May 12, 2025
Legalpedia Citation: (2013) Legalpedia (SC) 11191 In the Supreme Court of Nigeria HOLDEN AT ABUJA Thu May 30, 2013 Suit Number: SC.400/2010 CORAM SAIDU KAWU DAHUNSI OLUGBEMI […]
CORAM
SAIDU KAWU
DAHUNSI OLUGBEMI COKER
ADEMOLA ADETOKUNBO
PARTIES
FEDERAL REPUBLIC OF NIGERIA APPELLANTS
RAJI SHADE TAWAKALITURAJI TUNDE SURAJUDEENUNUAFE OKARO KENNETHARINDE ADEBOLA ANTHONYADEYINKA MARCERET MOSUNEMIOLA OLAWALE KOLAPO STEVESALIMON RASHEED ISHAQNAFIU RASAQ ISHOLAIBIKUNLE KOLAWOLE MUHIB RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
CRIMINAL LAW, EXAMINATION MALPRACTICE, JURISDICTION
SUMMARY OF FACTS
The respondents have been arrested by men of the State Security Service (SSS) and arraigned before the Federal High Court Ilorin, on a twelve-count charge of Examination Malpractices, the charges have been challenged by the respondents on grounds of jurisdictional competence of the trial court to entertain the same, the trial High Court overruled the preliminary objection on the untenable ground that the preliminary objection has been raised after the respondents have pleaded to the charge, Hence the appeal to the court below filed by the respondents was allowed. Aggrieved by the decision the appellant has appealed to this court
HELD
Appeal dismissed.
ISSUES
Not Available
RATIONES DECIDENDI
RIGHT OF APPEAL-NATURE OF-NEED TO BE AGAINST THE DECISION OF COURT BELOW
“The time as well as the right for appealing any matters to this court is statutory and the appeal has to be against a decision of the court below as only appeals from the court below lie to this court.”
RIGHT OF APPEAL-STATUTORY COMPLIANCE-EFFECT OF NON-COMPLIANCE
“Even then the right to appeal in this matter is statutory so also the time for appealing and so, where there is no competent notice of appeal (as here – on having filed it out of time) the appeal is a non-starter, in which case there is no appeal before the court. Meaning that to embark on hearing such an appeal is no more than an exercise in futility.”
CRIMINAL APPEAL-TIME WITHIN WHICH TO APPEAL-EFFECT OF FAILURE TO COMPLY WITH STATUTORY PROVISION
“It is clear and plain that as regards criminal appeals to this court that the period of 30 days is the period of time within which to appeal as of right otherwise leave of this court has to be first sought and obtained to enlarge the time pursuant to an application properly brought to appeal out of time. Meaning that failure to comply with the said statutory provision (or appealing out of time with leave) is a breach of a fundamental condition of appeal within the time prescribed by the Act to file an appeal in a criminal matter and is an Incurable defect which deprives this court of any jurisdiction to entertain the appeal. This is so as a Notice of Appeal is an initiating process and so in this instance being an incompetent Notice of Appeal; it is incapable of sustaining any appeal as the instant one to this court.”
PRELIMINARY OBJECTION TO AN APPEAL-TIME WITHIN WHICH TO RAISE
“What is significant about the instant objection is that it is premised upon a statutory requirement, a condition precedent to this court entertaining this appeal and not a mere irregularity that can be waived and so it can be raised at any stage of the instant proceedings. Thus any defect in this regard renders the proceedings however well conducted a nullity and clearly it does not matter that the respondents have taken steps in prosecuting the appeal as the defect is extrinsic to the adjudication”.
CASES CITED
Agu v. Odofin(1992) 3 SCNJ.161|Onuoha v. Commissioner of Police (1959) a FSC 23|Foko v. Foko (1968) NMLR 441,|Madukolum v. Nkemdilim (1961) 2 NSCC.374.
STATUTES REFERRED TO
Section 233 of the 1999 Constitution|Section 27(2) (b) of the Supreme Court Act Cap.515 Laws of the Federation of Nigeria|Examination Malpractices Act Cap.F15, Laws of the Federation of Nigeria 2004.|Federal Polytechnic Act Cap. F 17 Laws of the Federation of Nigeria, 2004|