JERRY IKUEPENIKAN V THE STATE

CORAM

PARTIES

JERRY IKUEPENIKAN APPELLANTS

THE STATE

RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Appellant herein (as accused person) was arraigned before the High Court of Justice, Ondo State, Okitipupa Judicial Division, on a two count charge of conspiracy to commit armed robbery and armed robbery contrary to sections 1 (2) and 5 (b) of the Robbery and Firearms (Special Provisions) Act, Cap 398, Laws of the Federation of Nigeria, 1990. The Appellant pleaded not guilty to the charges. The trial court at the conclusion of trial, found the Appellant guilty as charged. The Appellant was subsequently convicted and sentenced to death pursuant to section 1 (2) of the said Act. His appeal to the Court of Appeal, Benin Division, was unsuccessful. Dissatisfied with the judgment of the Court of Appeal the Appellant has further appealed to the apex Court. The Respondent filed a preliminary objection against the hearing of the appeal on the ground that the notice of appeal filed by the Appellant is incompetent as same was not signed by the Appellant but by his counsel.

HELD

Preliminary objection succeeds, Appeal struck out

ISSUES

None

RATIONES DECIDENDI

DEFECTIVE NOTICE OF APPEAL – AN APPELLATE COURT LACKS JURISDICTION TO ENTERTAIN A DEFECTIVE NOTICE OF APPEAL

“As this court held in Uwazurike and Ors v AG, Federation (supra), a Notice of Appeal is the foundation and substratum of every appeal. Any defect therein will render the whole appeal incompetent and the appellate court will lack the required jurisdiction to entertain it, Avi agents Ltd v. Balstravst Investment (1966) 1 All E.R. 450; Olowokere v. African Newspapers[1993] 5 NWLR (pt.295) 583; Olarewaju v. BON. Ltd [1994]8 NWLR (pt. 364) 622.” PER C.C.NWEZE, J.S.C

SIGNING OF NOTICE OF APPEAL – IN CRIMINAL APPEALS, AN APPELLANT MUST SIGN HIS NOTICE OF APPEAL PERSONALLY- ORDER 9 RULE 3 (1) OF THE SUPREME COURT RULES

“It is pertinent to restate that the anchor which grounds the objection is order 9 rule 3(1) of the Supreme Court rules as amended which in other words makes it mandatory that the notice of appeal in criminal appeals must be signed by the Appellant personally; that the failure to comply with the rules of court had rendered the process filed incompetent.”PER C.B.OGUNBIYI, J.S.C

EFFECT OF AN INCOMPETENT NOTICE OF APPEAL – THE ABSENCE OF A COMPETENT NOTICE OF APPEAL RENDERS THE COURT DEFICIENT OR ROBS IT OF ITS JURISDICTION.

“The law is trite and well settled that for a court to be competent the condition precedent to confer jurisdiction must be fulfilled. The absence of a competent notice of appeal in the circumstance has therefore rendered this court deficient or robbed of jurisdiction. See the locus classicus case of Madukolu V. Nkemdilim (1962)1 All NLR 587 at 594”. PER C.B.OGUNBIYI, J.S.C

NOTICE OF APPEAL – A DEFECTIVE NOTICE OF APPEAL RENDERS THE APPEAL INCOMPETENT

“A Notice of Appeal is the most important step in the initiation of an appeal. Where it turns out to be defective, the appeal would be considered incompetent. The cases on this point are many. Only a handful will be cited here: Thor v FCMB Ltd 1200212 SCNJ 85; Ebokan v Ekwenibe and Sons Trading Coy Ltd (1977)7 SCNJ 77; Uwazurike and Ors v AG. Federation (2007) LPELR-3448 (SC) 14,D-E and lkweki v Ebele (2005) NWLR (pt. 936) 397” PER C.C.NWEZE, J.S.C

PRELIMINARY OBJECTION – DUTY OF AN APPELLATE COURT TO CONSIDER A PRELIMINARY OBJECTION FIRST WHEN RAISED DURING AN APPEAL

“It is now well settled that an appellate court should first consider a preliminary objection raised during an appeal and express its opinion on whether it agrees or not because a successful preliminary objection may have the effect of disposing of the appeal. It does not matter if the objection is frivolous or not. The court has a duty to consider it and should not be ignored. The rationale behind the above position of law is that it is a cardinal principle of administration of justice to let a party know the fate of his application whether properly or improperly brought. See First Bank of Nigeria PIc. V. T.S.A. Industries Ltd (2010) 15 NWLR (pt. 1216) 247, Nwanta V. Essumei (1993) 8 NWLR (pt. 563) 650, Tambio Leather Works Ltd V. Abbey (1998) 12 NWLR (pt. 579) 548.” PER J.I. OKORO, J.S.C

NOTICE OF APPEAL- IMPORTANCE OF A NOTICE OF APPEAL – A FUNDAMENTALLY DEFECTIVE NOTICE OF APPEAL AFFECTS THE JURISDICTION OF THE APPELLATE COURT

“The importance of an originating process, such as a notice of appeal in this case, cannot be over-emphasized. It is the pillar upon which the entire appeal rests. Where it is fundamentally defective, it goes to the root of the entire proceedings. It affects the jurisdiction of the appellate court. A defective notice of appeal is dead or non¬existent in the eyes of the law and there will be no competent appeal for the court to entertain. See: First Bank of Nigeria Plc. Vs T.S.A. Ind. Ltd. (2010) 15 NWLR (Pt.1216) 247 SC: Olanrewaju Vs BON Ltd. (1994) 8 NWLR (Pt.364) 622: Nwaigwe Vs Okere (2008) 13 NWLR (Pt.1105) 445: Nigerian Army Vs Samuel (2013) LPELR-SC.75/2008: Japhet& Anor. Vs The State (2014) LPELR-SC.21/2011. SC.21A/2011: Adekanye Vs F.R.N. (2005) 15 NWLR (Pt.949) 433 @ 450 -456.” PER K.M.O.KEKERE –EKUN, J.S.C

PRELIMINARY OBJECTION – EFFECT OF A PRELIMINARY OBJECTION

“A preliminary objection is a pre-emptive strike; its resolution obviates the need for the dissipation of precious judicial time in the determination of the appeal on the merit, Jim-Jaja v C.O.P. Rivers State and Ors(2012) LPELR-20621 (SC) 10, paragraph F”. PER C.C.NWEZE, J.S.C

CASE LAW – CASES ARE DECIDED ON THEIR FACTS -RATIO DECIDENDI IS BASED ON THE FACTS OF THE CASE

“After all, the law is that “cases are decided on their facts and ratio decidendi is based on the facts of the case before the court. A ratio cannot be determined outside the facts of the case”, Onyia v State (2009) All FWLR (pt 450) 625, 640; Idoniboye Obu v NNPC[2003] 4 MJSC 131; Inakoju v Adeleke[2007] 4 NWLR (pt 1025) 423; Babatunde v P. A. S. and T. A. Ltd[2007]13 NWLR (pt 1050) 113; Fawehinmi v NBA(No 2)[2008] All FWLR (pt 448) 205, 310.”PER C.C.NWEZE, J.S.C

INTERPRETATION OF THE WORD “SHALL” – THE USE OF THE WORD “SHALL” IS MANDATORY AND NOT DIRECTORY- ORDER 9 RULE 3 (1) OF THE SUPREME COURT RULES

“Order 9 Rule 3 (1) of the Supreme Court Rules (as amended) provides:
“3 (1) Subject to the provisions of sub-rule (3) of this rule, appeals shall be brought by notice (hereinafter called “the notice of appeal”) to be filed in the Registry of the court below, which shall set forth the grounds of appeal and shall state clearly whether the appeal is against some decision of the court below other than conviction and sentence. A notice of appeal shall be in the form prescribed in the First Schedule to these Rules and shall be signed by the appellant:
Provided that, notwithstanding that the provisions herein have not been strictly complied with, the Court may, in the interest of justice and for good cause shown, entertain an appeal if satisfied that the intending appellant has exhibited a clear intention to appeal to the Court against the decision of the court below.”
The use of the word “shall” in the provision is mandatory and not directory. It follows therefore that the provisions of Order 9 Rule 3 (1) of the Supreme Court Rules (as amended) must be strictly complied with, unless it is shown that the proviso thereto is applicable. See: Uwazurike Vs A.G. Federation (supra) at 13 -14 H – B.”PER K.M.O.KEKERE –EKUN, J.S.C

CASES CITED

STATUTES REFERRED TO

1. Court of Appeal Rules, 2002Federal Court of Appeal Act, 1976 as amended

2. Federal Court of Appeal Rules, 1981Robbery and Firearms (Special Provisions) Act, LFN 1990.

3. Supreme Court Act, 1961

4. Supreme Court Rules, 1985 (as amended).