STEPHEN v. STATE
(2022)LCN/5160(SC)
In The Supreme Court
On Friday, February 25, 2022
SC.128/2019
Before Our Lordships:
Olukayode Ariwoola Justice of the Supreme Court of Nigeria
John Inyang Okoro Justice of the Supreme Court of Nigeria
Amina Adamu Augie Justice of the Supreme Court of Nigeria
Abdu Aboki Justice of the Supreme Court of Nigeria
Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria
Between
ALADE STEPHEN APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
CRIMINAL APPEALS
It has now become trite that criminal appeals from the Court of Appeal to this Court must be filed 30 days from the date of the judgment appealed against. See Okereke Vs. James (2012) 16 NWLR (Pt. 1326) 339, Afribank Nigeria Plc Vs. Akwara (2006) 5 NWLR (Pt. 974) 619. However, Section 27(4) of the Supreme Court Act grants a window for enlargement or extension of time within which an appellant who failed to file within statutory period, may bring his appeal out of time, albeit, subject to the discretion of this Court. JOHN INYANG OKORO, J.S.C
FILING AN APPEAL OUT OF TIME WITHOUT LEAVE
Failure to comply with the statutory requirements which are condition precedent to filing a competent appeal is fatal to the appeal, such that this Court cannot entertain the appeal no matter how well argued. This appeal therefore having been filed out of time prescribed by the Act without obtaining the leave of this Court for extension of time, is invalid and deserves to be struck out. JOHN INYANG OKORO, J.S.C
EMMANUEL AKOMAYE AGIM, J.S.C. (Delivering the Leading Judgment): This Appeal No. SC.128/2019 was commenced on 29-1-2019 when the appellant filed a notice of appeal in Appeal No. CA/PH/13CR/2018, against the judgment of the Court of Appeal delivered on 7-12-2018 upholding the judgment of the High Court of Bayelsa State at Yenagoa delivered on 22-6-2017 in charge no. YHC/173C/2016, finding that the appellant and his co-accused are not guilty of the offences of conspiracy to commit robbery and armed robbery for which they were charged and tried and rather finding them guilty of the offence of conspiracy to commit robbery and the offence of robbery.
Both sides have filed, exchanged and adopted their respective briefs as follows – appellant’s brief, respondent’s brief and appellant’s reply brief.
The appellants’ brief raised the following issues for determination –
1. Whether the lower Court was right when it affirmed that the trial Court can convict the appellant of a lesser offence of robbery when there is no provision under the Robbery and Firearm (Special provisions) Act, Cap. R11, LFN 2004 to do so?
Distilled from ground one of the Notice and Grounds of Appeal.
2. Whether the conviction of the appellant on the basis of Exhibit A and B is not perverse?
Distilled from ground two of the Notice and Grounds of Appeal.
3. Whether the lower Court was right in affirming the conviction of the appellant in the circumstances of this case?
Distilled from ground three, four and five of the Notice and Grounds of Appeal
The respondent’s brief also raised three issues for determination as follows:-
1. Whether the lower Court was right in affirming the conviction of the appellant for the lesser offences conspiracy to commit robbery and robbery under the Robbery and Firearms (Special Provisions) Act, Cap. R11, LFN, 2004 by the trial Court as against the offences of conspiracy to commit armed robbery and armed robbery which the appellant was charged.
2. Whether the lower Court rightly affirmed the reliance of the Court on the extra-judicial statement of the appellant (Exhibit B) which was admitted without objection.
3. Whether the lower Court was not right when it held that there were no material contradictions in the case of the respondent/prosecution which could have been resolved in favour of the appellant and fatal to the case of the respondent/prosecution.
The date of the delivery of the judgment of the Court of Appeal and the date of the filing of the notice of this appeal against that judgment show that the notice of appeal was filed on the 53rd day after the date the judgment of the Court of Appeal was rendered. I am compelled by this situation to find out if this appeal was filed within the time prescribed by Section 27(2)(b) of the Supreme Court Act 2004 before I delve into the merit of the issues raised for determination in this appeal if need be.
Section 27(2)(b) of the Supreme Court Act 2004 provides that “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 record of this appeal shows that the judgment of Court of Appeal was delivered on 7-12-2018. The notice of this appeal was filed on 21-1-2019. It is glaring that the notice of appeal was filed after 53 days from the date of the Court of Appeal judgment.
It was not filed within 30 days from the date of the judgment as required by Section 27(2) (b) of the Supreme Court Act 2004. It was therefore filed out of time.
The notice of this appeal is incompetent. See Adelekan V Ecu-Line NV (2006) 5SC (pt. 11) 32, Etim V The State (1982) LPELR-1173(SC).
This appeal cannot be sustained on the incompetent notice of appeal and this Court is robbed of jurisdiction to entertain and determine it by the absence of a competent notice of appeal. As it is, the notice of the appeal and this appeal are struck out.
Having struck out this appeal, no useful purpose would be served determining the merit of the appeal that is adjudged incompetent and struck out.
OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother AGIM, JSC just delivered. I agree entirely with the reasoning and conclusion of the lead judgment that the appeal is incompetent and deserves to be struck out. Accordingly, it is struck out by me.
Appeal struck out.
JOHN INYANG OKORO, J.S.C.: I am in agreement with the conclusion reached in the lead judgment which was made available to me before now by my learned brother, Emmanuel Akomaye Agim, JSC.
It has now become trite that criminal appeals from the Court of Appeal to this Court must be filed 30 days from the date of the judgment appealed against. See Okereke Vs. James (2012) 16 NWLR (Pt. 1326) 339, Afribank Nigeria Plc Vs. Akwara (2006) 5 NWLR (Pt. 974) 619. However, Section 27(4) of the Supreme Court Act grants a window for enlargement or extension of time within which an appellant who failed to file within statutory period, may bring his appeal out of time, albeit, subject to the discretion of this Court.
Failure to comply with the statutory requirements which are condition precedent to filing a competent appeal is fatal to the appeal, such that this Court cannot entertain the appeal no matter how well argued. This appeal therefore having been filed out of time prescribed by the Act without obtaining the leave of this Court for extension of time, is invalid and deserves to be struck out.
To this end, the notice of appeal filed on 29th January, 2019 is hereby struck out, same being adjudged incompetent.
AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just delivered by my learned brother, Agim, JSC, and I agree with him that the Notice of Appeal filed outside the prescribed period for filing an appeal from the Court of Appeal to this Court is incompetent, therefore, this Court lacks jurisdiction to deal with the appeal.
The notice of appeal is the substratum of the appeal, and if the notice of appeal is defective, it must be struck out on the ground that it is incompetent – see First Bank V. T.S.A. Industries Ltd. (2010) 15 NWLR (Pt. 1216) 247 SC.
In this case, the Notice of Appeal is incompetent, and it is struck out.
ABDU ABOKI, J.S.C.: I am in support of the judgment prepared by my learned brother, EMMANUEL AKOMAYE AGIM, JSC, which I had the privilege of reading before now.
This is an appeal against the judgment of the Court of Appeal, holden at Port Harcourt, delivered on the 7th of December, 2018.
The Appellant herein and one Kuroakegha Femowei, were charged before the Bayelsa State High Court, for the offences of Conspiracy and Armed Robbery. The counts read as follows:
COUNT 1
STATEMENT OF OFFENCE
CONSPIRACY contrary to Section 6(b) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, CAP R11, LFN 2004.
PARTICULARS OF OFFENCE
You KUROAKEGHA FEMOWEI and STEPHEN ALADE on or about 0230hrs on the 1st day of April, 2016 at Alamiesegha Road, Opolo, within the Yenegoa Judicial Division conspired to commit a felony, to wit: Armed Robbery.
COUNT 2
STATEMENT OF OFFENCE
ARMED ROBBERY contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act CAP R11, LFN 2004.
PARTICULARS OF OFFENCE
You KUROAKEGHA FEMOWEI and STEPHEN ALADE on or about 0230hrs on the 1st day of April, 2016 at Alamiesegha Road, Opolo, within the Yenegoa Judicial Division of Bayelsa State, while armed with dagger and other offensive weapons, robbed Dr. Ekpebu Douglas of the following items, namely: 3 Plasma Television, a LCD Flat Screen TV, one Samsung phone, one Techno phone, a bag containing my cloths, cash and other valuables.
Upon arraignment, the accused persons (now convicts) pleaded not guilty to each of the Counts and the matter proceeded to trial. In proof of its case, the Prosecution called four (4) witnesses, (PW1 – PW4), and tendered some Exhibits. The Appellant testified as DW2 and tendered no exhibits.
At the close of trial, they were found guilty for lesser offences, that is: the Offences of Conspiracy to commit Robbery, and Robbery and sentenced to twenty-one (21) years imprisonment.
The Appellant was dissatisfied with his conviction and sentence, and appealed to the Court below. The crux of his appeal at the Court below was that the trial Court was in error to have convicted him for a lesser offence, when there is no provision under the Robbery and Firearms (Special Provisions) Act, CAP R11, LFN 2004, to do so.
The Court below in its judgment, affirmed the judgment of the trial Court, and dismissed the appeal.
The Appellant, further aggrieved by the judgment of the Court below, appealed to this Court.
In his brief of argument filed on the 28th of February, 2019, F.T. Okorotie, Esq., of Counsel for the Appellant, distilled three issues for this Court’s determination. They are:
1. Whether the lower Court was right when it affirmed that the trial Court can convict the Appellant on a lesser offence of robbery when there is no provision under the Robbery and Firearms (Special Provisions) Act, CAP R11, LFN 2004, to do so?
2. Whether the conviction of the Appellant on the basis of Exhibits A and B is not perverse?
3. Whether the lower Court was right in affirming the conviction of the Appellant in the circumstances of this case?
A Brief of argument, settled by Arthur, Andrew Seweniowor, the Honourable Attorney General of Bayelsa State, was filed on behalf of the Respondent on the 5th of April, 2019, and the following issues were raised therein, that is:
1. Whether the lower Court was right in affirming the conviction of the Appellant for the lesser offences of conspiracy to commit robbery, and robbery, under the Robbery and Firearms (Special Provisions) Act, CAP R11, LFN 2004, by the trial Court as against the offences of conspiracy to commit armed robbery, and armed robbery, which the Appellant was charged?
2. Whether the lower Court rightly affirmed the reliance of the trial Court on the extra-judicial statement of the Appellant (Exhibit B) which was admitted without objection?
3. Whether the lower Court was not right when it held that there were no material contradictions in the case of the Respondent/Prosecution which could have been resolved in favour of the Appellant and fatal to the case of the Respondent/Prosecution?
My learned brother, AGIM, JSC, has, in the lead judgment pointed out that the Notice of Appeal giving birth to this appeal was filed 53 days after the judgment of the Court below. This undoubtedly is in clear contravention of the provisions of Section 27(2)(b) of the Supreme Court Act 2004, which provides that a notice of appeal should be filed within 30 days after the judgment of the Court below.
This Court, in Odunze & Ors v. Nwosu & Ors (2007) LPELR-2252 SC, opined that:
“A notice of appeal being an initiating process in every appeal process is so crucial in the appeal process as a writ of summons is in ordinary civil actions… Furthermore, once the notice of appeal is vitiated in any way, the appeal becomes incompetent and liable to be struck out. The point being taken here is that where a notice of appeal as the instant one is defective or incompetent in any respect for any reason, there is no valid appeal and the Court would have no jurisdiction to deal with the purported appeal but to strike it out.”
The consequence of the above is that I agree with my learned brother, EMMANAUEL AKOMAYE AGIM, JSC, that the Notice of Appeal, being incompetent has invalidated this appeal. Accordingly, the Notice of Appeal and this appeal are hereby struck out.
Appeal Struck Out.
Appearances:
FELIX T. OKOROTIE For Appellant(s)
ANDREW S. ARTHUR, with him, EBIERE S. EKPESE and DELE JOHN OLUBOWALE For Respondent(s)
