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IN CRIMINAL CASES, NOTICE OF APPEAL SHOULD BE FILED THIRTY DAYS AFTER JUDGEMENT DELIVERY

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After hearing the appeal on the 24th November, 2022 and at the conference of the Hon. Justices on the Panel before whom the appeal was argued, it was observed that the Notice of Appeal filed on the 6th February, 2013 by the Appellant against the judgment of the Court below delivered on the 11th December, 2012, was filed out of the period of time prescribed by the provisions of Section 27 (2) (b) of the Supreme Court Act 2004 which stipulates that:- “The periods prescribed for 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.” It is clear from these provisions that the period of time within which the notice of an appeal against the decision of the Court below to this Court in a criminal matter, is limited to thirty (30) days from the date the judgment appealed against, was given or delivered by that Court. Therefore, for a notice of appeal against the decision of the Court below to this Court in a criminal matter to be properly, validly and competently be given, filed and brought before this Court, in accordance and compliance with the provisions, it must be given or filed within thirty (30) days from the date the Court below delivered the judgment in question. It follows, then, that a notice of appeal given against the decision of the Court below to this Court in a criminal case, after the expiration or outside of the period of days (30 days) prescribed and limited in the provisions, would have been given out of the statutory period of time limited for so doing, would be invalid and incompetent.

— M.L. Garba JSC. Kingsley Okoro V. The State (SC.85/2013, 17 Feb 2023)

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INCOMPETENT NOTICE OF APPEAL CANNOT BE AMENDED

Any notice of appeal that is incompetent cannot be amended because you cannot put something on nothing and expect it to stand.

– K.B. Aka’ahs, JSC. SPDC v Agbara (2019) – SC.731/2017(R)

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APPEAL CANNOT BE DECIDED WHERE NOTICE OF APPEAL IS COMPETENT

My lords, it is of utmost importance and I so bear it in my mind that it is only when a notice of appeal is competent that a determination of it on the merit will be feasible. In other words, where a notice of appeal is incompetent, it is liable to be terminated in limine and it would be of no moment no matter how meritorious it would have been if it were to be considered on the merit. In law, one of the most essential requirement or condition precedent for the competence of an appeal to be determined on the merit by the Court is a valid notice and grounds of appeal, in the absence of which such an appeal would be rendered incompetent and thus incapable of being determined on the merit by this Court for without jurisdiction there can be no competence of any cause or matter or appeal before the Court. It has long been settled in our law that jurisdiction is a fundamental one and thus can be raised at any stage of the proceedings, even on appeal for the first time as in the instant appeal by either of the parties or even by the Court suo motu and once raised it must first be determined one way or the other by the Court before any other issue touching on the merit or otherwise of the respective cases of the parties can be enquired and be determined on the merit by the Court. This is so because in the absence of jurisdiction there can be no competence in the 1st Respondent’s claim to be heard and determined on the merit, since jurisdiction is the life blood of every cause or action and thus where the requisite jurisdiction is found to be lacking, that is indeed the end of the matter. See Madukolu v. Nkemdilim (1962) 2 All NLR 581.

— B.A. Georgewill, JCA. University of Lagos v. Mbaso (2018) – CA/L/775/2016

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LEAVE FOR EXTENSION OF TIME TO FILE AN APPEAL MAY ONLY BE GRANTED UPON APPLICATION BY A PARTY

The periods of time within which to give a notice of appeal against the decision of the Court below to this Court may be extended by the Court at the instance of a person/s who intend/s to appeal to the Court in both civil and criminal cases, in deserving cases. A valid and competent Notice of Appeal can be given or filed after the expiration or outside the periods of time stipulated under the provisions of Section 27 (2) of the Act, when and only if, the periods of the time was extended by the Court, as a condition precedent. Accordingly, the prior permission or leave of the Court, by way of extension of the relevant period of time within which to give the notice of appeal, is necessary and required for the validity and competence of a notice of such an appeal to the Court. Without the prior permission first sought and obtained by an Appellant for extension of time to appeal before giving or filing a Notice of Appeal in the Court, a purported Notice of Appeal given or filed after the expiration or outside the limited period of time, would be fatally and incurably, invalid and incompetent, thereby depriving the Court of the requisite jurisdiction to entertain and adjudicate over the appeal. See Amadi v. INEC (2012) LPELR – 7831 (SC), Awhinashi v. Oteri (1984) 5 SC, 38, Enweliku v. State (1970) 1 Ail NWLR, 57, Peba v. State (1980) 8 – 11 SC, 76.

— M.L. Garba JSC. Kingsley Okoro V. The State (SC.85/2013, 17 Feb 2023)

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NOTICE OF APPEAL MUST BE SERVED PERSONALLY

By Order 2 Rule 3 (1) (b) of the Supreme Court Rules, Notice of Appeal is required to be served personally. This Court has in a number of cases held that the Notice of Appeal is an originating process and failure to serve same personally on a Respondent constitutes a fundamental vice which renders the appeal incompetent as this Court will be deprived of the jurisdiction to entertain the appeal in any form whatsoever except to make an order to strike out the said appeal.

– S.C. OSEJI, J.S.C. Odey v. Alaga (2021) – SC.9/2021

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PARTIES IN NOTICE OF APPEAL SHOULD BE SAME IN AN APPLICATION SUBSEQUENTLY BROUGHT ON SAME SUIT

The Notice of Appeal which is the foundation of this application has four parties as respondents, whereas the application has only three parties, exclusive of the Chief Registrar of the Federal High Court who is the 4th respondent in the Notice of Appeal. The Chief Registrar shouldn’t have been excluded/omitted from the application before us, as, if the appeal is supposed to involve the Chief Registrar, then the Chief Registrar is supposed to be involved in the application. The parties in both processes should be the same, and none should be excluded unless it has been formerly withdrawn. In this respect I endorse the submission of Chief Olanipekun. SAN on the issue of the parties, and I agree that the applicant cannot change the parties in the notice of appeal in this application.

— A.M. Muktar, JSC. Shinning Star Nig. Ltd. v. AKS Steel Nigeria Ltd. (2011) – SC. 101/2010

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A COMPETENT NOTICE OF APPEAL

A competent notice of appeal is like having the right key for a particular door. The notice of appeal is the key to the door to this Court. Without the right key, any effort to gain entrance through the door is an exercise in futility. It is void and therefore a nullity. In the immortal words of Lord Denning, MR in McFoy vs UAC (1961) 3 ALL ER 169 @ 172: “If an act is void, then it is in law, a nullity. It is not only bad but incurably bad … And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” See also: Madukolu Vs Nkemdilim (1962) 2 SCNLR 341; Skenconsult Vs Ukey (1981) 1 SC 6.

— K.M.O. Kekere-Ekun, JSC. Francis v. FRN (2020) – SC.810/2014

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