CORAM

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Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria

Ejembi Eko Justice of the Supreme Court of Nigeria

Mohammed Lawal Garba Justice of the Supreme Court of Nigeria

Ibrahim Mohammed Musa Saulawa Justice of the Supreme Court of Nigeria

Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria

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PARTIES

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CHIEF CHIDIEBERE UDEH

APPELLANTS 

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FEDERAL REPUBLIC OF NIGERIA

RESPONDENTS 

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AREA(S) OF LAW

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ACTION, APPEAL, CONSTITUTIONAL LAW, COURT, PRACTICE AND PROCEDURE, STATUTE OF LIMITATION

 

 

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SUMMARY OF FACTS

This is an appeal against the decision of the Court of Appeal, Port Harcourt Division, which affirmed the trial court’s conviction and sentence of the Appellant on a six-count charge of offences against the Corrupt Practices and other Offences Act 2000. The Appellant appealed as of right against the decision of the lower court 61 days after the decision was delivered.

 

 

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HELD

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Appeal Struck Out

 

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ISSUES

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NIL

 

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RATIONES DECIDENDI

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APPEAL, CONSTITUTIONAL LAW, PRACTICE AND PROCEDURE

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 RIGHT OF APPEAL – EXERCISE OF THE RIGHT OF APPEAL IN A CRIMINAL CASE

“The appellant’s exercise of his right of appeal is not at large. Section 233 (6) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, provides inter alia:

(6) Any right of appeal to the Supreme Court from the decision of the Court of Appeal conferred by this Section shall,… be exercised in accordance with any Act of the National Assembly and rules for the time being in force regulating the powers, practice and procedure of the Supreme Court.

Pursuant to Section 233(6) of the Constitution, Section 27(2)(b) of the Supreme Court Act, 2004 provides, and it is mandatory, that the period prescribed for the giving of notice of appeal, in an appeal in a criminal case, is thirty (30) days from the date of the decision appealed. Upon the effluxion of 30 days from the date of the decision appealed, an aggrieved party cannot appeal as of right; his right of appeal having ceased. PER E. EKO, J.S.C

APPEAL, STATUTE OF LIMITATION, PRACTICE AND PROCEDURE

NOTICE OF APPEAL – STATUS OF A NOTICE OF APPEAL FILED OUTSIDE THE PERIOD PRESCRIBED BY STATUTE

“A notice of appeal filed outside the period prescribed by statute is statute-barred, illegal, null and void initio: Osun State Government v. Dalami Nigeria Ltd (2007) 9 NWLR (pt. 1038) 66; (2007) ALL FWLR (pt. 365) 438; Jallco Ltd v. Owoniboys Tech. Services Ltd (1995) 4 NWLR (pt. 391) 534 at 536. Illegality has never been condoned by Courts of law and equity. PER E. EKO, J.S.C

ACTION

ILLEGAL ACT – STATUS OF AN ILLEGAL ACT

“In law, when an act is illegal and a nullity; it is an act which has no legal consequence. It is completely incompetent. The act is not only bad; it is incurably bad: per Lord Denning, L J in UAC Ltd v. McFOY (1961) 3 ALL E.R. 1169. See also Okafor & Ors. V. A.G, Anambra State (1991) 6 NWLR (pt. 200) 659 at 678-679; Alhaji B. U. Saleh V. Alhaji Shettima Monguno & Ors (2006) 15 NWLR (pt. 1001) 26 at 74”. PER E. EKO, J.S.C

COURT

COURT – WHETHER A COURT CAN RAISE SUO MOTU THE ISSUE OF INCOMPETENCE OF A COURT PROCESS

“The Court can, in any matter of incompetence of the Court’s process including notice of appeal, grounds of appeal, raise the issue suo motu to ensure that its proceedings founded on such process are not subsequently and consequentially a nullity:   Okorie V. Udom (1960) 5 FSC 162. 165; NTA & Ors v. Anigbo & Ors (1972) 5 SC 156; Anadi V. Okoli (1977) 7 SC 57 at 63; Osawaru V. Ezeiruka (1978) 6-7 SC 135; Abubakar V. Joseph (2008) 13 NWLR (pt. 1104) 307. PER E. EKO, J.S.C

APPEAL, COURT, PRACTICE AND PROCEDURE

COURT – WHETHER THE COURT IS EMPOWERED TO SUO MOTU RAISE THE ISSUE OF INCOMPETENCE OF A NOTICE OF APPEAL

“I have delved into this area of the competence or not of the Notice of appeal on my own because the Court has the power to so raise it. See Okorie v Udom (1966) 5 FSC 162 at 165, Osawaru v Ezeiruka (1978) 6-7 SC 135, Abubakar v Joseph (2008) 13 NWLR (pt.110) 307. PER M. U. PETER-ODILI, J.S.C.

APPEAL

NOTICE OF APPEAL – STATUS OF AN INCOMPETENT NOTICE OF APPEAL

“The need to enter into the matter of the incompetence of the Notice of Appeal is critical because once the Notice of Appeal is incompetent, the appeal itself falls flat on the ground. See Olowokere v African Newspaper Ltd (1993) 5 NWLR (pt. 295) 583 – 586. PER M. U. PETER-ODILI, J.S.C.

APPEAL, COURT, PRACTICE AND PROCEDURE

NOTICE OF APPEAL – STATUS OF A NOTICE OF APPEAL FILED OUT OF TIME AND WITHOUT THE LEAVE OF COURT

“To underscore the point is to state that the Notice of Appeal is an originating process and is not one of the processes of Court that can be deemed properly filed subsequently. Therefore once it is a nullity having been filed as in this instance out of time and without leave which is mandatorily necessary, it is null and void from the very beginning. See Co-operative Bank of Eastern Nigeria Ltd v Emeka Ogwuru (1991) 1 NWLR (pt. 168) 458 at 567 (CA).

Stated another way, the Notice of Appeal filed 31 days outside the 30 days prescribed by statute that is the Supreme Court Act, Cap 515 Laws of  the Federation of Nigeria 2007, Section 27 (2) (b) precisely, is statute-barred. I place reliance on Osun State Govt v Dalami (Nig) Ltd (2007) All FWLR (pt.365) 438; Jallco Ltd v Owoniboys Tech Services Ltd (1995) 4 NWLR (pt. 391) 534 at 538. PER M. U. PETER-ODILI, J.S.C.

APPEAL

LEAVE TO APPEAL – EFFECT OF FAILURE TO OBTAIN LEAVE TO APPEAL

“In the case at hand, the judgment of the Court below was delivered on 21st February, 2011 and the Notice of Appeal at the Supreme Court under discourse was filed 22nd April period of 61 days.

This is a clear 31 days after the expiration of the stipulated period within which a criminal appeal ought to be initiated. The situation therefore takes the position of a condition precedent for the exercise of the right of appeal in the light of failure to seek and obtain leave to appeal. The result is the incompetence of the Notice of Appeal thereby rendering the appeal a nullity, translating to there being no appeal. See Olowosoke v Oke (1972) 11 SC 1; Nalsa & Team Associates v NNPC (1991) 8 NWLR (pt.212) 652 at 666. PER M. U. PETER-ODILI, J.S.C.

APPEAL, PRACTICE AND PROCEDURE

APPEAL – WHEN CAN AN APPEAL BE VALIDLY BROUGHT BEFORE AN APPELLATE COURT?

“An appeal can only be properly and validly brought before an appellate Court when the notice of such appeal was filed within the period of time prescribed by the relevant statutes or as may be extended by the Court and has met the requirements of the Rules of Court. Being the foundation of a valid and competent appeal, which would properly invoke the requisite jurisdiction of the appellate Court, a valid and competent Notice of Appeal is a sine qua non to the jurisdiction of an appellate Court over an appeal without which it cannot entertain and adjudicate over it. See Atuyeye v. Ashamu (1987) 1 NWLR (Pt.49) 267, Aja v. Okoro (1991) 7 NWLR (Pt.203) 260, Yusuf v. Adewuyi Brothers Ltd. (1991) 7 (Pt.201) 39, Reg. Trustees, F.G.C.N. v. Okoisor (2006) LPELR-6161. PER M. L. GARBA, J.S.C.

STATUTES REFERRED TO:

Constitution of the Federal Republic of Nigeria, 1999, as amended,

Supreme Court Act, 2004

Supreme Court Act, Cap 515 Laws of the Federation of Nigeria 2007,

 

 

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CASES CITED

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not available

 

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STATUTES REFERRED TO

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not available

 

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