Ibrahim Aliyu & Anor V. State (2008)
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ISA AYO SALAMI, J. C. A. (OFR)
In this appeal, the appellants together with another accused person were arraigned before the Lagos State High Court of Justice on two count information of conspiracy to steal and stealing of 2,000 bags of rice valued at N150,000 property of Nike Bulk Wholesale Limited, Apapa on the 1st day of February, 1983. The charge on the information sheet was withdrawn and substituted therefore another two counts of conspiracy to commit armed robbery and armed robbery contrary to sections 403A and 402(2)(a) of the Criminal Code on 14th day of May, 1984.
The three accused pleaded not guilty to the two counts. The court then proceeded to trial during which the prosecution called eight witnesses. The accused then entered into their defence and testified into their own behalf.
Learned trial judge, in a reserved and considered judgment, discharged and acquitted the second accused and convicted first and third accused accordingly. First and third accused were thereby dissatisfied with the judgment and being aggrieved have appealed to this court. Each accused in accordance with the provisions of the Court of Appeal Rules filed his own notice of appeal.
On 25/5/06, application for leave for appellants to amend the grounds of appeal as well as leave to file and argue additional grounds of appeal were granted. The appellants were granted 7 days within which to file the respective amended notice of appeal. The unsigned and undated proposed notices of appeal were exhibited to the application for the amendment and leave to file additional grounds of appeal.
It seems to me that the amended notices of appeal were not filed within the prescribed period of seven days or at all. A search in both the registry and cashier’s record did not show that the notices of appeal were filed within the time given. In the absence of compliance with the order of the court authorizing amendments of the notices of appeal and leave to file and argue additional grounds of appeal the order remain inchoate.
The appellants’ brief of argument dated 12th March, 2007 and filed on the same day was prepared subsequent to the grant of the application to amend the grounds of appeal in this appeal. The brief was therefore presumably predicated on the inchoate notices of appeal, the original notices of appeal filed by the appellants were deemed abandoned and are struck out.
The brief of argument for the appellants based on the inchoate notices of appeal is incompetent. It is equally struck out.
There are a couple of problems attending to the appellants’ brief of argument. The appellants framed two issues for determination in this appeal. None of the two formulations was related to any of the five grounds of appeal filed on behalf of each appellant. In canvassing issue 1, learned counsel for appellant, in the appellants’ brief, argued it under five other subtitles, none of which was related to the grounds of appeal. The procedure adopted by appellants’ learned counsel is not in consonance with the practice and procedure of this court. It is sufficient to vitiate the brief.
Not only was the brief of argument written on an incompetent notices of appeal, it was also not signed by a legal practitioner. The appellant or his counsel may settle the brief of argument. See Order 17 rules 2 and 3(1) of the Court of Appeal Rules, 2007. The relevant rules provide as follows-
- The appellant shall within forty-five days of the receipt of the Record of Appeal from the court below file in the court a written brief, being a succinct statement of his argument in appeal.
3 (1) The brief which may be settled by counsel, shall contain an address or addresses for service…
It appears to me that reading of the two provisions just set out together gives an appellant or his counsel right to file the appellant’s brief of argument. But it seems to me that the brief of the appellants, in the instant appeal, was not settled by any of the two persons competent to do so. The brief in issue herein was apparently settled by a person other than the appellants or their counsel. It was endorsed as follows-
“PP AGABI, SHINABA, OGON & CO” Clearly this is a firm of Solicitors and not a legal practitioner. Both the Supreme Court and this Court have held that a firm of legal practitioners cannot sign a process in the place of a legal practitioner. In other words, where a counsel is required to sign a document it is a person whose identity is ascertainable from the Roll of Legal Practitioners that must append his signature. See Emmanuel Okafor & Ors v. Augustine Okeke & Ors (2007) 10 N W L R Pt 1043 521, 530 and New Nigerian Bank Plc v. Denclag Limited & Anor (2005) 4 N W L R (Pt 916) 573, 582 – 583. It follows that the brief of argument signed by PP: AGABI, SHINABA & OGON & CO not being a legal practitioner is incompetent and is struck out.
The appeal is against the decision of Lagos State High Court of Justice per Okuribido, J, delivered on 17th December 1986 convicting the appellants for armed robbery and sentencing them thus-
“The First accused is sentenced to death by hanging and the third accused is also sentenced to death by hanging in accordance with section 402(2)(a) of the Criminal Code Law”
The consequence of not having a competent brief at the hearing of an appeal is dismissal But being a criminal appeal particularly one involving a capital punishment the appeal will be and is hereby struck out.
Other Citations: (2008)LCN/2782(CA)
