Amusa Opoola Adio & Anor V. The State (1986)

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OPUTA, J.S.C 

When this appeal came up for hearing on the 21st November, 1985, it was discovered that the Notice and Grounds of Appeal were filed outside the Statutory period of 30 days stipulated by Section 31(2)(b) of the Supreme Court Act No.12 of 1960 and since under Section 31(4) of the same Act this Court has no jurisdiction to extend time “in the case of a conviction involving sentence of death”, the appeal was adjourned to 23rd January 1986 to enable Chief Akinrele, SAN, satisfy the Court that the appeal is competent and properly pending before this Court.

In other words and as it concerns this appeal, the question is-When is an appeal filed Is it the date the Notice and Grounds of Appeal were signed by the Appellant or the date such Notice and Grounds were delivered to the Registrar of the appropriate Court, the requisite fee paid and the appeal duly entered in the Registry of the court Chief Akinrele dealt with this preliminary point in his Brief and relied on the case of Monday Enweliku v. The State (1970) 1 ALL N.L.R. 55. The court unanimously held on this preliminary issue that the present appeal was duly filed and pending. In Babale v. Ibrahim (1956) 1 F.S.C. 37 at P.38 Abbott Ag. F.J. (with Foster Sutton, F.C.J. and Jibowu, F.J. concurring) observed:

“I consider that the forwarding of the petition of appeal by registered post, as was done here, was adequate compliance with Order 50 Rule 3… the appellant must be taken to have through this counsel, constituted the Post Office at his agent for the purpose of presenting the petition.”

The above statement, though an obiter dictum, definitely showed the way the mind of the court was working namely that in the interest of justice which implies hearing an appeal on its merits, the Rules regarding entering the Appeal should, without undue violence to the words of the relevant Statute or Rule, be so interpreted as to, keep the appeal alive rather than dead.

Monday Enweliku’s case supra is on all fours with the facts and circumstances of the present case now on appeal. In each the appellant was convicted of the offence of murder and sentenced to death; in each S. 31(2)(b) of the Supreme Court Act No.12 of 1960 required the appellant to give his Notice of Appeal within 30 days from the date of the decision appealed against; in each the appellant detained in prison custody handed his Notice of Appeal duly signed by him to the Prison Authorities for onward transmission to the Registrar of the court which convicted him; in each the appellant executed his Notice of Appeal and delivered it to a recognised channel-the Prison Authorities-within the 30 days’ period required under S. 31(2)(b) of the Supreme Court Act No.12 of 1960. This Court held in Enweliku’s case:

“It appears to us therefore that it would by the same argument for registered posting be injudicious to dandify such an appellant for delay which might have occurred in the course of the transmission of his Notice of Appeal by the Prison Authorities.”

As was done in Enweliku’s case supra, we then in the present appeal ruled that in the surrounding circumstances of their incarceration, the present appellants did all that was in their power to appeal within time. Their Notices were and are therefore deemed to have been given within the 30 days’ period required by Section 31(2)(b) of the Supreme Court Act No.12 of 1960. See also State v. Akpwee (1982) 6 SC.1. Their appeals are competent and should not be dismissed in limine but rather heard on their merits.

The original ground filed by the Appellants at page 142 of the Record of Proceedings was the omnibus ground. Leave of this Court was obtained by Chief Akinrele, SAN, to substitute 4 additional grounds. Strictly speaking the original ground filed by each Appellant namely:

“That the decision is altogether unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.”

Is not a ground of appeal in criminal cases which are usually not decided on the weight of evidence or the balance of probability., See Samuel Aladesuru and Others v. The Queen (1955) 3 W.L.R. 515: (1956) A.C. 49. One cannot really add something or substitute something for nothing for ex’ nihilo nihil fit. But this being an appeal involving the lives of the Appellants who are under sentences of death, the court was quite prepared to overlook certain irregularities.

I am not sure that the court can easily overlook a point dealing with its jurisdiction. The 4 additional grounds each dealt with either error in law by the learned trial judge or the failure of the learned trial judge “to direct himself on the issue of common purpose.” This Court is a creature of Statute and its constitutional powers to hear as conferred by Section 213(1) of the 1979 Constitution is limited to hearing and determining appeals from the Federal Court of Appeal now the Court of Appeal. There is no jurisdiction in this Court to hear appeal straight from the High Court. The court below was not mentioned in any ground of appeal at all. In my view, this is a fundamental vice. The judgement appealed against should be that of the court below. Also the grounds that were urged before us in the 4 additional grounds were grounds that were not urged in the court below. In the court below Mr. Aluko for the Appellants submitted:

“I have nothing to urge in favour of the Appellants.” and Mr. Olufadejo for the Respondent added:

“I am in support of what my learned friend said that there is nothing to urge in favour of the Appellants.”