Hakido Kpema V. The State (1986)

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UWAIS, J.S.C. 

The appellant was charged with culpable homicide punishable with death under section 221 subsection (1) of the Penal Code in the High Court of Gongola State sitting in Yola. The trial began on 15th June, 1980 before Aghahowa, J. and continued with series of adjournments up to 17th December, 1981 when it was adjourned to 8th February, 1982 for judgment. However, no judgment was delivered on that day until 5th April, 1982. The appellant was found guilty as charged and was sentenced to death.

On 19th March, 1981 the appellant filed a notice of appeal, which was very much out of time, in the Court of Appeal, Jos. The appeal came up for hearing before that Court on 20th March, 1985 but had to he adjourned to 27th March, 1985 because no counsel was assigned to represent the appellant. In the meantime an application for extension of time within which to appeal to the Court of Appeal was filed by the appellant on 26th March, 1985. This was done in order to regularise the purported appeal filed.

The appeal came up for hearing on 27th March. 1985 as previously adjourned. This time the appellant was represented by counsel assigned by the Legal Aid Council. Moving the application for extension of time, counsel for the appellant indicated to the Court of Appeal that the application was brought under Order 4 rule 5 of the Federal Court of Appeal Rules, 1981 and submitted that the Court of Appeal had power to grant the extension . under the provisions of section 25 subsection (2)(b) of the Federal Court of Appeal Act, J976 as amended by the Federal Court of Appeal (Amendment) Act 1982 which became operative on 25th July, 1982.

However in the next breadth counsel for the appellant resiled from the submission by wrongly submitting that the application could not be granted because the appellant’s case “falls outside the operative date”, that is 15th July, 1982. Counsel then applied to withdraw the application. Counsel representing the State associated himself with the submissions made by the appellant’s counsel and relying on the provisions of section 25 subsection (4) of the Federal Court of Appeal Act, 1976 said, erroneously in my opinion, that the Court of Appeal was precluded from extending the time to appeal. Consequently, the Court of Appeal (per Akanbi, J.C.A. with Agbaje and Ogundare JJ.C.A. concurring) delivered the following ruling:

“I agree with the submissions by both counsels in this case. The appeal of the appellant was filed after the ninety days allowed by law had lapsed. This court cannot on the facts of this case extend the time within which to appeal. This is because the amendment to the Court of Appeal Act, (1976) which enables this court to extend time even in cases punishable with death came into force on 15th July, 1982. That being so, I have no alternative but to strike out (sic) the application for extension of time to appeal filed by his counsel. The appeal too not being competent is struck out.”

It is from the ruling that the appellant has appealed to this Court. Now it is pertinent to observe; at this stage, that although the appellant signed the notice of appeal to this court on 24th April, 1985, that is within the 30 days prescribed by section 11 subsection (2)(b) of the Supreme Court Act, 1961, the notice was not filed in the Court of Appeal until 3rd May, 1985. That is 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. The question that arises then is: is there a competent appeal before us I will defer, till later in this judgment, the answer to the question.

The grounds of appeal which the notice contains read as follows:

“1. The learned appeal Court judges erred in law when they rejected the appellant’s explanation as to why his appeal was filed out of time, to wit:-

(a) That his defence counsel failed to carry out his instruction given to him to file the appeal within time.

(b) That the appellant was unable to get in touch with his counsel because he the appellant, was in prison custody and all efforts to get in touch with his counsel proved abortive.

2. The law frowns at allowing mere technicalities to defeat the end of justice.”

Mr. Achikeh, learned Deputy Director of Legal Aid, for the appellant, applied to us by way of motion on notice for leave to raise a constitutional point which was not raised in the Court of Appeal as well as for leave to file and argue additional grounds of appeal. Leave to do both was accordingly granted. The additional grounds of appeal in question, which are two in number, read thus:

“GROUND 1

The learned Justices of the Court of Appeal erred in law when they struck out the appeal of the Appellant and in effect upheld a void judgment of the trial Court.