APPEAL – NOTICE(S) OF APPEAL – Effect of a notice of appeal filed out of time
“I had a preview of the lead judgment just delivered by my learned brother, Agim, JSC, and I agree with him that the Notice of Appeal filed outside the prescribed period for filing an appeal from the Court of Appeal to this Court is incompetent, therefore, this Court lacks jurisdiction to deal with the appeal. The notice of appeal is the substratum of the appeal, and if the notice of appeal is defective, it must be struck out on the ground that it is incompetent – see First Bank V. T.S.A. Industries Ltd. (2010) 15 NWLR (Pt. 1216) 247 SC. In this case, the Notice of Appeal is incompetent, and it is struck out.” Per AMINA ADAMU AUGIE, JSC ALADE STEPHEN v. THE STATE (2022-LCER-46531-SC) (Pp 5 – 6; Paras F – C)
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.