JITONG & ANOR v. F.R.N & ANOR
(2020)LCN/14578(CA)
In The Court Of Appeal
(JOS JUDICIAL DIVISION)
On Thursday, September 24, 2020
RATIO
PLEADINGS: NOTICE OF APPEAL.
A notice of appeal is the originating process in an appeal. It is the spinal cord and the foundation on which an appeal stands. Where the notice of appeal is defective, then there is no proper appeal and any decision based on same is null and void as it will be a decision made without jurisdiction.
The filing of a notice of appeal in the registry of the Court from where the judgment appealed against emanated from, is what initiates an appeal. It is also the notice of appeal that invokes the jurisdiction of the appellate Court to entertain the appeal. It follows that, it must be a proper and valid notice of appeal, otherwise the appellant cannot be said to have appealed and the appellate Court will lack the jurisdiction to entertain the appeal. See Uwazuruike Vs. A.G. Federation (2007)8 NWLR (Pt. 1035)1; and Idegwu Vs. State (2015)6 NWLR (Pt1455) 286 at 291; Abiodun Vs. FRN (2016)9 NWLR (Pt. 1516) 126 at 130 and FRN Vs. Dairo (2015)6 NWLR (Pt. 1454) 141 at 148.
By the provision of Order 17 Rule 4(1) of the Court of Appeal Rules, 2016, the filing of a joint notice of appeal signed by all the appellants will be or is grossly defective and therefore incompetent in criminal trial. The statutory provision is that every notice of appeal shall be signed by the appellant himself and not jointly. The provision is clear and unambiguous, it is mandatory. Thus, a joint notice of appeal signed by all the appellants in a criminal appeal is grossly defective.
Order 17 Rule 4(1) of the Court of Appeal Rules provides:
“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 or by his legal representative except under the provision of sub-rules (5) and (6) of this Rule.”
The Court of Appeal rules prescribe that each appellant in a criminal appeal must initiate the appeal through a separate notice of appeal signed by him. Where there are several appellants, each appellant must originate the notice of appeal signed by him unless he falls within the exemption under the provision of Sub-rules (5) and (6) of this rule.
The appellants were charged for offences of conspiracy, accepting and retaining cash payment in the sum of N450,000,000.00, proceeds of crime, contrary to Money Laundering (Prohibition) Act 2012 (as amended). After the close of the prosecution’s case, they made a no case submission. The trial Court, in its ruling, overruled their no case submission and called upon the appellants to enter their defence. The appellants filed a joint notice of appeal, signed by each of them, when there was no evidence disclosing insanity and the appellants were not corporate bodies to be availed the exception in Order 17 Rule 4(5) and (6) of the Rules. See Orji Vs. FRN (2007)13 NWLR (Pt. 1050) 55; Onu Vs. State (2012) LPELR (CA); Adekanye Vs. FRN (2005) 13 NWLR (Pt. 949) 433 and Idegwu Vs. State (supra).
In Orji Vs. FRN (supra) the appellants had been in custody and had jointly appealed by signing a single notice of appeal. This Court held that the joint notice of appeal is defective on the ground that it is joint.
The Supreme Court in Japhet Vs. State (2016) 6 NWLR (Pt. 1509) 602 at 606 held thus:
“The filing of a joint notice of appeal in criminal matters is not allowed, even when it is permissible for counsel to sign such notice of appeal under certain circumstances. It is only in civil matters that appellants can jointly appeal but not so in criminal matters. Such joint notice of appeal will be incurably defective and incompetent. A Court is bound to strike out such notice of appeal even without calling counsel to address the Court on the issue. In so doing, no miscarriage of justice has been occasioned.”
In the instant case, the joint appeal was filed on behalf of the two appellants and were signed by each of them when they did not fall into the exception provided by the Rules. The Notice of Appeal filed by the appellant on the 14th of October, 2019 is incompetent and liable to be struck out. See Nwite Vs. State (2013) 17 NWLR (Pt. 1382) 157 and Iwunze Vs. FRN (2014) 6 NWLR (Pt. 1404) 580.
Learned counsel for the appellant, in respect of this ground of objection submits that there is no law that denies the appellants to file a joint notice of appeal. That assuming there was no compliance with the rules, this Court has the power to waive the non-compliance under Order 20 Rule 3(1) of the Court of Appeal Rules, 2016.
The submission of the appellants’ counsel in this regard is misconceived. This is because, the notice of appeal is the substratum of all appeals and the Court can only exercise powers when the initiating or originating process is proper before the Court. Order 20 referred to by the appellant for the Court to invoke its power and waive the non-compliance is of no relevance in this circumstance because the Court of appeal enjoys statutory jurisdiction and it is founded on a competent notice of appeal. The Court cannot confer or assume jurisdiction without a competent notice of appeal. This Court will lack the requisite jurisdiction to waive the non-compliance with the rules.
Any defect in a notice of appeal it goes to the jurisdiction of the Appeal Court which must of necessity strike out the notice of appeal. In other words, the absence of a competent notice of appeal means the non-existence of an appeal. This is so because, a competent notice of appeal is a condition precedent to any valid exercise of appellate jurisdiction. See FRN Vs. Dairo (2015) 6 NWLR (Pt. 1454)141 at 148; AG Fed. Vs. Guardian Newspapers Ltd. (1999) 9 NWLR (Pt. 618) 187 Akpan Vs. Bob (2010)17 NWLR (Pt. 1224) 421 and Umezinne Vs. FRN (2019)3 NWLR (Pt. 1660).
A defective notice of appeal is incurably bad and can be linked to a virus. As such any virus in the process would invariably taint the entire appeal thereby rendering it incompetent. The joint notice of appeal filed by the appellants on the 14th of October, 2019 is struck out for being incompetent, and it deprived this Court of jurisdiction to entertain same. The preliminary objection is upheld on this ground.The other ground of objection becomes academic since the Court lacks jurisdiction to entertain the appeal. Since the preliminary objection to the competence of this appeal has succeeded, the proceedings in the appeal would be aborted and the need to consider the issues raised therein would automatically abate. Per TANI YUSUF HASSAN, J.C.A.
CA/J/64/C/2020
Before Our Lordships:
Tani Yusuf Hassan Justice of the Court of Appeal
Mudashiru Nasiru Oniyangi Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Between
1. EVANG. LEO SUNDAY JITONG 2. RAYMOND DABO APPELANT(S)
And
1. FEDERAL REPUBLIC OF NIGERIA 2. SARAH RENG OCHEKPE RESPONDENT(S)
TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): The appeal is against the Ruling of the Federal High Court of Nigeria, Jos Judicial Division delivered on the 11th October, 2019 in Charge No. FHC/141/C/2017, by Hon. Justice M. H Kurya.
The facts of the case are that the appellants as 2nd and 3rd Defendants at the trial Court along with the 2nd respondent as the 1st defendant were arraigned for alleged offences of Conspiracy, accepting cash payment exceeding amount authorized by law and retaining same, proceeds of crime contrary to Sections 18(a), 16(1)(d), 16(2) (b), 1(a) of the Money Laundering (Prohibition) Act 2012 (as amended).
At trial, the prosecution presented five witnesses and twenty-two exhibits were tendered. At the close of the prosecution’s case, the appellants made a No case submission.
The trial Court in its ruling overruled the No case submission and called upon the appellants to enter their defence. The appellants are aggrieved with the ruling of the trial Court and appealed to this Court. The Notice of Appeal dated and filed on the 14th of October, 2019 contained two grounds of appeal with their particulars
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and reliefs sought.
The appellant’s brief dated 7th July, 2020 and filed on the 8th of July, 2020 has two issues distilled for determination thus:
1. “Whether the lower Court was right when it overruled the appellants’ No case submission and struck out same for lack of merit despite the fact that it is on record that the prosecution woefully failed to establish a prima facie case against the appellants (Grd 1).
2. Whether the lower Court was right when it failed to properly consider/examine the evidence presented before it by the parties and also failed to follow the Court of Appeal’s decision in Aituma Vs. State (2007) ALL FWLR (Pt. 381) 1798 at 1814 paras A-C and Supreme Court’s decisions on what the Court should consider during no case submission” (Grd 2).
The appellants’ reply brief dated 26th August, 2020 was filed on the 28th of August, 2020 but was deemed properly filed on the 14th of September, 2020. Learned counsel for the appellants adopted the briefs and urged the Court to allow the appeal.
The 1st respondent’s brief dated the 5th of August, 2020 was filed on the 6th of
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August, 2020 but deemed properly filed on the 14th of September, 2020. In the brief, two issues were formulated for determination as follows:
1. “Whether based on the facts and evidence adduced at the trial, the prosecution has made out a prima facie case against the appellant to justify the findings of the trial Court (Grd 1).
2. Whether the trial Court is allowed at the stage of no case submission to evaluate evidence and analyse exhibit.” (Grd 2).
There is incorporated in the brief a preliminary objection. Learned counsel for the 1st respondent adopted his brief and urged the Court to uphold the preliminary objection and dismiss the appeal.
The 2nd respondent did not file any brief.
Where a preliminary objection is raised it must first be heard before the appeal is heard. The reason being that, if it succeeds, it terminates the appeal in limine.
The objections are:
1. “Whether the appellants’ Notice and Grounds of Appeal dated and filed on 24th October, 2019 is competent in law having failed to first seek leave and obtain the leave of the trial Court.
2. Whether it is proper in law for the
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appellants as defendants at the trial Court to file joint Notice of Appeal against a decision of the trial Court.
The grounds upon which the preliminary objection is predicated are:
(1) That the appellant’s Notice of appeal dated 14th October, 2019 is incompetent in law.
(2) That the appellants’ appeal is not that of right, but of leave.
(3) That the entire particulars of the appellants grounds of Appeal are of mixed law and facts.
(4) That the appellant must seek and obtain leave of the Federal High Court, Jos Division to prosecute this appeal.
(5) That the appellants filed joint appellants notice of appeal dated and filed on 14th October, 2019
(6) That the appellants failed to file separate Notice of appeal.
In arguing issue one of the objection, learned counsel for the 1st respondent relied on grounds 1, 2 and 3 of the objection to submit that, the instant appeal being an interlocutory appeal not final, having arising from a ruling of the trial Court on a no case submission, where the grounds of appeal are not of law alone but of mixed law and fact, leave of the trial Court is required. He referred to
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Metuh Vs. FRN (2018) LPELR 43706 at Pp. 14-15 paras E-C.
That interlocutory appeal based on grounds of mixed law and facts is incompetent having commenced without obtaining the necessary leave of the Court. The Court was referred to Moses Ede & Anor. Vs. George Ezemba (1999) LPELR 8135 Pp. 9-10 paras C-A.
Counsel argued that the appellants’ grounds of appeal are purely that of mixed law and facts deduced from the particulars therein contained in the Notice of joint appeal, which requires leave of the Court. He referred to EFCC Vs. Bayo Dada (2014) LPELR 24256; Garuba Vs. Omokhodion (2011) 6-7 SC (Pt. V) 89 and Okwuagbala Vs. Ikwueme (2010)12 SC (Pt. 41)1, to submit that the grouse of the appellants in the particulars is purely on evidence questioning the proof of the offence, which confirmed the issue of facts, hence leave of the lower Court is required before such appeal is filed.
On the second issue of objection based on grounds 5 and 6 of the objection, the 1st respondent’s counsel contends that the appellants jointly filed a single Notice of Appeal which renders the said Notice of Appeal incompetent in law and deprived the Court
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with jurisdiction to hear and determine the appeal. He relied on Bank Industry Ltd. Vs. Awojugbagbe (2018) LPELR 43812 P. 21 paras B-D.
That the proper procedure is for the appellants to separately file their Notices of Appeal highlighting their grounds and particulars and thereafter apply to the Court for consolidation.
We are urged to strike out the appeal as incompetent.
Learned counsel for the appellant submits in response that by the provisions of Sections 302 and 303 of the Administration of Criminal Justice Act, a no case submission is an issue of law that requires no leave of the Court. He referred to Section 241(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), that appeal is of right when it involves question of law. He referred to Ogboru Vs. President Court of Appeal (2009) Pt. 369 1248 paras D-F.
Counsel argued that from the grounds of appeal and the particulars, the question is on error of law. That the appellants have complied with the provision of Section 241(1) (b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and we are urged to so hold. The Court was referred to
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Trousseau Inv. Ltd. Vs. Eyo (2011)6 NWLR (Pt. 1242)195 and Nzei Vs. University of Nigeria (2017) ALL FWLR (Pt. 906) 1471 at 1518-1519 paras H-E; Jim Jaja Vs. C.O.P. Rivers State (2012) LPELR 20621 among others.
On issue two of the objection, the appellants’ counsel submits that there is no law that denies the appellants the right to file a joint Notice of Appeal when they have same interest represented by the same counsel and affected by the same ruling in this appeal. That what is anticipated is that each of the accused or appellant should sign the Notice of Appeal. He relied onBukoye Vs. Magaji (2017) ALL FWLR (Pt. 877) 339.
That assuming but not conceding that the appellants did not comply with the rules, this Court has the power to waive the non-compliance under Order 20 Rule 3(1) of the Court of Appeal Rules, 2016. The Court was referred to Ediru Vs. FRSC (2016)4 NWLR (Pt. 1502) 209 at 234 paras C-E; Sarah Vs. FRN (2016) LPELR 40013 (SC) and Dapialong Vs. Dariye (2007)8 NWLR (Pt. 1036) 332.
We are urged to dismiss the preliminary objection.
Learned counsel for the 1st respondent raised objection to the competency of the Notice of Appeal filed
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by the appellants on the 24th of October, 2019 on the grounds that the grounds of Appeal and their particulars are of mixed law and facts where leave was required to be sought and obtained but was not obtained in this appeal.
Secondly that the appellants filed a joint Notice of Appeal against the decision of the trial Court which is not proper in law, being a criminal case.
In considering the preliminary objection. I will start with the issue of joint Notice of Appeal filed by the appellants in respect of a criminal trial. A notice of appeal is the originating process in an appeal. It is the spinal cord and the foundation on which an appeal stands. Where the notice of appeal is defective, then there is no proper appeal and any decision based on same is null and void as it will be a decision made without jurisdiction.
The filing of a notice of appeal in the registry of the Court from where the judgment appealed against emanated from, is what initiates an appeal. It is also the notice of appeal that invokes the jurisdiction of the appellate Court to entertain the appeal. It follows that, it must be a proper and valid notice of appeal, otherwise
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the appellant cannot be said to have appealed and the appellate Court will lack the jurisdiction to entertain the appeal. See Uwazuruike Vs. A.G. Federation (2007)8 NWLR (Pt. 1035)1; and Idegwu Vs. State (2015)6 NWLR (Pt1455) 286 at 291; Abiodun Vs. FRN (2016)9 NWLR (Pt. 1516) 126 at 130 and FRN Vs. Dairo (2015)6 NWLR (Pt. 1454) 141 at 148.
By the provision of Order 17 Rule 4(1) of the Court of Appeal Rules, 2016, the filing of a joint notice of appeal signed by all the appellants will be or is grossly defective and therefore incompetent in criminal trial. The statutory provision is that every notice of appeal shall be signed by the appellant himself and not jointly. The provision is clear and unambiguous, it is mandatory. Thus, a joint notice of appeal signed by all the appellants in a criminal appeal is grossly defective.
Order 17 Rule 4(1) of the Court of Appeal Rules provides:
“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 or by his legal representative except under the provision of
9
sub-rules (5) and (6) of this Rule.”
The Court of Appeal rules prescribe that each appellant in a criminal appeal must initiate the appeal through a separate notice of appeal signed by him. Where there are several appellants, each appellant must originate the notice of appeal signed by him unless he falls within the exemption under the provision of Sub-rules (5) and (6) of this rule.
The appellants were charged for offences of conspiracy, accepting and retaining cash payment in the sum of N450,000,000.00, proceeds of crime, contrary to Money Laundering (Prohibition) Act 2012 (as amended). After the close of the prosecution’s case, they made a no case submission. The trial Court, in its ruling, overruled their no case submission and called upon the appellants to enter their defence. The appellants filed a joint notice of appeal, signed by each of them, when there was no evidence disclosing insanity and the appellants were not corporate bodies to be availed the exception in Order 17 Rule 4(5) and (6) of the Rules. See Orji Vs. FRN (2007)13 NWLR (Pt. 1050) 55; Onu Vs. State (2012) LPELR (CA); Adekanye Vs. FRN (2005) 13 NWLR (Pt. 949) 433 and
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Idegwu Vs. State (supra).
In Orji Vs. FRN (supra) the appellants had been in custody and had jointly appealed by signing a single notice of appeal. This Court held that the joint notice of appeal is defective on the ground that it is joint.
The Supreme Court in Japhet Vs. State (2016) 6 NWLR (Pt. 1509) 602 at 606 held thus:
“The filing of a joint notice of appeal in criminal matters is not allowed, even when it is permissible for counsel to sign such notice of appeal under certain circumstances. It is only in civil matters that appellants can jointly appeal but not so in criminal matters. Such joint notice of appeal will be incurably defective and incompetent. A Court is bound to strike out such notice of appeal even without calling counsel to address the Court on the issue. In so doing, no miscarriage of justice has been occasioned.”
In the instant case, the joint appeal was filed on behalf of the two appellants and were signed by each of them when they did not fall into the exception provided by the Rules. The Notice of Appeal filed by the appellant on the 14th of October, 2019 is incompetent and liable to be struck out. See
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Nwite Vs. State (2013) 17 NWLR (Pt. 1382) 157 and Iwunze Vs. FRN (2014) 6 NWLR (Pt. 1404) 580.
Learned counsel for the appellant, in respect of this ground of objection submits that there is no law that denies the appellants to file a joint notice of appeal. That assuming there was no compliance with the rules, this Court has the power to waive the non-compliance under Order 20 Rule 3(1) of the Court of Appeal Rules, 2016.
The submission of the appellants’ counsel in this regard is misconceived. This is because, the notice of appeal is the substratum of all appeals and the Court can only exercise powers when the initiating or originating process is proper before the Court. Order 20 referred to by the appellant for the Court to invoke its power and waive the non-compliance is of no relevance in this circumstance because the Court of appeal enjoys statutory jurisdiction and it is founded on a competent notice of appeal. The Court cannot confer or assume jurisdiction without a competent notice of appeal. This Court will lack the requisite jurisdiction to waive the non-compliance with the rules.
Any defect in a notice of appeal it goes to the
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jurisdiction of the Appeal Court which must of necessity strike out the notice of appeal. In other words, the absence of a competent notice of appeal means the non-existence of an appeal. This is so because, a competent notice of appeal is a condition precedent to any valid exercise of appellate jurisdiction. See FRN Vs. Dairo (2015) 6 NWLR (Pt. 1454)141 at 148; AG Fed. Vs. Guardian Newspapers Ltd. (1999) 9 NWLR (Pt. 618) 187 Akpan Vs. Bob (2010)17 NWLR (Pt. 1224) 421 and Umezinne Vs. FRN (2019)3 NWLR (Pt. 1660).
A defective notice of appeal is incurably bad and can be linked to a virus. As such any virus in the process would invariably taint the entire appeal thereby rendering it incompetent. The joint notice of appeal filed by the appellants on the 14th of October, 2019 is struck out for being incompetent, and it deprived this Court of jurisdiction to entertain same. The preliminary objection is upheld on this ground.
The other ground of objection becomes academic since the Court lacks jurisdiction to entertain the appeal.
Since the preliminary objection to the competence of this appeal has succeeded, the proceedings in the appeal would be
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aborted and the need to consider the issues raised therein would automatically abate.
However for what it is worth, even if the appeal is to be considered on its merit, it will not see the light of the day. This is because, the evidence presented by the prosecution witnesses has linked the appellants with the charge against them. It is observed that this interlocutory appeal was filed to frustrate the proceedings at the trial Court. Prudence ought to have dictated that appellants wait for the conclusion of the matter and where dissatisfied with the judgment of the lower Court, they can appeal on same. This Court ought to be allowed to devote its precious time to the resolution of evidently contentious issues, hence the discouragement of Interlocutory appeals by the Court of Appeal Practice Direction, 2014.
The appeal is accordingly struck out in its entirety.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I read before now, the lead judgment just delivered by my brother TANI YUSUF HASSAN, JCA, wherein the appeal is adjudged as lacking in substance and to perpetuate delay and should be dismissed.
I agree with the reasoning and conclusion therein and
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also dismiss the appeal and abide by orders therein contained.
BOLOUKUROMO MOSES UGO, J.C.A.: I was privileged to read in draft the lead judgment of my learned brother TANI YUSUF HASSAN, J.C.A. I am in agreement with his reasoning and conclusion; accordingly, I also strike out the appeal.
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Appearances:
…For Appellant(s)
Gyang Zi, with him, Miss Y. L. Ayuba and Abubakar Aliyu – for the 1st Respondent
S. Oyawole, with him, Joshua John and I. J. Okoro – for the 2nd & 3rd Respondents For Respondent(s)
