Legalpedia Electronic Citation: LER [2018]SC.736/2015

Suit No: 736/2015

AREAS OF LAW:

APPEAL, COURT, JURISDICTION, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Appellant as Complainant, in the Federal High Court filed an amended six count charge against the accused person now Respondent with offences contained in Section 1 and 15(d) of the Money Laundering Act (Amended) 2002 and punishable under Section 15(b) of the said Act. On being served with the amended charge sheet, the Respondent filed a motion on notice seeking for an order of the court quashing the amended charge for want of jurisdiction and an order discharging the Accused/Applicant in respect of the amended charges. The Respondent in opposing the application filed a Counter affidavit. The trial court in its ruling granted the application and quashed the six count charge filed against the Applicant. The Appellant appealed to the Court of Appeal, Abuja, which affirmed the ruling of the trial court and consequently dismissed the appeal. The Appellant has further appealed to this court. The Respondent raised a preliminary objection urging the Court to strike out the Notice of Appeal and appeal for being incompetent as same was filed out of time.

HELD

Appeal Struck Out

ISSUE FOR DETERMINATION

None

RATIONES

RIGHT OF APPEAL – PERIOD WITHIN WHICH AN APPELLANT CAN EXERCISE HIS RIGHT OF APPEAL

“Appellant is duty bound to exercise his right of appeal by filing the Notice of Appeal within the thirty days prescribed in section 27(2)(b) of the Act (supra). If he fails to file the notice within the period prescribed   he has to seek as obtain leave pursuant to Section 27 (d) of the Act (supra). Appellant failed to file his initiating process within the time allowed by law and proceeded to file same out of time and without leave of court. This is one instance where a preliminary objection can terminate the appeal at the threshold. See Okorocha vs. PDP & ors (294) LRCN 70 which applied the case of Suni vs. Okene L.G. Traditional Council (2008) 164 LRCN 117 at 152”. PER W.S.N. ONNOGHEN, C.J.N

ORIGINATING PROCESS – EFFECT OF A DEFECTIVE ORIGINATING PROCESS ON AN APPEAL

“An appeal would collapse if its originating process is detective as in the case. See Daniel vs. INEC & ors (2015) vol. 247 LRCN 157, Ebokum vs. Ekwenibe & Sons Trading Co Ltd (1999) 7 SC (pt1) 39”.PER W.S.N. ONNOGHEN, C.J.N

NOTICE OF APPEAL – WHETHER A DEFECTIVE NOTICE OF APPEAL CAN BE AMENDED

“The defects in the Notice of Appeal cannot be cured by amendment even if appellant had sought to amend same. See Global Transport Oceanic Co. S.A. & Anor vs. Fred Enterprises Nig Ltd (2001) 1 SC 154”. PER W.S.N. ONNOGHEN,C.J.N

APPEAL – STATUS OF AN APPEAL FILED OUT OF THE TIME ALLOWED BY LAW

“I agree with his lordship’s reasoning and conclusion that the appeal is incompetent having been filed out of the time allowed by law and without time having been extended for the appellant to file the appeal. This Court lacks the jurisdiction to hear and determine the appeal. See Etim V. The State (1982) LPELR-1173 (SC) and Adelekan V. Ecu Line U V (2006) LPELR-113 (SC)”.PER M.D.MUHAMMAD, J.S.C

NOTICE OF APPEAL – STATUS OF AN INCOMPETENT NOTICE OF APPEAL

“The said notice of appeal, having been filed out of time and without an application for extension of time is incompetent. The law is trite that an incompetent notice of appeal is ab initio void, incurably bad and cannot even be regularized as you cannot put something on nothing. See Mcfoy v. UAC (1962) AC 152”. PER J.I. OKORO, J.S.C

APPEAL – DUTY OF A PARTY WHO SEEKS TO FILE AN APPEAL OUT OF TIME

“May I remind the appellant that where a party is out of time to file his appeal, he needs to apply to the court for extension of time to enable the said notice to be properly filed. An appellant who files notice of appeal out of time without an extension of time by the court cannot be heard as the court will have no jurisdiction to hear an appeal based on an incompetent notice of appeal. See Incar Nigeria Plc & anor v. Bolex Enterprises Nigeria Ltd (2001) 12 NWLR (Pt. 728) 646. Odofin & Ors v. Agu (1992) 3 NWLR (Pt. 229) 530. PER J.I. OKORO, J.S.C

NOTICE OF APPEAL – REQUIREMENT OF A VALID NOTICE OF APPEAL

“I think it is pertinent to stress here, that a notice of appeal is the life wire or spinal cord of an appeal. It is what places an appeal in its proper perspective. In fact, it is the fulcrum or cynosure of the appeal as there cannot be a valid appeal without a valid notice of appeal. The most valid requirement of a valid notice of appeal is that it must be filed within the actual period allowed by law to file it. If such period expires the appellant is duty bound to seek and obtain extension of time to file, such appeal. Where the period of filing the appeal prescribed by law expired and no extension of time of the court was sought and obtained, then such notice of appeal becomes incompetent and therefore, by extension, the appeal becomes invalid or incompetent and liable to be struck out. See Oranye Vs Jibowu, Afri Bank Nigeria Plc Vs Mr Chima Akwara (2000) 5 (1950) 43; WACA NWLR (pt 974) 619”.PER A.SANUSI, J.S.C

NOTICE OF APPEAL – EFFECT OF AN INCOMPETENT NOTICE OF APPEAL ON THE JURISDICTION OF AN APPELLATE COURT

“Again where an appellate court is confronted with an incompetent notice of appeal or to put it in another way, with incompetent appeal it becomes bereft of jurisdiction to hear and determine such appeal and as a corollary, it must strike the appeal out for want of competence or want of jurisdiction to hear and determine it. See Odofin V Agu (1992) 3 NWLR (pt 229) 350; NNB v Denclag (2004) FWLR (228) 606.” PER A.SANUSI, J.S.C

STATUTES REFERRED TO:

Money Laundry Act (Amended) 2002

Supreme Court Act Cap. Laws of the Federation of Nigeria 2004