CORAM

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Frederick Oziakpono Oho Justice of the Court of Appeal

Olabode Abimbola Adegbehingbe Justice of the Court of Appeal

Nnamdi Okwy Dimgba Justice of the Court of Appeal

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PARTIES

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ADAMU ALHAJI BOSE

APPELLANTS 

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THE STATE

RESPONDENTS 

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AREA(S) OF LAW

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CRIMINAL PROCEDURE, APPEAL, NOTICE OF APPEAL, PRACTICE AND PROCEDURE, COMPETENT PROCESSES, APPELLATE JURISDICTION, CONVICTION AND SENTENCE

 

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SUMMARY OF FACTS

The appellant, Adamu Alhaji Bose, was convicted and sentenced to life imprisonment for the offences of criminal conspiracy and armed robbery under the Penal Code. He was incarcerated at Jalingo Custodial Center. The appellant filed an Amended Notice of Appeal on February 6, 2024, with leave of court, containing three grounds of appeal. However, the Court of Appeal found several fundamental defects in the Amended Notice of Appeal: (1) it did not contain the name of any judge or court that convicted and sentenced the appellant; (2) it did not show the date of conviction and sentence; (3) it failed to link the appeal with the record of appeal transmitted to the court; (4) it appeared to use an unknown form for preparing the notice of appeal; and (5) most critically, it contained no grounds of appeal challenging the conviction and sentence. The appeal was heard on May 12, 2025, with I.A. Jalo Esq. appearing for the appellant and M.A. Philemon Esq. (Principal State Counsel) appearing for the respondent. Both counsel adopted their respective briefs of argument.

 

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HELD

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1. The appeal was struck out.

2. The Court held that the Amended Notice of Appeal was fundamentally defective and incompetent.

3. The Court found that the notice failed to identify the judge, court, or date of conviction and sentence.

4. The Court held that the notice contained no grounds of appeal challenging the conviction and sentence.

5. The Court ruled that without a valid notice of appeal, there was no foundation for the appeal.

6. The appeal was struck out without prejudice to the appellant’s right to return with a corrected version of the Notice of Appeal.

7. The Court declined to consider the merits of the appeal due to the fundamental defects in the notice.

 

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ISSUES

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Whether the Amended Notice of Appeal filed by the appellant is competent to sustain the appeal before the Court of Appeal?

 

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RATIONES DECIDENDI

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DEFECTIVE NOTICE OF APPEAL – FUNDAMENTAL REQUIREMENTS

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The first defect to notice in the Amended Notice of Appeal, is that, the process does not contain any name of a Judge/Judex or the Court which purportedly convicted and sentenced the Appellant. The date the Appellant was convicted and sentenced is not shown in the Amended Notice of Appeal. This is an Appellant who stated that he has been convicted and sentenced for offences, without linking the Amended Notice of Appeal with the record of appeal transmitted to this Court. – Per OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.

 

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GROUNDS OF APPEAL REQUIREMENT – CHALLENGING CONVICTION AND SENTENCE

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Apart from the above, the Amended Notice of Appeal does not have any ground of appeal challenging the conviction and sentence of the Appellant. The law is settled that where there is no appeal against the holding of the Court regarding conviction and sentence, the appellate Court will be helpless to intervene.– Per OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.

 

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DISTINCTION BETWEEN CONVICTION AND SENTENCE APPEALS – SEPARATE PRINCIPLES

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Even a ground of appeal on sentence alone and an issue formulated therefrom cannot be used to attack or challenge the conviction of the Appellant since conviction for an offence and the subsequent sentence for the said offence, are governed by separate, different and distinct factors and principles of law. An Appellant who only appeals against the sentence imposed on him after the conviction for an offence he was charged with and/or tried is presumed to have conceded and accepted the conviction upon which the sentence he complains about was based. – Per OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.

 

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NOTICE OF APPEAL AS FOUNDATION – FUNDAMENTAL IMPORTANCE

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A notice of appeal is the very foundation of the appeal, hence, a very important document. If it is defective, the Court of Appeal, in the exercise of its inherent jurisdiction to protect itself, would most certainly strike it out on the ground that the appeal is incompetent. – Per OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.

 

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DEFECTIVE NOTICE OF APPEAL – INABILITY TO CURE BY AMENDMENT

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Once there is no valid notice of appeal, no amount of ingenuity by way of amendment can be used or employed to save the invalid notice of appeal. You cannot put something on nothing; it is bound to collapse. – Per OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.

 

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FUNDAMENTALLY DEFECTIVE NOTICE – NO APPEAL FOUNDATION

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Where a notice of appeal is fundamentally defective, there is no appeal foundation for the appeal and therefore, there is no appeal before the Court. – Per OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.

 

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MANDATORY STATUTORY PROVISIONS – COURT’S DUTY TO ENFORCE

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Courts of law are generally duty-bound to enforce and give effect to the mandatory provisions of a statute and parties cannot by consent or acquiescence or failure to object nullify the effect of a statute. – Per OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.

 

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INCOMPETENT NOTICE OF APPEAL – COURT’S INABILITY TO PROCEED

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In my view, the Appellant’s Amended Notice of Appeal is not helpful and it is incompetent. In the circumstance, going by the nature of punishment applied in the judgment of the lower Court, it’s reasonable to simply strike out this appeal, thereby giving the Appellant opportunity to take steps to clean up this appeal, if he so desires. This appeal cannot be determined in its current state and this Court is not enabled to turn itself into the editor of the Appellant’s Notice of Appeal.– Per OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.

 

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NO MERIT CONSIDERATION WITHOUT COMPETENT APPEAL – PROCEDURAL PREREQUISITE

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There is no need to consider the merit of the appeal in the circumstances because there is, in the first instance, no appeal, properly so called, before the Court. This appeal will proceed no further than this bus stop. – Per OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.

 

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STRIKING OUT WITHOUT PREJUDICE – MERCIFUL DISPOSITION

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I can only add that it speaks volumes about the merciful disposition of contemporary Courts, the exemplar of which is the leading judgment that in spite of the grave error in the form in which he has approached the Court by the patently unpardonable vices in his Notice of Appeal, the Appellant is afforded another opportunity to approach this Court for remediation of whatever real grievances he harbours against the decision of the lower Court interdicting, convicting and incarcerating him for life, by this Court merely striking out rather than in dismissing this appeal.– Per NNAMDI OKWY DIMGBA, J.C.A.

 

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APPEAL FOUNDATION – SUBSTRATUM REQUIREMENT

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I am in agreement with the reasoning, conclusions and ultimate decision reached that the appeal be struck out, it being commenced vide an incompetent Amended Notice of Appeal – the substratum upon which the appeal rests. – Per NNAMDI OKWY DIMGBA, J.C.A.

 

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COURT’S INHERENT JURISDICTION – PROTECTION AGAINST INCOMPETENT PROCESSES

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If it is defective, the Court of Appeal, in the exercise of its inherent jurisdiction to protect itself, would most certainly strike it out on the ground that the appeal is incompetent. – Per OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.

 

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PROPER FORM REQUIREMENT – UNKNOWN PROCEDURES UNACCEPTABLE

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The Appellant appears to have made use of a strange form to prepare the Notice of Appeal, which is unknown to the procedure of this Court. – Per OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.

 

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CASES CITED

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STATUTES REFERRED TO

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1. Court of Appeal Rules

2. Constitution of the Federal Republic of Nigeria, 1999 (as amended)

3. Penal Code

 

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