Ralph Uwazurike & Ors V. Attorney-general Of The Federation (2007)
LAWGLOBAL HUB Lead Judgment Report
F. OGBUAGU, J.S.C
This is an appeal against the decision of the Court of Appeal, Abuja Division (hereinafter called “the court below”) delivered on 7th July, 2006, sustaining the preliminary objection raised by the respondent challenging the competency of the appeal before it and consequently, striking out the said appeal. Dissatisfied with the said decision, the appellants have appealed to this court on seven (7) grounds of appeal. The parties have filed and exchanged their respective briefs. The appellants in the brief filed on their behalf have formulated three (3) issues for determination, namely:
“(a) Whether Order 4 rules 3(1)(2) and 4(1) of the Court of Appeal Rules are applicable to a notice of appeal that did not arise out of a conviction (Ground 1 & 3)
(b) Whether the striking out of the notice of appeal was proper in law (Ground 4)
(c) Whether the failure of the Court of Appeal to pronounce on other issues raised and argued in the appeal before it was proper (Ground 2).”
On its part, the respondent formulated two (2) issues for determination namely:
“3. 1.0 Whether the provisions Order 4 rules 4(1) (sic) of the Court of Appeal Rules was properly interpreted and applied by the Court of Appeal.
3.2.0 Whether the Court of Appeal was obliged to pronounce on other issue/grounds from the incompetent notice of appeal.”It is stated that issue No.1 relates to grounds 1,3 and 4 while issues 2 relates to ground 2.
I will pause here to state briefly the facts of this case leading to this appeal. The appellants were arraigned before the Federal High Court, Abuja on a four (4) count charge, to wit:
“1. Treason against the President of the Federal Republic of Nigeria, contrary to section 37(2) of the Criminal Code Act, Chapter 77, Laws of the Federation of Nigeria 1990, and punishable under section 37 of the Criminal Code Act;
- Felony contrary to and punishable under section 37(1) of the Criminal Code Act, Chapter 77, Laws of the Federation of Nigeria, 1990.
- Felony contrary to and punishable under section 64 of the Criminal Code Act, Chapter 77, Laws of Nigeria, 1990.
- Offences contrary to section 62(2) and punishable under section 63 of the Criminal Code Act, Chapter 77, Laws of the Federation of Nigeria, 1990”.
The appellants ex debito justitiae, filed respectively a different application for bail and in the alternative, an order of court transferring the applicants to prison custody from their present place of abode. The appellants also filed an application dated 9th January, 2006, praying for:
“(a) An order of court dismissing the charges against the accused/applicants before this Honourable Court in limine.
An order of court granting relief above restraining the respondent from prosecuting or purporting to prosecute the accused/applicants on the same facts as contained in the application for remand dated 1st November, 2005 and filed in this proceeding.”
After hearing arguments of the learned counsel for the parties, the learned trial Judge, Nyako, J., in a considered ruling dated 27th January, 2006, refused the applications except that he granted the prayer for the appellants being remanded in prison custody. His Lordship also directed the prosecution to file proof of evidence in court. It is noted by me that in their appeal to the court below the appellants through their learned counsel, filed a joint notice of appeal dated 31st January, 2006 – i.e. signed by Chief Ahamba (SAN) himself / personally. Although the appellants filed their brief of argument on all the grounds of appeal, the respondent filed a notice of preliminary objection challenging the competence of the said notice of appeal. Arguments in respect of the objection, were incorporated in the respondent’s brief. Arguments were heard by the court below on 21st June, 2006 and in a considered judgment on 7th July, 2006, it sustained the objection and struck out the appeal.
For the avoidance of doubt, I will reproduce the relevant provision of Order 4 rule 4(1) of the said Rules. It reads 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 ..”
It should be noted that the appeal to the Court of Appeal does not arise out of a conviction by the trial Court. As it is clear, the appeal is/was against the refusal of grant of bail by the trial Court pending appeal. It is not in doubt that appeals are creatures of statutes. So, the jurisdiction of the Court of Appeal to adjudicate on any matter brought before it is statutory and also guided by the Rules of the court. The failure by any appellant or appellants to comply with the statutory provision or requirement prescribed by the relevant law/ laws or Rules – (which are in the nature of a subsidiary legislation and perforce, must be obeyed) under which such appeals may be competent and properly before the court, will certainly deprive the appellate court jurisdiction to entertain and/or adjudicate on the appeal.
I have no hesitation in finding as a fact and holding that by the provisions of the said Order 4 rule 4(1) of the said Rules, the filing of a joint notice of appeal or one single notice of appeal signed by all the appellants will be or is grossly defective and therefore incompetent. It is worse if the notice of appeal is signed by the learned counsel for the appellant or appellants (as is/was the case in the notice of appeal leading to the instant appeal). The statutory provision is that every notice of appeal shall be signed by the appellant himself and no other (including counsel) and not jointly. Period! The provision is not only clear and unambiguous but it is mandatory. This is not one of the exceptions in sub-rules (5) and (6) of the Rules.
Now, in the case of lkpasa v. A.-G., Bendel State (1981) 9 SC 7, the appellant was a convicted prisoner involving a capital offence and was confined in the cell for condemned prisoners. In short, the extenuating circumstances in Ikpasa’s case are distinguishable from those of the appellants. There is no evidence or averment in any of the affidavits of the appellants that their counsel was unable to have access to them. As I stated earlier, the appellants are yet to stand their trial. I observe that it was the 1st appellant who is a lawyer/ legal practitioner who even signed the affidavit in support of his application for bail at page 11 of the records. In paragraph 14 of his Supporting affidavit, he averred as follows:
“I have been invited on several occasions to the Imo State Office of the S.S.S. and other places for discussions on the facts upon which they are fabricating charges on me, but I never absconded thereafter. I always answered the invitations. ” (Italics mine)He also signed the counter-affidavit dated 12th June, 2006, the 1st further affidavit in Support of their application for bail dated 10th January, 2006. He also signed the affidavit in support of their application for an order of the court dismissing the charge against the appellants in limine. More importantly, it was all the appellants who each /individually, signed their respective affidavits in support of each of their motions/applications for bail also filed on 10th January, 2006. I observe from the signatures thereon that none of them is an illiterate. I note that at the time each of them swore to their said individual supporting affidavits at the Registry of the Federal High Court and signed the same, there is an averment in each of the said affidavits that each of them had been in custody of the S.S.S. (State Security Service) since 7th November, 2005. On 27th January, 2006, when the said ruling of the trial court, was given/ delivered, all the appellants were present in court. From the foregoing, it is plain to me that there is no reason in the records why Chief Ahamba (SAN) signed the said notice of appeal and the amended notice of appeal dated 3rd April, 2006, instead of adopting the same method or procedure when the appel-lants applied for bail individually and separately. I am also not in doubt that from all intents and purposes from the facts I have stated hereinabove, that Chief Ahamba (SAN) had access to the appellants who he should have made to sign the said notice of appeal and as amended. He was clearly in error when he signed them. I so hold.
In the case of the State v. Jammal (1996) 9 NWLR (Pt. 473) 384 at 399 C.A., it was held that the Court of Appeal ought to take judicial notice of the fact and law, that a notice of appeal in a criminal appeal filed in the lower or trial court which was signed by a counsel for the appellant instead of the appellant himself is defective by virtue of Order 4 rule 4(1) of the Court of Appeal Rules, 1981. That the provisions are clear, unambiguous and mandatory. That the notice of appeal must be signed by the appellant himself and not by his counsel.
In the recent case of Dr. Femi Adekanye & 2 ors. v. Federal Republic of Nigeria (2005) 15 NWLR (Pt. 949) 433 at 454 – 456 also referred to by the court below, the above cases were re-ferred to and followed. In effect, 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-rules 4(5) and (6) of the Rules;
(ii) that the provision is clear, unambiguous and mandatory;
(iii) that 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.
It need be stressed at this stage that where the language of a statute is plain, clear and unambigu-ous, the task of interpretation can hardly arise. It is therefore the duty of the Courts in such a situation to give the words their ordinary, natural and grammatical construction unless such interpretation would lead to absurdity or some A repugnancy or inconsistency with the rest of the legislation. See the case of Alhaji Adisa v. Oyinlola & Ors. (2000) 10 NWLR (Pt. 674)116; (2000) 6 SCNJ 290. I say this because firstly, in paragraph 4.01 B(14) of their brief,
Chief Ahamba, (SAN) correctly submitted that the Rules of interpretation of statutes do not per-mit the expansion of the content of a statutory provision beyond what is discernible from the ex-press letters of the provision being applied. He cited and relied on the cases of Aqua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622, (it is also reported in (1988) 10-11 SCNJ 26; and Oviawe v. IRP (Nig.) Ltd. (1997) 3 SCNJ 29; (1997) 3 NWLR (Pt. 492) 126 at 139F.
Even at the hearing of this appeal on 30th November, 2006, the learned SAN rightly stated that in all matters in which there are signatures are those in which there have been convic-tions. He reflected to their cases Nos. 5 – Buhari & Anor. v. The State (2004) 16 NWLR (Pt. 899) 285 at 296; and No.6 – Christopher Egbuchiulam & Anor. v. Commissioner of Police (1965) NMLR 169 in their list of authorities. He stated that the Court below relied on these two cases but that they have distinguished them in the cases in which the appellants have not been tried and are protesting the trial. He refined to Order 4 rules 3( 1) & (2) and Order 4 rules 4( 1) of the said Rules. I note that the learned Senior Advocate of Nigeria was talking about a person convicted. In paragraph 4.01(11) of the brief, it is submitted that,
“Apart from the express exclusion of pre-trial application from Order 4 rules 3(1) & (2) and 4(1) it is noteworthy that bail pending trial bring a constitution alright under section 35(4) of the Nigerian Constitution is a civil right.”
It is further submitted that there is no provision for bail under the Criminal or Penal Code or the Criminal Procedure Act. That seeking a civil right in the course of a criminal trial does not render such an application a criminal trial which must necessarily be initiated by a prosecutor. I will re-frain from commenting on these submissions. This is because they are not the relevant issue be-fore this court. What is before us is whether or not the notice of appeal and the amended notice of appeal are defective and therefore, incompetent. I will pause here to state that at page 298 of the records, the court below, contrary to the submission of Chief Ahamba (SAN), stated that Buwai’s case and that of Ebugharia, “cited by the respondent are not applicable. ”
It must be borne in mind always and this is also settled that a notice of appeal is the foundation and substratum of every appeal. Any defect thereto or therein will render the whole appeal incompetent and the appellate Court will lack the required jurisdiction to entertain it or any interlocutory application based on the said appeal. See the cases of Aviagents Ltd. v. Balstravest Investment Ltd. (1966) 1All ER 450; Olowokere v. African Newspapers (1993) 5 NWLR (Pt. 295) 583 and Olanrewaju v. B.O.N. Ltd. (1994) 8 NWLR (Pt. 364) 622 just to mention but a few.
On the above principle of law and the said provisions of Order 4 rule 4( 1), of the said Rules, I rest this judgment. But before I am done, I will deal with issue 2 of the appellant.
I agree with the submission of the respondent in their brief that once the notice of appeal even as amended was held by the Court below to be defective and therefore incompetent, there was nothing left for it to consider in the appeal other than to strike out the appeal in its entirety. 1 hold that the Court below was not entitled and could not consider or deal with any other issue in respect of an incompetent appeal. This is because there was no competent appeal before it.
Since the appeal was initiated by an incompetent and defective notice of appeal (even as amended) or due process, that is/was the end of the appeal. See the case of the Attorney-General of the Federation v. Guardian Newspapers Ltd. (1999) 9 NWLR (Pt. 618) 187 C.A.
In fact and indeed, in the case of Hambe & Anor. v. Hueze &Ors. (2001) 2 SCNJ 31 at 43; (2001) 4 NWLR (Pt. 703) 372, cited and relied on in the respondent’s brief, this court – per Ogundare, JSC (of blessed memory) stated as follows, inter alia:
“I note that the Court below struck out the notice of appeal and at the same time dismissed the appeal. I think these are inconsistent orders. An appeal is initiated by a notice of appeal. See Order 3 rule 2( 1) Court of Appeal Rules if, therefore, a notice of appeal is struck out for being incompetent, (and I add as in the instant case leading to this appeal) then there can be no appeal to be dismissed.”
This is why it has to be borne in mind and this is also settled, that once a court holds that it has no jurisdiction to entertain and/or determine a matter, it merely strikes the case or matter out and not to dismiss it. See Okoye v. Nigerian Construction & Furniture Co.Ltd. (1991) 6 NWLR (Pt. 199) 501; and Auto Import & Export v. J. A. Adebayo (2003) FWLR (Pt. 140) 1686; (2002) 18 NWLR (Pt. 799) 554. Thus, where a preliminary objection to an appeal succeeds, there would be no need to go further to consider the arguments in support of the issues for determination. See Chief Bright Onyemeh & Ors. v. Lambert Egbuchulam & Ors. (1996) 5 NWLR (Pt. 448) 255 at 268, 269; (1996) 4 SCNJ 237; NEPA v.Ango (2001) 15 NWLR (Pt. 737) 627 at 645 – 646 C.A.; ANPP v. The Returning Officer Abia South Senatorial District – (Mr. Festus Ukagwu) & 2 Ors. (2005) 6 NWLR (Pt. 920) 140 at 170-171 C.A.; and Attomey-General of the Federation v. ANPP & Ors. (2003) 12 SCNJ 67 at 81 – 82; (2003) 18 NWLR (Pt. 851) 182 – per Tobi, J.S.C. I wish to state in my respectful but humble view that after the decision of the court below, all that Chief Ahamba (SAN) should have done, in view of the welter of decided authorities, is, incompliance with the said Order 4(1) rule 4(1) of the Rules, to get each of the appellants to sign and file a separate notice of appeal. This should have served all these wasted time and energy. The consequence is that instead, while the appellants are languishing in custody, this most frivolous appeal is brought. Before concluding this judgment, I see and note that at page 1 of the respondent’s brief, there is a heading thus – “Submission in support of preliminary objections”
Then, there are submissions in respect thereof. I have searched in vain in the records and from my enquiries in the Litigation section of the Registry, there is no notice of preliminary objection ever filed and/or served by the respondent. My concern was heightened because of
(i) the seriousness and the weighty arguments, in respect there of and
(ii) that there is no reply brief in respect of the said objection. There is no doubt and this is also settled, that a notice of preliminary
objection could be incorporated or may be validly raised in a respondent’s brief of argument. See the cases of Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248 at 257, 258; and Salami v. Mohammed & Anor (2000) 9 NWLR (Pt. 673) 469; (2000) 6 SCNJ 281. But there is no such notice in the respondent’s said brief which was even amended at the date of hearing of this appeal by the addition of”(i)”after rule 3 of the Rules of this court.
For purposes of emphasis, firstly, I see and note that contrary to Order 2 rule 9(1) of the Rules of this Court (as amended in 1999),which requires a respondent seeking to raise a preliminary objection to the hearing of the appeal, to give three (3) days notice to the appellant (or appellants) before the hearing of the appeal, setting out the grounds of objection, and shall file such notice together with ten (10) copies thereof with the Registrar within the same time. I am aware that fail-ure to bring the notice in accordance with the above does not render it ineffective. See Alhaji Maigoro v. Alhaji Garba (1999) 7 SCNJ 270 at 282; (1999) 10 NWLR (Pt. 624) 555. However, Order 9 rule 2 provides that on failure to comply with the above rule, the court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the respondent. Since the Court cannot now adjourn although there is no such notice setting out the grounds of the objection (not submissions) in respect thereof, I will ignore/discountenance the said “submission” and strike it out.
Secondly, contrary to Order 9 rule 3( 1) of the said Rules which provide that the notice of appeal shall be signed by the appellant, the notice of appeal to this court dated 22nd July, 2006 and filed on 22nd July, 2006, was also signed by Chief Ahamba (SAN) and not by the appellants or any of them. There is no evidence that his so signing was authorised by the appellants or that they all had knowledge of the signing or consented to his so signing. The said notice of appeal is therefore, incompetent. On this ground again, there is no competent appeal before this court. This court takes judicial notice of the said Rules and the said notice of appeal. This being so, the Court has no jurisdiction to entertain the appeal. I need not hear arguments from counsel as the rule is clear, unambiguous and also mandatory. See the case of Chief Agbaka & 3 Ors. v. Chief Amadi & Anor: (1998) 11 NWLR (Pt. 572) 16 at 25; (1998) 7 SCNJ 367. This appeal also fails on this ground. It is therefore, struck out. But since it has failed on its merits, it stands dismissed.
In the final result, I hold that this appeal, with respect, lacks merit. It fails and it is hereby and accordingly dismissed.
I hereby affirm the said decision of the court below.