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Japhet v. State

MANASSEH JAPHET AND ANOTHER

V

THE STATE

SUPREME COURT OF NIGERIA

WALTER SAMUEL NKANU ONNOGHEN JSC ( Presided )

JOHN AFOLABI FABIYI JSC

SULEIMAN GALADIMA JSC

BODE RHODES-VIVOUR JSC

KUMAI BAYANG AKA’AHS JSC ( Read the Lead Judgment )

SC.21/2011

SC.21A/2011

FRIDAY, 30 MAY 2014

APPEAL - Criminal appeal - Notice of appeal in - Where signed by a counsel or filed jointly by appellants - Whether competent - Court of Appeal Rules, 2007, Order 16, rules 4(1), (5) and (6) considered

APPEAL - Notice of appeal as foundation of appeal - Defect in - Effect

STATUTE - Court of Appeal Rules, 2007, Order 16, rules 4(1), (5) and (6) -  Criminal appeal - Notice of appeal in - Where signed by a counsel or filed jointly by appellants - Whether competent

Issues:

  1. Whether the honourable Justices of the Court of Appeal did not breach the appellant’s constitutionally guaranteed right to fair hearing when they raised the issue of incompetence of the appellant’s notices of appeal on the ground of their having not been personally signed by the appellant suo motu, and proceeded to resolve the said issue against the appellant without hearing him thereon and if no, whether in all events, going by the proviso to Order 16, rule 4(2) of the Court of Appeal Rules, 2007, the said notices of appeal were not competent though not signed personally appearing in court on all dates to which the said appeals were adjourned and at the hearing thereof.
  2. Whether the honourable Justices of the Court of Appeal did not breach the appellant’s constitutionally guaranteed right to fair hearing when they suo motu raised the issue of the incompetence of the appellant’s notice of appeal against the ruling of the High Court of Rivers State delivered on 27 November 2006 and proceeded to resolve same against the appellant, without hearing him thereon and, if no, whether in all events, the mere incongruity between the date of the said ruling and the date stated therefore on the notice of appeal rendered the appellant’s appeal against same incompetent, when by the grounds of appeal, the record of appeal and the Court of Appeal’s own consideration of the appellant’s argument in his brief of argument, it was clear that the said notice of appeal related to the ruling of 27 November 2006 and that the incongruence in dates was a mere typographical error.
  3. Whether the honourable Justices of the Court of Appeal were right in law in failing or refusing to strike out the information against the appellant and consequently discharge him, having found that the learned trial judge’s adjournment of the trial of the information against the appellant sine die, was in breach of the appellant’s right to fair hearing, guaranteed under the Constitution of the Federal Republic of Nigeria, 1999.
  4. Whether the honourable Justices of the Court of Appeal were right in law in considering the appellant’s appeal upon a substituted and abandoned record of appeal and upon the basis of their error and the resultant mix up and confusion, holding that the proof of evidence disclosed a prima facie case against the appellant and if no, whether in all events, upon a calm consideration of the valid record of appeal and the proper parties to the appeal, the proof of evidence disclosed a prima facie case against the appellant.

Facts:

The appellants and 2 others were arraigned in the High Court of Rivers State on a 3-count charge of murder and shop breaking contrary to sections 319(1) and 413(1) of the Criminal Code, Cap. 37, Laws of Rivers State, 1999. The appellants who were 2nd and 3rd accused persons filed an application to quash the information against them on grounds of lack of prima facie evidence against them. The trial court dismissed the application. Not satisfied, the appellants appealed jointly to the Court of Appeal. Also, following a plea of not guilty by all accused persons, the trial court admitted them to bail and adjourned the matter sine die. The appellants then filed another notice of appeal. The two notices were consolidated on application of appellants. The Court of Appeal suo motu struck out the notices of appeal as being incompetent. Yet aggrieved, the appellants filed a further appeal to the Supreme Court contending that the lower court breached their right to fair hearing when it raised the issue of the incompetence of their notice of appeal suo motu without hearing them thereon.

In determination of the appeal, the Supreme Court considered the Court of Appeal Rules, 2007, Order 16, rule 4(1), (5) and (6):

(1) Every notice of appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given, shall be signed by the appellant himself, except under the provision of paragraphs (5)  and (6) of this rule.

  1. Where on the trial of a person entitled to appeal it has been contended that he was not responsible according to law for his actions on the ground that he was insane at the time the act was done or the omission made by him or that at the time of the trial he was of unsound mind and consequently incapable of making his defence, any notice required to be given and signed by the appellant himself may be given and signed by his legal representative.
  2. In the case of a body corporate where any notice or other documents is required to be signed by the appellant himself, it shall be sufficient compliance therewith if such notice or other document is signed by the secretary, clerk, manager, or legal representative, of such body corporate.