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INCOMPETENT NOTICE OF APPEAL WILL BE STRUCK OUT

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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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notice of appeal

PERSONAL SERVICE OF A NOTICE OF APPEAL IS A REQUIREMENT OF LAW

With profound respect to the erudite senior counsel, this cannot be. As this Court explained, in a most magisterial manner, the term irregularity in respect of procedure, is often construed to denote something that does not fundamentally taint or besmirch a procedure as to render it invalid or a nullity. In other words, an irregularity is deemed to be curable. However, personal service of an originating process, like a Notice of Appeal, is a fundamental requirement of the law.

– C.C. Nweze JSC. Odey v. Alaga (2021) – SC.9/2021

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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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ISSUE OF COMPETENCE SHOULD BE RAISED VIA NOTICE OF APPEAL

HEYDEN PETROLEUM LIMITED v. TOP LEADER SHIPPING INC (2018) LPELR-46680(CA) stated: “A preliminary objection that an appeal should not be heard and determined on the merit is a serious issue and if founded on grounds alleging incompetence of the appeal it should be taken seriously and considered and resolved one way or the other since without competence there is really no basis for adjudication and decision on the merit by a Court. Thus an issue bordering on the competence or incompetence of the entire grounds of appeal in an appeal is one which can validly be raised by means of a notice of preliminary objection and not by way of motion of notice.”

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ALL THE DEFENDANTS’ NAMES NEED NOT BE LISTED IN A NOTICE OF APPEAL BUT THAT OF THE APPELLANT

F.R.N. v. Lamido (2026) 12 NWLR (Pt. 2054) 351 at 375—376, A per Umar JSC: ‘In criminal appeals, it is generally not mandatory for an appellant to include the names of co-accused at the trial court in his notice of appeal, if those co-accused are not affected by the appeal. The fundamental principle guiding criminal appeals is that an appeal is a challenge by an aggrieved party (the appellant) against a decision of a lower court that directly affects him. The notice of appeal serves to formally notify the appellate court and the respondent, typically the state or as in this case at the lower court, the Federal Republic of Nigeria, of the appellant’s intention to appeal and the specific grounds upon which the appeal is based, pertaining to his own conviction or sentence.The primary purpose of a notice of appeal is to identify the appellant, the respondent, the decision being appealed against, and the grounds of appeal. The focus is on the appellants grievance with the judgment of the lower court as it relates to his individual case. The Court of Appeal Rules generally outline the requirements for a notice of appeal, which center on the appellant and the judgment or decision affecting him.Therefore, it is utterly unnecessary for an appellant to endorse his co-accused as part of the parties to the appeal when the appeal is for himself only. The rules do not impose a mandate on a sole appellant to include his co-accused, this is because it implies that the lower court was being invited to determine the rights or involvement of other defendants in the appeal filed there at. Conversely, if a co-accused is not appealing, or has been acquitted, or their case is entirely distinct from the appellant’s grounds of appeal, there is no legal or procedural requirement to name them in the notice of appeal. Therefore, including unaffected parties would be superfluous and could potentially complicate the appeal process by introducing irrelevant details. I agree with the contention of learned counsel for the appellant that “all appeal shall be by way of rehearing,” however, a rehearing is distinct from a re-trial. The appeal is not a re-trial of all parties involved in the original case, but rather a review of the judgment as it pertains to the specific appellant and his challenge to the findings or sentence against him.’

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MORE THAN ONE NOTICE OF APPEAL FILED WITHIN TIME IS VALID

Tukur Vs Government of Gongola State (1988) 1 NSCC 30 at 36: It is more correct to say that the Rules of the Court of Appeal did not expressly provide for the filing of more than one notice. The Rules were silent on the Issue and it is therefore my opinion that every notice of appeal filed within time is valid. If more than one notices are filed within time, the others may be superfluous but not invalid. All the notices combined have been in exercise of a right of appeal. They may have stated different grounds which if permissible in law, gives validity and competency to the notice. Where several notices of appeal have been validly filed, I cannot see anything preventing an application for leave to consolidate them into one or for withdrawal of all except one.

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JOINT NOTICE OF APPEAL IN CRIMINAL APPEAL IS DEFECTIVE

In F.R.N. v. Lamido (2026) 13 NWLR (Pt. 2057) 215 at 248, E—H per Umar JSC: ‘From the foregoing, it is established that in civil matters, the appellants have the liberty to jointly appeal, but there is restriction in criminal matters. Such joint notice of appeal in criminal matters will be incurably defective and incompetent, this is so because it will complicate the appeal and imply that the appellant is inviting the appellate court to determine the rights of the co-accused as well. A court is bound to strike out such notice of appeal even without inviting counsel to address the court on the issue. In so doing, no miscarriage of justice has been occasioned. Any appeal originated without following the Rules of Court is incompetent. See the case of Dokpesi v. F.R.N. (2021) 6 NWLR (Pt. 1772) 195 at 217-218. In conclusion, it is therefore my considered view that the failure of the respondent herein to include the names of his co-accused as respondents on the notice of appeal filed at the lower court was not an irregularity and it did not affect the merit of the appeal as constituted at the court below.’

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