ATTORNEY-GENERAL OF THE FEDERATION V. RALPH UWAZUIKE & ORS.
(2006)LCN/2035(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of July, 2006
CA/A/41/M/06
RATIO
APPEAL: WHAT THE COURT IS TO DO WHEN AN ISSUE IS RAISED AS TO THE COMPETENCE OF AN APPEAL
It is worthy of note that appeals are creation of statutes. The jurisdiction of the Court of Appeal to entertain an appeal or adjudicate on any matter brought before it is statutory and guided by the Rules of the court. When the competence of an appeal is raised, the court is duty bound first to determine whether the appeal is competent before taking any further step in the appeal. Moreover failure to comply with the statutory requirement prescribed by the relevant laws under which such appeals may be competent and properly before the court will deprive the appellate court jurisdiction to adjudicate on the appeal.
Auto Import & Export V Adebayo 2003 FWLR pt 140 pg 1686
Oranye V Jibowu 1950 13 WACA 41
Moore V Taye 2 WACA 43 PER O.O. ADEKEYE, J.C.A
COURT PRACTICE: EFFECT OF FAILURE TO COMPLY WITH THE STATUTORY REQUIREMENTS PRESCRIBED BY THE LAW
Moreover failure to comply with the statutory requirement prescribed by the relevant laws under which such appeals may be competent and properly before the court will deprive the appellate court jurisdiction to adjudicate on the appeal.
Auto Import & Export V Adebayo 2003 FWLR pt 140 pg 1686
Oranye V Jibowu 1950 13 WACA 41
Moore V Taye 2 WACA 43
In what form therefore should the appellants present or file their notice of Appeal, is it individually or jointly in the instance of this appeal?
I have read the provisions of Order 4 Rule 1 and Order 4 Rules 3(1) and (2) and the proviso, and equally Order 4 Rules 4(5) and 6 to my mind they are clear and unambiguous PER O.O. ADEKEYE, J.C.A
JUSTICES:
HON. JUSTICE O.O. ADEKEYE Justice of The Court of Appeal of Nigeria
HON. JUSTICE E.M. PETER-ODILI Justice of The Court of Appeal of Nigeria
HON. JUSTICE O. RHODES-VIVOUR Justice of The Court of Appeal of Nigeria
Between
ATTORNEY-GENERAL OF THE FEDERATION – Appellant(s)
AND
1. RALPH UWAZUIKE
2. CHIBUIKE NWOSU
3. BENEDICT ALAKWEM
4. CHIMANKPAM OKOROCHA
5. KELECHI UBABUIKE
6. AMBROSE ANYASO
7. AUGUSTINE IHUOMA – Respondent(s)
O.O. ADEKEYE, J.C.A:(Delivering the Leading Judgment): This is an appeal against the Ruling of the Federal High Court; Abuja delivered on the 27th of January 2006.
The seven accused persons now appellants were arraigned before the Federal High Court Abuja on a four count charge for offences as follows:-
a criminal trial – which is not the case in the instant appeal. Order 4 Rule 3(1) of the same Rules applies to an appeal after judgment, sentence or order.
The present appeal does not arise out of a conviction in the lower court. It is an appeal against refusal to grant bail pending appeal. The appeal here is not against a criminal conviction. The cases – Bawai Anor V The State 2004 16 NWLR pt 899 pg 285 – 296 and Christopher Ebughina & ors V C.O.P. 1965 NMLR pg 169 cited by the respondent are not applicable.
I have carefully considered the submission of learned counsel for both parties. The issue for consideration here is straight forward and within narrow limits. It is to resolve whether the accused/appellants have complied with the rules of court in respect of filing of their notice of appeal. The procedure to be followed in filing of notice of appeal is as stipulated in Order 4 Rules 3(1)(2) and Rule 4(1) of the Court of Appeal Rules 2002.
Order 4 Rule 3(1) reads:-
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 extension of time within which such notice shall be given in the form of such notice respectively Set-forth as forms 1, 2, 3, 4, 5 or 7 in the second schedules to these Rules.
Rule 4(1) reads:-
Every 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, shall be signed by the applicant himself except under the provisions of paragraph (5) and (6).
There is however a provision that:-
“Provided that, notwithstanding that the provision of rules 3(1) and (2) and 4(1) of this order have not been strictly complied with, the contrary in the interest of justice and for good and sufficient cause shown, entertain all appeal if satisfied that the intending appellant has exhibited a clear intention to appeal to the Court against the decision of the lower court.
It is worthy of note that appeals are creation of statutes. The jurisdiction of the Court of Appeal to entertain an appeal or adjudicate on any matter brought before it is statutory and guided by the Rules of the court. When the competence of an appeal is raised, the court is duty bound first to determine whether the appeal is competent before taking any further step in the appeal. Moreover failure to comply with the statutory requirement prescribed by the relevant laws under which such appeals may be competent and properly before the court will deprive the appellate court jurisdiction to adjudicate on the appeal.
Auto Import & Export V Adebayo 2003 FWLR pt 140 pg 1686
Oranye V Jibowu 1950 13 WACA 41
Moore V Taye 2 WACA 43
In what form therefore should the appellants present or file their notice of Appeal, is it individually or jointly in the instance of this appeal?
I have read the provisions of Order 4 Rule 1 and Order 4 Rules 3(1) and (2) and the proviso, and equally Order 4 Rules 4(5) and 6 to my mind they are clear and unambiguous. At every situation where statute has to be applied and the language of the statute is plain and unambiguous, the task of vigorous interpretation cannot arise. All the court needs to do in the circumstances is to give the words their ordinary natural and grammatical construction unless such interpretation would lead to absurdity.
First Bank of Nig Plc V Isenna 1996 5 NWLR pt 451 pg 725
NDIC V Itediegwu 2003 1 NWLR pt 800 pg 56
Adisa V Oyinwola 2000 10 NWLR pt 674 pg 116
Ordinarily the rules of Court of Appeal do not permit the filing of a joint notice of appeal, nor the signing of such notice by counsel for the appellants.The filing of a joint notice of appeal on pages 85 to 87 of the Record of Appeal in this case is defective on the grounds that:-
(a) It was filed jointly by the accused person/appellants
(b) It was not signed individually.
Chief Ahamba draws attention of the court to the difference between accused persons already convicted for a capital offence. The courts have equally bent backwards and drew a line of distinction in the application of Order 4 Rule 4(1) to the cases where the appellants were tried and convicted for a capital offence and were in prison custody. In effect where access to counselor to the appellants are restricted. The appellants in this case are charged with various offences including treason in which the punishment is like that which obtains in a capital offence.
This is an appeal on an application for bail pending trial. The appellants were up to the time of their application for bail before the lower court kept at State Security Service Custody. The reason given by the respondent was that investigation was still going on in the matter. On the 27/1/06 the lower court order that the accused person be moved to prison custody where they should be provided with maximum security. The lower court made this order on 27/1/06- while the notice of appeal was jointly filed on behalf of all the seven accused persons/applicants on 7/2/06 and signed for by their counsel Chief .M.I. Ahamba SAN. This automatically brings into focus the question of the accessibility of the accused/appellants/applicants to their counsel for the purpose of filing papers for this appeal. It is settled law that a court is entitled to look at a document or documents in its file. Similarly an appellate court is entitled to look at the contents of the record of appeal before it.
West African Provincial Ins. Co Ltd V Nigerian Tobacco Co. Ltd 1987 2 NWLR pt 56 pg 299
Agbahomoro V Eduyegbe 1999 3 NWLR pt 594 pg 170 Funduk Engineering Ltd V Mc Arthur 1995 4 NWLR pt 392 pg 640.
In the record of Appeal compiled by the appellants/applicants learned senior counsel Chief M.I. Ahamba SAN, all the applicant filed an individual application for bail- and deposed to individual affidavit in support of the application. Vide pages 7 – 11 for the 1st applicant, 54 – 57 for 2nd applicant, 58 – 61 for the 3rd applicant 62 – 65 for the 4th applicant, 66 – 69 for the 5th applicant, 70 – 73 for the 6th applicant, 74 – 77 for the 7th applicant.
It is therefore glaring that even while in custody the applicants were not denied or had unhindered access to the services of their counsel. They applied for bail individually and signed documents in pursuit of the applications personally and individually. They were therefore in a position to file their notice of appeal individually and sign same personally.
I am obliged to consider the construction of the use of individual words in a statute. In Order 4 Rules 3(1) (2) and Rule 4(1) the operative words there is shall which is used to express a command or exhortation or what is legally mandatory. Its use in a statute or rules of court makes it mandatory that the rule or provision must be obeyed.
Onochie V Odogwu 2006 6 NWLR pt.975 pg 65
Aroyewun V Adebanji 1976 11 SC pg 33
Amokeodo V I.G.P 1999 6 NWLR pt 607 pg 467
Where any proceedings are begun other than as provided by the Rules of Court such proceedings are incompetent.
Saleh v. Monguno 2003 1 NWLR Pt. 801 Pg. 221.
In the instant case the notice of appeal jointly filed for the appellants by their learned senior counsel is defective and incompetent. It is also not within the contemplation of the provisions of Order 7 Rule 2 of the Court of Appeal Rules – for departure from the ordinary rules or practice of the Court of Appeal to be invoked. The amendment granted to the Notice of Appeal on 12/4/06 cannot validate same as the blunders which killed the original Notice of Appeal was repeated in the amended notice. You cannot build something on nothing and expect it to stand – Ex nihilo nihil fit. Order 4 Rule 4(5) and (6) are not relevant as they concern persons who are insane or incorporated persons. Once there is defect in competence it is fatal and the proceedings thereof are nullity. Before a court can exercise jurisdiction in respect of any matter it must:-
(a) Be properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or the other.
(b) 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.
(c) The case comes by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction. This court lacks the jurisdiction to entertain this appeal – because the notice of appeal is defective and incompetent, as the appeal was not initiated by due process of law.
A.G. Anambra State V A.G Federation 1993 6 NWLR pt 302 pg 692
Madukolu V Nkemdilim 1962 2 SCNLR pg 341
Saleh V Monguno 2003 1 NWLR pt 801 pg 221
NDIC v S.B.N. Plc 2003 1 NWLR pt.801 pg 311
When a court lacks jurisdiction to entertain a case the appropriate order the court can make in the circumstance is an order striking out the case.
Okoye V Nigerian Construction & Furniture Co Ltd 1991 6 NWLR pt. 199 pg. 501.
The objection raised by the respondent is thereby sustained and the appeal CA/A/41/M/06 is accordingly struck out. No order as to costs.
OLABODE RHODES-VIVOUR, J.C.A.: I have had the opportunity of reading in draft the judgment read by my learned brother, O.O. Adekeye, J.C.A. I entirely agree that on the preliminary objection raised by learned counsel for the respondent this Court has no jurisdiction to entertain the appellant’s appeal.
Learned counsel for the respondent raised preliminary objection challenging the competency of this appeal on the following grounds:
“(a) There cannot be Joint Notice of Appeal in a Criminal trial.
(b) The Notice of appeal filed by the appellants is in contravention of provision of order 4 rules 3(1), (2) and 4(1) of the Court of Appeal rules 2004 as amended.
(c) The appellants ought to have filed separate notices of appeal against the decision or order of the lower court.”
Order 4 rule 4(1) of the Court of Appeal rules is very relevant in considering the preliminary objection. It provides that every 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 shall be signed by the appellant himself.
The exceptions to the above are:
(a) Where the appellant is insane or is an incorporated person.
See Order 4 rules 5 and 6 of the Court of Appeal Rules.
(b) Where the appellant is undergoing incarceration and so not accessible to counsel. In such a case the Judge would exercise judicial discretion to allow counsel sign Notice of Appeal.
See Ikpasa v. Bendel State 1981 9 SC p. 7;
Order 4 rule 3(1) and 2 of the Court of Appeal Rules prescribes personal notice of appeal. That is to say each appellant is required to file his own separate Notice of appeal. See
Adekanye v. F.R.N. 2005 NWLR Pt.949 p. 433;
State v. Jammal 1996 9 NWLR Pt.473 p.384
My lords, in this case the Notice of Appeal was filed jointly by the appellants and signed by their counsel. The joint notice of appeal is defective on the following grounds:
(i) It was Joint. Each appellant should filed his own notice of appeal.
(ii) It was signed by counsel. The Notice of appeal must be signed by the individual appellant.
The situations wherein counsel is allowed to sign Notice of appeal earlier alluded to are not applicable in this case. Counsel had access to the appellants and so the appellants ought to have compiled with the clear and unambiguous provision of Order 4 Order 4 rule 4(1) of the Court of Appeal Rules.
Jurisdiction of courts can only be ousted in the following instances:
1. Where for example the court is not properly constituted as regards the members and qualifications of its members and a member is disqualified for one reason or another.
2. Where the subject matter of the case is not within the jurisdiction of the court.
3. When the case does not come to the court through the due process of Law and conditions precedent to the exercise of the said jurisdiction have not been fulfilled. See Madukolu & Ors. v. Nkemdilim 1962 2 SCNLR P. 341.
Sea Trucks Ltd. v. Anigboro 2001 1 SC. Pt. 1 P. 56.
The effect of the third condition is that when processes initiating an appeal are defective the court of appeal would have no jurisdiction to entertain the appeal. That sadly is the situation here.
For this and the fuller reasons in the Leading Judgment of O.O. Adekeye J.C.A. This Court lacks jurisdiction to entertain the appeal. The preliminary objection is sustained and appeal No; CA/A/41/M/96 is accordingly struck out.
MARY U. PETER ODILI, J.C.A: I had the privilege of reading in draft the judgment of my learned brother, O.O. Adekeye JCA and the reasonings thereof. I agree that the process that initiated this appeal by way of the Amended Notice of Appeal filed by the appellants/applicants on 12/4/06 is incompetent being in contravention of the provisions of Order 4 Rules 3(1) and 2 of the Court of Appeal Rules 2002 as that notice of appeal not only was signed jointly on behalf of the accused/appellants by their counsel, Chief Ahamba SAN but should have had a notice of appeal for each accused/appellant and signed by them respectively. The provisions of the relevant rules of Court as stated above are not optional but mandatory. Therefore noncompliance would definitely as in this instance vitiate the process since there are no extenuating circumstances. See Adekanye v. Federal Republic of Nigeria (2005) 15 NWLR (Pt. 949) 443.
It is in regard of the above stated principle of law and practice that this court has been deprived of the necessary jurisdiction to deal with the appeal. There is nothing else this court can do than to do what the court should do in such a situation and that is to strike out the appeal for incompetence. I rely on Auto Import & Export v. Adebayo (2003) FWLR (pt. 140) 1686 Madukolu v. Nkemdilim (1962) 2 SCNLR 341.
The appeal as I said earlier Is struck out, I make no order as to costs.
Appearances
Chief Ahamba SAN;
Messers Amobi Nzelu,
V. Ikomi and
Festus Keyamo For Appellant
AND
Mr. Roland Otaru;
Mr. M. Olawale For Respondent
