ASUQUO ETIM V. THE STATE(1982)

ASUQUO ETIM V. THE STATE

(1982) LCN/2163(SC)

In The Supreme Court of Nigeria

On Thursday, the 7th day of October, 1982

SC.12/1981

RATIO

TIME OF APPEAL

“Regard to the fact that the appeal was filed out of time and under Section 31 (4) of the Supreme Court Act, 1960, the time within which to file the notice of appeal cannot be extended. The purported appeal is reluctantly struck out” Per ESO, J.S.C

JUSTICES

AYO GABRIEL IRIKEFE Justice of The Supreme Court of Nigeria

MOHAMMED BELLO Justice of The Supreme Court of Nigeria

CHUKWUNWEIKE IDIGBE Justice of The Supreme Court of Nigeria

ANDREWS OTUTU OBASEKI Justice of The Supreme Court of Nigeria

KAYODE ESO Justice of The Supreme Court of Nigeria

Between

ASUQUO ETIM Appellant(s)

AND

THE STATE Respondent(s)

G. IRIKEFE, J.S.C.: This purported appeal is clearly defective. The decision appealed against was delivered on 11th November, 1980, while the Notice of Appeal against that decision was not given until 30/12/80 as the file from the lower court clearly shows. As this court is not competent to extend time in this type of matter under Section 31(4) of the Supreme Court Act (No. 12 of 1960), the purported appeal is hereby struck out.

M. BELLO, J.S.C.: The Notice of Appeal having been filed out of time, the purported appeal is incompetent: Section 31(2) (b) of the Supreme Court Act. Being a capital offence the court cannot extend the time within which to appeal: Section 31 (4) of the Act.

The purported appeal is struck out.

C. IDIGBE, J.S.C.: Once again, this is one occasion on which it is necessary for me to repeat the need for re-examination of the Supreme Court Act 1960 as regards the lack of power or authority on the part of this court to enlarge time within which to appeal from decisions in murder trials. It is curious that while this court can enlarge time within which to appeal from decisions of the Court of Appeal not only in civil matters but also in less heinous criminal offences, it cannot do so in murder trials. I refer, of course, to Section 31 (4) of the Supreme Court Act 1960. Faced as we are with this section we are unable to do anything although it does appear to me on reading the record of proceedings in the present matter that there is prima facie an arguable “appeal”. Feeling satisfied that I have once again in performance of my duty as before bemoaned this apparent unsatisfactory situation and again the need for review of this particular section of the Supreme Court Act, I feel that there is nothing else I can do but agree with my learned brothers that this appeal must be struck out and it is accordingly struck out.

A. O. OBASEKI, J.S.C.: The Notice of Appeal against the decision of the Federal Court of Appeal given on 11th November, 1980 was filed on 30th December, 1980. The appellant should have filed his notice by 10th December, 1980 as prescribed by Section 31(2)(b) of the Supreme Court Act 1960 to enable this court assume jurisdiction to hear the appeal.

In the circumstances, the appeal is incompetent and I hereby strike out the appeal.

K. ESO, J.S.C.: There is no appeal before this court. Having regard to the fact that the appeal was filed out of time and under Section 31 (4) of the Supreme Court Act, 1960, the time within which to file the notice of appeal cannot be extended. The purported appeal is reluctantly struck out.

Appearances