OLALI v. NIGERIAN ARMY
(2020) LCN/4934(SC)
In The Supreme Court
On Friday, April 03, 2020
SC.926/2015
Before Our Lordships:
Nwali Sylvester Ngwuta Justice of the Supreme Court of Nigeria
Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria
Kudirat Motonmori Olatokunbo Kekere-Ekun Justice of the Supreme Court of Nigeria
Ejembi Eko Justice of the Supreme Court of Nigeria
Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria
Between
CAPT. JACKSON FRIDAY OLALI APPELANT(S)
And
NIGERIAN ARMY RESPONDENT(S)
RATIO
THE PERIOD PRESCRIBED FOR GIVING NOTICE OF APPEAL UNDER THE SUPREME COURT ACT
The Appellant by virtue of Section 27(2)(b) of the Supreme Court Act Cap, S15, LFN 2004, had 30 days “from the date of the decision appealed against” to file his notice of appeal. Section 27(2)(b) of the Supreme Court Act provides -27(2) The periods prescribed for the giving of notice of appeal or notice of application for leave to appeal are —
(a) –
(b) In an appeal in a criminal case, Thirty days from the date of the decision appealed against. PER EKO, J.S.C.
THE POSITION OF LAW ON THE RIGHTS AND PRIVILEGES TO APPEAL
However and unfortunately, the Appellant herein had failed to seek such leave from this Court for an enlargement of time to appeal. This is the only available channel open to the Appellant and which cannot be overlooked or permitted.
The rights and privileges to appeal generally are creations of statute and failure to comply with the statutory requirements prescribed by the relevant laws under which such appeals may be competent and properly before the Court will deprive such appellate Court of jurisdiction to entertain the appeal. Failure to meet the statutory requirements which are conditions precedent to the filing of a valid appeal constitutes a grave irregularity, so fundamental that there would be no appeal which the appellate Court could lawfully entertain. Such irregularity can by no means be regarded as mere technicality but constitutes an incurable defect that must deprive the appellate Court of jurisdiction. See Per OGUNBIYI, JSC in PETGAS RESOURCES LTD V. MBANEFO (2017) LPELR-42760(SC). PER AJI, J.S.C.
EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): At the times material to the appeal, the Appellant was a Captain in the Nigerian Army and as such a military officer he was before the General Court Martial (GCM). He was tried and convicted by the GCM for the offence of a rape of a minor, PW.2.
The Appellant unsuccessfully appealed his conviction and sentence by the GCM. The unfavourable decision of the Court of Appeal (the lower Court) was delivered on 6th February, 2015. On 18th March, 2015 the Appellant purportedly filed notice of appeal to this Court against the 6th February, 2015 decision of the lower Court. The Appellant by virtue of Section 27(2)(b) of the Supreme Court Act Cap, S15, LFN 2004, had 30 days “from the date of the decision appealed against” to file his notice of appeal. Section 27(2)(b) of the Supreme Court Act provides –
27(2) The periods prescribed for the giving of notice of appeal or notice of application for leave to appeal are —
(a) –
(b) In an appeal in a criminal case, Thirty days from the date of the decision appealed against.
The Appellant’s notice of appeal, filed as of right, against “the decision of the Court of Appeal, Jos Division contained in its judgment delivered on the 6th day of February, 2015 in appeal No. CA/J/180C/2011 —” was filed on 18th March, 2015; which was on the 40th day of the date of the decision appealed against — calculated from the date the decision appealed was delivered.
The notice of appeal was no doubt filed out of time and it is therefore incompetent. No effort was made to regularise the notice of appeal, and it has not been regularised.
The notice of appeal is incompetent and it is hereby struck out. The appeal, being consequently incompetent, is hereby struck out.
NWALI SYLVESTER NGWUTA,J.S.C.: I read in draft the lead judgment just delivered by my learned brother, Ejembi Eko, JSC and I entirely agree that the appeal is time barred.
The notice of appeal filed in the registry of this Court on 15th March 2015 against the judgment of the Court of Appeal delivered on 6th February 2015 was filed in violation of Section 27 (2)(b) of the Supreme Court Act Cap Section 15 LFN 2004.
The appellant had 30 days from the date of judgment of the lower Court (6th February 2015) to file his notice of appeal.
The notice of appeal not filed within the time stipulated in Section 27(2)(b) supra is incompetent and I also strike it out.
MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the decision just delivered by my learned brother, Ejembi Eko JSC in which he struck out the appeal for incompetence.
In support of the reasonings from which the decision came about, I shall make some remarks.
This is an appeal against the judgment of the Court of Appeal, Jos Division or Court below or Lower Court, Coram: Joseph Tine Tur, Ibrahim Shata Bdliya and E. O. Williams – Dawodu JJCA wherein the Court below dismissed the Appellant’s appeal and affirmed the judgment of the trial Court Martial which had found the appellant guilty on the 1st count of the offence of defilement contrary to Section 78 of the AFA, convicted and sentenced him to eight (8) years imprisonment.
The background facts leading to this appeal are fully captured in the lead judgment and no useful purpose would be derived in repeating them.
On the 16th day of January, 2020, learned counsel for the Appellant, Samuel Atung Esq. adopted the brief of argument filed on 20/2/17 and deemed filed on 6/12/17.
Learned counsel for the respondent, A. O. Odum adopted the brief of argument filed on 5/11/19 and deemed filed on 16/1/2020.
A cursory look at the Record of Appeal showed that judgment of the Court of Appeal was delivered on the 6th day of February, 2015 and the Notice of Appeal filed on 18/3/15, an interval of 40 days. This situation questions the validity of the appeal and the Court has no option than to first consider it since upon it depends the jurisdiction of the Court to adjudicate on the appeal purportedly presented before it. A recourse to the enabling statute on the point, the Supreme Court Act, Cap S.15 Laws of the Federation, 2007 and specifically Section 27 (2) (b) thereof.
It provides as follows:27 (2) (b) –
“The periods prescribed for the giving of Notice or application for leave to appeal are:
(b) In an appeal in a criminal case, thirty days from the date of the decision appealed against.”
It follows that the appellant in clear disregard of the above quoted stipulation under Section 27 (2) (b) of the Supreme Court Act and without first seeking leave to have the process regularized so that an extension of the time would be granted by Court to validate the appeal, the attempt at appeal is a voyage in futility. What I am trying to say is that the appellant who had a grouse over the judgment delivered on 6/2/2015 chose not to appeal within 30 days after on the 18/3/15 of Notice of Appeal.
The implication of what is thrust upon the Court is that the Notice of Appeal in its incompetent stage cannot propel an appeal which this Court would entertain as that passage of the prescribed period to appeal has robbed the Court of the vires or jurisdiction to so carry out the function.
In the light of the foregoing and as my learned brother in the lead judgment said, this appeal is not valid and so is struck out.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had a preview of the judgment just delivered by my learned brother, EJEMBI EKO, JSC. I agree with him that the appellant’s Notice of Appeal filed on 18th March, 2015 against the judgment of the lower Court delivered on 6th February 2015, is incompetent, having been filed outside the 30 days prescribed by Section 27(2)(b) of the Supreme Court Act, for the filing of an appeal in a criminal matter.
Consequently, the appeal is incompetent and it is hereby struck out.
UWANI MUSA ABBA AJI, J.S.C.: I had the privilege to read in draft the judgment of my learned brother, EJEMBI EKO, JSC. I agree entirely with the reasoning and conclusion that the appeal be struck out.
The Appellant, who was a Captain with the Nigerian Army was charged with the offence of rape of a minor and consequently tried and convicted by the General Court Martial (GCM). His appeal to the lower Court was dismissed on 6/2/2015 and on 15/3/2015, he appealed to this Court vide a notice of appeal filed on 18/3/2015.
It is so clear that by the provision of Section 27 (2) of the Supreme Court Act, the Appellant appealing as of right from the decision of the lower Court has only 30 days within which to appeal, otherwise his right of appeal is spent.
By filing the notice of appeal on 18/3/2015, the Appellant had exceeded the period allowed by law. The right of appeal provided by law was no longer open to the Appellant but had been lost. The law, in the circumstance will avail the Appellant only upon trinity prayers for leave for an extension of time within which to file the notice of appeal under Order 2 Rule 31 of the Rules of this Court.
However and unfortunately, the Appellant herein had failed to seek such leave from this Court for an enlargement of time to appeal. This is the only available channel open to the Appellant and which cannot be overlooked or permitted.
The rights and privileges to appeal generally are creations of statute and failure to comply with the statutory requirements prescribed by the relevant laws under which such appeals may be competent and properly before the Court will deprive such appellate Court of jurisdiction to entertain the appeal. Failure to meet the statutory requirements which are conditions precedent to the filing of a valid appeal constitutes a grave irregularity, so fundamental that there would be no appeal which the appellate Court could lawfully entertain. Such irregularity can by no means be regarded as mere technicality but constitutes an incurable defect that must deprive the appellate Court of jurisdiction. See Per OGUNBIYI, JSC in PETGAS RESOURCES LTD V. MBANEFO (2017) LPELR-42760(SC).
The said notice of appeal is therefore incompetent and this Court equally lacks the jurisdiction to entertain same. Thus, the notice of appeal filed by the Appellant on 18/3/2015 is incompetent and is hereby struck out.
Appearances:
Atung, Esq. For Appellant(s)
A.O. Odum, Esq. with him, C. P. Ogugwo, Esq., O. O. Anjorin, Esq. and Nasir Umar, Esq. For Respondent(s)
