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Hakido Kpema V. The State (1986) LLJR-SC

Hakido Kpema V. The State (1986)

LawGlobal-Hub Lead Judgment Report

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.

  1. 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:

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“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.

Particulars of the Error

The learned Justices of the Court of Appeal struck out the appellant appeal without first considering the legal effect of the breach by the learned trial judge of the provisions of the S.258(1) of the Constitution (if the Federal Republic of Nigeria which made it imperative for the trial court to deliver its decision in writing not later than 3 months after the conclusion of evidence and final addresses.

GROUND 2

The learned Justices of the Court of Appeal erred in law when they failed to consider section 25(2)(b) and (4) of the Court of Appeal Act 1976 subject to the provisions of Section 258(1) of the Constitution of the Federal Republic of Nigeria.

Particulars

The learned Justices of the Court of Appeal failed to consider that time could not run against the appellant and that they could not be bound by section 25(4) of the Court of Appeal Act in this case where the judgment before them was null and void and of no effect, and that they had a duty to uphold the Constitution, the provisions of S.25(2)(b) and (4) of the Act notwithstanding.”

The grounds of appeal have raised weighty issues. There is no doubt that when the judgment in the trial court was delivered on 5th April, 1982 there was a contravention of section 258 subsection (1) of the Constitution of the Federal Republic of Nigeria, 1979 which states-

“Every court established under this Constitution shall deliver its decision in writing not later than 3 months after the conclusion of evidence and final addresses.

In Chief Ifezue v. Mbadugha & Anor. (1984) 1 S.C.N.L.R. 427; (1984) 5 SC 79 this Court (Irikefe, J.S.C (as he then was), Bello, J.S.C. (dissenting) and Obaseki, Eso. Aniagolu, Nnamani and Uwais. J.J.S.C) held that the provisions of section 258 subsection (1) were mandatory and any judgment delivered outside the period of three months was null and void. The same decision was followed in Paul Odi & Anor. v. Osafile & Anor. (1985) 1 NWLR 17 (Sowemimo, C.J.N., Irikefe, J.S.C (as he then was) Bello, Obaseki, Eso, Kazeern & Coker, J.J.S.C). It is clear therefore that the judgment delivered by Aghahowa, J. sentencing the appellant to death was a nullity. Since it was a nullity the learned trial judge had the inherent jurisdiction ex debito justitiae to declare it null and void – Craig v. Kanseen (1943) 1 All E.R. 108, and Kofi Forfie v. Barima Kwabena Seifa (1958) A.C. 59. But he did not do so as the point did not, apparently, occur to him nor was it raised before him because the decision of this Court in Ifezue’s case was not given until more than a period of 2 years had elapsed after his judgment was delivered.

Apart from this, it is obvious from the provisions of Section 25 subsection (4) of the Federal Court of Appeal Act 1976 that the Court of Appeal was in error when it ruled that it had no power to grant the application for extension of time within which to appeal, in case where death sentence was involved, unless the decisions in such cases were given on or after 15th July, 1982. Now prior to that date section 25 of the Federal Court of Appeal Act, 1970 read as follows:

“25.-(1) When a person desires to appeal to the Court of Appeal he shall give notice of appeal or notice of his application for leave to appeal in such matter as may be directed by rules of court within the period prescribed by the provision of subsection (2) of this section that is applicable to the case.

(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are – (3) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision;

(b) in an appeal in a criminal cause or matter, ninety days from the date of the decision appealed against.

(3) Where an application for leave to appeal is made in the first instance to the court below, a person making such application shall, in addition to the period prescribed by subsection (2) of this section, he allowed a further period of fifteen days, from the date of the determination of the application by the court below, to make another application to the Court of Appeal.

(4) The Court of Appeal may extend the periods prescribed in sub-section (2) and (3) of this section except in the case or a conviction involving the sentence of death.”

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By the provisions of section 6 of the Federal Court of Appeal (Amendment) Acts, 1982 the provisions of section 25 subsection (4) of the Federal Court of Appeal Act, 1976 were amended by the deletion of the words “except in the case of a conviction involving the sentence of death.” The amendment took effect from 15th July, 1982 and it was meant to affect the jurisdiction and the procedure in criminal cases in the Court of Appeal. There is nothing in the provisions of the 1982 Act which suggests that no extension of time could be granted in respect of cases with death sentence whose time of appeal, viz 90 days, expired by 14th July, 1982, as is the case with the present appeal. I am unable therefore to understand the reason why the learned Justices of the Court of Appeal came to the conclusion that they could not grant the appellant’s application for extension of time.

It is now convenient to answer the question which I posed. Following a plethora of authority – The Queen v. Akpan John Nda, 2 FSC 29; Berepegha Frubide v The State. (1969) 1 All N.L.R. 255, Egbo Ojojo v. The State (1970) 1 All N.L.R. 33 and Neeyode Peba v The State, (1980) 8-11 S.C. 76 – it is now settled that when a notice of appeal, in a case of conviction involving sentence of death, is given out of time, that is, not given within 30 days, this Court will strike-out the case for being incompetent in view of the provisions of section 31 sub-section (1) and (2)(b) of the Supreme Court Act, 1960. The section provides-

“31-(1) When a person desires to appeal to the Supreme Court he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by the rules of court within the period prescribed by sub-section (2) of this section that is applicable to the case

(2) The periods prescribed for the giving of notice of appeal or application for leave to appeal are

(3) in an appeal in a criminal case, thirty days from the date of the decision appealed against.”

A close examination of the appellant’s notice of appeal to this court shows that it was thumb impressed by him 24th April, 1985, that is 29 days from the date of the ruling of the Court of Appeal. The notice was therefore prepared within the prescribed time. The appellant’s signature was attested to by, it seems, an official of the Legal Aid Council who wrote his address as “Legal Aid Council. Box 6110, Jos.” The appellant’s own address for service was Jos Prison. The notice of appeal bears the stamp of the Court of Appeal which was dated 3rd May, 1985. What these facts appear to suggest is that the appellant after signing the notice must have given it to either the prison authorities or the official of the Legal Aid Council to be delivered to the Registrar of the Court of Appeal, Jos, since he could not, in the circumstance in which he found himself, that is having been kept in prison custody, take the notice to the Registrar.

Now, the facts in Monday Enweliku v. the State (1970) 1 All N.L.R. 55 are similar to those in the present case. In that case this Court considered the manner in which a notice of appeal was to be given. The following observation was made by Coker, .J.S.C. on page 59 thereof-

“In the case of an appellant from a conviction for murder, it is common knowledge that he can do no more than hand over his notice of appeal to the prison authorities for onward transmission to the Registrar of the court which convicted him. It appears to us therefore that it would by the same argument for registered posting be injudicious to damnify such an appellant for any delay which might have occurred in the course of the transmission of his notice of appeal by the prison authorities, to request the prison authorities to expedite action on such processes is beside the point in con although the desirability cannot be overstressed.

In the case in hand we have no evidence to impugn the authenticity of the date shown on the notice of appeal. It was so made in the prison at Benin City where the appellant was incarcerated and the endorsement concerning the filing was expressed to have been made at the High Court, Ughelli. We do not know how the notice of appeal was sent to Ughelli and, it is not a clear case for the application of the provisions of Order VIII rule 4(2) which we have quoted before. Howbeit, we are satisfied that the appellant executed his notice of appeal and delivered it to a recognised channel within time and we are not prepared to hold that it was “given” outside the prescribed time limit. This point is being decided by us in this case as ‘a matter of fact and the circumstance attending other cases either ex facie or proved may compel a different finding on a similar point.”

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In general by Order 2 rule 30 of the Supreme Court Act, 1985-

An appeal shall be deemed to have been brought when the notice of appeal has been filed in the Registry of the court below.”

But in the case of criminal appeals Order 9 rule 3(1) of the Rules expressed provides –

“Subject to the provisions of sub-rule (3) of this Rule, appeals shall be brought by notice (hereinafter called the notice of appeal) to be filed in the Registry of the court below which shall set forth the grounds of appeal and shall state clearly whether the appeal is against some decision of the court below other than conviction or sentence.

A notice of appeal shall be in the form prescribed in the First Schedule to these Rules and shall be signed by the appellant:

Provided that, notwithstanding that the provisions herein have not been strictly complied with, the Court may, in the interest of justice and for good and sufficient cause shown, entertain an appeal if satisfied that the intending appellant has exhibited a clear intention to appeal to the Court against the decision of the court below.

It is obvious that the appellant, having been in prison custody I had done enough in his power to bring this appeal. In the light of the foregoing, I feel inclined to hold that the appeal is competent. I therefore so hold.

The aforesaid notwithstanding, I would for the following reasons, allowed this appeal even if the notice of appeal were found to have been filed out of time. As submitted by learned counsel for the appellant and as already shown in this judgment, the judgment delivered by the High Court is null and void because that court ceased to have jurisdiction to deal with the case after the expiration of the 3 months prescribed by section 258(1) of the 1979 Constitution’s case (supra). In the often cited case of Macfoy v. United African Company Ltd., (1961) 3 All E.R. 1169; (1962) A.C. 152

Lord Denning observed as follows –

“If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without much ado, though it is sometimes convenient to have the court declare it to be so.”

This observation had been approved and followed by this court in a number of cases. After having some anxious moment on whether if an appeal is filed out of time this court could, despite the incompetence of the appeal, look at the conviction and sentence and pronounce on them; it seems to me established, following the decisions in Akpan John Nda v. The Queen (supra) and Egbo Ojojo v. The State, (supra), that the court will adopt that procedure in exercise of its inherent jurisdiction. Therefore to allow the appellant to be executed on a conviction and sentence that are clearly null and void will amount to crass legalism leading to flagrant miscarriage of justice. In my opinion, if the constitutional point relied upon in this court had been raised in the Court of Appeal, that court would have come to the same conclusion.

Finally, I think it is pertinent to point out that the provisions of subsection (4) of section 258 of the Constitution which has been added to that section by section 6 of the Constitution (Suspension and modification) (Amendment) Decree 1985, (No. 17 of 1985), is not applicable to this case, since the addition came into force on 27th August, 1985. For case of reference the subsection reads:

“4. The decision of a court shall not be set-aside or treated as a nullity solely on the ground of non-compliance with the provisions of this section unless the court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining of such non-compliance has suffered a miscarriage of justice by reason thereof”.

Consequently, this appeal succeeds. The conviction and sentence of death imposed on the appellant by Aghahowa, J., when his jurisdiction to do so had abated, are hereby declared null and void. Accordingly, it is hereby ordered that the appellant shall be re-tried in the Gongola State High Court before another Judge.


SC.156/1985

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