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WHERE A NOTICE OF APPEAL IS DEFECTIVE

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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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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 It also the law that a withdrawn notice of appeal is taken as abandoned.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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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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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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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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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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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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