MICHAEL AKINWUNMI & ANOR v. THE STATE OF LAGOS (2017)

MICHAEL AKINWUNMI & ANOR v. THE STATE OF LAGOS

(2017)LCN/9763(CA)

In The Court of Appeal of Nigeria

On Friday, the 31st day of March, 2017

CA/L/6C/2016

RATIO

NOTICE OF APPEAL: CONSEQUENCE OF A DEFECTIVE NOTICE OF APPEAL

As held by the Apex Court in UWAZURIKE vs. 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 vs. AFRICAN NEWSPAPERS (1993) 5 NWLR (PT 295) 593 and OLAREWAJU vs. BON LTD (1994) 8 NWLR (PT 364) 622. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

NOTICE OF APPEAL: WHETHER THE RIGHT OF APPEAL CONFERRED ON A PERSON IN A CRIMINAL MATTER CAN BE EXERCISED JOINTLY

The Notice of Appeal filed by the Appellants is at pages 186-189 of the Records. The said notice of appeal is a joint notice of appeal and signed by both Appellants. The critical question is whether the Appellants can file a Joint Notice of Appeal in criminal matters and if a joint notice of appeal is competent in criminal appeals. The legal position in this regard is abecedarian and has long been settled beyond peradventure. 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 vs. 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. Order 17 Rules 3 (1) & (2) of the Court of Appeal Rules, 2011, which was the extant adjectival law when the notice of appeal in this matter was filed, (it still remains Order 17 Rules 3 (1) & (2) of the Court of Appeal Rules, 2016) 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 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. (2) A person sending any notice or notices under this Rule 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 vs. THE STATE (2003) 4 NWLR (PT 809) 51, 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 compiled with in the observance and not in the breach. In MANASSEH JAPHET vs. 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.” In POPOOLA vs. PEOPLE OF LAGOS STATE (2016) LPELR (41429) 1 at 7-11, this Court (per Ogakwu, JCA) held that the legal position with regards to filing a joint notice of appeal in criminal matters is so rudimentary that the law has crystallized and become fixed like the Rock of Gibraltar; and that a joint notice of appeal is incompetent. I am aware of the very strong views expressed by my learned brother, Garba, JCA in the said case of POPOOLA vs. PEOPLE OF LAGOS STATE (supra) at 15-21 as follows: “The community purport of the above provisions of Rules 3 (1) and 4 (1) & (2) [of Order 17 of the Court of Appeal Rules, 2011] 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. 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 trials, 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 handmaids 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 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 Appellants 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 Act 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 limbo of forgotten things.’ …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.” See also APPEAL NO.CA/L/1186C/2015: PEACE ONUORAH & ORS. vs. THE PEOPLE OF LAGOS STATE (unreported) (per Garba, JCA) delivered on 17th March, 2017. Undoubtedly, by the doctrine of stare decisis, this Court is bound to follow the decisions of the Apex Court, which my learned brother, Garba, JCA, was constrained to do after the sapient exposition of his views on the issue. Howbeit, I have reflected further on the rationale and wisdom behind the position of the Apex Court and I find more reasons, apart from the doctrine of stare decisis to kowtow to the position of the Apex Court. It has to be remembered that even where accused persons are tried jointly, they take their plea separately. Indeed it may be fatal to a trial where the plea of accused persons is not taken separately. See SHARFAL vs. THE STATE (1992) LPELR (3038) 1, EYISI vs. THE STATE (2000) 12 SC (PT I) 24, DIBIE vs. THE STATE (2007) ALL FWLR (PT 363) 83 at 113 and OKIMBA vs. THE STATE (2012) LPELR (9697) 1. So from the outset, at the point of arraignment, the trial of more than one accused person even though joint is separate, so it is a joint but separate or several trial. Even so, upon a decision in the matter, the verdict is usually imposed separately and in respect of each count, where there are multiple counts on the charge. So the trial is consummated by a separate verdict. So the common thread in a criminal trial of more than one accused person, is that even though the charge may be a joint charge, it is indeed a separate trial. Allied to this is that the evidence against and defences open to accused persons in a criminal trial may be different. It therefore seems to make compelling sense that since the trial is in point of fact joint but separate, any appeal against the decision most necessarily be by a separate notice of appeal. The situation would seem to be more so in the diacritical circumstances of this matter where from the Records, the evidence adduced as it relates to the Appellants are different. A joint notice of appeal in the circumstances will obfuscate the pertinent and salient questions thrust up by the evidence. Consequently, even when the constraints of binding precedent are laid aside, I remain allegiant to the legal position as expounded by the Apex Court. Now, since the settled legal position is that a joint notice of appeal is incurably defective and incompetent, what is the effect on an appeal? In IKUEPENIKAN vs. 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 vs. FRN (2015) 15 NWLR (PT 949)433. This being so, and having held that the joint notice of appeal filed by the Appellants in this 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. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

JUSTICES

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

1. MICHAEL AKINWUNMI
2. JULIUS AKINWUNMI Appellant(s)

AND

THE STATE OF LAGOS Respondent(s)

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The Appellants were arraigned before the High Court of Lagos State on a one Count Information of defilement contrary to Section 137 of the Criminal Law of Lagos State, in CHARGE NO. ID/332c/2013: THE STATE OF LAGOS vs. MICHAEL AKINWUNMI & ANOR. Upon arraignment, the Appellants pleaded not guilty, thus putting the Prosecution to proof of the offence charged. The Prosecution then called four witnesses in proof of the offence.

?At the close of the prosecution case, the Appellants made a no-case submission. In reaction to the Appellants the no-case submission, the Prosecution amended the charge against Appellants to a charge of Other Forms of Sexual Abuse and Exploitation contrary to Section 28 of the Child?s Rights Law No. 11 of Lagos State, 2007. The Appellants pleaded not guilty to the amended charge after which the written addresses filed in the no-case submission were adopted. In its Ruling the lower Court dismissed the no-case submission and ordered the Appellants to enter upon their defence.

?The Appellants testified in defence of the charge as

amended and called one other witness. At the close of the defence, learned counsel addressed the lower Court and its judgment delivered on 16th November 2015, the lower Court convicted the Appellants as charged under Section 28 of the Child?s Rights Law No. 11 of Lagos State, 2007 and sentenced them to a term of seven years imprisonment. The judgment is at pages 171-185 of the Records. The Appellants being dissatisfied with their conviction and sentence appealed vide a joint notice of appeal dated 28th November 2015, but filed on 1st December 2015. The Joint Notice of Appeal is at pages 186-189 of the Records.

Upon the compilation and transmission of the Records the parties filed and exchanged briefs of argument. The Appellants? Brief of Argument was filed on 24th February 2016, but deemed as properly filed on 5th May 2016. The Respondent?s Brief was filed on 16th February 2017 and deemed as properly filed on the said 16th February 2017. The Appellants also filed an Appellants? Reply Brief on 28th February 2017. The Appellants distilled four issues for determination as follows:
?1. Whether the Respondent (i.e. the

Prosecution) has effectively discharged the burden of proving the guilt of the two (2) Appellants as regards the offence of other forms of sexual exploitation/harassment (Ground 1).
2. Whether the evidence of PW1, PW2 and PW3 adequately corroborated the evidence of PW2 to warrant the conviction of the Appellants by the trial High Court (Ground 2).
3. Whether the evidence of PW2 can be given any probative value by Court to ground a conviction against the 1st and 2nd Defendants (Ground 3).
4. Whether the Defense of the two (2) Defendants was an afterthought as put forward by the Defendants and whether same was investigated by PW3 and considered by the Trial Court (Ground 4).

On its part the Respondent formulated a sole issue for determination, namely:
?Whether from the facts and circumstances of this case, the Respondent discharged the burden of proof placed on it by law to warrant the conviction of the Appellants for the offence of other forms of sexual exploitation and harassment

At the hearing of the appeal on 2nd March 2017, the Respondent?s counsel was absent whereupon the Court upon being

satisfied that hearing notice was served on the Respondent, treated the appeal as having been duly argued by the Respondent pursuant to the Order 19 Rule 9 (4) of the Court of Appeal Rules, 2016. In the course of hearing P. A. Oyewo, Esq., learned counsel for the Appellants, adopt the briefs filed by the Appellants, the Court suo motu raised the issue of the competence of the appeal, the appeal having been initiated by a joint notice of appeal instead of a separate notice of appeal for each Appellant. The Appellants? counsel maintained that the appeal was competent.

Now, the issue of competence of the appeal raised suo motu by the Court is threshold in nature. This being so, I intend to resolve the issue of competence before considering the arguments on the merits and substance of the appeal, if it becomes necessary so to do, depending on the manner in which the issue of competence of the appeal is resolved.

I iterate that the substance of the issue raised suo motu by the Court goes to the root of this appeal as the issue involved therein affects 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 vs. 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 vs. AFRICAN NEWSPAPERS (1993) 5 NWLR (PT 295) 593 and OLAREWAJU vs. BON LTD (1994) 8 NWLR (PT 364) 622.

The legal position in this regard is abecedarian and has long been settled beyond peradventure. 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 vs. 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. Order 17 Rules 3 (1) & (2) of the Court of Appeal Rules, 2011, which was the extant adjectival law when the notice of appeal in this matter was filed, (it still remains Order 17 Rules 3 (1) & (2) of the Court of Appeal Rules, 2016) 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 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.
(2) A person sending any notice or notices under this Rule 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 vs. THE STATE (2003) 4 NWLR (PT 809) 51, 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 compiled with in the observance and not in the breach.
In MANASSEH JAPHET vs. 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.?
In POPOOLA vs. PEOPLE OF LAGOS STATE (2016) LPELR (41429) 1 at 7-11, this Court (per Ogakwu, JCA) held that the legal position with regards to filing a joint notice of appeal in criminal matters is so rudimentary that the law has crystallized and become fixed like the Rock of Gibraltar; and that a joint notice of appeal is incompetent. I am aware of the very strong views expressed by my learned brother, Garba, JCA in the said case of POPOOLA vs. PEOPLE

OF LAGOS STATE (supra) at 15-21 as follows:
?The community purport of the above provisions of Rules 3 (1) and 4 (1) & (2) [of Order 17 of the Court of Appeal Rules, 2011] 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.
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 trials, 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 handmaids 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 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 Appellants 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 Act 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 limbo of forgotten things.?
?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.?
See also APPEAL NO.

CA/L/1186C/2015: PEACE ONUORAH & ORS. vs. THE PEOPLE OF LAGOS STATE (unreported) (per Garba, JCA) delivered on 17th March, 2017.
Undoubtedly, by the doctrine of stare decisis, this Court is bound to follow the decisions of the Apex Court, which my learned brother, Garba, JCA, was constrained to do after the sapient exposition of his views on the issue. Howbeit, I have reflected further on the rationale and wisdom behind the position of the Apex Court and I find more reasons, apart from the doctrine of stare decisis to kowtow to the position of the Apex Court. It has to be remembered that even where accused persons are tried jointly, they take their plea separately. Indeed it may be fatal to a trial where the plea of accused persons is not taken separately. See SHARFAL vs. THE STATE (1992) LPELR (3038) 1, EYISI vs. THE STATE (2000) 12 SC (PT I) 24, DIBIE vs. THE STATE (2007) ALL FWLR (PT 363) 83 at 113 and OKIMBA vs. THE STATE (2012) LPELR (9697) 1. So from the outset, at the point of arraignment, the trial of more than one accused person even though joint is separate, so it is a joint but separate or several trial. Even so, upon a decision in the

matter, the verdict is usually imposed separately and in respect of each count, where there are multiple counts on the charge. So the trial is consummated by a separate verdict. So the common thread in a criminal trial of more than one accused person, is that even though the charge may be a joint charge, it is indeed a separate trial. Allied to this is that the evidence against and defences open to accused persons in a criminal trial may be different. It therefore seems to make compelling sense that since the trial is in point of fact joint but separate, any appeal against the decision most necessarily be by a separate notice of appeal. The situation would seem to be more so in the diacritical circumstances of this matter where from the Records, the evidence adduced as it relates to the Appellants are different. A joint notice of appeal in the circumstances will obfuscate the pertinent and salient questions thrust up by the evidence.
Consequently, even when the constraints of binding precedent are laid aside, I remain allegiant to the legal position as expounded by the Apex Court. Now, since the settled legal position is that a joint notice of appeal is

incurably defective and incompetent, what is the effect on an appeal? In IKUEPENIKAN vs. 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 vs. FRN (2015) 15 NWLR (PT 949)433. This being so, and having held that the joint notice of appeal filed by the Appellants in this 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 of competence of the appeal raised suo motu by the Court must therefore be resolved against the Appellants. This appeal initiated by the joint notice of appeal of the Appellants is not competent in law. The manner of resolution of this question of competence of the appeal necessarily connotes that the resolution of the merits of and substance of the conviction of the Appellants 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 merits of the appeal. As earlier said, the day for that may yet come, if and when there is a competent appeal. See IKUEPENIKAN vs. THE STATE (supra) at 32-33 and UWAZURIKE vs. A-G FEDERATION (supra).

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

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in draft the succinct judgment prepared by my learned brother, Ugochukwu Anthony Ogakwu, JCA with which I agree with nothing extra to add.

JAMILU YAMMAMA TUKUR, J.C.A.: I had a preview of the lead judgment rendered by my learned brother UGOCHUKWU ANTHONY OGAKWU JCA. I endorse the entire reasoning and conclusion and adopt the judgment as mine with nothing to add.

Appearances

P. A. Oyewo, Esq.For Appellant

AND

Respondent absent and not represented by counsel.For Respondent