PATRICK v. STATE

CITATION: (2017) LPELR-43409(CA)

In the Court of AppealIn the Benin Judicial Division

Holden at Benin

ON TUESDAY, 14TH NOVEMBER, 2017Suit No: CA/B/279C/2013

Before Their Lordships:

JIMI OLUKAYODE BADA Justice, Court of AppealPHILOMENA MBUA EKPE Justice, Court of AppealSAMUEL CHUKWUDUMEBI OSEJI Justice, Court of Appeal

BetweenSAMSON PATRICK (A.K.A. ASABA) - Appellant(s)

AndTHE STATE - Respondent(s)

RATIO DECIDENDI

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1. APPEAL - NOTICE(S) OF APPEAL: The general rule that a notice of appeal in a criminal appeal must be signed by the appellant; effect of non compliance"Order 17 Rules 4(1) Court of Appeal Rules 2011 which is imparimateria with Order 17 Rule 4 of the Court of Appeal Rules 2016 states as follows:-"(4)(1) Every Notice of Appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given shall besigned by the Appellant himself, except under the provisions of Paragraphs (5) and (6) of this rule."The Notice of Appeal filed by the Appellant is at page 81 - 82 of the Record of Appeal. It is reproduced as follows:"IN THE HIGH COURT OF DELTA STATE OF NIGERIAIN THE OTU-JEREMI JUDICIAL DIVISIONHOLDEN AT OTU-JEREMIBETWEEN: SUIT NO. HCG/3C/2007THE STATE COMPLAINANT/RESPONDENTVS.1. BRIGHT OJAKOVO - ACCUSED/RESPONDENT2. RAYMOND ISHAKA - ACCUSED/RESPONDENT3. SAMSON PATRICK (A.K.A ASABA)- ACCUSED/APPELLANT4. NATHAN OLOKPA ACCUSED/RESPONDENTI, F.O.OLOKOR, ESQ Counsel to the 3rd ACCUSED/APPELLANT (i.e. SAMSON PATRICK A.K.A ASABA) in the above case and being desirous of appealing against theconviction of the 3rd Accused/Appellant as contained in the decision of Honourable Justice O.O. Onojovwo sitting (on warrant) at the High Court of Delta State in theOtu-Jeremi Judicial Division delivered on the 11th day of April, 2011, under Section 241(a) and 243 of the Constitution of the Federal Republic of Nigeria, 1999.DO HEREBY GIVE NOTICE OF APPEAL on the following grounds:-1) The Judgment is altogether unreasonable, unwarranted and cannot be supported having regard to the evidence.ADDITIONAL OR FURTHER GROUNDS OF APPEAL SHALL BE FILED UPON RECEIPT OF THE RECORDS OF APPEAL.2). RELIEF(S) SOUGHT FROM THE COURT OF APPEAL.i. An order setting aside the judgment of Honourable Justice O.O. Onojovwo convicting the 3rd Accused/Appellant.ii. An order discharging and acquitting the 3rd Accused/Appellant of the offences of conspiracy and murder.3). NAMES AND ADDRESSES OF PERSONS DIRECTLY AFFECTED BY THE APPEALI. 3RD ACCUSED/APPELLANT - C/O HIS COUNSEL,F.O. OLOKOR, ESQ,FOR; F.O.OLOKOR & CO207 WARRI/SAPELE ROADWARRI, DELTA STATE.II. BRIGHT OJAKOVO -OVWOR VILLAGEIII. RAYMOND ISHAKA UGHELLI NORTH LGA,IV. NATHAN OLOKPA DELTA STATE.V. STATE- C/O MINISTRY OF JUSTICE,DELTA STATE, ASABA.DATED THIS 9TH DAY OF MAY 2011.SIGNED:F.O. OLOKOR, ESQFOR: F.O. OLOKOR & CO,(3RD ACCUSED/APPELLANT'S COUNSEL),MOUNT ZION CHAMBERS,207 WARRI/SAPELE ROAD, WARRI.FOR SERVICE ONCOMPLAINANT/RESPONDENTC/O, MINISTRY OF JUSTICE,ASABA, DELTA STATE.1ST, 2ND, & 4TH ACCUSED/RESPONDENTSOVWOR VILLAGE,UGHELLI NORTH LGA,DELTA STATE."As could be seen above, the Notice of Appeal filed by the Appellant was signed by his Counsel "F.O. Olokor Esq." instead of the Appellant as provided for under Order17 Rule 4 of the Court of Appeal Rules 2011.?At this juncture, it must be stressed that a Notice of Appeal in a Criminal Appeal filed at the lower Court which was signed by a Counsel instead of the Appellanthimself is defective by virtue of Order 17 Rule 4(1) of the Court of Appeal Rules, 2011.The above-mentioned provisions are clear, unambiguous and mandatory.The situation in this case is not one of the exceptions under the provisions of paragraphs 5 and 6 of the Rule where a Legal Practitioner could sign the notice onbehalf of his client.Furthermore, the jurisdiction of a Court in Appellate matters is conferred by statute and proceedings are regulated by the Rules of Court. When it has to do withappeals from the High Court to the Court of Appeal, the relevant provision is Section 243 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (asamended).The relevant provision for the filing of the Notice of Appeal is Order 17 of the Court of Appeal Rules 2011. The said order made provision for the signing of the Noticeof Appeal by the Appellant and not his Legal Practitioner.In the case of:- IWUNZE VS STATE (2014) 6 NWLR Part 1404 Page 580, the Supreme Court on effect of non-compliance with the provision of Order 17 Rule 4 heldamong others per Okoro JSC thus -"As I stated earlier this issue holds the key as to whether other issues should be considered or not. By Order 17 Rule 4 (1) of the Court of Appeal Rules 2011, everyNotice of Appeal or notice of application for extension of time within which such notice shall be given, shall be signed by the Appellant himself except under theprovisions of Paragraphs (5) and (6) of the rule.By the above provision, which for me is very clear and unambiguous, any aggrieved party to which this rule applies who desires to appeal "shall personally sign theNotice of Appeal". The use of the word 'shall' in the rule denotes mandatoriness and does not make room for any exercise of discretion. It is a word of command. See- ONOCHIE VS ODOGWU (2006) 6 NWLR Part 975 Page 65;- AMOKEODO VS I.G.P. & 2 ORS (1999) 5 SCNJPage 71 at 81, (1999) 6 NWLR Part 607 Page 467.Again, Rules of Court are meant to be obeyed. They are not made for the fun of it. They must be followed strictly, unless the Court is given discretion under them.These rules bind all parties before the Court. No party is allowed to choose when or which to obey and/or disobey. See - G.M.O. NWORAH & SONS CO. LTD VS AFAMAKPUTA (2010) 9 NWLR Part 1200 Page 443.- AJAYI & ANOTHER VS OMOROGBE (1993) 5 NWLR Part 301 Page 512;- AKANBI & OTHERS VS ALAO & ORS (1989) SCNJ Page 10 at 13, (1989) 3 NWLR Part 108 Page 118;- MISS EZEANAH VS ALHAJI MAHMOUD I. ATTA (2004) 7 NWLR Part 873 Page 468 at 502."In my humble view, the Appellant has not showed that he falls under the two exceptions i.e. Order 17 Rules (5) and (6) of the Court of Appeal Rules, 2011.The non-compliance by the Appellant with Order 17 Rule 4(1) of the Court of Appeal Rules, 2011 renders the Notice of Appeal filed in this case incompetent. It alsodeprives the Court of Appeal of the jurisdiction to hear the appeal.The above view finds support in the dictum of my lord, Rhodes-Vivour, JSC in IWUNZE VS STATE (Supra) at page 596 where it was held that -"The Constitution confers on the Court of Appeal jurisdiction to hear and determine appeals. The jurisdiction is statutory and also controlled by the Rules of Court. TheCourt of Appeal would lack jurisdiction to hear an appeal if an Appellant fails to comply with statutory provisions or the relevant Rules of the Court.The Originating Process in all appeals is the Notice of Appeal. Once it is found to be defective, the Court of Appeal ceases to have jurisdiction to entertain an appeal inwhatever form. See - OLOWOKERE VS AFRICAN NEWSPAPERS (1995) 5 NWLR Part 295 Page 583."Before I conclude in this appeal, I will like to refer to page 8 paragraph 3.32 of the Appellant's brief in response to the Preliminary Objection where Counsel for theAppellant stated as follows:-"Lastly, I Andrew Anibor, Esq. was not the Counsel to the Appellant at the trial Court but Chief B.O. Olokor Esq., who became deceased on 1st day of May, 2011 or soand also was not the Counsel who initiated the appeal at the instance of the Appellant but F.O. Olokor Esq. and as such, am not in a position to know or give reasonsor explanations as to why the then Counsel, F.O. Olokor, Esq., to the Appellant and not the Appellant, signed the Notice of Appeal in this appeal ......"The excerpt above showed that the Learned Counsel for the Appellant, Andrew Anibor does not know much about the appeal. He would not even know whether theAppellant is dead or alive. He is not in a position to know or give reasons or explanations as to why the then Counsel(F.O. Olokor, Esq.) to the Appellant and not theAppellant, signed the Notice of Appeal in this appeal. To cap it up, he has not shown good and sufficient cause why Order 17 Rule 4 (1) of the Rules was not compliedwith.Therefore, after a careful examination of the circumstances surrounding this case, I am of the view that the cases relied upon by Counsel for the Appellant are notrelevant.Be that as it may, I am of the view that this appeal is incompetent and this Court cannot exercise its jurisdiction to hear it because (a) the Notice of Appeal wassigned by Counsel to the Appellant in breach of Order 17 Rule 4 of the Court of Appeal Rules 2011 (b) An Application of the provisions of the Rules of Court ismandatory and not discretionary. A breach of the Rule in this case is fatal and makes the Notice of Appeal filed by the Appellant incompetent."Per BADA, J.C.A. (Pp.6-13, Paras. B-E) - read in context

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2. PRACTICE AND PROCEDURE - ACADEMIC OR HYPOTHETICAL QUESTION(S)/ISSUES/SUIT/EXERCISE: Whether Court would engage in an academic excercise"Having found that the originating process in this appeal i.e. (the Notice of Appeal) is incompetent, I therefore hold that this appeal is not valid for consideration bythis Court. This is because Courts have no jurisdiction to entertain and determine questions that have no utilitarian value. In NWOBOSI VS ACB LTD (1995) 6 NWLRPart 404 Page 658 at 681, the Apex Court held that where the resolution of an issue one way or the other, will be no more than engaging in an academic exercise, aCourt will not entertain such an issue. See also - AGBAKOBA VS INEC (2008) LPELR - 232 (SC). - GLOBAL TRANSPORT OCEANICO SA AND ANOR VS FRED ENTERPRISESNIG. LTD. (2001) 2 S.C. Page 154."Per BADA, J.C.A. (P. 14, Paras. A-D) - read in context

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JIMI OLUKAYODE BADA, J.C.A. (Delivering the

Leading Judgment): This appeal emanated from the

Judgment of High Court of Justice, Otu-Jeremi Judicial

Division of Delta State of Nigeria in Charge No:-

HCG/3C/2007 – THE STATE VS SAMSON PATRICK

(A.K.A. ASABA) delivered on the 11th day of April 2011,

wherein the Appellant was sentenced to ten years

imprisonment with hard labour on conspiracy to commit

murder and death for murder.

Briefly, the facts of the case are that the Appellant and five

others were charged to Court on a four count charge of

conspiracy to commit murder, murder, attempted murder

and malicious damage punishable under Sections 324, 319,

320 and 451 of the Criminal Code Cap 48 Volume II Laws

of the defunct Bendel State 1976 as applicable to Delta

State.

The Appellant pleaded not guilty to the charge. In proof of

the case, the prosecution called (5) five witnesses while the

Appellant testified in support of his case and did not call

any witness.

The lower Court at the conclusion of trial found the

Appellant guilty of the offence of conspiracy to commit

murder and murder. He was sentenced to ten (10) years

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imprisonment on the offence of conspiracy to commit

murder and death for murder.

The Appellant who is dissatisfied with the conviction by the

lower Court appealed to this Court.

The Learned Counsel for the Appellant formulated a lone

issue for the determination of this appeal. The issue is

reproduced as follows:-

“Was the lower Court legally justified based on the

evidence to find Appellant guilty of the charge of

murder in the instant case?”

On the other hand, the Learned Counsel for the Respondent

also formulated a lone issue for the determination of the

appeal. The issue is reproduced as follows:-

“Whether having regard to the evidence on record,

the learned trial Judge was right in law when he held

that the prosecution proved the offence of conspiracy

to commit murder and murder against the Appellant

beyond reasonable doubt.”

At the trial, the Learned Counsel for the Respondent raised

Preliminary Objection that the appeal is incompetent in

view of the provisions of Order 17 Rules 3 & 4 of the Court

of Appeal Rules 2011 and Section 243 (a) of the 1999

Constitution of the Federal Republic of

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Nigeria (as amended).

The Learned Counsel for the Respondent formulated a sole

issue for determination in respect of the Notice of

Preliminary Objection filed in this case. The issue is

reproduced as follows:-

“Whether the Court of Appeal can exercise

jurisdiction to hear this case in view of the

incompetent notice of appeal filed by the Appellant.”

In his own case, the Learned Counsel for the Appellant also

formulated a lone issue for determination in respect of the

Notice of Preliminary Objection filed on behalf of the

Respondent. The issue is reproduced as follows:-

“Whether in this appeal, the Notice of Appeal is

incompetent by virtue of Section 243(a) of the

Constitution of Federal Republic of Nigeria (1999) as

amended and Order 17 Rule 4(1) of the Court of

Appeal Rules 2011.”

I have carefully examined the issues formulated for

determination by Counsel for both parties in this

Preliminary Objection, the issues are similar but the issue

formulated on behalf of the Respondent is appropriate in

the determination of this Preliminary Objection.

The issue is hereby reproduced as follows:-

“Whether

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the Court of Appeal can exercise jurisdiction to hear

this case in view of the incompetent Notice of Appeal

filed by the Appellant.”

The Learned Counsel for the Respondent submitted that

the Notice of Appeal filed by the Appellant is incompetent.

The said notice was signed by the Appellant’s Counsel

instead of the Appellant as provided for under Order 17

Rule 4 of the Court of Appeal Rules 2011. He referred to

pages 81 – 82 of the Record of Appeal.

He went further in his argument that the provisions of

Order 17 Rule 4 of the Court of Appeal Rules, 2011 are

subject to two exceptions i.e. Order 17 Rules 5 and 6. He

contended that the Appellant has not showed that he falls

under the two exceptions.

Learned Counsel for the Respondent relied on the following

cases:-

- ADEKANYE VS FRN (2005) 15 NWLR Part 949 Page

433;

- UWAZURUIKE VS A.G. FEDERATION (2003) Part

149 L.R.C.N. Page 1449;

- IWUNZE VS STATE (2014) Vol. 232 LRCN Page 46;

- OLOWOKERE VS AFRICAN NEWSPAPERS (1993) 5

NWLR Part 295 Page 583.

He finally urged this Court to strike out the appeal.

In his response to the submission of the Learned

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Counsel for the Respondent, the Learned Counsel for the

Appellant referred to Section 243 (a) and (b) of the

Constitution of the Federal Republic of Nigeria 1999 (as

amended) and submitted that it is relevant and that the

Learned Counsel for the Appellant signed the Notice of

Appeal because he acted at the instance of the Appellant.

He relied on UKAEGBU VS ATTORNEY GENERAL OF

IMO STATE (1983) 1 SCNLR Page 212 at 217 Ratio

12.

He also relied on the proviso to Order 17 Rule 4(1) in

submitting that if Order 17 Rule 4(1) of the Court of Appeal

Rules has not been complied with, this Court may in the

interest of Justice and for good and sufficient cause shown,

entertain an appeal if satisfied that the intending Appellant

has exhibited a clear intention to appeal to this Court.

He relied on the following cases:- IKECHUKWU VS FRN

(2015) All FWLR Part 781 Page 1511 at 1514 Ratio 3;

- F.R.N. VS NWOSU (2016) 17 NWLR Part 1541 Page

288;

- IKPASA VS A .G . BENDEL STATE (1981)

FEDERATION OF NIGERIA LAW REPORTS (F.N.L.R.)

Page 14 – 28;

- JAPHET VS STATE (2015) All FWLR Part 789 Page

1066 at 1067 Paragraphs H – G;

- IKUEPENIKAN VS

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STATE (2015) All FWLR Part 788 Page 919 at 945

Paragraph F;

- UMARU CHAM VS GOMBE NATIVE AUTHORITY

(1964) NNLR Pages 94 – 95.

Learned Counsel finally urged this Court to overrule the

Preliminary Objection.

Order 17 Rules 4(1) Court of Appeal Rules 2011 which is

imparimateria with Order 17 Rule 4 of the Court of Appeal

Rules 2016 states as follows:-

“(4)(1) Every Notice of Appeal or notice of application

for leave to appeal or notice of application for

extension of time within which such notice shall be

given shall be signed by the Appellant himself, except

under the provisions of Paragraphs (5) and (6) of this

rule."

The Notice of Appeal filed by the Appellant is at page 81 –

82 of the Record of Appeal. It is reproduced as follows:

“IN THE HIGH COURT OF DELTA STATE OF NIGERIA

IN THE OTU-JEREMI JUDICIAL DIVISION

HOLDEN AT OTU-JEREMI

BETWEEN: SUIT NO. HCG/3C/2007

THE STATE COMPLAINANT/RESPONDENT

VS.

1. BRIGHT OJAKOVO - ACCUSED/RESPONDENT

2. RAYMOND ISHAKA - ACCUSED/RESPONDENT

3 . S A M S O N P A T R I C K ( A . K . A A S A B A ) -

ACCUSED/APPELLANT

4. NATHAN OLOKPA

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ACCUSED/RESPONDENT

I , F .O .OLOKOR, ESQ Counse l to the 3rd

ACCUSED/APPELLANT (i.e. SAMSON PATRICK A.K.A

ASABA) in the above case and being desirous of

appealing against the conviction of the 3rd

Accused/Appellant as contained in the decision of

Honourable Justice O.O. Onojovwo sitting (on

warrant) at the High Court of Delta State in the Otu-

Jeremi Judicial Division delivered on the 11th day of

April, 2011, under Section 241(a) and 243 of the

Constitution of the Federal Republic of Nigeria, 1999.

DO HEREBY GIVE NOTICE OF APPEAL on the

following grounds:-

1) The Judgment is altogether unreasonable,

unwarranted and cannot be supported having regard

to the evidence.

ADDITIONAL OR FURTHER GROUNDS OF APPEAL

SHALL BE FILED UPON RECEIPT OF THE RECORDS

OF APPEAL.

2). RELIEF(S) SOUGHT FROM THE COURT OF

APPEAL.

i. An order setting aside the judgment of Honourable

Justice O.O. Onojovwo convict ing the 3rd

Accused/Appellant.

ii. An order discharging and acquitting the 3rd

Accused/Appellant of the offences of conspiracy and

murder.

3). NAMES AND ADDRESSES OF PERSONS DIRECTLY

AFFECTED BY THE APPEAL

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I. 3RD ACCUSED/APPELLANT -

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C/O HIS COUNSEL,

F.O. OLOKOR, ESQ,

FOR; F.O.OLOKOR & CO

207 WARRI/SAPELE ROAD

WARRI, DELTA STATE.

II. BRIGHT OJAKOVO -OVWOR VILLAGE

III. RAYMOND ISHAKA UGHELLI NORTH LGA,

IV. NATHAN OLOKPA DELTA STATE.

V. STATE- C/O MINISTRY OF JUSTICE,

DELTA STATE,

ASABA.

DATED THIS 9TH DAY OF MAY 2011.

SIGNED:

F.O. OLOKOR, ESQ

FOR: F.O. OLOKOR & CO,

(3RD ACCUSED/APPELLANT’S COUNSEL),

MOUNT ZION CHAMBERS,

207 WARRI/SAPELE ROAD,

WARRI.

FOR SERVICE ON

COMPLAINANT/RESPONDENT

C/O,

MINISTRY OF JUSTICE,

ASABA, DELTA STATE.

1ST, 2ND, & 4TH ACCUSED/RESPONDENTS

OVWOR VILLAGE,

UGHELLI NORTH LGA,

DELTA STATE.”

As could be seen above, the Notice of Appeal filed by the

Appellant was signed by his Counsel “F.O. Olokor Esq.”

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instead of the Appellant as provided for under Order 17

Rule 4 of the Court of Appeal Rules 2011.

At this juncture, it must be stressed that a Notice of Appeal

in a Criminal Appeal filed at the lower Court which was

signed by a Counsel instead of the Appellant himself is

defective by

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virtue of Order 17 Rule 4(1) of the Court of Appeal Rules,

2011.

The above-mentioned provisions are clear, unambiguous

and mandatory.

The situation in this case is not one of the exceptions under

the provisions of paragraphs 5 and 6 of the Rule where a

Legal Practitioner could sign the notice on behalf of his

client.

Furthermore, the jurisdiction of a Court in Appellate

matters is conferred by statute and proceedings are

regulated by the Rules of Court. When it has to do with

appeals from the High Court to the Court of Appeal, the

relevant provision is Section 243 (1) and (2) of the

Constitution of the Federal Republic of Nigeria 1999 (as

amended).

The relevant provision for the filing of the Notice of Appeal

is Order 17 of the Court of Appeal Rules 2011. The said

order made provision for the signing of the Notice of

Appeal by the Appellant and not his Legal Practitioner.

In the case of:- IWUNZE VS STATE (2014) 6 NWLR Part

1404 Page 580, the Supreme Court on effect of non-

compliance with the provision of Order 17 Rule 4 held

among others per Okoro JSC thus –

“As I stated earlier this issue holds the key as to

whether

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other issues should be considered or not. By Order 17

Rule 4 (1) of the Court of Appeal Rules 2011, every

Notice of Appeal or notice of application for extension

of time within which such notice shall be given, shall

be signed by the Appellant himself except under the

provisions of Paragraphs (5) and (6) of the rule.

By the above provision, which for me is very clear and

unambiguous, any aggrieved party to which this rule

applies who desires to appeal “shall personally sign

the Notice of Appeal”. The use of the word ‘shall’ in

the rule denotes mandatoriness and does not make

room for any exercise of discretion. It is a word of

command. See – ONOCHIE VS ODOGWU (2006) 6

NWLR Part 975 Page 65;

- AMOKEODO VS I.G.P. & 2 ORS (1999) 5 SCNJ

Page 71 at 81, (1999) 6 NWLR Part 607 Page 467.

Again, Rules of Court are meant to be obeyed. They

are not made for the fun of it. They must be followed

strictly, unless the Court is given discretion under

them.

These rules bind all parties before the Court. No party

is allowed to choose when or which to obey and/or

disobey. See – G.M.O. NWORAH & SONS CO. LTD

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VS AFAM AKPUTA (2010) 9 NWLR Part 1200 Page

443.

- AJAYI & ANOTHER VS OMOROGBE (1993) 5 NWLR

Part 301 Page 512;

- AKANBI & OTHERS VS ALAO & ORS (1989) SCNJ

Page 10 at 13, (1989) 3 NWLR Part 108 Page 118;

- MISS EZEANAH VS ALHAJI MAHMOUD I. ATTA

(2004) 7 NWLR Part 873 Page 468 at 502.”

In my humble view, the Appellant has not showed that he

falls under the two exceptions i.e. Order 17 Rules (5) and

(6) of the Court of Appeal Rules, 2011.

The non-compliance by the Appellant with Order 17 Rule

4(1) of the Court of Appeal Rules, 2011 renders the Notice

of Appeal filed in this case incompetent. It also deprives the

Court of Appeal of the jurisdiction to hear the appeal.

The above view finds support in the dictum of my lord,

Rhodes-Vivour, JSC in IWUNZE VS STATE (Supra) at

page 596 where it was held that –

“The Constitution confers on the Court of Appeal

jurisdiction to hear and determine appeals. The

jurisdiction is statutory and also controlled by the

Rules of Court. The Court of Appeal would lack

jurisdiction to hear an appeal if an Appellant fails to

comply with statutory provisions or the

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relevant Rules of the Court.

The Originating Process in all appeals is the Notice of

Appeal. Once it is found to be defective, the Court of

Appeal ceases to have jurisdiction to entertain an

appeal in whatever form. See – OLOWOKERE VS

AFRICAN NEWSPAPERS (1995) 5 NWLR Part 295

Page 583.”

Before I conclude in this appeal, I will like to refer to page

8 paragraph 3.32 of the Appellant’s brief in response to the

Preliminary Objection where Counsel for the Appellant

stated as follows:-

“Lastly, I Andrew Anibor, Esq. was not the Counsel to

the Appellant at the trial Court but Chief B.O. Olokor

Esq., who became deceased on 1st day of May, 2011

or so and also was not the Counsel who initiated the

appeal at the instance of the Appellant but F.O.

Olokor Esq. and as such, am not in a position to know

or give reasons or explanations as to why the then

Counsel, F.O. Olokor, Esq., to the Appellant and not

the Appellant, signed the Notice of Appeal in this

appeal ……”

The excerpt above showed that the Learned Counsel for the

Appellant, Andrew Anibor does not know much about the

appeal. He would not even know

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whether the Appellant is dead or alive. He is not in a

position to know or give reasons or explanations as to why

the then Counsel(F.O. Olokor, Esq.) to the Appellant and

not the Appellant, signed the Notice of Appeal in this

appeal. To cap it up, he has not shown good and sufficient

cause why Order 17 Rule 4 (1) of the Rules was not

complied with.

Therefore, after a careful examination of the circumstances

surrounding this case, I am of the view that the cases relied

upon by Counsel for the Appellant are not relevant.

Be that as it may, I am of the view that this appeal is

incompetent and this Court cannot exercise its jurisdiction

to hear it because (a) the Notice of Appeal was signed by

Counsel to the Appellant in breach of Order 17 Rule 4 of

the Court of Appeal Rules 2011 (b) An Application of the

provisions of the Rules of Court is mandatory and not

discretionary. A breach of the Rule in this case is fatal and

makes the Notice of Appeal filed by the Appellant

incompetent.

The lone issue in this Preliminary Objection is resolved in

favour of the Respondent and against the Appellant.

In the result, this appeal is hereby struck out for

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being incompetent.

Having found that the originating process in this appeal i.e.

(the Notice of Appeal) is incompetent, I therefore hold that

this appeal is not valid for consideration by this Court. This

is because Courts have no jurisdiction to entertain and

determine questions that have no utilitarian value. In

NWOBOSI VS ACB LTD (1995) 6 NWLR Part 404 Page

658 at 681, the Apex Court held that where the resolution

of an issue one way or the other, will be no more than

engaging in an academic exercise, a Court will not

entertain such an issue. See also – AGBAKOBA VS INEC

(2008) LPELR – 232 (SC).

- GLOBAL TRANSPORT OCEANICO SA AND ANOR VS

FRED ENTERPRISES NIG. LTD. (2001) 2 S.C. Page

154.

Appeal struck out.

PHILOMENA MBUA EKPE, J.C.A.: I had the advantage

of reading before now the draft judgment of my learned

brother J. O. BADA, JCA. The issues formulated by the

parties have been properly resolved in this appeal by my

Lord. I am in total agreement with the conclusion and

reasoning reached in this appeal by him. I have nothing

more to add than to entirely agree with the resolution. I

too,

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strike out this appeal as being incompetent.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read

before now the lead judgment just delivered by my learned

brother JIMI OLUKAYODE BADA, JCA.

The issues in contention, particularly with reference to the

preliminary objection have been meticulously and

exhaustively dealt with and I agree with the reasoning and

conclusion reached therein.

I too hold that the preliminary objection has merit and it is

accordingly upheld. Consequently the Appellant’s Notice of

Appeal filed on the 28th day of March 2014 is hereby

struck out for being incompetent.

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Appearances:

MR. ANDREW ANIBOR For Appellant(s)

MR. D.F. ENENMO, Director, Appeal Section,Min i s t r y o f Jus t i ce , De l t a S ta te ForRespondent(s)

(201

7) LP

ELR-43

409(

CA)