IDAHOSA v. STATE
(2022)LCN/16357(CA)
In The Supreme Court
On Friday, December 10, 2021
SC.787/2018
Before Our Lordships:
Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria
Ejembi Eko Justice of the Supreme Court of Nigeria
Mohammed Lawal Garba Justice of the Supreme Court of Nigeria
Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria
Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria
Between
AMADIN IDAHOSA APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
POSITION OF LAW WHEN A NOTICE OF APPEAL IS INCOMPETENT
………where a Notice of Appeal is incompetent, the appeal ipso facto is incompetent. See Okorie v Udom (1966) 5 FSC 162 at 165; NTA & Ors v Anigbo & Ors (1972) 5 SC 156; Abubakar v Joseph (2008) 13 NWLR (pt.110) 307; Olowokere v African Newspaper Ltd (1993) 5 NWLR (pt. 295) 583 at 586. MARY UKAEGO PETER-ODILI, J.S.C.
POSITION OF LAW WHEN A NOTICE OF APPEAL IS FILED OUT OF TIME
It needs be restated that a Notice of Appeal filed outside the period prescribed by statute as in the instant case is statute barred. See Osun State Government v Dalami Nig Ltd (2007) 9 NWLR (pt. 1038) 66; Jallco Ltd v Owoniboys Tech. Services Ltd (1995) 4 NWLR (pt.391) 534 538. MARY UKAEGO PETER-ODILI, J.S.C.
POSITION OF LAW ON FAILURE TO OBTAIN LEAVE TO APPEAL
The reason is that the seeking and obtaining of leave to appeal in the circumstance is a condition precedent for the exercise of the right of appeal, as the failure to seek and obtain this mandatory leave renders the appeal incompetent. See Co-operative Bank of Eastern Nigeria Ltd v Emeka Ogwuru (1991) 1 NWLR (pt.168) 458 at 467 (CA); Olowosoke v Oke (1972) 11 SC 1; NALSA & TEAM ASSOCIATES v NNPC (1991) 8 NWLR (pt. 212) 652 at 666. MARY UKAEGO PETER-ODILI, J.S.C.
POSITION OF LAW WHEN A NOTICE OF APPEAL IS FILED OUT OF TIME
Countless authorities of this Court have made the law elementary, that a Notice of Appeal filed after the expiration of the period of time limited and prescribed by statute within which it is to be validly filed, is incompetent, and ab initio, such a purported Notice of Appeal is incapable of properly and validly invoking the requisite jurisdiction of the Court over an appeal. See In Re: Otuedon (1995) 4 NWLR (pt. 392) 655, Adelekan v. Ecu-Line NV (2006) 5 SC (pt. 11) 32, (2006) 12 NWLR (pt. 993) 33. In the case of Aderibigbe v. Abidoye (2009) 10 NWLR (pt. 1150) 592, l. T. Muhammad, JSC (now CJN) had stated that:-
“A Notice of Appeal is the spinal cord of an appeal. It is the foundation upon which an appeal is based.
It is the originating process which sets the ball rolling for the proper, valid and lawful commencement of an appeal. Where the Notice of Appeal is defective, no proper appeal can stand. It will certainly collapse.” MOHAMMED LAWAL GARBA, J.S.C.
MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Benin Division or lower Court or Court below, Coram: Jimi Olukayode Bada, Philomena Mbuas Ekpe, JJCA and Samuel Chukwudumebi JCA (as he then was), delivered on 14th November, 2017 affirming the earlier judgment of the High Court (Criminal Division) Benin City, Edo State per R. Irele-Ifijeh J, which convicted the appellant for manslaughter and sentenced him to life imprisonment.
FACTS BRIEFLY STATED
On the 27th day of May, 2013 at about 10.20pm, at a police stop and search team at a nipping point along Siluko road by Obayuwana Junction, one Inspector Sunday and his team intercepted the deceased and another on an unregistered motorcycle. The appellant on the allegation that the deceased was removing a gun from his bag, shot the deceased who was on the back of a motorcycle. The deceased died immediately and upon report of the incident the appellant was charged for murder.
The hearing of the appeal was taken on the 23/9/2021 at which, the appellant and counsel being absent though served on 18/9/2021 had the appellants’ brief argument settled by Monday Agienoji filed on 28/8/2021, deemed argued by the Court. In the brief were distilled three issues for determination, viz:
(1) Whether it is right for the Court of Appeal to affirm the decision of the trial Court which convicted the appellant, charged with murder, for manslaughter and sentenced him to life imprisonment despite material contradictions and inconsistencies in the prosecution’s case apparent on the face of the Records which ought to have been resolved in favour of the Appellant by law?
(2) Whether it is right for the Court of Appeal to affirm the decision of the trial Court convicting the appellant for manslaughter even though it failed to consider the defence of accident, which, if it had been considered, would have exonerated the appellant of any criminal liability or guilt?
(3) Whether it was right for the Court of Appeal to fail, refuse or neglect to exercise its discretion judicially and judiciously to reduce the maximum sentence of life imprisonment imposed by the trial Court on the appellant who is a first offender?
Paulyn O. Abhulimen Esq adopted the respondent’s amended brief of argument filed on 7/1/2021 and deemed filed on 23/9/21 in which was identified a single issue thus:
Whether the Justices of the Court of Appeal were right to have upheld the conviction and sentence of the appellant for the offence of manslaughter by the trial Court.
This appeal comes over 5 months after the decision appealed against. The judgment of the Court of Appeal was delivered on the 14th November, 2017 the Notice of appeal seeking to initiate the process of the appeal was filed on the 8th May, 2018, way above the prescribed period of 30 days to set in motion the process, as prescribed by Section of 27 (2) (b) of the Supreme Court Act, Cap 515, LFN 2007.
I have taken the liberty suo motu to call attention to this infraction as the Court is so empowered when it sees that a Notice of Appeal lacks competence. This is because where a Notice of Appeal is incompetent, the appeal ipso facto is incompetent. See Okorie v Udom (1966) 5 FSC 162 at 165; NTA & Ors v Anigbo & Ors (1972) 5 SC 156; Abubakar v Joseph (2008) 13 NWLR (pt.110) 307; Olowokere v African Newspaper Ltd (1993) 5 NWLR (pt. 295) 583 at 586.
It needs be restated that a Notice of Appeal filed outside the period prescribed by statute as in the instant case is statute barred. See Osun State Government v Dalami Nig Ltd (2007) 9 NWLR (pt. 1038) 66; Jallco Ltd v Owoniboys Tech. Services Ltd (1995) 4 NWLR (pt.391) 534 538.
A notice of appeal being an originating process is not one of the processes that the Court can deem properly filed subsequently. Therefore, once it is a nullity, having been filed out of time as the present process and without leave which leave is a necessity on account of the provisions of Section 233 (3) of the 1999 Constitution of the Federation of Nigeria, the Notice of Appeal is null and void ab initio. The reason is that the seeking and obtaining of leave to appeal in the circumstance is a condition precedent for the exercise of the right of appeal, as the failure to seek and obtain this mandatory leave renders the appeal incompetent. See Co-operative Bank of Eastern Nigeria Ltd v Emeka Ogwuru (1991) 1 NWLR (pt.168) 458 at 467 (CA); Olowosoke v Oke (1972) 11 SC 1; NALSA & TEAM ASSOCIATES v NNPC (1991) 8 NWLR (pt. 212) 652 at 666.
There is no point belaboring this situation which is clear and that is, that there is no appeal before the Court on account of the incompetence of the Notice of Appeal which deserves nothing less or more than a striking out. Notice of Appeal filed on 8/5/2018 herein is hereby struck out for incompetence.
Appeal struck out.
EJEMBI EKO, J.S.C.: On 8th May, 2018 the Appellant filed the Notice of Appeal, purporting to be appealing the decision delivered on 14th November, 2017 that he was aggrieved with.
This is a criminal appeal. The period prescribed by Section 27 (2)(b) for giving notice of appeal is 30 days from the date of the decision being appealed.
The Appellants Notice of appeal filed out of time is irredeemably incompetent, and it is hereby struck out; just as my learned brother, MARY UKAEGO PETER-ODILI, JSC has done.
Appeal struck out.
MOHAMMED LAWAL GARBA, J.S.C.: I have read the lead judgment written by my learned brother M. U. Peter-Odili, JSC, (PJ) before now, and completely agree that the Notice of Appeal filed on the 8th of May, 2018 against the judgment of the Court of Appeal delivered on the 14th of November, 2017 was clearly filed out of the thirty (30) days prescribed and specifically stipulated in Section 27 (2) (b) of the Supreme Court Act. Countless authorities of this Court have made the law elementary, that a Notice of Appeal filed after the expiration of the period of time limited and prescribed by statute within which it is to be validly filed, is incompetent, and ab initio, such a purported Notice of Appeal is incapable of properly and validly invoking the requisite jurisdiction of the Court over an appeal. See In Re: Otuedon (1995) 4 NWLR (pt. 392) 655, Adelekan v. Ecu-Line NV (2006) 5 SC (pt. 11) 32, (2006) 12 NWLR (pt. 993) 33. In the case of Aderibigbe v. Abidoye (2009) 10 NWLR (pt. 1150) 592, l. T. Muhammad, JSC (now CJN) had stated that:-
“A Notice of Appeal is the spinal cord of an appeal. It is the foundation upon which an appeal is based.
It is the originating process which sets the ball rolling for the proper, valid and lawful commencement of an appeal. Where the Notice of Appeal is defective, no proper appeal can stand. It will certainly collapse.”
See also Okotie v. Olugbor (1995) 5 SCNJ, 127, Ebokan v. Ekwenibe & Sons Trad. Co. Ltd. (1999) 7 SCNJ, 77 Thor Ltd. v. F.C.M.B. Ltd. (2002) SCNJ, 85.
Being an issue which goes to the jurisdiction of the Court, it can be raised by the Court suo motu and since it is one which deprives the Court of the requite vires to entertain and adjudicate on the appeal, the need to call for addresses by the parties abates, this Court being the final Court of Appeal in the land. See Katto v. CBN (1991) 9 NWLR (pt. 316) 159, Omokuwajo v. FRN (2013) 9 NWLR (pt. 1359) 300. No amount of addresses by the parties can validate an incompetent notice of appeal filed out of the time prescribed by the statute. In the premises, for the above and better reasons adumbrated in the lead judgment, I join in strucking out the Notice of Appeal filed on the 8th of May, 2018 for being incompetent.
IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: I whole heartedly agree with the reasoning aptly postulated in the judgment just delivered by my learned brother, the Hon. Justice M. U. Peter-Odili, JSC, to the conclusive effect that the present appeal is grossly and irredeemably incompetent.
Hence, the Notice of Appeal filed out of time is hereby struck out by me.
EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the judgment of my learned brother, Lord Justice, MARY UKAEGO PETER-ODILI, JSC. I agree with the reasoning, conclusions, decisions, including the orders therein.
Appearances:
Monday Agienoji, Esq., of Monday K. Agienoji & Co who settled the brief for appellant served but absent For Appellant(s)
Paulyn O. Abhulimen with fiat of Edo State A.G. For Respondent(s)
