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NOTICE OF APPEAL MUST BE SERVED PERSONALLY

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By Order 2 Rule 3 (1) (b) of the Supreme Court Rules, Notice of Appeal is required to be served personally. This Court has in a number of cases held that the Notice of Appeal is an originating process and failure to serve same personally on a Respondent constitutes a fundamental vice which renders the appeal incompetent as this Court will be deprived of the jurisdiction to entertain the appeal in any form whatsoever except to make an order to strike out the said appeal.

– S.C. OSEJI, J.S.C. Odey v. Alaga (2021) – SC.9/2021

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notice of appeal

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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PARTIES IN NOTICE OF APPEAL SHOULD BE SAME IN AN APPLICATION SUBSEQUENTLY BROUGHT ON SAME SUIT

The Notice of Appeal which is the foundation of this application has four parties as respondents, whereas the application has only three parties, exclusive of the Chief Registrar of the Federal High Court who is the 4th respondent in the Notice of Appeal. The Chief Registrar shouldn’t have been excluded/omitted from the application before us, as, if the appeal is supposed to involve the Chief Registrar, then the Chief Registrar is supposed to be involved in the application. The parties in both processes should be the same, and none should be excluded unless it has been formerly withdrawn. In this respect I endorse the submission of Chief Olanipekun. SAN on the issue of the parties, and I agree that the applicant cannot change the parties in the notice of appeal in this application.

— A.M. Muktar, JSC. Shinning Star Nig. Ltd. v. AKS Steel Nigeria Ltd. (2011) – SC. 101/2010

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A JOINT NOTICE OF APPEAL IS NOT PERMITTED IN CRIMINAL MATTERS

F.R.N. v. Lamido (2026) 12 NWLR (Pt. 2054) 351 at 378, H per Umar JSC: ‘From the tenor of Order 17 rules 1-5 of the Court of Appeal Rules, 2021, it is manifested, clearly, that a right of appeal in a criminal appeal, is expected to be exercised by the appellant, individually, even, where the appellant was tried along with other persons. This court in Japhet v. The State (2016) 6 NWLR (Pt.1509) 602 had maintained that the filing of a joint notice of appeal in criminal matters is not allowed … 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.’

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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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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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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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