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INCOMPETENT NOTICE OF APPEAL CANNOT BE AMENDED

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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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notice of appeal

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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A COMPETENT NOTICE OF APPEAL

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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INCOMPETENT NOTICE OF APPEAL WILL BE STRUCK OUT

Where it is established that a Notice of Appeal, the live wire of an appeal, is incompetent, this Court will have no jurisdiction to entertain such appeal. An incompetent Notice of Appeal suffers one natural consequential fate, which is, its liability to be struck out for incompetence. In this appeal, the Notice of Appeal which was filed outside the time required by law deserves no other fate than to be struck out. See Onwuzulike V. The State (2020)10 NWLR (Pt.173) 91 at 102 paras F-G. In the case of Enyibros Food Processing Company (Nig.) Limited V. N.D.l.C. (2021)16 NWLR (Pt. 1800) 559 at 571 paras B – D this Court per Eko, JSC (Rtd) stated the position of an incompetent Notice of Appeal thus: “My Lords because only a competent appeal, validly filed, enures to the appellant to invoke the jurisdiction of this Honourable Court, vested in it by Section 233(1) of the Constitution, to hear and determine appeals from the Court of Appeal, when an appeal appears to be incompetent, it will be properly interrogated to ensure that we do not proceed in an exercise that will eventually be a nullity as well. Madukolu V. Nkemdilim (1962)1 All NIR 587; (1962)2 SCNLR 341, Bronik Motors Limited and Anor V. Wema Bank Limited (1983)1 SCNLR 296, C.B.N. V. Okojie (2015) 5-6 SC (Pt.ii)173; (2015)14 NWLR (Pt.1479)231.”

— J.I. Okoro JSC. Kingsley Okoro V. The State (SC.85/2013, 17 Feb 2023)

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FILING OF TWO NOTICES OF APPEAL IS NOT INCOMPETENT

The phrase “…after the notice of appeal” does not envisage multiple notices of appeal. There are similar provisions in the High Court and Court of Appeal Rules. In any case, it is an affront to logic and common sense to argue that an appellant can file more than one notice of appeal without indicating on which one he relies. Be that as it may, the mere fact of filing multiple notices of appeal does not render the appeal incompetent, Akuneziri v. Okenwa (2000) 12 SC (Pt. 11) 25, First Bank of Nigeria Plc. v. T.S.A. Industries Ltd. (2010) 4-7 SC (Pt. 1) 242. The 1st respondent read the appellants’ brief and made a decision to rely on one of the two notices filed within time. Not only was the 1st respondent not misled by the two notices of appeal, he did not disclose any injury he suffered for which he could seek redress. He cannot be heard to argue that another respondent elected to rely on the other notice of appeal.

— N.S. Ngwuta JSC. Yaki (Rtd) & Anor. V. Senator Bagudu & Ors. (SC.722/2015, 13 Nov 2015)

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APPEAL CANNOT BE DECIDED WHERE NOTICE OF APPEAL IS COMPETENT

My lords, it is of utmost importance and I so bear it in my mind that it is only when a notice of appeal is competent that a determination of it on the merit will be feasible. In other words, where a notice of appeal is incompetent, it is liable to be terminated in limine and it would be of no moment no matter how meritorious it would have been if it were to be considered on the merit. In law, one of the most essential requirement or condition precedent for the competence of an appeal to be determined on the merit by the Court is a valid notice and grounds of appeal, in the absence of which such an appeal would be rendered incompetent and thus incapable of being determined on the merit by this Court for without jurisdiction there can be no competence of any cause or matter or appeal before the Court. It has long been settled in our law that jurisdiction is a fundamental one and thus can be raised at any stage of the proceedings, even on appeal for the first time as in the instant appeal by either of the parties or even by the Court suo motu and once raised it must first be determined one way or the other by the Court before any other issue touching on the merit or otherwise of the respective cases of the parties can be enquired and be determined on the merit by the Court. This is so because in the absence of jurisdiction there can be no competence in the 1st Respondent’s claim to be heard and determined on the merit, since jurisdiction is the life blood of every cause or action and thus where the requisite jurisdiction is found to be lacking, that is indeed the end of the matter. See Madukolu v. Nkemdilim (1962) 2 All NLR 581.

— B.A. Georgewill, JCA. University of Lagos v. Mbaso (2018) – CA/L/775/2016

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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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