The Supreme Court on Friday struck out an appeal brought by one Jerry Ikuepenikan challenging his conviction and sentence to death for armed robbery by an Ondo State High Court.
Delivering a unanimous judgment, the five-man panel of the court presided by Justice Chima Nweze held that the notice of appeal was defective and incompetent and struck it out.
The apex court held that the notice of appeal was signed by the counsel to the appellant, Olumide Ayeni, a Senior Advocate of Nigeria, instead of the appellant himself.
This, it said, was in breach of the provisions as stipulated in Order 9 Rule 3 (1) of the Supreme Court Rules as amended.
It said that the error in the signing of the notice of appeal by the appellant’s counsel in breach of the said provisions was a fundamental one which deprived the court of jurisdiction to entertain the appeal.
Mr. Nweze said: “Having found that the notice of appeal is defective and, therefore, incompetent, I am left with no other option than to strike out the appeal in its entirety.
“A notice of appeal is the foundation and substratum of every appeal and any defect therein will render the whole appeal incompetent and the appellate court will lack the required jurisdiction to entertain it.’’
The court also upheld the preliminary objection filed by the respondent’s counsel, Adewale Atake, challenging the merit of the appeal and the court’s jurisdiction to entertain it.
According to the court, a preliminary objection is a pre-emptive strike the resolution of which determines whether or not to go into the merit of the substantive appeal.
“Thus, since this preliminary objection to the competence of this appeal has succeeded, the proceedings in the appeal would be aborted and the need to consider the issues raised therein would automatically abate.
“This objection succeeds; the notice of appeal filed on September 28, 2010, and signed by Dr. Ayeni, having been filed in flagrant contravention of Order 9 Rule 3 (Supra), and thus, being manifestly defective, is hereby, struck out.
“In consequence, the appeal, in its entirety, is hereby struck out for its incompetence; being incompetent, the objection succeeds, the notice of appeal is struck out and the appeal equally struck out,” Mr. Nweze ordered.
Mr. Ikuepenikan was arraigned in an Ondo State High Court on a two-count charge of conspiracy to commit armed robbery and armed robbery proper.
The trial court, in its judgment of January 12, 2007, found him guilty on both counts.
It convicted and sentenced him to death pursuant to Section 1 (2) and 5 (b) of the Robbery and Firearms (Special Provisions) Act, Cap 398, Laws of Nigeria, 1990.
Dissatisfied with the judgment, the convict filed an appeal before the Court of Appeal, Benin Division, which on July 15, 2010, dismissed the appeal and affirmed the trial court’s decision.
Dissatisfied with the Appeal Court’s decision, he proceeded to the Supreme Court through a notice of appeal dated Sept. 16, 2010, which was not signed by him as stipulated, but by his counsel. (NAN)