Francis Orok V. The State (1994)

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IRIKEFE, J.S.C. (Presiding): In this case, had the Court of Appeal (Enugu Zone) followed our decision in Nofiu Surakatu vs. Nigeria Housing Development Coy. (1981) 4 S.C. 26, it could have treated the heading of the appeal forms as a clerical error, amended same, and proceeded to deal with the appeal on its merit. It did not do so. Accordingly, this appeal is allowed and the entire proceedings remitted to the Court of Appeal (Enugu Zone) to hear the appeal on its merit. Being a murder appeal, it should be accorded priority.

NNAMANI, J.S.C.: When this appeal came before the Court of Appeal Enugu, a preliminary objection was taken that the notice of appeal filed by the appellant in his appeal from the High Court to the Court of Appeal was wrongly headed as it read “In the High Court of Nigeria, Holden at Aba” instead of “In the Federal Court of Appeal”. The objection was upheld and the appeal was struck out. Learned counsel for the appellant Mr. Shola Rhodes has with leave of this Court argued one ground of appeal – that the Court of Appeal erred in law in so striking out the appeal. The learned Director of Public Prosecution of Imo State Mr. Njoku rightly agreed with him. I agree too.

This Court has in its decision in Nofiu Surakatu vs. Nigeria Housing Development Authority (1981), 4 S.C. 26 reiterated its determination not to stand on undue technicalities but to see that substantial justice is done between the parties. In several other decisions this Court has frowned at the undue weight being given to this particular technicality – wrong heading of notices of appeal – particularly when it is remembered that appellants in these circumstances often do not have assistance of counsel. I would therefore allow this appeal. The appeal is hereby remitted to the Enugu Division of the Court of Appeal for trial on its merit.

KAZEEM, J.S.C.: This appeal was struck out by the Federal Court of Appeal, Enugu without going into its merit because the heading of the notice of appeal was irregular. This Court had since then in Nofiu Surakatu’s case and Akan Ekwere v. The State (1981) 9 S.C.4 decided that such irregularity should not be used against the appellant in the interest of justice. Hence the appeal should have been heard on the merit. In the circumstances, this appeal is allowed and it is hereby sent back to the Court of Appeal, Enugu for it to be heard on its merit.

COKER, J.S.C.: I agree that the appeal to the Court of Appeal should not, on the authorities, have been struck out for the only reason that the notice of appeal was erroneously headed. This is a mere technicality which should not affect the merit of the appeal. See Akai U. Ekwere vs. The State (1981) 9 S.C.4. The appeal is allowed and it is remitted to the Court of Appeal of Enugu Division to be decided on its merit.

KAWU, J.S.C.: I agree the decision of the Court of Appeal striking out the appellant’s appeal was erroneous on the authority of Nofiu Surakatu vs. Nigeria Housing Development (1981) 4 S.C. 26 and should not be allowed to stand.
Accordingly I will allow the appeal and direct that the appeal be remitted to the Court of Appeal for hearing on its merit.
Appeal allowed.

SC.26/1984