Udeh V. Frn (2021)
LAWGLOBAL HUB Lead Judgment Report
EJEMBI EKO, J.S.C.
This is an appeal against the decision of the Court of Appeal, Port Harcourt Division, delivered on the 21st day of February, 2011 in a criminal matter numbered as CA/PH/66/2009. On 22nd April, 2011 (61 days after the decision appealed was handed down) the appellant herein had, as of right, appealed the decision.
The appellant’s exercise of his right of appeal is not at large. Section 233 (6) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, provides inter alia:
(6) Any right of appeal to the Supreme Court from the decision of the Court of Appeal conferred by this Section shall,… be exercised in accordance with any Act of the National Assembly and rules for the time being in force regulating the powers, practice and procedure of the Supreme Court.
Pursuant to Section 233(6) of the Constitution, Section 27(2)(b) of the Supreme Court Act, 2004 provides, and it is mandatory, that the period prescribed for the giving of notice of appeal, in an appeal in a criminal case, is thirty (30) days from the date of the decision appealed. Upon the effluxion of 30 days from the date of the decision appealed, an aggrieved party cannot appeal as of right; his right of appeal having ceased.
A notice of appeal filed outside the period prescribed by statute is statute-barred, illegal, null and void initio: OSUN STATE GOVERNMENT v. DALAMI NIGERIA LTD (2007) 9 NWLR (pt. 1038) 66; (2007) ALL FWLR (pt. 365) 438; JALLCO LTD v. OWONIBOYS TECH. SERVICES LTD (1995) 4 NWLR (pt. 391) 534 at 536. Illegality has never been condoned by Courts of law and equity.
In law, when an act is illegal and a nullity; it is an act which has no legal consequence. It is completely incompetent. The act is not only bad; it is incurably bad: per Lord Denning, L J in UAC LTD v. McFOY (1961) 3 ALL E.R. 1169. See also OKAFOR & ORS. v. A.G, ANAMBRA STATE (1991) 6 NWLR (pt. 200) 659 at 678-679; ALHAJI B. U. SALEH v. ALHAJI SHETTIMA MONGUNO & ORS (2006) 15 NWLR (pt. 1001) 26 at 74.
The Court can, in any matter of incompetence of the Court’s process including notice of appeal, grounds of appeal, raise the issue suo motu to ensure that its proceedings founded on such process are not subsequently and consequentially a nullity: OKORIE V. UDOM (1960) 5 FSC 162. 165; NTA & ORS v. ANIGBO & ORS (1972) 5 SC 156; ANADI v. OKOLI (1977) 7 SC 57 at 63; OSAWARU v. EZEIRUKA (1978) 6-7 SC 135; ABUBAKAR v. JOSEPH (2008) 13 NWLR (pt. 1104) 307.
The purported notice of appeal filed, as of right, on 22nd April, 2011, 61 days after the decision handed down on 21st February, 2011, being an incurable illegality, is a non-starter. It is not capable of invoking the jurisdiction of this Court. Appropos, it has rendered the appeal incompetent, invalid and void ab initio. Consequently, the appeal shall be, and it is hereby, struck out.