A. Ind. Ltd. (2010) 15 NWLR (Pt.1216) 247 and Shelim V. Gobang (2009) 12 N.W.L.R (Part. 1156) 435.?
I kowtow. Conclusively, since the Joint Notice of Appeal is defective and inutile, this appeal is hereby struck out for being incompetent as the Court lacks jurisdiction to entertain the same.
MOHAMMED LAWAL GARBA, J.C.A.: I agree
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I had the privilege to read in its draft
33
form, the lead judgment delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA wherein having considered the Preliminary Objection raised by the Respondent to the competence of the joint Notice of appeal filed, he upheld the said Objection and struck out the joint Notice of Appeal filed on 2/10/18.
I agree that the said lead judgment of my brother, followed the well established previous decisions of this Court and of the Supreme Court, and that the said joint Notice of Appeal being incompetent be struck out.
34
Appearances:
E. O. Ajah, Esq.For Appellant(s)
O. I. Rotimi, Esq.For Respondent(s)
Appearances
E. O. Ajah, Esq.For Appellant
AND
O. I. Rotimi, Esq.For Respondent
