BABAJIDE POPOOLA & ANOR v. PEOPLE OF LAGOS STATE (2016)

BABAJIDE POPOOLA & ANOR v. PEOPLE OF LAGOS STATE

(2016)LCN/9118(CA)

In The Court of Appeal of Nigeria

On Friday, the 2nd day of December, 2016

CA/L/244C/2015

RATIO

APPEAL: ESSENCE OF NOTICE OF APPEAL

As held by the Apex Court in UWAZURIKE v. A-G FEDERATION (2007) LPELR (3448) 1 at 14 (SC), a notice of appeal is the foundation and substratum of every appeal. Any defect therein will render the whole appeal incompetent and the appellate Court will lack the required jurisdiction to entertain the appeal. See also OLOWOOKERE v. AFRICAN NEWSPAPER (1993) 5 NWLR (PT. 295) 593 and OLANREWAJU v. BON LTD (1994) 8 NWLR (PT. 364) 622. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

APPEAL: PROCEDURE FOR APPEALING

Section 24 of the Court of Appeal Act provides for the procedure to be used by a person who desires to appeal to the Court, generally. Subsection (1) states that:

24(1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period; prescribed by the provision of Subsection (2) of this Section that is applicable to the case.

Put simply, a person who desires to appeal to the Court must give notice of the appeal or application for leave to appeal, as the case may be, in such manner as may be directed by the Rules of the Court. So the notice of appeal to the Court is to be given by the Appellant or Applicant, in the manner prescribed by the Rules of the Court. Order 17 of the Court of Appeal Rules, 2011 makes provisions for criminal appeals to the Court and the manner by which or in which the notice of appeal is to be brought to the Court.

Rule 3(1) of Order 17 provides that:-

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. PER MOHAMMED LAWAL GARBA, J.C.A.

INTERPRETATION: RULES GOVERNING INTERPRETATION

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 traits, 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 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 hand maids 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 famous cases of Nneji v. Chuckwu (1988) 6 SCNJ, 132; (1988) 3 NWLR (81) 184, the Supreme Court had cautioned that:-

Albeit the Rules of Court are meant to be complied with, but the principal object of the Courts is to decide the rights of the parties and not punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with those rights. It will therefore be undesirable to give effect to rules which will merely enable one party to score, not victory on the merit, but a technical knock-out at the expense of a hearing on the merits.

See also Alsthom v. Saraki (2000) FWLR (28) 2267; University of Lagos v. Aigoro (1985) 1 NWLR, 143; Afribank v. Owoseni (1995) 2 NWLR (375) 110. PER MOHAMMED LAWAL GARBA, J.C.A.

JUSTICE

MOHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWUJustice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMOJustice of The Court of Appeal of Nigeria

Between

1.BABAJIDE POPOOLA
2. KAZEEM JAIYESINMIAppellant(s)

AND

PEOPLE OF LAGOS STATERespondent(s)

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): In a judgment on 25th March 2013, the High Court of Lagos State, Coram Judice: L. O. Okunnu, J. convicted the Appellant on the two count charge of conspiracy to commit armed robbery and armed robbery preferred against them in Charge No. ID/107C/2011: PEOPLE OF LAGOS STATE v. BABAJIDE POPOOLA & ANOR. The Appellants were sentenced to twenty-one (21) years imprisonment to run concurrently. The Appellants were dissatisfied with the decision of the Lower Court and they filed a joint notice of appeal on 8th April, 2013. With leave of Court, the Appellants filed an amended notice of Appeal on 16th September 2015, which was deemed as properly filed on 18th October 2016. The amended notice of Appeal is also a joint notice of appeal.

The records of Appeal having been compiled and transmitted, the parties filed and exchanged briefs of argument. The Appellants Brief was filed on 16th September 2015 but deemed as properly filed and served on 25th January 2016. The Respondents Brief was filed on 30th March, 2016 but deemed as properly filed and served on 5th May,2016. The Appellants filed a Reply Brief on 24th May 2016 but

deemed as properly filed and served on 18th October 2016. The Appellants distilled four issues for determination in the appeal as follows:
1. Whether the mode of identification of the Appellants fulfilled the requirements of the law? (Distilled from Ground 1 of the Notice of Appeal)
2. Whether the Learned trial Judge was right in convicting the Appellants on mere suspicion? (Distilled from Ground 4 of the Notice of Appeal)
3. Whether the learned trial Judge was right in dismissing the Appellants defence of alibi? (Distilled from Ground 4 of the Notice of Appeal)
4. Whether there was sufficient or any corroborative evidence linking the Appellants to the crime. (Distilled from Grounds 2 and 5 of the Notice of Appeal)

The Respondent on its part also distilled four issues for determination, namely:
(a) Whether this Appeal as constituted by the 1st and 2nd Appellants amended joint Notice of Appeal dated 21st August 2015 is competent in law.
(b) Whether the learned Trial Judge was right to have placed corroborative value on the prosecutions Identification Evidence (Distilled from Ground 1)<br< p=””>

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(c) Whether in the face of the overwhelming evidence presented by the Prosecution, the learned trial Judge ought to have ascribed probative value to the Defence of Alibi (Distilled from Ground 4)
(d) Whether upon reviewing the totality of the facts presented and the evidence adduced before the Trial Court, the Respondent proved its case against the 1st and 2nd Appellants beyond reasonable doubt upon which the trial Judge rightly convicted and sentenced the 1st and 2nd Appellants (Distilled from Grounds 2, 3 and 5).

At the hearing of the appeal, Olabode Shodunke, Esq., (Ganiyu Tiamiyu, Esq. with him) appeared for the Appellants while F.A. Dalley, Esq., (with Mrs. O. Olude) appeared for the Respondent. The learned counsel on both sides of the divide adopted and relied on their briefs of argument in urging the Court to uphold their respective submissions in the determination of the appeal.

Issue number one formulated by the Respondent raises the threshold issue of the competence of the appeal. Ideally, the proper approach would have been for the Respondent to file a notice of Preliminary Objection on the basis of the said issue, however in

view of the weighty nature of the question raised therein which touches on the jurisdiction of the Court to entertain the appeal, coupled with the fact that the Appellants are not been taken by surprise since they have duly reacted to the Respondents issue number one in their Appellants Reply Brief, I would still consider the objection embedded in the said issue number one.

Due to the far-reaching nature of the Respondents issue number one, it would first be disposed of before returning to the arguments on the substance of the appeal, if need be. The said issue number one which I have stated is threshold in nature is:
Whether this appeal as constituted by the 1st and 2nd Appellants Amended Joint Notice of Appeal dated 21st August 2015 is competent in law.

SUBMISSION ON THE ISSUE
The Respondent submits that a notice of appeal is the foundation and substratum of any appeal and that any defects therein will vitiate the appeal and deprive the appellate Court of its jurisdiction. It was contended that the filing of a joint Notice of Appeal in criminal matters vitiates the proceedings. The cases of MANASSEH JAPHET &

ANOR v.THE STATE (2014) LPELR-22996 (SC) at 16-17, ORJI v. F.R.N (2007) 13 NWLR (PT. 1050) 55 at 81-82 and UBANI v. THE STATE (2003) 4 NWLR (PT. 809) 51 were relied upon. It was finally posited that the Appellants Joint Notice of appeal is incurably defective and that the appeal ought to be dismissed.

In reply the Appellants submit that the Notice of Appeal was signed by the Appellants personally as required by Order 17 Rule 4(1) of the Court of Appeal Rules, 2011, but that the Court of Appeal Rules was silent on signing a joint Notice of Appeal. Order 18 Rule 6 of the Court of Appeal Rules on the filing of joint briefs, where interests are identical or joint, was referred to and it was submitted that that Appellants were jointly charged with conspiracy to commit armed robbery and armed robbery and that their interests were the same, hence the joint appeal. It was stated that the cases relied upon by the Respondent were not on the same facts as the present matter.

Without conceding that the Appellants Notice of Appeal was not in line with the provisions of the law, the Appellants submit that even if it were so, the Court could in the interest

of justice, exercise discretion and entertain the appeal if it is satisfied that the Appellants have a clear intention to appeal against the decision of the lower Court and have shown good cause why the appeal should be upheld. The stipulations of Order 17 Rule 4 of the Court of Appeal Rules and the case of NONYE IWUNZE v. FRN (2014) LPELR (22254) and ORJI v. FRN (supra) were referred to.

It was further submitted that if the Appellantss Notice of Appeal is held to be incompetent it would amount to a foreclosure of the right of the Appellant to appeal on technical grounds. The case of ORJI v. FRN (supra) was relied upon. It was finally submitted that the mistake in the joint Notice of Appeal is the mistake of the counsel which should not be visited on the Appellants. The case of DOHERTY v. DOHERTY (1964) NMLR 144 was cited in support. The Court was urged not to close its eyes on the substantive issues in dispute in the appeal.

RESOLUTION
I reiterate that the substance of the Respondents issue number one goes to the root of this appeal as the issue involved therein attacks the Notice of Appeal, which is the fons et origo of the

Appellants challenge to the decision of the lower Court. As held by the Apex Court in UWAZURIKE v. A-G FEDERATION (2007) LPELR (3448) 1 at 14 (SC), a notice of appeal is the foundation and substratum of every appeal. Any defect therein will render the whole appeal incompetent and the appellate Court will lack the required jurisdiction to entertain the appeal. See also OLOWOOKERE v. AFRICAN NEWSPAPER (1993) 5 NWLR (PT. 295) 593 and OLANREWAJU v. BON LTD (1994) 8 NWLR (PT. 364) 622.

The original Notice of Appeal filed by the Appellants is at pages 128-130 of the Records. The said notice of Appeal is a joint notice of appeal and signed by both Appellants. The contention in this issue is not whether the Appellants personally signed the Notice of Appeal as required by the Rules of Court but whether the Appellants can file a Joint Notice of Appeal in criminal matters. With leave of Court, the Appellants filed an Amended Notice of Appeal on 16th September 2015, which was deemed as properly filed on 18th October, 2016. The Amended Notice of Appeal is also a joint notice of appeal. It is limpid that the originating process by which this appeal was

initiated is a joint notice of appeal. The simple question is whether the filing of a joint notice of appeal is competent in criminal appeals.
The legal position in this regard is so rudimentary that the law has crystallized and become fixed like the Rock of Gibraltar. 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. In ORJI v. 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. The Appellants argue that since the Rules permit the filing of a joint brief where the interests are identical then a joint notice of appeal can be filed where the interests are identical. I am unable to accept this contention for the simple reason that the Rules which provide for filing of joint briefs, equally provides for filing of separate notice of appeal in criminal matters. Therefore, the Appellant cannot by extrapolation contend that since joint briefs are permissible then a joint notice of appeal is equally permissible. No. That is not the law. Order 17 Rules

3(1) & 2 of the Court of Appeal Rules, 2011 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 of 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 Rules 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 v. THE STATE (supra), this Court per Ogebe JCA (as he then was) 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 v. 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.
I kowtow. The Appellants argued that holding that the notice of appeal is defective would be resort to technicality. Nothing can be further from the truth. In IWUNZE v. FRN (2014) 6 NWLR (PT. 1404) 580 at 600 & 612 it was held that an incompetent notice of appeal was not an issue of technicality as it went to the root of the case, being an originating process in the appeal. That the question of substantial justice would only come into play where the notice of appeal is competent.
Since the settled legal position is that a joint notice of appeal is incurably defective and incompetent, what is the effect of an appeal? In IKUEPENIKAN v. 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 v. FRN (2015) 15 NWLR (PT 949) 433. This being so, and having held that the joint notice of appeal filed by the Appellants in the 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 issue number one of the Respondent which I earlier stated is threshold in nature therefore succeeds. The said issue is answered in the negative. This appeal initiated by the joint notice of appeal of the Appellants is not competent in law. The manner of resolution of this issue one simply means that the resolution of the main issues on the merits of the conviction of the appellant shall abide the enlistment of a competent appeal, if and whenever such a competent process is initiated. Presently however, there is no competent appeal before this Court and this Court therefore lacks the jurisdiction to entertain the agitation of the Appellants. Concomitantly, there would be no need to consider the other issues raised which essentially are on whether the prosecution proved the offences charged

against the Appellant beyond reasonable doubt in order to warrant their conviction by the lower Court. As earlier said, that remains a battle for another day, it the war rage on. See IKUEPENIKAN v. THE STATE (supra) at 32-33 and UWAZURIKE v. A-G FEDERATION (supra).

Conclusively, the incompetent notice of appeal has not activated the Appellants right of Appeal and a fortori, the jurisdiction of this Court. Accordingly, this appeal in its entirety is hereby struck out for being incompetent as the Court lacks jurisdiction to entertain the same.

Appeal struck out.

MOHAMMED LAWAL GARBA, J.C.A.: After a reading of the draft of the lead judgment written by my learned brother Ugochukwu Anthony Ogakwu, JCA,, in this appeal, I am constrained by the extant position of the law as stated and restated in the judicial authorities cited therein on the issue of a joint Notice of Appeal in criminal appeals, to agree that the joint Notice of Appeal filed by the Appellants is incompetent merely on the ground that it was joint and not several or individual.

I have several times calmly read the constitutional provisions on the right of

appeal to the Court as stipulated in Section 241(a) of the 1999 Constitution (as altered), Section 243(a) and (b) in respect of criminal proceedings and Section 248 on the power to make Rules to regulate the practice and procedure in the Court.

The Court of Appeal Act 2004 and the Court of Appeal Rules, 2011 are the Acts of the National Assembly and the Rules made by the Hon. President of the Court pursuant to the provisions of Section 243 (b) and 248 for the exercise of the right of appeal and for regulating the practice and procedure in the Court, respectively. Section 24 of the Court of Appeal Act provides for the procedure to be used by a person who desires to appeal to the Court, generally. Subsection (1) states that:
24(1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within the period; prescribed by the provision of Subsection (2) of this Section that is applicable to the case.
Put simply, a person who desires to appeal to the Court must give notice of the appeal or application for

leave to appeal, as the case may be, in such manner as may be directed by the Rules of the Court. So the notice of appeal to the Court is to be given by the Appellant or Applicant, in the manner prescribed by the Rules of the Court. Order 17 of the Court of Appeal Rules, 2011 makes provisions for criminal appeals to the Court and the manner by which or in which the notice of appeal is to be brought to the Court.
Rule 3(1) of Order 17 provides that:-
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.

For the purpose of the present appeal, the proforma form is FORM 1, set out in the 2nd Schedule to the Rules; i.e Notice of Appeal from decision of a

Court sitting as a Court of first instance.

Then Rule 4(1) AND (2) of Order 17 provide that:-
4(1) Every notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which such shall be given, shall be signed by the Appellant himself, except under the provision of Sub-rules (5) and (6) of this Rule.
(2) Any other notice required or authorized to be given shall be in writing and signed by the person giving the same or by his legal representative. All notices required or authorized to be given shall be addressed to the registrar of the Court below to be forwarded by him to the Registrar; Provided that, notwithstanding that the provisions of Rules 3(1) and (2) and 4(1) of this Order have not been strictly complied with, the Court may, in the interest of justice and for good and sufficient cause shown, entertain an appeal if satisfied that the intending appellant has exhibited a clear intention to appeal to the Court against the decision of the lower Court.
The community purport of the above provisions of Rules 3(1) and 4(1) & (2) is 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.

in the ordinary and plain meaning, always bearing in mind, that they are mere hand maids 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 famous cases of Nneji v. Chuckwu (1988) 6 SCNJ, 132; (1988) 3 NWLR (81) 184, the Supreme Court had cautioned that:-
Albeit the Rules of Court are meant to be complied with, but the principal object of the Courts is to decide the rights of the parties and not punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with those rights. It will therefore be undesirable to give effect to rules which will merely enable one party to score, not victory on the merit, but a technical knock-out at the expense of a hearing on the merits.
See also Alsthom v. Saraki (2000) FWLR (28) 2267; University of Lagos v. Aigoro (1985) 1 NWLR, 143; Afribank v. Owoseni (1995) 2 NWLR (375) 110.

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 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 Appellant 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 Authority 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 naked technical rules of procedure the breach of which does not occasion a miscarriage of justice, are fast sinking into the limb of forgotten things.

In the present appeal, the respondent, whose primary duty and responsibility is to ensure that justice is done in all matters involving its citizens and not to secure conviction at all costs in all cases, did not suggest that it suffered, or would likely suffer any prejudice in the hearing of the Appellants appeal because the Notice of Appeal was a joint one. There

was therefore, no suggestion that any form of miscarriage of justice would be occasioned to the Respondent in the hearing and determination of the Appellants appeal merely in the ground that the Notice of Appeal was jointly signed individually and personally by each of the Appellants. The objection, with all the respect due, is one of crass technicality and legalistic encrustment with the sole object of scoring a technical knock-out at the expense of hearing on the merit.

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.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.:I had the privilege of reading in draft the judgment just delivered by my learned brother, OGAKWU, JCA and I agree with the reasoning and conclusion arrived at in the lead judgment.

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. See UWAZURIKE & ORS v. A.G. FEDERATION (2007) 8 NWLR (Pt 1035) 1.

In the instant appeal, a joint notice of appeal was filed and signed by both Appellants. The Notice of Appeal is thus defective and incompetent. It is hereby struck out.

For the above and the fuller reasoning contained in the leading judgment, I also hold that the first issues distilled by

the Respondent bothering on the competence of the Notice of Appeal is hereby resolved in favour of the Respondent.

Appearances

Olabode Shodunke, Esq. with him, Ganiyu Tiamiyu, Esq.For Appellant

AND

F.A Dalley, Esq. with him, Mrs. O. OludeFor Respondent