APPEAL – FILING/ENTRY OF APPEAL – Statutory period for filing an appeal in a criminal cause or matter; effect of filing such appeal out of time and without leave of Court

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“Section 27 (2)(b) of the Supreme Court Act, Vol.13 Laws of the Federation of Nigeria states that: 27 (2) The periods prescribed for the giving of notice of appeal 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 Court of Appeal dismissed the Appellant’s appeal on 21 June, 2013, and the Appellant’s Notice of Appeal was filed on 10 September, 2014. That is to say the appeal to Supreme Court was filed over one year after the decision of the Court of Appeal, instead of within thirty days after 21 June 2013. The Notice of Appeal filed over one year after the judgment of the Court of Appeal is incompetent. But by Subsection (4) of Section 27 of the Supreme Court Act, the Appellant can have his incompetent Appeal made competent by an order of Court. Subsection 4 of Section 27 supra states that: (4) The Supreme Court may extend the periods prescribed in Subsection (2) of this Section. This is done by the Appellant filing an application for extension or enlargement of time in which to appeal. The application shall be supported by an affidavit setting forth good and substantial reasons for failure to appeal within the prescribed period and grounds of appeal which prima facie show good cause why the appeal should be heard. See: Federal Housing Authority v Abosede (1998) 2 NWLR (Pt.537) p.117. FHA v Kalejaiye (2010) 19 NWLR (Pt. 1226) p. 147. By the provisions of Order 2 Rule 31 of the Supreme Court Rules both facts in the affidavit, i.e. good and substantial reasons for failure to appeal within the prescribed period; and grounds of appeal which prima facie show good cause why the appeal should be heard must co-exist for the application to succeed. An application for extension of time to appeal would succeed no matter how long after it is brought provided there are good and substantial reasons for the delay. Once a genuine ground on jurisdiction is the reason for the appeal, good and substantial reasons for the delay are no longer necessary. The Appellant was out of time in filing his appeal by over a year and did not bother to invoke the provisions of Section 27 (4) of the Supreme Court Act, to ask for extension of time to regularise his appeal. When no excuse is given for filing his appeal out of time, no indulgence can be granted.” per RHODES-VIVOUR, J.S.C. in NWEKE CHIBUEZE FRANCIS v. FEDERAL REPUBLIC OF NIGERIA (2020- LCER-39157-SC) at p. 11 – p. 13

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