Jerry Ikuepenikan V The State (2015)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

The appellant herein (as accused person) was arraigned before the High Court of Justice, Ondo State, Okitipupa judicial Division, on a two – count charge of conspiracy to commit armed robbery and armed robbery contrary to Sections 1 (2) and 5 (b) of the Robbery and Firearms (Special Provisions) Act, Cap 398, Laws of the Federation of Nigeria, 1990. Sequel to his not-guilty plea, the Prosecution opened its case and called five witnesses in proof of its allegations against him. In the course of the trial, the said court (hereinafter referred to as “the trial court”) admitted several exhibits, namely, exhibits A- G. The accused person, who testified in his defence, did not call any other witness.

The trial court, in its judgment of January 12, 2007, following its affirmative findings in favour of the Prosecution’s witnesses and the above exhibits, found the accused person guilty as charged. In consequence, it convicted and sentenced him to death pursuant to Section 1 (2) of the said Act. His appeal to the Court of Appeal, Benin Division, was unsuccessful, hence, this further appeal to this court. However, his Notice of Appeal, dated September 16 and filed on September 28, 2010, was signed by his counsel, Dr. Olumide Ayeni.

He distilled four issues from his eleven Grounds of appeal. They were framed thus:

(1) Whether the Court of Appeal was incorrect when in the circumstances it affirmed the conviction and sentence of death imposed upon the appellant by the trial court when the defence of alibi which was set up by the appellant vide exhibit F-F12 was not investigated by the Police and was so found by the trial High Court

(2) Whether the Court of Appeal was incorrect when in the circumstances it affirmed the conviction and sentence of death imposed upon the appellant by the Trial High Court on the ground that the Prosecution proved the case against the appellant beyond reasonable doubt

(3) Whether the Court of Appeal was incorrect when in the circumstances, it affirmed the conviction and sentence of death imposed upon the appellant by the Trial High Court when it failed to judicially notice that the appellant was a beneficiary of the Amnesty/pardon in terms of the Amnesty Proclamation 51 No. 195 of 25th June, 2009 issued, made, proclaimed and pronounced by the President of Nigeria, pursuant to Sections 36 (10) and 175 [of the] Constitution of the Federal Republic of Nigeria, 1999

(4) Whether the Court of Appeal was incorrect when in the circumstances, it affirmed the conviction and sentence of death imposed upon the appellant by the trial High Court when the whole process of the prosecution of the appellant upon which the conviction was based was an utter nullity

On his part, counsel for the respondent formulated only two issues couched in these terms in the respondent’s brief of argument:

(1) Whether in the circumstances of this case where the prosecution witnesses have fixed the appellant at the scene of the crime, the Lower Court ought not to have affirmed the judgment of the trial court in spite of the fact that the alibi set up by the appellant was not investigated by the Police:

(2) Whether the Prosecution proved its case beyond reasonable doubt against the appellant

RESPONDENT’S PRELIMINARY OBJECTION

In paragraph 6. 0, [page 4 of the brief], of the said respondent’s brief of argument, the respondent incorporated a Notice of Preliminary Objection. It reads thus:

Take Notice that at or before the hearing of this appeal, the respondent shall pray the Supreme Court to strike out the appellant’s Notice of Appeal dated the 16th day of September, 2010 and a fortiori dismiss the issues for determination distilled in the appellant’s Brief of argument from the incompetent Grounds of Appeal.

In paragraph 6.2 of the said brief, the grounds were set out follows:

(1) By virtue of Order 9 Rule 3 (1) of the Supreme Court Rules (as amended), the appellant’s Notice of Appeal herein dated 16th September, 2010, and filed on 28th September, 2010, being a criminal appeal, must be signed by the appellant himself personally;

(2) The appellant’s Notice of appeal dated 16th September, 2010, and filed on 28tn September, was not signed by the appellant personally;

(3) The appellant’s Notice of Appeal herein dated 16th September, 2010, and filed on 28th September, 2010, was signed by the appellant’s solicitor, Dr. Olumide Ayeni, FCI Arb;

(4) Order 9 Rule 3 (1) of the Supreme Court Rules as amended does not permit the appellant’s solicitor to sign the Notice of Appeal herein being a criminal appeal;

(5) The Supreme Court lack the jurisdiction to entertain this appeal;

(6) This appeal is incompetent.

ARGUMENTS ON THE ISSUES

Due to the far-reaching nature of the Preliminary Objection of the respondent, it would, first, be disposed of before returning to the arguments in the main appeal (if need be). When this appeal came up for hearing on February 5, 2015, Dr Olumide Ayeni, who appeared with Ezenwa Ibegbunam; Ayodeji Olanipekun and Affis Alatanmi, for the appellant, adopted the appellant’s brief of argument filed on February 8, 2014. He, equally/ adopted the reply brief filed on February 4, 2015, in response to the respondent’s brief of argument. He urged the court to allow the appeal.

On his part, Adewale Atake, who appeared with Arnold Oshiadi; Inna Ali (Miss) and Solo Babajide, for the respondent adopted the respondent’s brief filed on February 3, 2015.

ARGUMENTS ON THE PRELIMINARY OBJECTION

RESPONDENT/OBJECTOR’S CONTENTION

Adewale Atake, for the respondent firstly, drew attention to the Notice of Preliminary Objection incorporated in the brief, [pages 4-10]. He adopted the arguments proffered in paragraphs 7.0-7.18 of the said brief in support of the said objection. The main thrust of his submissions was that the appellant should have personally signed his Notice of Appeal dated September 16, 2010, and filed on September 28, 2010, since it is a criminal appeal. He pointed out that the said Notice of Appeal was signed by the appellant’s solicitor, Dr. Olumide Ayeni and not the appellant himself.

He canvassed the view that by virtue of Order 9 Rule 3 (1) of the Supreme Court Rules (as amended), the appellant is the only legally recognised person to sign the said Notice of Appeal, citing Uwazurike v A-G. Federation [2007] 8 NWLR (Pt.1035) 1, 13-14 and a host of other cases.

He invited the court to distinguish the facts and decision in Ikpaa v. A-G, Bendel State [1981] 9 SC 7 from the facts of the instant case. He explained that, unlike in the above case, there is evidence on record that counsel had every access to the appellant here for the purpose of signing the Notice of Appeal. He pointed out that this court, in Uwazurike v A-G, Federation (supra), also, distinguished the facts and decision in Ikpaa’s case because of the “extenuating circumstances” in the latter case. He detailed the circumstances warranting his contention that counsel had unfettered access to the appellant herein in paragraphs 7.9 (i) -(iii), pages 7-8 of the brief.

In his view, the appellant’s failure to sign his Notice of Appeal personally rendered it fundamentally defective, incurably incompetent, since the condition precedent to the invocation of this court’s jurisdiction had not been fulfilled, Madukolu v. Nkemdilim (1962) 1 All NLR 587, 594. He maintained that the appellant’s Notice and Grounds of Appeal are incompetent and, as such, this court lacks the jurisdiction to entertain his appeal. He urged the court to strike out the said Notice of Appeal.

In his view, since the appellant’s issues were formulated from the said incompetent Notice, they have become worthless, Agbaka v Amadi [1998] 11 NWLR (pt 572) 16, 24. He urged the court to uphold the preliminary objection and dismiss the appeal.

APPELLANT’S RESPONSE TO THE OBJECTION

As noted earlier, the appellant filed a Reply brief on February 4, 2015, although deemed properly filed and served on February 5, 2015.

In the said reply brief, counsel invited the court to dismiss the said preliminary objection, Citing Order 4 Rule 4 (1) of the Court of Appeal Rules, 2002, Counsel contended that where a Notice of Appeal was signed is irrelevant, Duru v. FRN [2013] 6 NWLR (Pt.1351) 441.

He maintained that the Notice of Appeal in the instant case, scrupulously, complied with Form 24 to the First Schedule to the Supreme Court Rules, 1985 (as amended). He observed that the appellant is a convicted prisoner. He noted that, unlike in Uwazurike’s case, where a joint Notice of Appeal was filed for seven appellants, the present Notice of Appeal was filed on behalf of a single person, namely, the appellant herein, citing Kpema v The State [1986] 1 NWLR (Pt.17) 396, 404, 405.

He, further, canvassed the view that the Proviso to Order 9 Rule 3 (1) of the Supreme Court Rules, 1985 (as amended) together with Form 24, First Schedule, Supreme Court Rules, 1985 will cumulatively operate to validate the Notice of Appeal. He cited and relied on Amadi v. NNPC [2000] 10 NWLR (pt 674) 76, 98 on the interpretation of the word “shall.” He, equally, prayed in aid the decisions of this court which emphasise the importance of substantial justice over technicalities, Aigbobahi and Ors v. Aifuwa and Ors [2006] 6 NWLR (Pt.976) 270, 294; Akpan v. Bob and Ors [2010] 17 NWLR (Pt.1223) 421, 478-479.

In response to the objector’s contention that the court should depart from the decision in Ikpasa (supra), counsel urged the court to discountenance the said submission as it is, clearly, in violation of Order 6 Rule 5 (a) of the Supreme Court Rules, 1985 (as amended). He contended that the objection is unmeritorious and should be dismissed, Williams v Mokwe and Anor [2005] 14 NWLR (Pt.945) 249, 267.

RESOLUTION OF THE PRELIMINARY OBJECTION

As it is evident from the above submissions of the appellant’s counsel, his attempts at the refutation of the respondent/objector’s censure of the said Notice of Appeal were erected on some weak-kneed propositions. In the first place, he extracted an opinion of Uwais JSC (as he then was) in Kpema v The State (supra) out of the con of the facts and ratio of that case. He contended at paragraph 2.05 of the reply brief that:

… a similar situation involving the construction of Order 9 Rule 3 (1) (supra) confronted this court which by a full panel of seven Justices per Uwais, JSC held in Kpema v. The State [ ] variously held at page 404:

…It is obvious that the appellant, having been in prison custody, had done enough in his power to bring this appeal. In the light of the foregoing, I feel inclined to hold that the appeal is competent, I therefore so hold. The aforesaid notwithstanding, I would for the following reasons, [have] allowed this appeal even if the Notice of Appeal were found to have been filed out of time…

With respect, two things could have prompted this sort of lackadaisical approach of learned counsel. It is either that he did not, sufficiently, acquaint himself with the facts and the ratio decidendi in Kpema v. The State (supra) before canvassing it as authority for his proposition or that he, solely, relied on the editorial case note in the Law Report for his instruction as regards the facts of the said case. Either way, I regret to announce that his arguments cannot fly.

Now, in Kpema v The State (supra), the appellant, actually, signed the Notice of Appeal within time. However, the appeal before this court was filed out of time. He, subsequently, filed an application for extension of time within which to appeal. That was done in order to regularise the purported appeal filed, as shown above. In moving the application, the appellant’s counsel indicated to the Court of Appeal that the application was brought under Order 4 rule 5 of the Federal Court of Appeal Rules, 1981 (that was the designation of that court at the time). He submitted that the Court had power to grant the extension sought under the provisions of Section 25 subsection (2) (b) of the Federal Court of Appeal Act, 1976 as amended by the Federal Court of Appeal (Amendment) Act 1982 which became operative on 15th July, 1982.

Curiously, however, he made a volte face and applied to withdraw the application. By consent of counsel, that court struck out the said application for extension of time and the appeal itself relying on Section 25 subsection (4) of the Federal Court of Appeal Act, 1976. It was that ruling that prompted the appellant’s appeal to this court.

As Uwais JSC (as he then was) explained “…although the appellant signed the notice of appeal to this court… within the 30 days prescribed by Section 31 subsection (2) (b) of the Supreme Court Act, 1961, the notice was not filed in the Court of Appeal until … 37 days after the decision of the Court of Appeal. Ordinarily, therefore, the appeal before this court seems to have been filed out of time.”

In answer to his own question whether there was a competent appeal before this court, the distinguished jurist, praying in aid such decisions like The Queen v Akpan John Nda 2 F.S.C 29; Berepegha Frublde v. The State (1969)1 All N.L.R, 255; Egbo Ojojo v The State (1970)1 All N.LR.33 and Neeyode Peba v. The State [1960] 6-11 SC 76, volunteered the following insightful opinion ” it is now settled that when a notice of appeal, in a case of conviction involving sentence of death, is given out of time, that is, not given within 30 days, this court will strike out the case for being incompetent in view of the provisions of Section 31 sub-sections (1) and (2) (b) of the Supreme Court Act, 1960.”

The section provides –

31- (1) When a person desires to appeal to the Supreme Court he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by the rules of court within the period prescribed by sub-section (2) of this section that is applicable to the case.

(2) The periods prescribed for the giving of notice of appeal or application for leave to appeal are – …

(b) in an appeal in a criminal case, thirty days from the date of the decision appealed against.

Continuing with his meticulous analysis, Uwais JSC (as he then was) noted that:

A close examination of the appellant’s notice of appeal to this court shows that it was thumb- impressed by him … 29 days from the date of the ruling of the Court of Appeal. The notice was therefore prepared within the prescribed time. The appellant’s signature was attested to by, it seems, an official of the Legal Aid Council who wrote his address as ‘Legal Aid Council, Box 6110, Jos.’ The appellant’s own address for service was Jos Prison. The notice of appeal bears the stamp of the Court of Appeal which was dated 3rd May, 1965. What these facts appear to suggest is that the appellant after signing the notice must have given it to either the prison authorities or the official of the Legal Aid Council to be delivered to the Registrar of the Court of Appeal, Jos, since he could not, in the circumstances in which he found himself that is having been kept in prison custody, take the notice to the Registrar.

[italics supplied for emphasis]

The above facts and circumstances yielded His Lordship’s conclusion that:

It is obvious that the appellant, having been in prison custody, had done enough in his power to bring this appeal. In the light of the foregoing, I feel inclined to hold that the appeal is competent. I therefore so hold.

In one word, therefore, learned senior counsel cited Kpema v. The State (supra) out of con as it is, wholly, inapplicable to the question in the instant appeal. He, equally, cited Duru v. FRN (supra). However, in that case, the appellant, in fact, signed his Notice of Appeal, personally, pursuant to Order 4 Rule 4 (1) of the Court of Appeal Rules, 2002 (then applicable), see, per M. D. Mohammad, JSC at pages 16-17. Indeed, the narrow issue in the case was whether the Court of Appeal was right in its decision that from his absence from court, the appellant’s appeal had, pursuant to Order 4 Rule 4 (1) (supra), been rendered incompetent.

Not done yet, Dr Ayeni, for the appellant, pointed out that the appellants’ appeal in Uwazurike (supra) was struck out because counsel signed a joint Notice of Appeal for them. He, conveniently, wished away Ogbuagu, JSC’s re-statement of the law that “the statutory provision is that every Notice of Appeal shall be signed by the appellant himself and no other (including counsel)… The provision is not only unambiguous, but is mandatory,” [italics supplied]. In all, most of the cases cited in counsel’s spirited attempt to salvage the Notice of Appeal were either inapplicable or, where, applicable, were against the point which was being, stridently, canvassed.

It is against this background that I take the liberty of this judgment to re-iterate the point that it does not serve any useful purpose suffusing a brief of argument with cases that would not assist the court in the resolution of the main issues before it. This practice may not only be counter-productive, it may actually obfuscate the court’s perception of the issues. More importantly, that tendency merely underscores a penchant for grandstanding: an unwarranted relapse into pedantry! As much as possible, it should be discouraged!

After all, the law is that “cases are decided on their facts and ratio decidendi is based on the facts of the case before the court. A ratio cannot be determined outside the facts of the case”, Onyia v. State (2009) All FWLR (Pt.450) 625, 640; Idoniboye Obu v NNPC [2003] 4 MJSC 131; Inakoju v. Adeleke [2007] 4 NWLR (Pt.1025) 423; Babatunde v. P. A. S. and T. A. Ltd [2007] 13 NWLR (Pt.1050) 113; Fawehinmi v. NBA (No.2) (2008) All FWLR (Pt.448) 205, 310.

Next, Dr Ayeni, for the appellant, contended that “upon a true construction of Order 9 Rule 3 (1) inclusive of its proviso, the Notice of Appeal against which objection is raised is in fact competent and which this court has complete jurisdiction to adjudicate on it,” [paragraph 2.03 of the reply brief, italics supplied].

Again, with respect, this argument is not only tendentious but is, actually, misleading. Contrary to the impression which the above submission intends to create, Order 9 Rule 3 (1) of the Supreme Court Rules, 1985, merely, re-enacted the provisions of Order 8 Rule 4 of Federal Supreme Court Rules, 1961. This court, first, gave the 1961 Rule, to employ Dr Ayeni’s words, its “true construction” in Umar Cham v. Gombe Native Authority (1964) NNLR 94, 95-96 where it interpreted the rule to mean that “a notice of appeal in a criminal matter shall be signed by the appellant personally.”

Subsequent rules of this court, and the rules of the Lower Court, similarly, worded like the 1961 Rule, have been, consistently, interpreted likewise, Uwazurike and Ors v. AG, Federation (supra); Ugochukwu Duru v. FRN (supra); Iwunze v. FRN (supra) and, most recently, Okey Ikechukwu v. FRN (2015) LPELR (SC).

Counsel, further, submitted that the Proviso to Order 9 Rule 3 (1) (supra) should be construed in such a manner as to salvage the Notice of Appeal. It is conceded here that the beneficent provisions in the Proviso to Order 9 Rule 3 (1) of the Supreme Court Rules (supra) were designed to attenuate the far-reaching consequences of non-compliance with the substantive provisions in Order 9 Rule 3 (1) (supra).

However, the said provisions in the above Proviso are not open-ended. They are, actually, hedged around with conditions which the court must be satisfied with before entertaining an appeal which does not, strictly, comply with the requirement that the appellant must, personally, sign his Notice of Appeal. Regrettably, the appellant has not evinced a strong desire to move this court into invoking the provisions in his favour.

Dr. Ayeni, perhaps, imagining that the requirement prescribed in Order 9 Rule 3 (1) (supra) epitomises a technical rule, reeled out decisions of this court which de-emphasise reliance on technicalities, Aigbobahi and Ors v Aifuwa and Ors (supra); Akpan v Bob and Ors (supra); Famfa Oil Ltd v Attorney General of the Federation and Anor [2003] 18 NWLR (Pt.825) 453, 469. True, indeed, this court has not hidden its contempt for technicalities. At every opportunity it has, unequivocally, announced its espousal of substantial justice over technical rules.

There is, actually, a rich corpus of case law which exemplifies this court’s endorsement of substantial justice for its efficacy in fecundating the invaluable dividends of justice in any legal system anchored on the rule of law, the life blood of democracy, State v. Gwonto [1983] 1 SCNLR 142; Union Bank of Nigeria Plc v. Ikwem [2000] 8 NWLR (Pt.648) 223; Sha v. Kwan [2000] 8 NWLR (Pt.670) 685; Adebayo v. Okonkwo [2002] 8 NWLR (Pt.768) 1; Asims (Nig) Limited v. Lower Benue River Basin [2002] 8 NWLR (Pt.769) 349; Afro-Continental (Nigeria) Ltd. v. Co-operative Association of Professionals Inc. [2003] 5 NWLR (Pt.815) 303.

However, this is not the position here. Dr. Ayeni’s submission on this point is nothing but a contorted version of the settled position that a Notice of Appeal is the most important step in the initiation of an appeal. Where it turns out to be defective, the appeal would be considered incompetent. The cases on this point are many. Only a handful will be cited here: Thor v FCMB Ltd [2002] 2 SCNJ 85; Ebokan v Ekwenibe and Sons Trading Coy Ltd [1977] 7 SCNJ 77; Uwazurike and Ors v AG, Federation (2007) LPELR-3448 (SC) 14, D-E and Ikweki v. Ebele [2005] 11 NWLR (Pt.936) 397.

Others include: Akpan v Bob [2010) 17 NWLR (Pt.1224) 421; General Electric Co. v. Akande [2010] 18 NWLR (Pt.1225) 596; Okeke Amadi v. Okeke Okoli [1977] 7 S C 57, 58; Adelekan v. ECU-Line NV [2006] 12 NWLR (Pt.993) 33; Okolo v. UBN Ltd. [2004] 3 NWLR (Pt.859) 87.

As this court held in Uwazurike and Ors v. AG, Federation (supra), a Notice of Appeal is the foundation and substratum of every appeal. Any defect therein will render the whole appeal incompetent and the appellate court will lack the required jurisdiction to entertain it, Aviagents Ltd v. Balstravst Investment (1966) 1 All E.R. 450; Olowokere v. African Newspapers [1993] 5 NWLR (Pt.295) 583; Olarewaju v. BON. Ltd [1994] 8 NWLR (Pt.364) 622.

From the submissions in paragraph 2.07 of the reply brief, counsel would seem to suggest that the decision in Ikpasa is applicable to the facts of this case. Again, with respect, this is not so. In Ikpasa’s case, the appellant had used a Civil Form in giving the Notice of appeal. Expectedly, this prompted the submission of Counsel for the respondent that the use of wrong form was a fundamental error and therefore fatal in view of the mandatory provisions of Order 8 Rule 3 of the old Supreme Court Rules applicable to the Federal Court of Appeal [as the Lower Court, then, was]. The Court of Appeal, by a majority, overruled the objection; invoked Order 9 Rule 28 of the Rules of the Court and proceeded to hear and determine the appeal on its merits.

On further appeal, this court endorsed that approach as a proper case for the exercise of the judicial discretion vested in the Federal Court of Appeal [as it then was] by the invocation of Order 9 Rule 28 of the Rules of the Court. Explaining the appellants constraints and why the court’s discretion should have been exercised in his favour, this court explained that:

The appellant was already confined in a condemned cell. He was no longer a free agent nor an ordinary prisoner undergoing ordinary incarceration. He was therefore at the mercy of the Prisons Authorities. It seems to me that in a case of this kind there ought to be in the Prisons Department Officers sufficiently conversant with the court’s procedure relating to the filing of a notice of appeal to render assistance to prisoners desirous of appealing against their conviction and sentence.

The circumstances in Ikpasa are, therefore, different from the position in the instant appeal. As counsel for the respondent/objector had pointed out, unlike the situation in the Ikpasa case, there is evidence on record that the appellant’s counsel had unbridled access to him. As such, he had every opportunity to present him with the Notice of Appeal for his [appellant’s] signature as stipulated by the rules. Dr Ayeni neither contested this claim nor did he point to any “extenuating circumstances” that avail the appellant in the instant appeal.

Do I, then, need to remind learned senior counsel for the appellant that, since the decision in Umar Cham v Gombe Native Authority (supra) to the most recent decision in Dr. Okey Ikechukwu v FRN (supra), this court has been consistent in its position that a notice of appeal in a criminal appeal must be signed by the appellant personally See, also, Ugochukwu Duru v FRN (2013) LPELR -19930 (SC) 16-7, paragraphs B – E.

Having found that the Notice of Appeal is defective and, therefore, incompetent, I am left with no other option than to strike out the appeal in its entirety. This, simply, means that the resolution of the main issues shall abide the enlistment of a competent appeal (if and whenever such a competent process is initiated).

For now, there is no competent appeal before this court, Uwazurike v. Attorney-General of the Federation (supra); Hambe and Anor v. Hueze and Ors (2001) 2 SCNJ 31, 43. This court, therefore, lacks the jurisdiction to entertain the agitation of the appellant, Uwazurike v Attorney-General of the Federation (supra), citing Okoye v. Nigerian Construction and Furniture Co. Ltd. [1991] 6 NWLR (Pt.199) 501; Auto Import and Export v. Adebayo [2003] FWLR (Pt.140) 1686.

In all, I find considerable merit in this preliminary objection. I, therefore, enter an order upholding it. This conclusion obviates the need to consider the arguments in the main appeal, Onyemah and Ors v. Egbuchulam and Ors [1996] 5 NWLR (Pt.448) 255; [1996] 4 SCNJ 237; Attorney-General of the Federation v. ANPP and Ors [2003] 12 SCNJ 67, 81-82.

This must be so for a preliminary objection is a pre-emptive strike; its resolution obviates the need for the dissipation of precious judicial time in the determination of the appeal on the merit, Jim-Jaja v C.O.P. Rivers State and Ors (2012) LPELR-20621 (SC) 10, paragraph F.

Indeed, that is why this court is under obligation to resolve the issue agitated in the above preliminary objection before taking any further step in the determination of this appeal, Okoi v. Ibiag [2002] 10 NWLR (Pt.776) 455, 468; UBA Plc v. ACB [2005] 12 NWLR (Pt.939) 232; Goji v Ewete [2001] 15 NWLR (Pt.736) 273, 280.

Thus, since this preliminary objection to the competence of this appeal has succeeded, the proceedings in the appeal would be aborted and the need to consider the issues raised therein would automatically abate, L. M. Ericsson Nig Ltd v Aqua Oil Nig Ltd (2011) LPELR-8807, citing Ananeku v. Ekeruo [2002] 1 NWLR (Pt.748) 301, 30; NPA v. Eyamba (2005) 12 NWLR (Pt 939) 409; UBN v. Sogunro [2006] 16 NWLR (Pt.1006) 504, 521-2.

One final word before signing off! Appeals, such as the instant one, which, wearisomely and injudiciously, re-cycle the self-same issues that have received numerous magisterial pronouncements of this court should not be accommodated in our ever-congested Cause Lists. They, indeed, conduce to the proverbial delays in the hearing and determination of concrete appeals on recondite questions of law, anxiously, yearning for determinative answers from this final court.

My noble Lords, it is my earnest hope and prayer that prospective appellants should not be permitted the unwarranted indulgence of irritating Your Lordships with this settled issue any longer. This court has pronounced upon the above rule requiring an appellant, in a criminal appeal, to sign his Notice of Appeal, personally, not once, but, at least, six times [Umaru Cham v. Gombe Native Authority (supra); Ikpasa v. AG, Bendel State (supra); Uwazurike v. Attorney-General of the Federation (supra); Ugochukwu Duru v FRN (supra); Iwunze v FRN (supra) and, Okey Ikechukwu v FRN (supra)].

A word is enough for all wise and industrious counsel who have the rare privilege of pursuing their appeals up to this rare, and infrequently-attained, judicial altitude! This court ought to be allowed to devote its precious time to the resolution of, evidently, contentious issues that eventuate from the interpretation or misinterpretation of statutes and sundry issues by Lower Courts.

This objection succeeds. The Notice of Appeal filed on September 28, 2010, and signed by Dr Ayeni, having been filed in flagrant contravention of Order 9 Rule 3 (supra), and thus being, manifestly, defective, is hereby struck out Thor v FCMB Ltd (supra); Ebokam v. Ekwenibe and Sons Trading Coy Ltd (supra); Uwazurike and Ors v AG, Federation (supra); Ikweki v. Ebele (supra); Akpan v Bob (supra); General Electric Co. v. Akande (supra); Okeke Amadi v. Okeke Okoli (supra); Adelekan v. ECU-Line NV (supra); Okolo v. UBN Ltd. (supra).

In consequence, the appeal, in its entirety, is hereby struck out for its incompetence, Uwazurike v Attorney-General of the Federation (supra); Hambe and Anor v Hueze and Ors (supra). Being incompetent, this court lacks the jurisdiction to entertain the appellant’s agitation woven around it, Uwazurike v Attorney-General of the Federation (supra), citing Okoye v. Nigerian Construction and Furniture Co. Ltd. (supra); Auto Import and Export v. Adebayo (supra).

Objection succeeds. Notice of Appeal is, hereby, struck out. Appeal is, equally, struck out.

---

SC.402/2010