A defective notice renders the whole appeal incompetent (3)

Again, with respect, this argument is not only tendentious but is, actually, misleading. Contrary to the impression which the above submission intends to create, Order 9 Rule 3 (1) of the Supreme Court Rules, 1985, merely, re-enacted the provisions of Order 8 Rule 4 of Federal Supreme Court Rules, 1961. This court, first, gave the 1961 Rule, to employ Dr Ayeni’s words, its “true construction” in Umar Cham v. Gombe Native Authority (1964) NNLR 94, 95-96 where it interpreted the rule to mean that “a notice of appeal in a criminal matter shall be signed by the Appellant personally.” Counsel, further, submitted that the Proviso to Order 9 Rule 3(1) (supra) should be construed in such a manner as to salvage the notice of appeal. It is conceded here that the beneficent provisions in the Proviso to Order 9 Rule 3(1) of the Supreme Court Rules (supra) were designed to attenuate the far-reaching consequences of non-compliance with the substantive provisions in Order 9 Rule 3(1) (supra). However, the said provisions in the above Proviso are not open-ended. They are, actually, hedged around with conditions which the court must be satisfied with before entertaining an appeal which does not, strictly, comply with the requirement that the Appellant must, personally, sign his notice of appeal.

Regrettably, the Appellant has not evinced a strong desire to move this court into invoking the provisions in his favour. Dr. Ayeni, perhaps, imagining that the requirement prescribed in Order 9 Rule 3 (1) (supra) epitomises a technical rule, reeled out decisions of this court which de-emphasise reliance on technicalities, Aigbobahi & Ors. v. Aifuwa & Ors. (supra); Akpan v. Bob & Ors. (supra); Famfa Oil Ltd. v. Attorney General of the Federation & Anor. (2003) 9-10 S.C. 31. True, indeed, this court has not hidden its contempt for technicalities. At every opportunity it has, unequivocally, announced its espousal of substantial justice over technical rules.

However, this is not the position here. Dr Ayeni’s submission on this point is nothing but a contorted version of the settled position that 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. (2002) 2S.C. (Pt.I) 138; Ebokam v. Ekwenibe and Sons Trading Coy Ltd. (1977) 7 SCNJ 77; Uwazurike & Ors. v. A.G. Federation (2007) 2 S.C. 169 and Ikweki v. Ebele (2005) 2
S.C. (Pt. II) 96.

As this court held in Uwazurike & Ors. v. A.G. 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: Aviagents Ltd. v. Balstrayst Investment (1966) 1 All ER 450; Olowokere v. African Newspapers (1993) 5 NWLR (Pt.295) 583 CA; Olarewaju v. BON Ltd. (1994) 8 NWLR (Pt. 364) 622 CA. From the submissions in Paragraph 2.07 of the reply brief, counsel would seem to suggest that the decision in Ikpasa is applicable to the facts of this case. Again, with respect, this is not so. In Ikpasa’s case, the Appellant had used a civil form in giving the notice of appeal. Expectedly, this prompted the submission of counsel for the Respondent that the use of wrong form was a fundamental error and therefore fatal in view of the mandatory provisions of Order 8 Rule 3 of the old Supreme Court Rules applicable to the Federal Court of Appeal (as the lower court, then, was). The Court of Appeal, by a majority, overruled the objection; invoked Order 9 Rule 28 of the Rules of the Court and proceeded to hear and determine the appeal on its merits.

On further appeal, this court endorsed that approach as a proper case for the exercise of the judicial discretion vested in the Federal Court of Appeal (as it then was) by the invocation of Order 9 Rule 28 of the Rules of the Court. Explaining the Appellant’s constraints and why the court’s discretion should have been exercised in his favour, this court explained that: The Appellant was already confined in a condemned cell. He was no longer a free agent nor an ordinary prisoner undergoing ordinary incarceration. He was therefore at the mercy of the Prisons Authorities. It seems to me that in a case of this kind there ought to be in the Prisons Department Officers sufficiently conversant with the court’s procedure relating to the filing of a notice of appeal to render assistance to prisoners desirous of appealing against their conviction and sentence.

The circumstances in Ikpasa are, therefore, different from the position in the instant appeal. As counsel for the Respondent/Objector had pointed out, unlike the situation in the Ikpasa case, there is evidence on record that the Appellant’s counsel had unbridled access to him. As such, he had every opportunity to present him with the notice of appeal for his (Appellant’s) signature as stipulated by the rules. Dr. Ayeni neither contested this claim nor did he point to any “extenuating circumstances” that avail the Appellant in the instant appeal.

Do I, then, need to remind learned senior counsel for the Appellant that, since the decision in: Umar Cham v. Gombe Native Authority (supra) to the most recent decision in Dr. Okey Ikechukwu v. FRN (supra), this court has been consistent in its position that a notice of appeal in a criminal appeal must be signed by the Appellant personally? See also: Ugochukwu Duru v. FRN (2013) 1- 2 S.C. (Pt. IV) 134. Having found that the notice of appeal is defective and, therefore, incompetent, I am left with no other option than to strike out the appeal in its entirety. This, simply, means that the resolution of the main issues shall abide the enlistment of a competent appeal (if and whenever such a competent process is initiated). For now, there is no competent appeal before this court, Uwazurike v. Attorney General of the Federation (supra); Hambe & Anor. v. Hueze & Ors. (2001) 2 S.C. 26. This court, therefore, lacks the jurisdiction to entertain the agitation of the Appellant: Uwazurike v. Attorney General of the Federation (supra), citing Okoye v. Nigerian Construction and Furniture Co. Ltd. (1991) 7 S.C. (Pt. III) 33; Auto Import and Export v. Adebayo (2003) FWLR (Pt.140) 1686.

In all, I find considerable merit in this preliminary objection. I, therefore, enter an order upholding it.3 This conclusion obviates the need to consider the arguments in the main appeal, Onyemeh & Ors. v. Egbuchulam & Ors. (1996) 5 NWLR (Pt. 448) 255; (1996) 4 SCNJ 237 SC; Attorney General of the Federation v. ANPP & Ors. (2003) 12 S.C. (Pt. II) 146. This must be so for 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 & Ors. (2012) 11-12 S.C. 146. Indeed, that is why this court is under obligation to resolve the issue agitated in the above preliminary objection before taking any further step in the determination of this appeal: Okoi v. Ibiag (2002) 10 NWLR (Pt. 7760) 455, 468; UBA Plc. v. ACB (2005) 12 NWLR (Pt. 939) 232 CA; Goji v. Ewete (2001) 15 NWLR (Pt. 736) 273, 280 CA. Thus, since this preliminary objection to the competence of this appeal has succeeded, the proceedings in the appeal would be aborted and the need to consider the issues raised therein would automatically abate: L. M. Ericsson Nig. Ltd. v. Aqua Oil Nig. Ltd. (2011) LPELR- 8807, citing Ahnaneku v. Ekeruo (2002) 1 NWLR (Pt. 748).

This objection succeeds. In consequence, the appeal, in its entirety, is hereby struck out for its incompetence, Uwazurike v. Attorney General of the Federation (supra); Hambe & Anor. v. Hueze & Ors. (Supra). Being incompetent, this court lacks the jurisdiction to entertain the Appellant’s agitation woven around it. Objection succeeds. Notice of appeal is, hereby, struck out. Appeal is, equally, struck out.