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A COMPETENT NOTICE OF APPEAL

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A competent notice of appeal is like having the right key for a particular door. The notice of appeal is the key to the door to this Court. Without the right key, any effort to gain entrance through the door is an exercise in futility. It is void and therefore a nullity. In the immortal words of Lord Denning, MR in McFoy vs UAC (1961) 3 ALL ER 169 @ 172: “If an act is void, then it is in law, a nullity. It is not only bad but incurably bad … And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” See also: Madukolu Vs Nkemdilim (1962) 2 SCNLR 341; Skenconsult Vs Ukey (1981) 1 SC 6.

— K.M.O. Kekere-Ekun, JSC. Francis v. FRN (2020) – SC.810/2014

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notice of appeal

IN CRIMINAL CASES, NOTICE OF APPEAL SHOULD BE FILED THIRTY DAYS AFTER JUDGEMENT DELIVERY

After hearing the appeal on the 24th November, 2022 and at the conference of the Hon. Justices on the Panel before whom the appeal was argued, it was observed that the Notice of Appeal filed on the 6th February, 2013 by the Appellant against the judgment of the Court below delivered on the 11th December, 2012, was filed out of the period of time prescribed by the provisions of Section 27 (2) (b) of the Supreme Court Act 2004 which stipulates that:- “The periods prescribed for giving of notice of appeal or notice of application for leave to appeal are:- (b) in an appeal in a criminal case, thirty days from the date of the decision appealed against.” It is clear from these provisions that the period of time within which the notice of an appeal against the decision of the Court below to this Court in a criminal matter, is limited to thirty (30) days from the date the judgment appealed against, was given or delivered by that Court. Therefore, for a notice of appeal against the decision of the Court below to this Court in a criminal matter to be properly, validly and competently be given, filed and brought before this Court, in accordance and compliance with the provisions, it must be given or filed within thirty (30) days from the date the Court below delivered the judgment in question. It follows, then, that a notice of appeal given against the decision of the Court below to this Court in a criminal case, after the expiration or outside of the period of days (30 days) prescribed and limited in the provisions, would have been given out of the statutory period of time limited for so doing, would be invalid and incompetent.

— M.L. Garba JSC. Kingsley Okoro V. The State (SC.85/2013, 17 Feb 2023)

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A NOTICE OF APPEAL IS AN INITIATING PROCESS

A notice of appeal is an initiating process by which a higher Court is invited to review the decision of a lower Court to determine whether on a proper consideration of the facts placed before the Court and the applicable law to the said facts, the lower Court arrived at a correct decision … The filing of a notice of appeal is a necessary prerequisite to the hearing of an appeal. Where leave is required a notice of appeal filed without leave is incurably defective and such notice cannot be amended. See Popoola vs. Adeyemo (1992) 8 NWLR (pt. 257) 1 SC, Abidoye vs Alawode (2001) 13 WRN 71 SC.

— W.S.N. Onnoghen, JSC. SPDC v Agbara (2019) – SC.731/2017(R)

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WHERE A NOTICE OF APPEAL IS DEFECTIVE

It is not in doubt that a notice of appeal, being an originating process in an appeal process, is a very important document. It is the foundation of an appeal. If it is defective, the appellate Court has no choice than to strike it out on the ground that it is incompetent. I need to emphasis that the question of whether or not a proper notice of appeal has been filed in Court is a question which touches on the jurisdiction of the appellate Court. If no proper Notice has been filed, then there is no appeal for the Court to entertain. See FBN PLC v TSA Industries Ltd (2011) 15 NWLR (pt.1216) 247, Anadi v Okoti (1972) 7 SC page 57, Central Bank of Nigeria v Okojie (2004) 10 NWLR (pt.882) 488, Olanrewaju v BON Ltd (1994) 8 NWLR (pt.364) 622, Abubakar v Waziri (2008) 14 NWLR (pt.1108) 507.

— J.I. Okoro, JSC. Universal Properties v. Pinnacle Comm. Bank, NJA, Opia, Heritage, Fatogun (SC.332/2008, Friday, April 08, 2022)

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INCOMPETENT NOTICE OF APPEAL CANNOT BE AMENDED

Any notice of appeal that is incompetent cannot be amended because you cannot put something on nothing and expect it to stand.

– K.B. Aka’ahs, JSC. SPDC v Agbara (2019) – SC.731/2017(R)

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APPELLANT ENTITLED TO FILE MORE THAN ONE NOTICE OF APPEAL

There is also no doubt and it cannot be disputed that an appellant is entitled to file more than one Notice of Appeal within the time prescribed for so doing by the Rules of court. But whenever there are more than one Notices of Appeal and all the said Notices were filed within the time so prescribed, the Appellant cannot use or rely upon more than just one of the Notices of Appeal to argue the appeal. He must choose which of them he intends to rely upon.

– O. Ariwoola, JSC. Tukur v. Uba (2012) – SC.390/2011

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AN AMENDED NOTICE OF APPEAL OBLITERATES THE EARLIER NOTICE

Ordinarily, an amended notice of appeal completely obliterates the original notice of appeal amended. It no longer avails the appellant either to formulate his issues for the determination of the appeal therefrom or to argue his appeal on the original notice amended … I agree with the 3rd Respondent that it is the law that an appellant cannot rely on and argue his appeal on more than one notice of appeal because an issue in an appeal cannot be determined on two separate filed notices of appeal. CHUKWU v. THE STATE (2007) All FWLR 1224 at 1240. It also the law that a withdrawn notice of appeal is taken as abandoned. Upon amendment of the notice of appeal upon leave of Court, the amendment goes to the roots and the amended notice of appeal, superseding the original notice of appeal, has the effect of completely obliterating the original notice of appeal which is taken to have been abandoned. Technically, it no longer avails the appellant to rely on the original notice of appeal, it having been amended and deemed abandoned.

— Ejembi Eko, JSC. Oboh & Anor v. NFL (SC.841/2016, January 28, 2022)

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