Nonye Iwunze Vs The Federal Republic Of Nigeria (2014)

LAWGLOBAL HUB Lead Judgment Report

Bode Rhodes-Vivour, JSC

The appellant, as accused person was arraigned before a Federal High Court, Kano on a two count charge which, read: COUNT 1 That you Nonye Iwunze (M) a trader resident of Kwanarkifi Quarters Brigade Kano on or about 18th October 2004 at Bachalawa Quarters Kano manufactured fake Barbicillin Ampicilin syrup (powder) and Rampicillin Ramsey syrup (powder) and you thereby PAGE| PAGE * Arabic 2 committed an offence contrary to section 1 (a) of the counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous provisions) Act Cap C.34 Laws of the Federation of Nigeria 2004 and punishable under section 3 of the same Act. COUNT 2 That you Nonye Iwunze (M) a trader resident of Kwanarkifi Quarters Brigade Kano on or about 18th October 2004 at Bachalawa Quarters Kano, within the jurisdiction of this Honourable Court were in possession of fake Barbicillin Ampicillin syrup (powder) and Rampicillin Ramsey syrup (powder) and you thereby committed an offence contrary to section 1 (a) of the counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous provisions) Act Cap C.34 Laws of the Federation Nigeria 2004 and punishable section 3 of the same Act. The appellant entered guilty pleas to both counts. He was not represented by counsel. The prosecution opened its case on 24/2/05, called three witnesses and tendered several exhibits. The appellant did not cross-examine the witnesses neither did he give evidence or call witnesses for his defence. He also did not object to the tendering of the exhibits and refused to address the court at the end of trial on the 3rd of March 2005. In a considered judgment delivered on the 11th of March, 2005 the learned trial judge found the appellant guilty on both counts and sentenced him to five years imprisonment with an option of N500,000fine on each count. Dissatisfied with the conviction and sentence, the appellant filed an appeal. It was heard by the Court of Appeal, Kaduna Division. In that court the respondent filed a Preliminary objection to the hearing of the Appeal. His ground of objection was that since the Notice of Appeal was signed by counsel for the appellant and not by the appellant the appeal is incompetent. After hearing counsel on both sides the Court of Appeal concluded as follows: “On the whole, since the appeal is incompetent for want of proper procedure in initiating it I will visit striking out on it. Accordingly, the appellants appeal filed on the 1st of April, 2005, he and is hereby struck out for being incurably incompetent. PAGE| PAGE * Arabic 3 This appeal is against that judgment. In accordance with Order 6 Rule 5(1) and (2) of the Supreme Court Rules, counsel filed briefs of argument. Learned counsel for the appellant, Mr. B.C. Igwilo filed the appellants brief on the 22nd of November 2011. He urged this court to allow the appeal and set aside the conviction of the appellant. Learned counsel for the respondent, Mr. T. Ede filed the respondents brief on the 5th of April 2012. He urged us to dismiss the appeal. Before concluding that the appeal was incompetent, the Court of Appeal considered the appeal on its merits. The three issues formulated by the appellant were considered and pronouncements made on them. This is a good procedure, and judges who sit in the penultimate court are advised to adopt that procedure, the reasoning being that in the event the final court finds that the Court of Appeal was wrong on jurisdiction it would have no difficulty considering the appeal on its merits. Failure to make a pronouncement on the merits, and the final court finds that the Court of Appeal was wrong on jurisdiction, the Supreme Court would have to send the case back to the Court of Appeal for a bearing at great cost to the appellant, and a waste of judicial time. Learned counsel for the appellant formulated three issues from his five grounds of appeal. They are: 1. Whether the recall of the prosecution witnesses did not occasion miscarriage of justice and whether the Court of Appeal was right in upholding the conviction and sentence of the appellant by the trial court, solely on appellant’s plea of guilty notwithstanding that there was break in the chain of causation from the time the alleged fake drugs were recovered to the time same was presented to the laboratory for analysis. 2. Whether the non service of proof of evidence on the appellant and failure of the trial court to explain the charge to the appellant was not unfair and resulted in a miscarriage of justice. PAGE| 4 3. Whether the Court of Appeal was right in upholding the preliminary objection of the respondent counsel solely on technicality instead of doing and ensuring substantial justice. On his part, learned counsel for the respondent formulated two issues. They are: 1. Whether the prosecution proved its case against the appellant beyond reasonable doubt. 2. Whether the appeal was improperly struck out for being incompetent. I have carefully examined the issues formulated by both sides. The appellant’s issue 3 and the respondents issue 2 ask the question, whether the Court of Appeal was right to sustain the Preliminary objection. This is fundamental as it questions the jurisdiction of the Court of Appeal to consider an appeal on an incompetent Notice of Appeal. The appellants issues 1 and 2 and the respondents issue 2 to my mind would resolve the real grievance in this appeal. I consider once again the respondents issue 2 crucial and fundamental, in that if it is found that the Court of Appeal was correct to sustain the respondents preliminary objection this court would have no jurisdiction to hear the merits of the appeal. It reads: Whether the appeal was improperly struck out for being incompetent. Learned counsel for the appellant observed that the Notice of Appeal before the Court of Appeal was signed by the appellant’s counsel instead of by the appellant as provided by the Court of Appeal Rules. He further observed that the appellant was convicted and sentenced and the consequence of such is that the appellant will hardly have access to counsel, contending that the signing of the Notice of Appeal by counsel is an irregularity which derives from a breach of the rules of practice and procedure and ought not to render the Notice of Appeal, proceedings a nullity. In concluding he urged this court to apply the principle in Ikpasa v. Bendel State 1981 9SC p31 instead of Uwazuruike v. AG Federation 2007 8NWLR pt.1055 p.1 and hold that the Notice of PAGE| PAGE * Arabic 5 Appeal which was signed by appellants counsel is an irregularity incapable of rendering tke appeal at tke court below incompetent. Learned counsel for the respondent observed that in criminal appeals the Notice of Appeal can only be signed by the appellant, but where the appellant is insane, or a body corporate or there is sufficient allowable extenuating circumstances counsel could sign on behalf of the appellant. He submitted that the appellant does not come within the exceptions, contending that non compliance with the provisions of Order 16 Rule 4(1),(5) and (6) of the Court of Appeal Rules 2007 renders the Notice of Appeal incompetent. Reliance was placed on Adekanye v. Federal Republic of Nigeria2005 15 NWLR pt.949 p.433 State v. Jammal 1996 NWLR pt.473 p.384 Uwazuruike v. Attorney General of Federation 2007 8NWLR Pt.1055 p.1 He urged this court to resolve this issue in favour of the respondent. The Constitution confers on the Court of Appeal jurisdiction to hear and determine appeals. The jurisdiction is statutory and also controlled by rules of court. The Court of Appeal would lack jurisdiction to hear an appeal if an appellant fails to comply with statutory provisions or the relevant rules of the court. The originating process in all appeals is the Notice of Appeal. Once it is found to be defective the Court of Appeal ceases to have jurisdiction to entertain an appeal in whatever form. See Olowokere v. African Newspapers 1995 3NWLR pt.295 p.385. In force at one time or the other were the Court of Appeal Rules of 2002,2007 and 2011. The well laid down position of the Law is that the rule governing practice and procedure is the rule in force at the time of the trial or when the application is taken unless there are any provisions to the contrary. See Owata v. Anyigor 1993 1 NSCC pt.1 p.199 PAGE| 6 The Notice of Appeal to the Court of Appeal was filed on 7/4/05, but the appeal was heard on 24/3/2011. The applicable rules of court were the Court of Appeal rules 2007. Order 16 Rule 4(1), (5) (6) of the Court of Appeal Rules 2007 states who should sign the Notice of Appeal in Criminal Appeals. It reads: 4(1) 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 he given, shall he signed by the appellant himself except under provisions of paragraph (3) and (6) of this Rule. (5) Where on the trial of a person entitled to appeal it has been contended that he was not responsible according to law for his actions on the ground that he was insane at the time the act was done or the omission made by him or that at the time of the trial he was of unsound mind and consequently incapable of making his defence, any notice required to be given and signed by the appellant himself may be given and signed by his legal representative. (6) In the case of a body corporate where any notice or other document is required to be signed by the appellant himself, it shall be sufficient compliance therewith if such notice or other document assigned by the secretary, clerk, manager, or legal representative, of such body corporate. The words used in Order 16 Rules 4(1), (5) and (6) supra must be given their ordinary meaning, thereby making it abundantly clear the intention of the President of the Court of Appeal who made the Rules by virtue of the powers conferred on him by section 248 of the Constitution. By virtue of Order 16 Rule 4(1), (5) and (6) of the Court of Appeal Rules 2007 every Notice of Appeal in a criminal appeal must be signed by the appellant. Exceptions are if the appellant is insane, or is a company. Intrinsic in the above is the power of a judge to dispense with the mandatory provisions of Order 16 Rule 4(1) when the interest of justice demands. Afterall a judge is not a robot. He has discretion forever vested in him and so in deserving cases PAGE| PAGE * Arabic 7 a judge can approve of counsel signing a Notice of Appeal for a criminal appeal. This discretion vested in a judge was used by Udo Udoma, JSC in Ikpasa v. Bendel State (supra) to validate a Notice of Appeal that came before the court on a wrong Form. Learned counsel for the appellant has asked this court to follow the decision in Ikpasa v. Bendel State 1981 9 SC p.31 In Ikpasa case instead of Criminal Form 1, which ought to have been used in giving notice of appeal, the appellant used a Civil Form. The Acting Director of Public Prosecution objected, submitting 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. The Court of Appeal overruled the objection and proceeded to hear the appeal on its merits. This is what the Supreme Court, Udo Udoma (JSC) said: “I am of opinion that this is a proper case in which to exercise judicial discretion……… 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 Prison Authorities…………………..” It is clear from the above that Udo Udoma, JSC exercised judicial discretion in favour of the appellant because His lordship was satisfied that it was difficult or impossible to gain access to the appellant within the time to appeal since he was in a condemned cell. Where rules provide that a Notice of Appeal in a Criminal Appeal snail be signed by the appellant, but it is shown to the satisfaction of the court that due to extenuating circumstances compliance was impossible the court would readily exercise its discretion in favour of the appellant, making appropriate orders to enable the appellant proceed with his appeal. Can this be said to be the position of the appellant? Learned counsel for the appellant said in his brief. I quote him: “In the instant case the appellant was convicted and sentenced and the consequence of such is that the appellant will hardly have access to his counsel. PAGE| PAGE * Arabic 8 My lords, in this case the appellant was sentenced to 5 years imprisonment or N500,000.00 fine. He could very well have been a free agent, and if he was not he was undergoing ordinary incarceration completely different from Ikpasa who was in a condemned cell. Learned counsel for the appellant did not say that he was unable to have access to the appellant. Consequently learned counsel for the appellant has not shown that he had difficulty taking the Notice of Appeal to the appellant to get it signed or why the appellant did not sign it. When no credible excuse or reason for failure of the appellant to sign the Notice of Appeal is given no indulgence can be granted. The Court of Appeal was right to uphold the Preliminary Objection and strike out the appeal for being incompetent. On these facts a judge would be in grave error to exercise his discretion in favour of the appellant. In deciding to follow the decision in Uwazuruike v. AG. Federation supra instead of Ikpasa v. Bendel State supra the Court of Appeal reasoned as follows: “Even though those two decisions are diametrically opposed on the point. I am nonetheless not hamstring in the circumstances. The reason is plain enough. The law is trite that where the decisions of the Supreme Court are in direct conflict on a point, I have licence of the law to follow the one that is later in time. The case of Ikpasa v. State (supra) was decided on 18/9/81 whilst that of Uwazuruike v. Attorney General, Federation (supra) was delivered on 23/2/07. It is axiomatic, from these dates, that the case of Uwazurunihe v. Attorney General of Federation (supra) is more recent than that of Ikpasa v. Bendel State (supra). On the promise of the binding authority of Osakwes case, supra, I must willy-nilly DOW to the decision in the case of Uwazuruike v. Attorney General, Federation supra. Uwazuruike s case is authority for the position of the applicable rules of court that a Notice of Appeal in a Criminal Appeal must be signed by the appellant. This is mandatory. The only exceptions are if the appellant is insane or a body corporate, then his counsel can sign on his behalf. The rules of court were applied to the letter in Uwazuruike s case. On the other band in Ikpasa case the appellant used Civil Form to give Notice of Appeal, instead PAGE| PAGE * Arabic 9 of Criminal Form 1. This court exercised judicial discretion to enable the appellant appeal, because he was in a condemned cell and access to him was difficult or impossible. To my mind decisions are correct and not in conflict whatsoever. In Uwazuruike s case this court applied rules of court, while in Ikpasa case this court exercised judicial discretion in favour of the appellant to enable him appeal because a good reason was given for failure to comply with the rules of court. It must be said once again that rules of court are to be obeyed. The appellant is at liberty to appeal if be so desires and this can be done by filing an application for extension of time to appeal, supported with an affidavit explaining the reason for the delay. The courts would readily grant leave to appeal if satisfied that the facts relied on are genuine. In view of all that I have been saying this appeal is dismissed, as there is no merit whatsoever.

SC 354/2011