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INCOMPETENT NOTICE OF APPEAL CANNOT BE AMENDED

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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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notice of appeal

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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AN AMENDED NOTICE OF APPEAL OBLITERATES THE EARLIER NOTICE

Ordinarily, an amended notice of appeal completely obliterates the original notice of appeal amended. It no longer avails the appellant either to formulate his issues for the determination of the appeal therefrom or to argue his appeal on the original notice amended … I agree with the 3rd Respondent that it is the law that an appellant cannot rely on and argue his appeal on more than one notice of appeal because an issue in an appeal cannot be determined on two separate filed notices of appeal. CHUKWU v. THE STATE (2007) All FWLR 1224 at 1240. It also the law that a withdrawn notice of appeal is taken as abandoned. Upon amendment of the notice of appeal upon leave of Court, the amendment goes to the roots and the amended notice of appeal, superseding the original notice of appeal, has the effect of completely obliterating the original notice of appeal which is taken to have been abandoned. Technically, it no longer avails the appellant to rely on the original notice of appeal, it having been amended and deemed abandoned.

— Ejembi Eko, JSC. Oboh & Anor v. NFL (SC.841/2016, January 28, 2022)

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

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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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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INCOMPETENT NOTICE OF APPEAL WILL BE STRUCK OUT

Where it is established that a Notice of Appeal, the live wire of an appeal, is incompetent, this Court will have no jurisdiction to entertain such appeal. An incompetent Notice of Appeal suffers one natural consequential fate, which is, its liability to be struck out for incompetence. In this appeal, the Notice of Appeal which was filed outside the time required by law deserves no other fate than to be struck out. See Onwuzulike V. The State (2020)10 NWLR (Pt.173) 91 at 102 paras F-G. In the case of Enyibros Food Processing Company (Nig.) Limited V. N.D.l.C. (2021)16 NWLR (Pt. 1800) 559 at 571 paras B – D this Court per Eko, JSC (Rtd) stated the position of an incompetent Notice of Appeal thus: “My Lords because only a competent appeal, validly filed, enures to the appellant to invoke the jurisdiction of this Honourable Court, vested in it by Section 233(1) of the Constitution, to hear and determine appeals from the Court of Appeal, when an appeal appears to be incompetent, it will be properly interrogated to ensure that we do not proceed in an exercise that will eventually be a nullity as well. Madukolu V. Nkemdilim (1962)1 All NIR 587; (1962)2 SCNLR 341, Bronik Motors Limited and Anor V. Wema Bank Limited (1983)1 SCNLR 296, C.B.N. V. Okojie (2015) 5-6 SC (Pt.ii)173; (2015)14 NWLR (Pt.1479)231.”

— J.I. Okoro 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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