A defective notice renders the whole appeal incompetent (2)

IN THE SUPREME COURT OF NIGERIA
HOLDEN ATABUJA
ON FRIDAY, THE 24TH DAY OF APRIL, 2015
BEFORE THEIR LORDSHIPS
JOHN A. FABIYI
JUSTICE, SUPREME COURT
CLARA B. OGUNBIYI
JUSTICE, SUPREME COURT
KUDIRAT M. O. KEKERE-EKUN
JUSTICE, SUPREME COURT
JOHN I. OKORO
JUSTICE, SUPREME COURT
CHIMA C. NWEZE
JUSTICE, SUPREME COURT
SC. 402/2010
BETWEEN:

THE STATE ………………………………………………….RESPONDENT

RESOLUTION OF THE PRELIMINARY OBJECTION
As it is evident from the above submissions of the Appellant’s counsel, his attempts at the refutation of the Respondent/Objector’s censure of the said notice of appeal were erected on some weak-kneed propositions, In the first place, he extracted an opinion of Uwais, JSC., (as he then was) in Kpema v. The State (1986) 2 S.C. (Reprint) 30 out of the context of the facts and ratio of that case. He contended at Paragraph 2.05 of the reply brief that:… a similar situation involving the construction of Order 9 Rule 3 (1) (supra) confronted this court which by a full panel of seven Justices per Uwais, JSC., held in Kpema v. The State (1986) 2 S.C. 30 variously held at Page 404: “…It is obvious that the Appellant, having been in prison custody, had done enough in his power to bring this appeal.

In the light of the foregoing, I feel inclined to hold that the appeal is competent. I therefore so hold. The aforesaid notwithstanding, I would for the
following reasons, (have) allowed this appeal even if the notice of appeal were found to have been filed out of time…”. With respect, two things could have prompted this sort of lackadaisical approach of learned counsel. It is either that he did not, sufficiently, acquaint himself with the facts and the ratio decidendi in: Kpema v. The State (supra) before canvassing it as authority for his proposition or that he, solely, relied on the editorial case note in the Law Report for his instruction as regards the facts of the said case. Either way, I regret to announce that his arguments cannot fly. Now, in Kpema v. The State (supra), the Appellant, actually, signed the notice of appeal within time.

However, the appeal before this court was filed out of time. As Uwais, JSC., (as he then was) explained “…although the Appellant signed the notice of appeal to this court… within the 30 days prescribed by Section 31 sub-section (2)(b) of the Supreme Court Act, 1961, the notice was not filed in the Court of Appeal until … 37 days after the decision of the Court of Appeal. Ordinarily, therefore, the appeal before this court seems to have been filed out of time.” In answer to his own question whether there was a competent appeal before this court, the distinguished jurist, praying in aid such decisions like: The Queen v. Akpan John Nda 2 FSO 29; Berepegha Frublde v. The State (1969)1 All NLR 255; Egbo Ojojo v. The State (1970)1All NLR 33 and Neeyode Peba v. The State (1960) 6-11 S.C. 76, volunteered the following insightful opinion “it is now settled that when a notice of appeal, in a case of conviction involving sentence of death, is given out of time, that is, not given within 30 days, this court will strike out the case for being incompetent in view of the provisions of Section 31 sub-sections (1) and (2) (b) of the Supreme Court Act, 1960.” The Section provides – 31-(1) When a person desires to appeal to the Supreme Court he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by the rules of court within the period prescribed by sub-section (2) of this Section that is applicable to the case.

Continuing with his meticulous analysis, Uwais, JSC., (as he then was) noted that: A close examination of the Appellant’s notice of appeal to this court shows that it was thumb – impressed by him 29 days from the date of the ruling of the Court of Appeal. The notice was therefore prepared within the prescribed time. The Appellant’s signature was attested to by, it seems, an official of the Legal Aid Council who wrote his address as ‘Legal Aid Council, Box 6110, Jos.’ The Appellant’s own address for service was Jos Prison. The notice of appeal bears the stamp of the Court of Appeal which was dated 3rd May, 1965. What these facts appear to suggest is that the Appellant after signing the notice must have given it to either the prison authorities or the official of the Legal Aid Council to be delivered to the registrar of the Court of Appeal, Jos, since he could not, in the circumstances in which he found himself, that is having been kept in prison custody, take the notice to the Registrar. (Underlining supplied for emphasis) The above facts and circumstances yielded His Lordship’s conclusion that: It is obvious that the Appellant, having been in prison custody, had done enough in his power to bring this appeal.

In the light of theforegoing, I feel inclined to hold that the appeal is competent. I therefore so hold. In one word, therefore, learned senior counsel cited: Kpema v. The State (supra) out of context as it is, wholly, inapplicable to the Question 10 in the instant appeal. He, equally, cited Duru v. FRN (supra). However, in that case, the Appellant, in fact, signed his notice of appeal, personally, pursuant to Order 4 Rule 4 (1) of the Court of Appeal Rules, 2002 (then applicable), see, per M. D. Mohammad, JSC., at Pages 16-17. Indeed, the narrow issue in the case was whether the Court of Appeal was right in its decision that from his absence from court, the Appellant’s appeal had, pursuant to Order 4 Rule 4 (1) (supra), been rendered incompetent.

Not done yet, Dr Ayeni, for the Appellant, pointed out that the Appellants’ appeal in Uwazurike (supra) was struck out because counsel signed a joint notice of appeal for them. He, conveniently, wished away Ogbuagu, JSC’s., re-statement of the law that “the statutory provision is that every notice of appeal shall be signed by the Appellant himself and no other (including counsel)… The provision is not only unambiguous, but is mandatory,” (underlining supplied). In all, most of the cases cited in counsel’s spirited attempt to salvage the notice of appeal were either inapplicable or, where, applicable, were against the point which was being, stridently, canvassed. It is against this background that I take the liberty of this judgment to re-iterate the point that it does not serve any useful purpose suffusing a brief of argument with cases that would not assist the court in the resolution of the main issues before it. This practice may not only be counter-productive, it may actually obfuscate the court’s perception of the issues. More importantly, that tendency merely underscores a penchant for grandstanding: an unwarranted relapse into pedantry! As much as possible, it should be discouraged! 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 (2008) 7-12 S.C. 120; Idoniboye Obu v. NNPC (2003) 1 S.C. (Pt. I) 40;

Next, Dr Ayeni, for the Appellant, contended that “upon a true construction of Order 9 Rule 3 (1) inclusive of its proviso, the notice of appeal against which objection is raised is in fact competent and which this court has complete jurisdiction to adjudicate on it,” (Paragraph 2.03 of the reply brief, italics supplied).