The Supreme Court in Abuja on Friday struck out an appeal by Jerry Ikuepenikan, challenging the judgment of the Court of Appeal, Benin Division, which had on July 15, 2010, affirmed the judgment of an Ondo State High Court which convicted and sentenced him to death on January 12, 2007, for armed robbery.
The Court of Appeal, Benin Division, had also dismissed the appeal filed by the convict against his conviction and sentence to death.
Justice Chima Nweze, who led the five-man panel, in a unanimous judgment, held that the notice of appeal signed and filed by the appellant’s counsel, was defective and incompetent and struck it out forthwith.
The other justices of the court who were on the panel and who all agreed with Nweze’s lead judgment are Justices John Fabiyi, Clara Ogunbiyi, Kudirat Kekere-Ekun and John Okoro.
According to the court, the notice of appeal, having been signed by the counsel to the appellant, Dr Olumide Ayeni, SAN, instead of the appellant himself, breached the provisions of Order 9 Rule 3 (1) of the Supreme Court Rules, as amended.
It held that the signing of the notice of appeal by the appellant’s counsel was a fundamental error which deprived the court of jurisdiction to entertain the appeal.
Justice 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, therefore, upheld the preliminary objection submitted by the respondent’s counsel, Mr Adewale Atake, who had challenged the merit of the appeal and urged the court to decline jurisdiction to entertain it.
According to Nweze, a preliminary objection was a pre-emptive strike the resolution of which would determine 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 (preliminary) objection succeeds; the notice of appeal dated September 16, 2010, signed by Dr Ayeni and filed on September 28, 2010,having been filed in flagrant contravention of Order 9 Rule 3 (Supra), and thus, being manifestly defective, is hereby, struck out,’’ he ordered.
Ikuepenikan was arraigned before 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 September 16, 2010, which was not signed by him as stipulated but by his counsel.