APPEAL – NOTICE(S) OF APPEAL – Effect of a notice of appeal filed out of time
“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: (a) … (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.” Per EMMANUEL AKOMAYE AGIM, JSC ALADE STEPHEN v. THE STATE (2022-LCER-46531-SC) (Pp 3 – 4; Paras A – D)
Facts
The Appellant herein and one Kuroakegha Femowei, were charged before the Bayelsa State High Court, for the offences of Conspiracy and Armed Robbery.
At the close of trial, they were found guilty for lesser offences of Conspiracy to commit Robbery and Robbery and sentenced to twenty-one (21) years imprisonment.
The Appellant was dissatisfied with his conviction and sentence and appealed to the Court of Appeal. The crux of his appeal at the Court was that the trial Court was in error to have convicted him for a lesser offence, when there is no provision under the Robbery and Firearms (Special Provisions) Act, CAP R11, LFN 2004, to do so.
The Court of Appeal in its judgment affirmed the judgment of the trial Court, and dismissed the appeal. The Appellant, further aggrieved by the judgment of the Court of Appeal, appealed to the Supreme Court.
Issues
The Apex Court pointed out that the Notice of Appeal giving birth to this appeal was filed 53 days after the judgment of the Court of Appeal in clear contravention of the provisions of Section 27(2)(b) of the Supreme Court Act 2004, which provides that a notice of appeal should be filed within 30 days after the judgment of the Court of Appeal. Thus the appeal was decided on the propriety or otherwise of the time the appeal was filed.
Lead Judge(ment)
EMMANUEL AKOMAYE AGIM, J.S.C. (Delivering the Leading Judgment)
Held
The appeal was unanimously struck out.
Alternate Citations
(2022) LPELR-57336(SC)
Full Judgment
Counsel:
FELIX T. OKOROTIE, ESQ.
For Appellant
ANDREW S. ARTHUR, ESQ.
with him,
EBIERE S. EKPESE
and
DELE JOHN OLUBOWALE
For Respondent
For Appellant(s)
For Respondent(s)
Counsel’s Photograph(s) Needed.