MR. ERIC ONU & ANOR. V. THE STATE


MR. ERIC ONU & ANOR. V. THE STATE

 final
In The Court of Appeal
Lagos Judicial Division
On Thursday, the 9th day of February, 2012
Suit No: CA/L/139/2009
 
Before Their Lordships
 
HELEN MORONKEJI OGUNWUMIJU    ……. Justice, Court of Appeal
SIDI DAUDA BAGE    ……. Justice, Court of Appeal
MUHAMMED AMBI-USI DANJUMA    ……. Justice, Court of Appeal
    
 
 Between
1. MR. ERIC ONU
2. MRS. IJEOMA ONU    -Appellants
            
 
      And
                   
THE STATE    -Respondent
        
 
    

 

 


 
COUNSEL:
                              
A.T. Omaghomi    For the Appelants

                              
Miss O.O. Eboda (DD, DPP)    For the Respondents

 

JUDGMENT:
         
                 
SIDI DAUDA BAGE. J.C.A.
: (Delivering the Leading Judgment): This is an appeal against the Ruling of Shitta-Bey J. of the High Court of Justice, Lagos State sitting in Lagos, delivered on the 24th of September 2008, dismissing the 'No case submission' made by the Appellants, and directing them to enter a defence.

The charge at the lower court as contained at pages 2 and 3 of the Record of Appeal reads as follows:

Count One:

Conspiracy to commit Felony contrary to Section 516 of the Criminal Code

PARTICULARS OF OFFENCE

Eric Onu and Ijeoma Onu on or about the 14th day of April, 2004 and on divers day between that day and the 16th day of June 2004 at Ikeja in the Ikeja Judicial Division conspired together to commit felony.

Count Two:

Forgery, contrary to Section 467 of the Criminal Code.

PARTICULARS OF OFFENCE

Eric Onu and Ijeoma Onu on or about the 14th day of April, 2004 at Lagos State University Teaching Hospital, Ikeja in the Ikeja Judicial Division forged a certain medical report purporting to be the medical report of Ikeja University Teaching Hospital.

Count Three:

Uttering a false document contrary to Section 468 of the Criminal Code.

PARTICULARS OF OFFENCE

Eric Onu and Ijeoma Onu on or about the 14th day of April, 2004 at Lagos State University Teaching Hospital, Ikeja in the Ikeja Judicial Division knowingly and fraudulently uttered a certain forged medical report purporting to be the medical report of Lagos State University Teaching Hospital, Ikeja.

Count Four:

Perjury contrary to Section 118 of the Criminal Code.

PARTICULARS OF OFFENCE

Eric Onu and Ijeoma Onu on or about the 16th day of June 2004, in the Lagos Judicial Division of the Federal High Court of Nigeria being witnesses upon the trial of an action in the Federal High Court in which both of you were Plaintiffs and the Nigeria Police and 6 others were Defendants knowingly gave false testimony that as a result of severe torture, you both underwent medical treatment at the Lagos State University Teaching Hospital, Ikeja on the 30th day of January, 2004.

Briefly, the prosecution's case at the High Court was that the two accused persons were arraigned before the trial court on 25th of May, 2005 on a four counts information of conspiracy to commit felony, forgery, uttering and perjury, contrary to Sections 516, 468 and 118 respectively of the Criminal Code Cap. C17 Volume 2 Laws of Lagos State 2003. To prove its case the prosecution called three (3) witnesses and when it closed its case, the defence opted to make a no case submission, at the instance of the court, parties submitted and adopted written briefs of argument, and the accused persons filed a Reply brief on point of law. In a considered Ruling delivered by the trial court, on the 24th of September, 2008, it dismissed the said 'No case submission' of the accused persons, and ordered them to open up their defence. Dissatisfied with this ruling of the trial court, the accused persons filed this appeal.

By the Notice of Appeal contained at page 311 of the record of appeal, dated and filed the 9th of October, 2008, the parties to eth appeal are arranged as follows:

 

BETWEEN

 

MRS. IJEOMA ONU       APPELLANT

 

AND

 

MR. ERIC ONU       1ST RESPONDENT

THE STATE       2ND RESPONDENT          

 

The said 'NOTICE OF APPEAL' was signed by ANTHONY OMAGHOMI, ESQ., Festus Keyamo Chambers – 1, Festus Keyamo Lane, off Adebayo Mukuolu Street, off Gbagada Expressway, behind Hotel Newcastle Anthony Village, Lagos State

It is to be noted that, the NOTICE OF APPEAL, is the foundation and subtraction of every appeal. Any defect therein will render the whole appeal incompetent. Equally the Appellate Court will lack the required jurisdiction to entertain it or any interlocutory application based on the said appeal.In the present appeal, the NOTICE OF APPEAL contained at page 311 of the record of appeal, there is only one Appellant and that is Mrs. Ijeoma Onu. Mr. Eric Onu is listed as the 1st Respondent; ipso facto therefore Mr. Eric Onu has no existing appeal before this court. He is listed with the state, which is made the 2nd Respondent. NOTICE OF APPEAL is the originating process in every appeal. It is like the ignition key, which gives power to the engine of the appeal to kick start. See the case of Uwazurike vs. A.G. Federation (2007) All FWLR (367) 834 at 835 E-F, the Supreme Court stated the fundamental nature of a Notice of Appeal. The court held:

"A Notice of Appeal is the foundation and substratum of every appeal. Any defect thereto or therein will render the whole appeal incompetent and the appellate court will lack the required jurisdiction to entertain it or any interlocutory application based on the said appeal.

 

All the subsequent processes filed, the Appellants' brief of argument, the Respondent's brief of argument and the Appellants' Reply brief, listed Mr. Eric Onu, Mrs. Ijeoma Onu as Appellants. The state alone is listed as the Respondent. The defect as to the arrangement of the parties to the appeal as contained in the NOTICE OF APPEAL is quite extrinsic, that it cannot be treated as a mere irregularity, which in effect can be waived. This is a fundamental vice to the appeal of the Appellants.

The 2nd defect, which has afflicted the NOTICE OF APPEAL of the Appellants, is that it was signed on behalf of the accused persons by their Counsel, Anthony Omaghomi Esq. The Rules of this court 2011, provides that in all criminal matters, every NOTICE OF APPEAL, shall be signed by the Appellant himself. This is provided for by Order 17 Rule 4(1) of the Court of Appeal Rules 2011 which provides:- "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"'

It is thus clear that this provision of the Rules is mandatory, and cannot be waived. The exceptions created in sub rules (5) and (6) of that provision, cannot avail the Appellants in this appeal. The Appellants are not confined in the cell for condemned prisoners, and there is no admissible evidence or averment in any affidavit that the counsel was unable to have access to them. It has also not been shown that the Appellant suffers from any disability that may fall under any of the exceptions created by the law to enable their counsel sign for them. See:- Uwazurike vs. A.G. Federation (2007) 8 NWLR (Pt. 1035) 1 at 13 paragraphs E – H; The State vs. Jammal (1996) NWLR (Pt. 473) 384; Adekanye vs. Federal Republic of Nigeria (2005) 15 NWLR (Pt. 949) 433.

The position here is that, since the Appellants did not sign the Notice of Appeal themselves as required by law, the appeal remains incompetent, and this court lacks jurisdiction to entertain and or determine it. See Madukolu vs. Nkemdilim (1962) NSCC 374 AT 379 – 380, wherein the Supreme Court propounded the concept of court's jurisdiction on terms that:-

(1) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another, and

(2) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and

(3) The case comes before the Court initiated by due process of law and the fulfillment of any of the condition precedent to the exercise of jurisdiction.

The Notice of Appeal contained at page 311 of the record, filed by the Appellants is defective in view of all the reasons earlier on stated in this judgment. Consequently therefore, it cannot be said, to have been initiated by the due process of the law. Also see:- Okoye vs. Nigeria Construction and Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501. The earlier Supreme Court case of Umaru Cham vs. Gombe Native Authority (1964) NNLR 94 at 95, where Brett, JSC, held on behalf of the court that:

"There ore good reasons for insisting that a notice of appeal should be signed by the convicted person himself. He may believe that an appeal would be hopeless and be unwitting to suffer the suspense of waiting for it to be determined. In a non-capital case (as here) he may fear that he would fare worse if a re-trial was ordered, and in the case of an appeal against sentence, he may not wish to take the risk of having the sentence increased. He may recognize that he has done wrong and feet that he can best expiate his wrong doing by undergoing the sentence passed on him…."

In the final analysis therefore the Notice of Appeal dated and filed 9th of October 2008, signed by Anthony Omoghomi, Esq. a counsel in the chambers of Festus Keyamo, is defective having not complied with the mandatory requirement of the Rules of this court. The said Notice of Appeal is hereby struck out. In the absence of a valid Notice of Appeal, the entire appeal cannot stand. The appeal is hereby struck out.

 

HELEN MORONKEJI OGUNWUMIJU J.C.A.: I have read hitherto the judgment just delivered by my learned brother SIDI DAUDA BAGE JCA. I agree totally with his reasoning that a defective notice of appeal cannot be used to ignite an appeal to file before us. The 1st Appellants Notice of Appeal was not signed by him as mandatorily provided in Order 17 Rule 4 (1) of the Court of Appeal Rules 2007 the extant rules at the time the notice was filed. It is also the same in the 2011 Rules.

In the circumstances and for further reasons in the lead judgment the notice of appeal is hereby struck out.

 

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have been availed the opportunity of reading in draft the succinctly prepared leading Judgment of my learned brother and the apt authorities referred to; and I agree that the appeal herein is incompetent and deserves to be struck out on the ground that the said Notice of Appeal was not signed by even Appellant indicated on the Notice of Appeal. That is to say, even though the Appellants are shown in the record of appeal as consisting of the duo of Mr. Eric Onu and Mrs Ijeoma Onu, the only Name indicated on the Notice of Appeal as Appellant, was in any case bound to sign the Notice of Appeal personally and not by or through any other agent or legal practitioner acting for him/her. This is mandatory in criminal appeals except where an intended Appellant brings himself within the statutory exceptions. See Order 17 Rule 4(1) of the Court of Appeal Rules 2011 (already reproduce in the lead Judgment). For this non compliance, the Notice of Appeal is invalid, incompetent and deserves to be struck out. This, we must do, because we lack the jurisdiction to proceed as there is no activating process before us.

It is for this that I abide by the leading judgment and the consequential order striking out the invalid Notice of Appeal.