Charles Umezinne V. Federal Republic Of Nigeria (2018)
LAWGLOBAL HUB Lead Judgment Report
CHIMA CENTUS NWEZE, J.S.C.
At the Federal High Court, Lagos Judicial Division, the appellant, [as accused person], was charged with sundry offences under the Counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions) Act, Cap 34 Laws of the Federation of Nigeria, 2004 and under the Foods Drugs and Related Products (Registration Etc), Cap 133, Laws of the Federation of Nigeria, 2004. Emeka Oji, the Chief Legal Officer of the respondent, at the time, on behalf of the Attorney General of the Federation, signed the Charge Sheet.
On February 16, 2016, the appellant objected to the Charge on two grounds, namely, that the said Charge, which Emeka Oji signed for himself and on behalf the Attorney General of the Federation, was incompetent and irregular. The other ground was that the Court lacked the jurisdiction to entertain it. Both the High Court and the Court of Appeal, in their respective Rulings, dismissed the objection.
The appellants further appeal to this Court was, equally, greeted with a Preliminary Objection. In the Preliminary
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Objection before this Court, it was contended that the appeal was incompetent on the ground that the Notice of Appeal was signed by counsel contrary to the stipulation in Order 16 Rule 1 of the Court of Appeal Rules, 2007, applicable at the time the Notice of Appeal was filed.
At the hearing of the appeal on October 3, 2018, while counsel for the appellant adopted the brief of argument filed on December 1, 2014 and deemed properly filed on June 1, 2017, the respondent’s counsel drew attention to the Notice of Preliminary Objection filed on January 20, 2016, argued in the respondent’s brief, paragraphs 2.0 3.10, pages 2 4 of the brief.
ARGUMENTS ON THE OBJECTION
RESPONDENT/OBJECTOR’S SUBMISSIONS
Learned counsel for the respondent adopted the arguments on pages 2 4; paragraphs 3.1 3.10 of the respondent’s brief. Citing Order 16 Rule 4 (1) of the Court of Appeal Rules, 2007, he submitted that the provision is clear, unambiguous and mandatory. He drew attention to the Notice of Appeal dated October 19, 2006. The said Notice, he pointed out, was signed by Babatunde Kehinde, counsel to the applicant.
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In effect, he argued, the said Notice was not signed by the accused person.
In his submission, any defect in a Notice of Appeal will render the whole appeal incompetent. Hence, the appellate Court would have no jurisdiction to entertain either the appeal or any interlocutory application based on the said appeal, Olowokere v African Newspapers [1993] 5 NWLR (pt 295) 583; Olanrewaju v B.O. N. Ltd [1994] NWLR (pt 364) 622.
He pointed out that the signing of a Notice of Appeal in a criminal appeal by the appellant himself has always been treated as a fundamental issue of jurisdiction which cannot be waived or compromised by the parties, Uwazurike and Ors v The AG, Federation [2007] 8 NWLR (pt 1035) 1, 17. He submitted that the issue of jurisdiction can be raised at any stage in the proceedings, even for the first time, at the Supreme Court. Indeed, the Court can also raise it suo motu, Ejiofodomi v Okonkwo [1982] 11 SC 74; Swiss Air Transport Co Ltd v African Continental Bank Ltd [1971] 1 All NLR 37; Ezomo v Oyakhire [1985] 1 NWLR (pt 2) 195; Galadima v Tambai [2000] 11 NWLR (pt 677) 1; SLB Consortium Ltd v NNPC [2011] 9 NWLR (pt 1252) 317;
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Okolo v UBN Ltd [2004] 3 NWLR (pt 859) 87.
He conceded that extenuating circumstances could make compliance with the above requirement impossible, thus necessitating the appellant’s counsel signing the Notice, Ikpasa v AG, Bendel State [1981] 9 SC 7. All the same, he maintained that no such extenuating circumstance avails the present situation.
For one, the record does not show that the appellant was in custody at the time the Notice of Appeal was filed. He drew attention to the affidavit dated February 18, 2006. He explained that it was the appellant who signed that affidavit in support of his Notice of preliminary Objection. He [the appellant] was present in Court at the hearing of the said objection. He, therefore, maintained that, at the time of filing the Notice of Appeal, the appellant was a free agent and was not under any form of incarceration. There was, thus, no reason in the records why counsel should sign the Notice of Appeal to the lower Court.
Counsel maintained that, in accordance with Order 16 Rule 4 (1) of the said Rules, the Notice of Appeal to the lower Court, signed by learned counsel, is grossly defective and therefore
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incompetent. In consequence, all the proceedings founded on the defective Notice of Appeal, including the purported Amended Notice of Appeal, and the judgement of the lower Court are null and void, Nigerian Army v Samuel and Ors [2013] 14 NWLR (pt 1374) 466.
On the strength of the above submissions, he urged the Court to hold that the Notice of Appeal dated October 19, 2006, and all the proceedings therein, including the lower Court’s judgement of May 17, 2013, are incompetent, null and void. In effect, the appellant, he pointed out, had no appeal at the lower Court. The current appeal must, therefore, be seen as incompetent. He urged the Court to strike out the appeal as being incompetent, Sylva v INEC [2015] 16 NWLR (pt 1486) 576.
APPELLANT’S SUBMISSION
In reply, Babatunde Kehinde, learned counsel for the appellant, adopted and relied on the Reply brief filed on March 26, 2018, although, properly filed on May 31, 2018.
Four main issues were raised in response to the arguments of the objector. In the first place, it was pointed out that the Notice of Appeal, on which the appeal was heard at the lower Court, was not the Notice of Appeal dated October
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19, 2006. Rather, it was the Amended Notice of Appeal dated June 9, 2008. The Notice of Appeal was amended on January 15, 2009. This was pursuant to the motion dated November 26, 2008. He pointed out that, when the said motion was moved, counsel for the respondent did not oppose it, citing page 163 of the record, Heritage Bank Ltd v Bentworth Finance (Nig) Ltd (Unreported Supreme Court decision delivered on February 23, 2018).
He noted that, when the Preliminary Objection was argued on July 19, 2006, the appellant had not been remanded in prison custody as his plea had not yet been taken.
He contended that this is not a criminal appeal, hence, Order 4 of the Court of Appeal Rules is inapplicable. He described the details of Order 4 Rules 3 (1) and (2) and (4) (1) and Forms 1,2,3, 4,5 or 7 in the Second Schedule to the Rules. He drew attention to the chapeau or opening sentence of Forms 1, 2, 3, 4 and 7 and argued that the appellant does not fall into any of the categories. He, equally, noted the questions in the forms which a prospective appellant must answer. He maintained that, from their nature, a person yet to be tried or convicted does not come
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within their purview. Accordingly, he maintained that the appellant could not have competently appealed under Order 4 Rule 3 (1) (supra).
He traced the trajectory of this appeal to a Notice of Preliminary Objection dated February 16, 2006 wherein the appellant objected in limine to the charge on the ground that the said charge dated January 17, 2006, signed by Emeka Oji, not being an officer in the Attorney General’s department, is incompetent and the Court, therefore, lacked the jurisdiction to entertain it.
Upon the dismissal of the objection, the appellant lodged an appeal through the Notice of Appeal dated October 19, 2006. He maintained that the appellant’s right to a pre-conviction appeal (appeal in respect of a decision that is not final) is a constitutional provision. He noted that Section 241 (1) (b) of the Constitution guarantees that right in so far as the ground of appeal is of law. He submitted that there cannot be any successful pre-conviction appeal (envisaged under Section 241 (1) (b) if it is subjected to strict compliance with Order 4 (supra).
RESOLUTION OF THE ISSUE
In Okey Ikechukwu v Federal Republic of Nigeria
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(2015) LPELR 24445 (SC) this Court [per Nweze JSC) traced the pro-typical enactment on the requirement of the accused person signing his Notice of Appeal in these words:
It would appear that Umar Cham v Gombe Native Authority (1964) NNLR 94, 95 96 was the proto-typical case to elicit a judicial clarification of the statutory prescription that, in a criminal appeal, the accused person must sign his Notice of Appeal personally. In that case, Order 8 Rule 4 of Federal Supreme Court Rules, 1961, fell for construction. This Court interpreted the rule [similarly worded like Order 4 Rule 4 (1) of the Court of Appeal Rules, 1981 and Order 17 Rule 4 (1) of the Rules of the lower Court, 2011] to mean that ‘a notice of appeal in a criminal matter shall be signed by the appellant personally.’
His Lordship, further, noted that “Brett FJ, [with the concurrence of Bairamian JSC and Tailor FJ] took the pains to enunciate the rationale for this rule.” According to the distinguished jurist:
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There are good reasons for insisting that a notice of appeal should be signed by the convicted person himself. He may believe that an appeal would be hopeless and be unwilling to suffer the suspense of waiting for it to be determined. In a non-capital case, he may fear that he would fare worse if a retrial was ordered, and in the case of an appeal against sentence, he may not wish to take the risk of having the sentence increased. He may recognize that he has done wrong and feel that he can best expiate his wrong-doing by undergoing the sentence passed on him.
The implication of the above elucidation is that the rule codified in the Court of Appeal Rules (supra) traces its pedigree to the ancestral provision in Order 8 Rule 4 of Federal Supreme Court Rules, 1961. Instructively, since Brett FJ’s eloquent rationalisation in Umaru Cham v Gombe Native Authority (supra), this Court has had occasions to interpret subsequent rules of the lower Court modelled on that pristine prescription in the Federal Supreme Court Rules (supra).
Counsel for the appellant, placing reliance on the Reply Brief, thought that the “arguments of the learned counsel for
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the respondent that [Ikpasa v A. G., Bendel State [1981] 9 SC 7] is unavailable to the appellant will therefore not hold water.” On the contrary, it is the arguments of the appellant’s counsel that demonstrate that he [counsel] would appear to have only had a cursory glance at the eloquent reasoning of Udo Udoma JSC in Ikpasa v AG, Bendel [1981] 9 SC 7, 30-31.
In that case [Ikpasa v AG, Bendel], Udo Udoma JSC gave insight to the nature of the objection that resulted in the appeal before this Court. Instead of Criminal Form 1, which ought to have been used in giving the Notice of appeal, the appellant had used a Civil Form. Counsel for the respondent, then submitted 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 majority of the Court [Omo Eboh and Agbaje, JJCA] overruled the objection and invoked Order 9 Rule 28 of the Rules of the Court and proceeded to hear and determine the appeal on its merits. The dissenting minority judgement [per Nnamaeka-Agu, JCA, as he then was] struck out the appeal
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on the ground that there was no appeal properly before the Court.
On appeal to this Court, Udo Udoma JSC [speaking for the Court] was of the opinion that that was 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. His Lordship hinted on the appellant’s constraints and why the Court’s discretion should have been exercised in his favour. Listen to this
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.
While conceding that the provisions of Order 8 Rule 3 were mandatory, he nevertheless took the view that:
…to have denied the appellant the exercise of his
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constitutional right of appealing against his conviction and sentence of death on a mere technicality in the circumstances disclosed in this matter might have been considered as having occasioned a miscarriage of justice; for apart from the form to which objection was taken, the appellant had filed eleven grounds of appeal with detailed particulars carefully numbered seriatim and contained in six pages of foolscap size papers, which was a clear indication of the determination on the part of the appellant to pursue his appeal.
His Lordship, further, explained that:
In any case, there were two limbs to the objection raised and argued in that appeal. The first aspect of the objection had to do with a defective bond and the other with a wrong notice of appeal which was directed not to the Supreme Court as the then Court of Appeal, but to the High Court of Lagos State in the Ikeja Judicial Division. The so-called notice, in addition to being wrongly headed was, contrary to the requirements of Civil Form 12 prescribed for use in terms of Order 7 Rule 2, signed not by the appellants themselves, but by their counsel.
In respect of the defective bond, this Court had said at pages
54-55:
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Our first impulse however was to invoke Order 9 Rule 28 of the Rules of the Court and so treat the matter as curable Irregularities amounting to non-compliance with the rules of the Court having regard to the fact that the bond was prepared obviously by the Registrar of the Court below who must ostensibly be held responsible for having used a wrong form for the purpose. The fault in that respect therefore cannot, at any rate, be laid at the door of the appellant. [Italics supplied for emphasis].
More appositely, the point must be made here that the jurisdiction of the Court of Appeal to entertain appeals does not derive from the sky or, to put it in the old Latin expression, in nubibus. It is rather statutory; it is, equally, guided by its Rules. Section 243 (1) (b) of the Constitution of the Federal Republic of Nigeria (as amended) provides thus:
243 (1) Any right of appeal to the Court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be-
…
(b) exercised in accordance with any Act of the National Assembly and rules of Court for the time being in force
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regulating the powers, practice and procedure of the Court of Appeal. [Italics supplied for emphasis]
Pursuant to this subsection, rights of appeal from the High Court to the lower Court are exercisable in accordance, inter alia, with the Court of Appeal Rules. Order 6 Rule 2 (1) of the Court of Appeal Rules, 2011 prescribes that every appeal shall be initiated through a Notice of Appeal. Such a notice is thus the most important foundational step in the building block in the appeal pyramid. Thus, any defect in it would render the appeal incompetent Okeke Amadi v. Okeke Okoli [1977] 7 S C 57,58; Adelekan v. ECU-Line NV [2006] 12 NWLR (pt. 993) 33; Okolo v UBN Ltd. (2004) 3 NWLR (pt. 859) 87; Ikweki v Ebele [2005] 11 NWLR (pt.936) 397; Akpan v Bob (2010) 17 NWLR (pt. t224) 421; General Electric Co. v Akande (2010) 18 NWLR (pt. 1225) 596; Thor v FCMB Ltd (2002) 2 SCNJ 85; Ebokam v Ekwenibe and Sons Trading Coy Ltd (1977) 7 SCNJ 77;Uwazurike and Ors v A-G OF THE FED.(2007) LPELR -3448 (SC) 14, D-E.
My Lords, it is regrettable that learned counsel for the appellant, instead of conceding to the defect in the Notice of Appeal, decided to drag this Court into the drudgery of
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writing yet another judgement on this well-settled principle. For instance, this Court in Iwunze v FRN [2014] 6 NWLR (pt 1404) 580, 599, approvingly, re-affirmed Uwazurike v AG, Federation (supra) as “authority for the position…that a notice of appeal in a criminal appeal must be signed by the appellant.” In effect, ever since the old decision in Umar Cham v Gombe Native Authority (supra) to the most recent decision in Iwunze v FRN (supra); Ikuepenikan v The State (2015) LPELR 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) LPELR -19930 (SC) 16-7, paragraphs B-E; Okey Ikechukwu v FRN (supra); Ikuepenikan v The State (2015) LPELR 24611 (SC).
The exceptions are, of course, where he [such an appellant] comes within the beneficent exceptions set out in Order 17 Rules (5) and (6) or where there are extenuating circumstances which warrant his counsel discharging such a duty on his behalf], see, for example, Ikpasa v AG, Bendel State (supra). While the exception in sub-rule 5 relates to an appellant who is insane; sub-rule 6 permits
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certain categories of bodies corporate to sign notices of appeal in criminal appeals, Umaru Cham v Gombe Native Authority (supra). None of these applies to the present appellant who is yet to take his trial.
Against the above background, therefore, and having regard to the settled position on this issue, Umar Cham v Gombe Native Authority (supra); Ikpasa v AG, Bendel (supra); Uwazurike and Ors v AG, Federation (supra); Ugochukwu Duru v FRN (supra); Iwunze v FRN (supra); Okey Ikechukwu v FRN (supra); Ikuepenikan v The State (supra), I resolve this issue against the appellant and in favour of the respondent.
At this point, my lords, I crave Your Lordships’ indulgence to repeat the point I had made in Ikuepenikan v The State (supra) that:
Appeals, such as the instant one, which, wearisomely and injudiciously, re-cycle the self-same issues that have received numerous magisterial pronouncements of this Court should not be accommodated in our ever-congested Cause Lists. They, indeed, conduce to the proverbial delays in the hearing and determination of concrete appeals on recondite questions of law, anxiously, yearning for determinative answers from this final Court.
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… it is my earnest hope and prayer that prospective appellants should not be permitted the unwarranted indulgence of irritating Your Lordships with this settled issue any longer. This Court has pronounced upon the above rule requiring an appellant, in a criminal appeal, to sign his Notice of Appeal, personally, not once, but, at least, seven times [Umaru Cham v. Gombe Native Authority (supra); Ikpasa v. AG, Bendel State (supra); Uwazurike v. Attorney-General of the Federation (supra); Ugochukwu Duru v. FRN (supra); Iwunze v FRN (supra) and Okey Ikechukwu v FRN (supra); Ikuepenikan v The State (supra)].
A word is enough for all wise and industrious counsel who have the rare privilege of pursuing their appeals up to this rare, and infrequently-attained, judicial altitude! This Court ought to be allowed to devote its precious time to the resolution of, evidently, contentious issues that eventuate from the interpretation or misinterpretation of statutes and sundry issues by lower Courts.
I find in favour of the respondent/objector. The Notice of
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Appeal filed on October 19, 2006, and signed by counsel, having been filed in flagrant contravention of the above Court of Appeal Rule, and thus being, manifestly, defective, is hereby struck out, Thor v FCMB Ltd (supra); Ebokam v. Ekwenibe and Sons Trading Coy Ltd (supra); Uwazurike and Ors v AG, Federation (supra); Ikweki v. Ebele (supra); Akpan v Bob (supra); General Electric Co. v. Akande (supra); Okeke Amadi v. Okeke Okoli (supra); Adelekan v. ECU-Line NV (supra); Okolo v. UBN Ltd. (supra).
In consequence, the appeal, in its entirety, is hereby struck out for its incompetence, Uwazurike v Attorney-General of the Federation (supra); Hambe and Anor v Hueze and Ors (supra), Being incompetent, this Court lack the jurisdiction to entertain the appellant’s agitation woven around it, Uwazurike v Attorney-General of the Federation (supra), citing Okoye v. Nigerian construction and Furniture Co. Ltd. (supra); Auto Import and Export v Adebayo (supra). Objection succeeds. Notice of Appeal is hereby struck out. Appeal is equally, struck out.
In all, I find considerable merit in this preliminary objection. I, therefore, enter an order upholding it.
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This conclusion obviates the need to consider the arguments in the main appeal, Onyemah and Ors v. Egbuchulam and Ors [1996] 5 NWLR (Pt.448) 255; [1996] 4 SCNJ 237; Attorney-General of the Federation v. ANPP and Ors [2003] 12 SCNJ 67, 81-82.
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 and Ors (2012) LPELR-20621 (SC) 10, paragraph F.
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. 776) 455, 468; UBA Plc v. ACB [2005] 12 NWLR (Pt. 939) 232; Goji v Ewete [2001] 15 NWLR (Pt. 736) 273, 280.
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
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Ahaneku v. Ekeruo [2002] 1 NWLR (Pt. 748) 301, 30; NPA v. Eyamba (2005), 12 NWLR (Pt 939) 409; UBN v. Sogunro [2006] 16 NWLR (Pt.1006) 504, 521-2. The Preliminary Objection succeeds. The appeal, in its entirety, is hereby struck out for its incompetence.
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