The 2nd to 10th respondents (otherwise designated as the respondents herein) have been lecturers in the employ of the Federal Polytechnic Offa an institution set up under the Federal Polytechnic Act cap.F17 Laws of the Federation of Nigeria, 2004. The said respondents have been arrested by men of the state security service (SSS) and arraigned before the Federal High Court Ilorin, on a twelve-count charge of Examination Malpractices contrary to and punishable under 6 and 9 of the Examination Malpractices Act cap.F15, Laws of the Federation of Nigeria 2004. The crux of the allegation against the respondents is that they have awarded marks to the 1st respondent (Raji Shade Tawakalitu) indiscriminately culminating in awarding her a degree by which means she has been recommended for the National Youth Service (when she is not able to complete the relevant forms given to her at the NYSC Camp and equally unable to communicate in English language).
The charges have been challenged by the respondents on grounds of jurisdictional competence of the trial court to entertain the same - by alleging that the men of the state security Service (SSS) have no power to arrest, investigate and arraign the respondents in respect of the alleged offences as have been preferred against them. The trial High court overruled the preliminary objection on the untenable ground that the preliminary objection has been raised after the respondents have pleaded to the charge, relying on section 167 and 217 of the CPA and the case of v. Adewumi (2007) 10 NWLR (Pt.1042) 399); Hence the appeal to the court below filed by the respondents. The court below in a considered judgment given on 22/4/2010 has allowed the appeal holding that trial High Court has no jurisdiction to entertain the charges preferred against the respondents and consequently has discharged the respondents, although conceding that the State Security Service (SSS) has limited jurisdictional competence to arrest, investigate and arraign persons for certain offences relying on Sections 4 and 23 of the Police Act.
Aggrieved by the decision the appellant has appealed to this court
{HELD – SUMMARY}
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1
Preliminary objection premised on statutory requirement – Nature ofPrima facie the above grounds for challenging the competency of the instant appeal in this court are fundamental and go to the root of this appeal and clearly the purpose of the objection is to avoid the hearing of the appeal. In other words it is raised to terminate the appeal without much ado. What is significant about the instant objection is that it is premised upon a statutory requirement, a condition precedent to this court entertaining this appeal and not a mere irregularity that can be waived and so it can be raised at any stage of the instant proceedings. Thus any defect in this regard renders the proceedings however well conducted a nullity and clearly it does not matter that the respondents have taken steps in prosecuting the appeal as the defect is extrinsic to the adjudication. Because the issue is one very decisive of the instant appeal I see the need to sort out this matter firstly before delving if at all into the main appeal itself
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2
Section 27(2) Supreme Court Act – Nature of By the provision of Section 27(2) of the Supreme Court Act Cap.515 Laws of the Federation of Nigeria 2004, an appellant has only 30 (thirty) days from the date of a judgment given against him within which to file his appeal against the judgment. And that in the instant matter the time allowed to file a competent notice of appeal has expired on 22/5/2010 excluding the day of delivery of the judgment. And thereafter that an appellant as the instant appellant in this matter can only appeal with the leave of this court
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3
Appeal – Time within which to file An appellant has only 30 (thirty) days from the date of a judgment given against him within which to file his appeal against the judgment.
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4
Appeals – Statutory nature of time and right of appealThe time as well as the right for appealing any matters to this court is statutory and the appeal has to be against a decision of the court below as only appeals from the court below lie to this court. See Section 233 of the 1999 constitution (as amended).
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5
Appeal – Statutory time for appealing in a criminal matterThe statutory time for appealing in a criminal matter as the instant matter is as provided in Section 27(2) (b) of the Supreme court Act Cap.515 Laws of the Federation of Nigeria 2004 as follows:
"27(2) The period prescribed for giving of notice of appeal or notice of application for leave to appeal are:
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a
not applicable.
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b
in an appeal in a criminal case, thirty days from the date of the decision appealed against.
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c
not applicable.
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d
not applicable.
The provision of the foregoing section being a mandatory provision as to the limitation of time to appeal does not admit of any ambiguity at all. it is clear and plain that as regards criminal appeals to this court that the period of 30 days is the period of time within which to appeal as of right otherwise leave of this court has to be first sought and obtained to enlarge the time pursuant to an application properly brought to appeal out of time.
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6
Appeal – Statutory time for appealing in a criminal matter and effect of failure to comply withFailure to comply with the said statutory provision (or appealing out of time with leave) is a breach of a fundamental condition of appeal within the time prescribed by the Act to file an appeal in a criminal matter and is an incurable defect which deprives this court of any jurisdiction to entertain the appeal. This is so as a Notice of Appeal is an initiating process and so in this instance being an incompetent Notice of Appeal, it is incapable of sustaining any appeal as the instant one to this court.
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