Ifeanyi Nwite Vs The State (2013)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, JSC. 

The appellant was charged with armed robbery under the Robbery and Firearms (Special Provisions) Act, 1990 in Charge No. PHC/21C/2004 before the Rivers State High Court sitting in Port Harcourt. On 28/6/2007 the trial court convicted him and sentenced him to 21 years imprisonment. Aggrieved by the judgement he filed a Notice of Appeal against it dated 2nd July, 2007 .The said Notice was signed by his counsel contrary to Order 16 Rule 4(1) Court of Appeal Rules, 2007. On 10th March, 2009 which was more than 2 years after filing the Notice of appeal, he filed another notice to withdraw the appeal. On 9th June, 2009, the parties and their counsel were absent from court and when the appeal was called, the lower court dismissed the appeal. After the dismissal of the appeal the appellant filed a motion seeking extension of time to appeal. The motion was opposed by the respondent who filed a 14 paragraph counter-affidavit deposed to by one Befi Sogho. On 29th June, 2010 the lower court heard the said motion on Notice and dismissed it in its entirety. It is against the dismissal of the said motion that the appellant filed Notice of Appeal on 9 July, 2010 containing two grounds of appeal from which the following two issues were formulated :

1. Whether in law, there exist before the lower court a competent appeal which can be said to have been withdrawn and dismissed? (This issue was distilled from ground 1 of the grounds of appeal)
2. Whether in law, the appellants application for extension of time to appeal among other reliefs on the application, ought to have been dismissed (This issue was distilled from ground 2 of the grounds of appeal).

The respondent on its part raised a lone issue for determination as follows:-

Whether the lower court was right, proper and justified when it dismissed the appellants appeal same having been withdrawn and whether the lower court was in order when it dismissed the subsequent application to refile an already-dismissed appeal.

Arguing the appeal, learned counsel for the appellant submitted that there was no competent appeal before the lower court and the learned Justices of the Court of Appeal were wrong to have concluded that since there was the withdrawal of the appeal earlier, the application for extension of time to appeal could not be heard. He argued that in criminal appeals it is the appellant himself that should sign the Notice of Appeal and since he did not sign it, the Notice is incompetent and all that the Court of Appeal should have done was to strike it out and not to dismiss. He further submitted that in law the appellant could not be deemed to have withdrawn his appeal since no appeal existed and the provision for withdrawing criminal appeals is if the appeal is competent. Consequently he submitted on the second issue that the lower court ought to have entertained the application for extension of time to appeal.

Learned counsel for the respondent argued that the counsel who filed the Notice of Appeal took instructions from the appellant before filing the Notice of Appeal and the effect of filing the Notice of Withdrawal of the appeal means that the appellant is no longer interested in the prosecution of his case and need not appear in person before the court can deal with the said Notice. By filing the Notice of Withdrawal, the appeal is terminated and the court taking that Notice has to dismiss the appeal.

This appeal falls within a very narrow compass. There is no dispute as to whether the appellant instructed his counsel to appeal. What is in issue is whether the Notice of Appeal in a criminal matter signed by counsel is a competent notice of appeal. The answer is an emphatic No. Order 16 Rule 4(1) Court of Appeal Rules 2007 provides as follows:

‘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.’

If the person who is appealing was alleged during trial to be insane or of unsound mind and therefore not responsible in law for his actions or incapable of making his defense and also if it is a body corporate, the Notice may be given and signed by his legal representative. In the case of a body corporate the Notice can be signed by the secretary, clerk, manager or legal representative of the company. The Notice of appeal dated 2nd July, 2007 contained on pages 255 and 256 of the records was signed by F. A. Iyagba who is appellants counsel. It is therefore an incompetent Notice of Appeal and liable to be struck out. See: Ralph Uwazurike & Ors vs Attorney General of the Federation (2007) 8 NWLR (Part 1035) 1; Sulaiman Mohammed vs Lasisi Sanusi Olawunmi (1993) 4 NWLR (Part 288) 384 at 397; Aderigbigbe vs Tiamiyu Abiodoye (2009) Vol. 173 LRCN 60 at 88.

Notwithstanding the fact that the appellant filed Notice of Withdrawal of the appeal, there was no valid appeal. Consequently the order which the lower court ought to have made was to strike out the incompetent notice. Even the dismissal of the appeal was tantamount to striking out the appeal.

See: Mohammed vs Olawunmi: supra at page 397. In the eyes of the law, no appeal has been filed in this case and since the appellant is out of time, he brought the proper application seeking extension of time to appeal. The application was properly made and the lower court should have granted the prayers contained in the motion. The lower court was therefore in error when it dismissed the application on the ground that the appeal had earlier been withdrawn and dismissed. The appellant need not appeal the decision of the lower court given on 9/6/2009. The appeal has merit and I hereby allow it. I set aside the decision of the lower court dated 29/6/2010 dismissing the motion for extension of time to appeal. I make the following orders:

The motion in Appeal No. CA/P/40M/2010 dated 9th April, 2010 is granted as follows:-

1. Time is extended to today within which the Appellant/Applicant is to appeal against the judgement delivered by the Rivers State High Court, Port Harcourt Judicial Division (per Hon. Justice A.I. Iyayi) on 28/6/2007 in charge No. PHC/21C/2004 in: The State vs Ifeanvi Nwite
2. Time is extended by 60 days from today within which to file the Notice of Appeal as well as the Appellants brief
3. Leave is granted the Appellant to use the record of appeal already transmitted to the Court of Appeal for the purposes of the appeal. Prayers 3 and 5 are refused and are hereby struck out.
4. I further direct that the appeal should be heard expeditiously.

SC. 266/2010