Akai Akpan Udo Ekwere V. The State (1981)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C.: The appeal to the Federal Court of Appeal was struck out without hearing it on the merits on the 30th day of April, 1979 on the flimsy ground that the notice of appeal was wrongly headed by the appellant who affixed his right thumb impression on the notice as signature. I presume this is because he was illiterate.

He has brought this appeal within time and both counsel have wisely agreed that the appeal be allowed and the case remitted to the Federal Court of Appeal for hearing on the merits. It behoves the Federal Court of Appeal to consider all the circumstances before embarking on technicalities to strike out an appeal against conviction for capital offence of murder. See Nofiu Surakatu v. Nigeria Housing Development Society Ltd. (1981)4 S.C. 26.

I agree that this appeal be allowed. It is hereby allowed and the case remitted to the Federal Court of Appeal for hearing on its merits.

K. ESO, J.S.C.: I have gone through the briefs filed by both learned counsel in this case. I agree with them that this appeal should be remitted to the Federal Court of Appeal for it to be heard on its merit. Having regard to the case of Nofiu Surakatu v. Nigeria Housing Development Society Ltd., delivered by this court on 10th April, 1981 which overruled the decision of this court in Addis Ababa v. Adeyemi, (1976) 12 S.C. 51, it is so ordered.

A. N. ANIAGOLU, J.S.C.: Both counsel, in their briefs, agreed that this appeal should go back to the Federal Court of Appeal for proper adjudication. The appeal had been struck out by the Federal Court of Appeal on 30th April, 1979. The court felt, and rightly so as the law stood as at that date, that it was bound by the decision of the Supreme Court in Addis Ababa & Anor. v. Adeyemi (1976) 12 S.C. 51. That case has since been reviewed in SC. 51/78 Nofiu Surakatu & Nig. Housing Dev. Soc. Ltd. & Anor. on 10th April, 1981, and the principle that substantial justice should not be allowed, wherever possible, to be overcome by procedural irregularity which could be cured by proper exercise of court’s discretion, re-affirmed. I agree the appeal should go back for hearing. Accordingly, the decision of the Federal Court of Appeal is hereby set aside and the case remitted to that court for adjudication on the merits.

A. NNAMANI, J.S.C.: When this appeal came up for hearing before the Federal Court of Appeal, Enugu on 30th April, 1979, it was struck out on the ground that the Notice of Appeal filed by the appellant was defective. That notice was headed “In the Uyo Judicial Division of the High Court of the South-Eastern State of Nigeria”. The Federal Court of Appeal, Enugu, felt bound and was indeed bound by the decision of this court in Addis Ababa v. Adeyemi (1976) 12 S.C. 51. This court has, however, overruled that decision in the recent case of Nofiu Surakatu v. Nigeria Housing Development Society Ltd. & Anor. (1981) 4 S.C. 26. The Federal Court of Appeal has not dealt with this appeal on its merits. I agree too that, having regard to the Nofiu case, and in the wider interests of justice, the appeal should be allowed and the case remitted to the Federal Court of Appeal, Enugu for hearing on its merits. I accordingly so order.

Other Citation: (1981) LCN/2083(SC)