OGUNGBULUGBE v. STATE
(2021)LCN/15502(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Tuesday, March 30, 2021
CA/AK/65C/2015
Before Our Lordships:
Rita Nosakhare Pemu Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Between
DAMILOLA OGUNGBULUGBE APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
FAILURE TO COMPILE AND TRANSMIT THE RECORD OF APPEAL
It seems to me that the Appellant has failed to compile and transmit the Record of Appeal to this Court within the time stipulated by the law. There is no application before Court seeking extension of time.
This renders the Appeal incompetent. The Record of Appeal encapsulates inter alia the Notice and grounds of Appeal. This is the originating process.
The absence of the Record of Appeal amounts therefore to no Appeal being before the Court. One cannot import a Notice of Appeal into a Record of Appeal that is non-existent. PER PEMU, J.C.A.
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Ondo State Akure delivered on the 13th day of November, 2014 in Charge No. AK/87C/2014 whereby the Appellant was convicted and sentenced to 10 years imprisonment for the offence of illegal possession of firearms contrary to and punishable under Section 3 of the Robbery and Firearms (Special Provisions) Act, Cap R11, Vol. 14, Laws of the Federation of Nigeria, 2004.
SYNOPSIS OF FACTS
The Appellant was tried convicted and sentenced to a term of ten years imprisonment for the offence of illegal prosecution of firearms. At the trial, the charge was read to the accused person, who pleaded guilty thereto.
Thereafter, the prosecution addressed the Court after narrating the events leading to the Appellant’s arrest and arraignment.
The prosecution called no witness and tendered no exhibits.
At the close of the prosecution’s case, the Court delivered a summary judgment thus: –
“Since the charge of illegal possession of firearms was read over to accused in English language and satisfactorily explained to him in Yoruba language before he pleaded guilty to the charge, I find him guilty as charged”.
“The accused is hereby sentenced to ten years imprisonment.”
The Appellant is dissatisfied with the judgment of the Court below and desirous to appeal same initially filed a notice of Appeal on the 18th of December, 2014, which was subsequently amended on the 13th of March, 2017 by an Order of this Honourable Court.
The Appellant filed his brief of argument on the 13th of March 2017. It is settled by Hon. Mohammed Wakil, OON FNIM.
The Respondent filed his brief of argument on the 22nd of January, 2018. It is settled by Adekola Olawoye Esq.
Let me quickly say by way of observation that judgment in this matter was delivered on the 13th of November, 2014. The initial Notice of Appeal was filed on the 18th of December, 2014 (within time).
From Records, the Records of Appeal was filed on the 5th of August, 2015. By the Rules, after the filing of the Notice of Appeal, the Registrar has a period of sixty days (60 days) to compile and transmit the Record of Appeal.
It seems to me that the Appellant has failed to compile and transmit the Record of Appeal to this Court within the time stipulated by the law. There is no application before Court seeking extension of time.
This renders the Appeal incompetent. The Record of Appeal encapsulates inter alia the Notice and grounds of Appeal. This is the originating process.
The absence of the Record of Appeal amounts therefore to no Appeal being before the Court. One cannot import a Notice of Appeal into a Record of Appeal that is non-existent.
Consequentially, the Appeal is incompetent and same is hereby dismissed.
HAMMA AKAWU BARKA, J.C.A.: A copy of the judgment just read was made available to me in draft before now.
Having carefully perused the record of Appeal, it became evident, that the record of Appeal was filed way out of time, and for which the leave of this Court was not sought for to regularize the same.
In the result, the purported record deemed as if it were not so filed, and thereby offended the provisions of Order 8 Rule 18 of the Rules of Court and liable to be dismissed.
I also agree that where, as in the instant case the Record of Appeal which of necessity must contain the Notice of Appeal is not properly transmitted to the Court, translates to their leaving no Notice of Appeal properly before the Court.
In the event, there is no competent Appeal before the Court, and I join my learned brother RITA NOSAKHARE PEMU (PJ) in dismissing the Appeal.
Appeal dismissed.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read the draft of the judgment delivered by my Learned brother, RITA NOSAKHARE PEMU, J.C.A.
I am in complete agreement with his Lordship, that the record of appeal having been compiled and transmitted outside the time allowed by the Rules of Court, and same having not been regularised the appeal is without doubt incompetent. An appeal is deemed entered only on due compilation and transmission of the record of appeal within time.
The circumstances in this appeal aforestated leaves this Court with no option other than to dismiss same as rightly done by my Learned brother, and roundly adopted by me.
Appearances:
Hon. Mohammed Wakil, OON, FNIM, LL.B, BL, LL.M; Okoli Chidi Esq. (JP); P. A. Omoluabi Esq. with him, Aniete Udoh Esq. For Appellant(s)
Adekola Olawoye, Esq. Attorney-General & Commissioner for Justice with him, G. A. Olowoporoku Director of Public Prosecutions and John Dada Joshua For Respondent(s)
