Udo Ben Idiang V. The State (1981)

LawGlobal-Hub Lead Judgment Report

[ JUDGEMENT DELIVERED BY G. S. SOWEMIMO, JSC.]

The appellant in this case had his appeal struck out on 15th January, 1979 by the Court of Appeal. He has filed a notice of appeal in August, 1979 – a period of eight months after the expiry of the date of filing notice of appeal. The appeal was struck out in the Court of appeal. The provision for time within which to appeal and which cannot be extended is contained in Section 33 sub-section 4 of the Supreme Court Act. That period of giving notice of appeal had since expired before a purported notice of appeal of August 1979. The purported appeal is hereby struck out.

A.G. IRIKEFE, JSC.: This appeal was struck out by the Court of Appeal on 15th January, 1979. The record shows that the purported appeal was not filed until 21st August, 1979, clearly well beyond the statutory period of 30 days within which to appeal in a case of murder, i.e a capital offence. See Section 31 of the Supreme Court Act (No. 12 of 1960). Accordingly, as this is a case where this court cannot grant an extension of time within which to appeal, I rule that this appeal is incompetent and would strike it out. The appeal is struck out.

M. BELLO, JSC.: The appellant was convicted of murder and sentenced to death on 18th May, 1976, in the High Court, sitting at Uyo. His appeal to the Federal Court of Appeal was struck out on 15th January 1979. His purported appeal to this court was dated 21st August 1979. By reasons of Section 31(2) (b) of the Supreme Court Act, the purported appeal is incompetent in that the appellant did not appeal within 30 days from the date of the decision of the Court of Appeal. The purported appeal shall accordingly be struck out.

K. ESO, JSC.: This appeal was struck out by the Federal Court of Appeal on 15th January, 1979. There was a notice of appeal dated 21st August, 1979. The time within which to appeal had elapsed by 10th February, 1979. The learned counsel appearing for the appellant neither filed grounds of appeal nor a brief. He came before us this morning to ask us waive our rules so that he could appeal from the judgment of the High Court to the Supreme Court, an elementary point which a lawyer called yesterday should know could not be done. There is no appeal before us and it should be struck out. But I hold the view that the Legal Aid Council should start to be a bit discriminatory about counsel they brief -certainly not counsel who have no interest in the matter nor counsel who could not assist this court. This appeal is struck out.

A.N. ANIAGOLU, JSC.: The Federal Court of Appeal gave its judgment on this appeal, striking out the appeal, on 15th January 1979. Seven months after, on 21st August 1979, the appellant purported to appeal to this court against the judgment of the Court of Appeal. By reason of the provision of Section31 (2) (b) of the Supreme Court Act, 1960, the appeal was clearly out of time and being a murder appeal in which a sentence of death was passed on the appellant, this court having regard to Section31 (4) of the said Act, has no jurisdiction to extend the time for appeal. There is no appeal properly before this court and is hereby struck out. Counsel for the appellant, Mr. Anakwenze, should take a cue from what has transpired before this court in this appeal.

Other Citation: (1981) LCN/2100(SC)