DANJUMA GIDEON & ORS v. THE STATE
(2016)LCN/8353(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of March, 2016
CA/J/170c/2013
RATIO
APPEAL: COURT OF APPEAL RULES: HOW TO FILE NOTICES OF APPEAL IN CRIMINAL APPEALS BEFORE THE COURT OF APPEAL
Section 25(1) Court of Appeal Act, 2004 and Order 17 Rule 3 of the Court of Appeal Rules, 2011 provide for the filing of Notices of Appeal in Criminal Appeals before the Court of Appeal. See the case of Imunze v. F.R.N. (2014) LPELR?SC.
354/2011, 1 at 14-16, paras F-A, per Rhodes-Vivour, JSC:
“Order 16 Rule 4(1), (5) and (6) of the Court of Appeal Rules, 2007 states who should sign a
Notice of Appeal in Criminal Appeals. It reads: 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 notice shall be given, shall be signed by the appellant himself except under the provisions of paragraph (5) and (6) of this Rule?. The words used in Order 17 Rules 4(1), (5) and (6) supra must be given their ordinary meaning, thereby making it abundantly clear the intention of the President of the Court of Appeal who made the Rules by virtue of the powers conferred on him by Section 248 of the Constitution. By virtue of Order 17 Rules 4(1), (5) and (6) of the Court of Appeal Rules, 2007 every Notice of Appeal in a criminal appeal must be signed by the appellant. Exceptions are if the appellant is insane, or is a company.”
Also in the case of Ejukwa v. The State (2009) LPELR-8277 (CA) 1 at 5-6, it was held that:
“Section 25(1) of the Court of Appeal Act and Order Rules of the Court of Appeal Rules deal with criminal appeals. Section 25(1) provides: “Where a person desires to appeal to the Court of appeal, he shall give notice of appeal or notice of
his application to appeal in such manner as may be directed by the rules of Court within the period prescribed by the provision of Subsection (2) of this section that is applicable to the case.” PER. TIJJANI ABDULLAHI, J.C.A.
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
Between
DANJUMA GIDEON
YILA GIDEON
BETMAN GIDEON
JENET MALLELAN Appellant(s)
AND
THE STATE Respondent(s)
TIJJANI ABDULLAHI, J.C.A. (Delivering the leading Judgment): This is an appeal against the judgment of the Gombe State High Court of Justice presided over by Hon. Justice I. A. Awak delivered on the 12th day of February, 2013.
The appellants were charged with, tried, convicted and sentenced for the offences of conspiracy and culpable homicide punishable with death contrary to Section 97 and 221 of the Penal Code respectively by the lower Court.
Dissatisfied with the judgment of the trial Court, the Appellants filed a Notice of Appeal dated the 30th day of April, 2013 and filed on the 7th day of May, 2013 consisting of twelve grounds as follows:
1. The judgment of High Court of Justice Gombe delivered on the 12th February, 2013 is unwarranted, unreasonable and unsupported having regard to the evidence adduced at the trial.
2. The lower Judge erred in law when he failed and refused to consider the cogent and strong defences put forward by the convicts.”
3. The trial lower judge erred in law when he convicted and sentenced the appellants as charged. When the prosecution respondent deliberately concealed vital
information which if exposed would show the fallacy of the respondent case (sic).
4. The lower judge erred in law, when heavily relied on the testimony of 1st, 2nd and 3rd prosecution witnesses who are blood sisters to the victim moreso their statement to the police were of variance with their statement (sic).
5. The lower trial judge erred in law when he found all the appellants guilty of conspiracy to commit culpable homicide contrary to Section 97 of the Penal Code, when the respondent failed to proof the ingredients of conspiracy under section, under reference (sic)
6. The trial judge erred in law when he convicted and sentenced the 4th appellant to death contrary to Section 97 and 221 of the Penal Code for merely uttering words which were capable of several interpretation.
7. The lower trial judge, delivered its (sic) judgment without considering the exhibits tendered before him which by so doing occasioned a serious miscarriage of justice.
8. The trial lower Court erred in law, when he found the appellants guilty of culpable homicide punishable with death, where no intention to cause death was proved.
9. The Hon. Trial lower
Judge erred in law, when he held that the defence of property was not available to the appellants as such defences are limited to dwelling house and (sic)
10. The Hon. Lower judge closed his eyes to the defences of property, private defences, self defences or others etc.
11. The trial lower judge erred in law when he found the appellants guilty of conspiracy and culpable homicide punishable with death, when the prosecution failed to proof the case beyond reasonable doubt.
12. The lower trial judge failed woefully, to properly evaluate the evidence placed before him.”
From the twelve grounds of appeal above, learned Counsel for the Appellants A. Y. Galadima, Esq. in a brief settled by him, distilled two issues for determination as follows:
(i) Whether, having regard to the defence of provocation raised by the appellants the refusal of the prosecution to produce the 1st appellant’s Hospital Card and or medical certificate does not amount to screening and withholding of evidence as to occasion a miscarriage of justice to the appellants. (Distilled from ground 3)
(ii) Whether, having regard to the facts and circumstances of this case,
the offence of conspiracy contrary to Section 97 of the Penal Code Law was established against the Appellant as to warrant their conviction and sentence thereto by the lower Court (Distilled from Ground 5).
(iii) Whether the trial Court properly evaluated the evidence adduced before arriving at its decision (Distilled from Grounds 4, 7 and 12)
(iv) Whether from the circumstance of this case, trial Court carefully consider all the defences raised by the appellants (Distilled from Grounds 2, 10 & 11)
(v) Whether having regard to the circumstance of this case and the totality of the evidence adduced, the trial Court was right in convicting and sentencing all the appellants to death. (Distilled from Grounds 6 & 8)”
On his part, learned Counsel for the Respondent, Abubakar Jundugo, Principal State Counsel, Ministry of Justice, Gombe, State in a brief settled by him raised two issues for determination as follows:
“(i) Whether the learned trial Court was right in law in holding that the prosecution had proved the offences of criminal conspiracy to commit culpable homicide and culpable homicide punishable with death under Section 97
and 221 of the Penal Code against all the Appellants which resulted to the conviction and sentence of the Appellants. This issue relates to grounds 3, 4, 5, 6, 7, 8 and 12.
(ii) Whether the defence raised by the Appellants during their defence was properly considered and rightly rejected by the trial Court. This issue relates to grounds 2, 10 and 11”.
On the 15th day of February, 2016 when the appeal came before us for hearing Counsel for the Appellants Mr. M. I. Ofoma, Esq. holding the brief of A. Y. Galadima, Esq. for the Appellants adopted the Appellants’ Brief dated 30th June, 2015, but which was deemed filed on 21st October, 2015 by the order of this Court.
On the other hand, Counsel for the Respondent Abubakar Jungudu PSC, MOJ, Gombe State adopted the Respondent’s Brief dated the 16th day of December, 2015, but which was deemed filed on the 1st day of February, 2016.
?Learned Counsel for the Respondent also raised an issue on the Appellants’ Notice of Appeal as contained at pages 219-229 of the Record of Appeal. He contended that the Appellants are supposed to file individual Notices of Appeal and is wrong of the Appellants’ Counsel to
file one Notice of appeal on behalf of all the Appellants. He further argued that in a criminal trial, each appellant must file a separate Notice of Appeal. This has not been done in this case. The appeal is incompetent. He urged the Court to strike it out.
In his response learned Counsel for the Appellants conceded that it was one Notice of Appeal that was filed for all the Appellants. He left everything to the discretion of the Court.
In view of fact that the issue raised by the Respondent?s Counsel borders on the competence of the Appellants? Notice of Appeal and thus goes to the root of the appeal I should therefore first and foremost determine the legal effect of the appellants’ action of filing one Notice of Appeal in this appeal.
Section 25(1) Court of Appeal Act, 2004 and Order 17 Rule 3 of the Court of Appeal Rules, 2011 provide for the filing of Notices of Appeal in Criminal Appeals before the Court of Appeal. See the case of Imunze v. F.R.N. (2014) LPELR?SC.
354/2011, 1 at 14-16, paras F-A, per Rhodes-Vivour, JSC:
“Order 16 Rule 4(1), (5) and (6) of the Court of Appeal Rules, 2007 states who should sign a
Notice of Appeal in Criminal Appeals. It reads: 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 notice shall be given, shall be signed by the appellant himself except under the provisions of paragraph (5) and (6) of this Rule?. The words used in Order 17 Rules 4(1), (5) and (6) supra must be given their ordinary meaning, thereby making it abundantly clear the intention of the President of the Court of Appeal who made the Rules by virtue of the powers conferred on him by Section 248 of the Constitution. By virtue of Order 17 Rules 4(1), (5) and (6) of the Court of Appeal Rules, 2007 every Notice of Appeal in a criminal appeal must be signed by the appellant. Exceptions are if the appellant is insane, or is a company.”
Also in the case of Ejukwa v. The State (2009) LPELR-8277 (CA) 1 at 5-6, it was
held that:
“Section 25(1) of the Court of Appeal Act and Order Rules of the Court of Appeal Rules deal with criminal appeals. Section 25(1) provides:
“Where a person desires to appeal to the Court of appeal, he shall give notice of appeal or notice of
his application to appeal in such manner as may be directed by the rules of Court within the period prescribed by the provision of Subsection (2) of this section that is applicable to the case.”
The decided cases as well as the statutory provision cited supra are unambiguous and self-explanatory. Notice of appeal in criminal appeals must be signed by individual appellant. The only exception provided by the apex Court per Rhodes-Vivour (JSC) is where the appellant is insane. Clearly, the exception does not cover the situation in hand.
In view of the forgoing I agree with the learned Counsel for the Respondent and hold without any hesitation that the purported Notice of Appeal filed in respect of all the Appellants is incompetent. Therefore, having declared the Notice of Appeal incompetent, I accordingly hold that without valid Notice of Appeal the said appeal could not stand, hence there is no need to go into its substance. Consequently, the appeal is hereby struck out.
JUMMAI HANNATU SANKEY, J.C.A.: The lead Judgment of my lord, Tijjani Abdullahi, JCA, resonates with my humble opinion in this Appeal. I adopt same and
only wish to add the following few remarks in furtherance of my agreement.
The filing of a Notice of Appeal in Criminal Appeals is covered by Section 25(1) of the Court of Appeal Act, 2004 and Order 17 Rule 4(1) of the Court of Appeal Rules, 2011. By Order 17 Rule 4(1), every Notice of Appeal or Notice of application for extension of time within which such Notice shall be given “shall be signed by the Appellant himself, except under the provisions of paragraphs (5) & (6) of this Rule.”
These latter paragraphs constitute the two exceptions to this rule. However, the Appellants have not been shown to belong to any of the two groups as they are neither persons of unsound mind or body, nor are they corporate bodies. Not therefore being in any of the two groups, the Appellants were bound to have each appended their signatures on their individual Notices of Appeal by themselves. The failure to do so spells doom to the purported Appeal. See Imunze v. Federal Republic of Nigeria (2014) LPELR-22254 (SC); Uwazuruike v. A.G. Federation (2007) 8 NWLR (Pt. 1035) 1; Adekanye v. Federal Republic of Nigeria (2005) 15 NWLR (Pt. 949) 433. In addition, by the above
provisions, it is abundantly clear that any party aggrieved by the decision of a High Court and who desires to appeal to the Court of Appeal, “shall” personally sign the Notice of Appeal. The use of the word “shall” denotes that it is mandatory and does not make room for any exercise of discretion. It is a word of command. See Onochie v. Odogwu (2006) 6 NWLR (Pt. 975) 65; Amokeodo v. IGP (1999) 5 SCNJ 71 at 81.
Furthermore, Rules of Court are meant to be obeyed and so they must be strictly followed. They bind all parties before the Court. See GMO Nworah & Sons Co. Ltd v. Akputa (2010) 9 NWLR (Pt. 1200) 443; Ajayi v. Omoregbe (1993) 6 NWLR (Pt. 301); Ezeanah v. Mahmoud (2004) 7 NWLR (Pt. 873) 468. Thus, it is certain that this is not an issue of technicality. It goes to the root of the Appeal, being an originating process.
It is indubitable that the originating process in an Appeal is the Notice of Appeal. Therefore, once it is found to be defective, the Court of Appeal ceases to have jurisdiction to entertain an Appeal in whatever form. See Olowokere v. African Newspapers (1993) 5 NWLR (Pt. 295) 583. Hence, the ineffectual Notice of Appeal is
incapable of activating the Appellants’ right of appeal.
Consequently, the purported Notice of Appeal, which is filed is in respect of all the convicts, is incompetent and therefore liable to be struck out.
It is thus for these reasons and for the more detailed reasons set out in the lead Judgment that I also strike out the Appeal.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I agree.
Appearances
Mr. M. I. Ofoma, Esq.For Appellant
AND
Abubakar Jungudu (PSC, MOJ, Gombe State)For Respondent
