Stephen V. State (2022)
LAWGLOBAL HUB Lead Judgment Report
EMMANUEL AKOMAYE AGIM, J.S.C.
This Appeal No. SC.128/2019 was commenced on 29-1-2019 when the appellant filed a notice of appeal in Appeal No. CA/PH/13CR/2018, against the judgment of the Court of Appeal delivered on 7-12-2018 upholding the judgment of the High Court of Bayelsa State at Yenagoa delivered on 22-6-2017 in charge no. YHC/173C/2016, finding that the appellant and his co-accused are not guilty of the offences of conspiracy to commit robbery and armed robbery for which they were charged and tried and rather finding them guilty of the offence of conspiracy to commit robbery and the offence of robbery.
Both sides have filed, exchanged and adopted their respective briefs as follows – appellant’s brief, respondent’s brief and appellant’s reply brief.
The appellants’ brief raised the following issues for determination –
- Whether the lower Court was right when it affirmed that the trial Court can convict the appellant of a lesser offence of robbery when there is no provision under the Robbery and Firearm (Special provisions) Act, Cap. R11, LFN 2004 to do so?
Distilled from ground one of the Notice and Grounds of Appeal.
- Whether the conviction of the appellant on the basis of Exhibit A and B is not perverse?
Distilled from ground two of the Notice and Grounds of Appeal.
- Whether the lower Court was right in affirming the conviction of the appellant in the circumstances of this case?
Distilled from ground three, four and five of the Notice and Grounds of Appeal
The respondent’s brief also raised three issues for determination as follows:-
- Whether the lower Court was right in affirming the conviction of the appellant for the lesser offences conspiracy to commit robbery and robbery under the Robbery and Firearms (Special Provisions) Act, Cap. R11, LFN, 2004 by the trial Court as against the offences of conspiracy to commit armed robbery and armed robbery which the appellant was charged.
- Whether the lower Court rightly affirmed the reliance of the Court on the extra-judicial statement of the appellant (Exhibit B) which was admitted without objection.
- Whether the lower Court was not right when it held that there were no material contradictions in the case of the respondent/prosecution which could have been resolved in favour of the appellant and fatal to the case of the respondent/prosecution.
The date of the delivery of the judgment of the Court of Appeal and the date of the filing of the notice of this appeal against that judgment show that the notice of appeal was filed on the 53rd day after the date the judgment of the Court of Appeal was rendered. I am compelled by this situation to find out if this appeal was filed within the time prescribed by Section 27(2)(b) of the Supreme Court Act 2004 before I delve into the merit of the issues raised for determination in this appeal if need be.
Section 27(2)(b) of the Supreme Court Act 2004 provides that “The periods prescribed for the giving of notice of appeal or notice of application for leave to appeal are:
(b) In an appeal in a criminal case, thirty days from the date of the decision appealed against.”
The record of this appeal shows that the judgment of Court of Appeal was delivered on 7-12-2018. The notice of this appeal was filed on 21-1-2019. It is glaring that the notice of appeal was filed after 53 days from the date of the Court of Appeal judgment.
It was not filed within 30 days from the date of the judgment as required by Section 27(2) (b) of the Supreme Court Act 2004. It was therefore filed out of time.
The notice of this appeal is incompetent. See Adelekan V Ecu-Line NV (2006) 5SC (pt. 11) 32, Etim V The State (1982) LPELR-1173(SC).
This appeal cannot be sustained on the incompetent notice of appeal and this Court is robbed of jurisdiction to entertain and determine it by the absence of a competent notice of appeal. As it is, the notice of the appeal and this appeal are struck out.
Having struck out this appeal, no useful purpose would be served determining the merit of the appeal that is adjudged incompetent and struck out.