JAPHET & ANOR v. THE STATE
On Friday, the 30th day of May, 2014
SC.21/2011, SC.21A/2011Before Their Lordships
WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria
JOHN AFOLABI FABIYI Justice of The Supreme Court of Nigeria
SULEIMAN GALADIMA Justice of The Supreme Court of Nigeria
BODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria
Between
Before Their Lordships
WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria
JOHN AFOLABI FABIYI Justice of The Supreme Court of Nigeria
SULEIMAN GALADIMA Justice of The Supreme Court of Nigeria
BODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria
Between
MANESSEH JAPHET & ANOR –Appellant
AND
THE STATE- Respondent
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KUMAI BAYANG AKA’AHS, J.S.C. (Delivering the Leading Judgment): Manasseh Japhet and Sunday Jumbobaraye were the 2nd and 3rd accused respectively in a three count charge of murder contrary to S. 319(1) of the Criminal Code of Rivers State (Cap. 37, Laws of the Rivers State of Nigeria, 1999) and shop breaking contrary to S. 413(1) of the said Criminal Code in Charge No. PHC/10C/2005. The 2nd accused is a maternal uncle to the 3rd accused. They together with two others Korite and Amabo Kalango (1st and 4th accused respectively) were arraigned on criminal information filed on 16th May, 2005. Upon the arraignment the 2nd and 3rd accused, who are appellants before this Court applied by Motion on Notice filed on 14th June, 2005 to quash the information against them on the ground inter alia, that the information did not disclose a prima facie evidence against them. After the application had been argued, the learned trial Judge delivered a Ruling on 8th March, 2006 dismissing the application. Dissatisfied with the aforesaid Ruling the appellant herein together with Sunday Jumbobaraye appealed jointly to the Court of Appeal in the Notice of Appeal filed on 22nd March, 2006 (See pages 119-122 of the records). Also following the plea of not guilty by the appellant and his co-accused and after the court had admitted all the accused persons to bail, the trial court on 27/11/2006 adjourned the case sine die due to difficulty in getting the vital witnesses to testify. The appellant and his co-accused were also dissatisfied with the adjournment of the case sine die and jointly filed another Notice of Appeal on 11/12/2006 (See pages 151-154 of the records). The two interlocutory appeals were consolidated and in its judgment delivered on 4/11/2010, the Court of Appeal suo motu struck out the Notices of Appeal as being incompetent.
The appellant submitted four issues for determination and they are:-
1. Whether the Honourable Justices of the Court of Appeal did not breach the appellant’s constitutionally guaranteed right to fair hearing when they raised the issue of incompetence of the appellant’s Notices of Appeal on the ground of their having not been personally signed by the appellant suo motu, and proceeded to resolve the said issue against the appellant without hearing him thereon and if no, whether in all events, going by the proviso to Order 16 Rule 4(2) of the Court of Appeal Rules, 2007,the said Notices of Appeal were not competent though not signed personally appearing in court on all dates to which the said appeals were adjourned and at the hearing thereof (Ground 1).
2. Whether the Honourable Justices of the Court of Appeal did not breach the appellant’s constitutionally guaranteed right to fair hearing when they suo motu raised the issue of the incompetence of the appellant’s Notice of Appeal against the Ruling of the High court of Rivers State delivered on the 27th of November, 2006 and proceeded to resolve same against the appellant, without hearing him thereon and, if no, whether in all events, the mere incongruity between the date of the said Ruling and the date stated therefore on the Notice of Appeal rendered the appellant’s appeal against same incompetent, when by the grounds of appeal, the Record of Appeal and the Court of Appeal’s own consideration of the appellant’s argument in his Brief of Argument, it was clear that the said Notice of Appeal related to the Ruling of the 27th of November, 2006 and that the incongruence in dates was a mere typographical error. (Ground 2)
3. Whether the Honourable Justices of the Court of Appeal were right in law in failing or refusing to strike out the information against the appellant and consequently discharge him, having found that the learned trial Judge’s adjournment of the trial of the information against the appellant sine die, was in breach of the appellant’s right to fair hearing, guaranteed under the 1999 Constitution of Nigeria. (Ground 4)
4. Whether the Honourable Justices of the Court of Appeal were right in law in considering the appellant’s appeal upon a substituted and abandoned record of appeal and upon the basis of their error and the resultant mix up and confusion, holding that the Proof of Evidence disclosed a prima facie case against the appellant and if no, whether in all events, upon a calm consideration of the valid record of appeal and the proper parties to the appeal, the proof of Evidence disclosed a prima facie case against the appellant. (Ground 3)
In the Amended respondent’s brief which was deemed filed on 6/3/2014, learned counsel adopted the issues as formulated in the appellant’s brief and replied to them seriatim. The appellant filed a reply brief on points of law. Issues 1 and 2 are similar and I intend to treat them together and they form the fulcrum of this appeal.
Learned counsel for the appellant argued that one of the twin pillars of fair hearing as guaranteed under Section 36(4) of the Constitution of Nigeria 1999 is the principle of “audi alterem partem” and submitted that once an accused person or a party to a suit or an appeal is denied or not given fair hearing, the trial, proceedings and or appeal, will be annulled by the appellate court before whom the complaint or appeal against the proceedings are brought. He said that at the time the appellant’s appeal was heard on 21/9/2010, the respondent had not filed its brief and so the appeal was heard on the appellant’s brief alone. At the hearing of the appeal, the learned Justices of the Court of Appeal never drew the appellant’s attention to the fact of the non-signing of the Notices of Appeal personally by the appellant but the issue was raised suo motu by the Court in the leading judgment by Awotoye, JCA which was concurred in by the other two Justices on the panel and this was in breach of the appellant’s constitutional right to fair hearing; consequently the judgment appealed against cannot and ought not be allowed to stand. Learned counsel submitted in the alternative that although the said Notices were signed by the appellant’s counsel, the said appeals were not thereby automatically rendered incompetent in the light of the proviso to Order 16 Rule 4(2) of the Court of Appeal Rules 2007 as the appellant had been personally present in court on the different dates the appeal came up for hearing until when judgment was delivered.
The notice of appeal is the foundation and substratum of any appeal. It must not be tainted with any defects as this will vitiate the appeal and deprive the appellate court of its jurisdiction. The notices of appeal before the lower court were ex facie defective in so far as they were not signed by the appellants but rather by their counsel contrary to Order 16 Rule 4(1) Court of Appeal Rules, 2007 which are in pari materia with Order 4 Rule 4(1) Court of Appeal Rules 2002 which was considered by the Supreme court in Uwazurike v. Attorney General of the Federation (2007) 8 NWLR (Pt. 1035) 1 SC.
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Citing State v. Jammal (1996) 9 NWLR (Pt. 413) 384 at 399 and Dr. Femi Adekanye & 2 Ors v. Federal Republic of Nigeria (2005) 15 NWLR (Pt. 949) 433 at 454-456 where Ogbuagu, JSC stated as follows:-
“…. it is now beyond doubt, argument or speculation that:
(i) the provision of Order 4 Rule 4(1) of the said rules is not one of the exceptions under sub-rule 4(5) and (6) of the Rules
(ii) that the provision is clear unambiguous and mandatory.
(iii) that the Rules of court prima facie must be obeyed in compliance and not in breach.
(iv) that failure to comply with the provisions of the Court of Appeal Rules will render the Notice of Appeal filed fundamentally defective and incompetent and therefore is liable to be struck out.
(v) that the said rules do not permit the filing of a joint Notice of Appeal nor the signing of such notice by counsel for the appellants.”
Order 16 Rule 4(1) Court of Appeal Rules 2007 states as follows;
“Every notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given, shall be signed by the appellant himself, except under the provision of paragraphs (5) and (6) of this Rule“ (underlining mine for emphasis).
The exception as contained in sub rules (5) and (6) are:-
“5. Where on the trial of a person entitled to appeal it has been contended that he was not responsible according to law for his actions on the ground that he was insane at the time the act was dine or the omission made by him or that at the time of the trial he was of unsound mind and consequently incapable of making his defence, any notice required to be given and signed by the appellant himself may be given and signed by his legal representative.
6. In the case of a body corporate where any notice or other documents is required to be signed by the appellant himself, it shall be sufficient compliance therewith if such notice or other document is signed by the secretary, clerk, manager, or legal representative, of such body corporate”.
Recently however, this Court modified sub-rule 5 to allow the appeal to be heard and determined on the Notice of Appeal which was signed by the appellants counsel based on the fact that by the time the Notice of Appeal was prepared, the time for filing the appeal had almost lapsed and the security situation in the prison was so tense that no one was allowed into the prison due to an execution of a condemned convict which had been carried out within the prison premises and the appellant had been taken to another location. As a result of this the appellant’s counsel signed the notice of appeal and brought an application which the respondent did not oppose to allow the appeal to be heard and determined on the notice of appeal signed by appellant’s counsel. See: Folorunsho Alufohai v. State SC. 233/2012 – unreported Ruling delivered on 22/5/2014.
While it may be permissible for counsel to the appellant to sign the notice of appeal, the law does not allow the filing of a joint notice of appeal in criminal matters and so the joint notice of appeal filed on behalf of the two appellants was incurably defective and therefore incompetent. In the circumstances, there was nothing the lower court could do but strike out the incompetent notice even without inviting counsel to address the court on the issue. In so doing no miscarriage of justice has been occasioned. Even though the point was well taken it will not result in allowing the appeal because of the ex facie defect in the two notices of appeal.
Learned counsel for the appellant argued issued 2 and 3 together. I have already taken issues 1 and 2 together. What is to be said on issue 2 is that the erroneous date of the ruling which appellant’s counsel stated to be 28th November, 2006 instead of 27th November, 2006 is an irregularity which can be corrected either by counsel or the court unless objection was taken by the respondent on the date of the said ruling and appellant’s counsel ignored the objection and failed to take steps to correct it. Apart from observing that the ruling was made on 27/11/2006 and not 28/11/2006, the lower court did not strike out the notice of appeal based on the non existent date. This is what Awotoye, JCA said in his judgment at page 207 of the records:
“There are two notice of appeal in these consolidated appeals. None was signed by the appellant himself. Besides the second notice of appeal seeks to attack the decision of the lower court made on 28/11/2006. I have carefully gone through the records. No such decision existed.
The decision of the lower court were taken on 8/3/2006 and 27/11/2006 respectively.
These issues being on the initiating process cannot be swept under the carpet”.
The arguments being canvassed on the wrong date of the second ruling can at best be described as a storm in a tea cup. The complaint for the striking out of the notices of appeal for being incompetent would be of consequence if it was based solely on the purported wrong date on which the ruling was given.
On the refusal to strike out the information learned counsel argued that the Court having found merit in the complaint of the appellant that his right to fair hearing was infringed by the learned trial Judge in his decision to adjourn the case sine die, ought to have struck out the information and discharge the appellant. Learned counsel for the respondent in reply submitted that once the lower court properly held that it had no jurisdiction to entertain the appeal due to the incompetent notices of appeal, the Court was robbed of the power to strike out the information, subject matter of the appeal but only strike out the appeal citing Nwite v. State (2013) 17 NWLR (Pt. 1382) 157.
I have already pointed out above that the two notices of appeal suffered from two vices namely that they were signed by counsel and not by the appellants which did not fall into the exceptions provided in Order 16 Rule 4(5) and (6) and secondly the notices of appeal were patently incompetent since they were purportedly filed on behalf of two appellants. It is only in civil matters that appellants can jointly appeal but not so in criminal matters. And so the original process could not be cured. Consequently there was nothing the lower court could do other than strike out the appeal. See: Nwite v. State supra at page 164.
SC.21A/2012 ,SUNDAY JUMBOBARAYE v. THE STATE
This appeal is based on the same facts as SC.21/2012. The appellant in this case jointly appealed with Manasseh Japhet to the Court of Appeal in CA/PH/219/2007 and the Notice of Appeal was signed by their counsel, Chief M. B. R. Urombo. The
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appellant in this appeal applied to use the record of appeal in the earlier case SC.21/2012. The arguments in this appeal are the same as the arguments in SC.21/2012. Consequently all I have stated in SC.21/2012 applies mutatis mutandis to this appeal. In the result I make an order striking out the information filed against the appellant and accordingly discharge him.
WALTER SAMUEL NKANU ONNOGHEN, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother, AKA’AHS, JSC just delivered.
I agree with his reasoning and conclusion that the appeals are without merit and should be dismissed.
I accordingly dismiss appeals No. SC/21/2011 and SC.21A/2011.
JOHN AFOLABI FABIYI, J.S.C.: On 4th November, 2010, the Court of Appeal struck out the consolidated appeals on ground of incompetence. The two Notices of Appeal were not signed by the appellants contrary to Order 16 Rule 4 of the Court of Appeal Rules 2007.
The Court of Appeal found that, ex-facie, the two Notices of Appeal were signed by counsel to the appellants; not by the appellants themselves. It struck out same for not being in tune with the dictates of Order 16 Rule 4 (1). No tenable reason was advanced why counsel signed instead of the appellants so as to come within the exceptions provided under Rule 4(5) and (6).
The Court of Appeal was on a firm stand in the step taken by it. See: Uwazurike v. A.G. Federation (2007) 2 SC 169; Iwunze v. FRN (2014) 2 SC (Pt. 1) 113.
Apart from the above, the two Notices of Appeal were jointly made in the names of the two appellants instead of separate and distinct Notice of Appeal for each of them.
The learned counsel for the appellant attempted to cling to right to fair hearing. Same was to no avail. The appeal must be competently on ground before issue relating to fair hearing can be thrown into the air as a ‘joker’.
For the above and those contained in the lead judgment, the appeal is hereby dismissed.
SULEIMAN GALADIMA, J.S.C.: I have read in draft the judgment of my learned brother, AKA’AHS just delivered. I am in total agreement with him that the appeal lacks merit and it should be dismissed.
This appeal is against the decision of the Court of Appeal, Port Harcourt Division against the interlocutory decisions in two separate Rulings of the court to the effect that since the two distinct Notices of Appeal in the consolidated appeals were not signed by the appellants contrary to Order 16 Rule 4 of the Court of Appeal Rules, 2007, the appeals were incompetent and accordingly struck out.
Rule 4(1) of Order 16 states as follows:
“4(1). Every notice of appeal or notice of application of time within which such notice shall be given, shall be signed by the appellant himself except under the provision of paragraphs (5) and (6) of this Rule.
Exception to the above rule are contained in sub-rules (5) and (6) are as follows:
“5. Where on the trial of a person entitled to appeal, it has been contended that he was not responsible according to law for his actions on the ground that he was insane at the time the act was done or the omission made by him or that at the time of the trial he was of unsound mind and; consequently incapable of making his defence, any notice required to be given and signed by the appellant himself may be given and signed by his legal representative.
6. In the case of body corporate where any notice or other documents is required to be sent by the appellant himself, it shall be sufficient compliance therewith if such notice or other document is signed by the secretary, clerk manager, or legal representative, of such body corporate.”
It is however observed that sub.Rule (5) above has been modified by this court to allow the appeal to be heard and determined on the Notice of Appeal which was signed by the appellant’s counsel based on the fact by the time the Notice of appeal was prepared, the time for filing the appeal had almost lapsed and the security situation in the prison was so tense that no one was allowed into the prison due to an execution of a condemned convict which had been carried out within the prison yard or premises and the appellant has been relocated. Consequently, the Notice of appeal brought by an application, which the respondent did not oppose for the appeal to be heard and determined on the said Notice of appeal which was signed by his counsel. See: FOLOSUNSHO ALUFOKHAI v. STATE Ref. SC.233/2012 (unreported) delivered on 22/5/2014.
It is now clear that while it may be permissible for counsel to the appellant to sign the Notice of appeal, in some certain circumstances, the law does not allow the filing of a joint Notice of appeal in Criminal matters and therefore the joint Notice of appeal filed in the instant case, on behalf of the two appellants was incurably defective and therefore incompetent. This is beyond doubt.
In the circumstances of this case, the court below rightly struck out the appellant’s appeal that was ex facie defective and therefore incompetent in so far it was not signed by the appellant but rather by his counsel contrary to Order 16 Rule 16(1) of Court of Appeal Rules 2007 which are in pari material with Order 4 Rule 4 (1) of the said Court of Appeal Rules, 2002 on which the Court decision was based in UWAZURIKE v. ATTORNEY GENERAL OF THE FEDERATION (2007) 8 NWLR (Pt.1035) page 1; (2007) 2 SC Page 169, in which the earlier cases of STATE v. JAMMAL (1996) 9 NWLR (Pt.473) 384 at 399 and DR. FEMI ADEKANYE & 2 ORS v. FEDERAL REPUBLIC OF NIGERIA (2005) 15 NWLR (Pt.949) 433 at 454 were cited. See further NWITE v. STATE (2013) 17 NWLR [pt.1382] 157. It is not shown that the circumstances of this case fall into exceptions provided in sub rules (5) and (6) of Order 16 (supra)
In view of the foregoing the appeal is struck out for being incompetent.
SC.271A/2012
I have observed that this appeal is based on the same facts as SC.211/2011 jointly appealed with MANASSEH JAPHET to the Port Harcourt, Court of Appeal in SC/PH/219/2007. The appellant in this appeal had applied to use the record of appeal in the earlier case SC.21/2011. The arguments canvassed in SC.211A/2011 are the same in SC.21/2011. Consequently, I cannot vary my decision. I therefore make an order striking out the appeal in SC.21A/2011 as well.
Both appeals struck out.
BODE RHODES-VIVOUR, J.S.C.: In the judgment delivered by the Court of Appeal on the 4th day of November, 2010 that court struck out the consolidated appeals on ground of incompetence. The court found that the two Notices of Appeal in the consolidated appeals were not signed by the appellant contrary to Order 16 Rule 4 of the Court of Appeal Roles 2007 which states that:
“4(1). Every notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be signed, shall be signed by the appellant himself except under the provisions of para6lrapht (5) and (6) of this Rule……”
In N. Iwunze FRN (2014) 2 SC (Pt. i) p.113
I examined cases on this point, to wit:
Ikpasa v. Bendel State (1981) 9 SC p.31
Uwazurike v. A.G. Federation (2007) 2 SC p.16
And agreed with his lordship Udo Udoma, JSC on when this court would waive Order 16 Rule 4 of the Court of Appeal Rules 2007. This court would readily validate a Notice of Appeal signed by counsel if satisfied that the appellant is insane, a body corporate, or confined in a condemned cell in which case court processes would be difficult or impossible to be brought to his notice for signature as a result of the antics of overzealous prison officials.
The appellant is standing trial for Murder. He was admitted to Bail. No satisfactory reason has been given as to why counsel signed the Notice of Appeal instead of him. Furthermore aside from the fact that counsel signed the Notice of Appeal the said process is incurably bad as the Notices of Appeal were jointly made in the names of the appellants, instead of distinct Notice of Appeal for each appellant.
For this and the fuller reasons in the leading judgment, the appeal is dismissed.
Appearances
Chief M. B. R. Urombo For Appellant
AND
R. N. Godwin Solicitor – General of Rivers State (with him I. Otorubo Director of Public Prosecutions Rivers State) For Respondent