A notice of appeal filed outside the period prescribed by statute is statute-barred, illegal, null, and void ab initio. Legal practitioners must advise their clients appropriately at all times on the procedures of all court processes to adequately contribute to the adjudications in our legal system.
In two different scenarios;
Where an appeal against an interlocutory decision was filed one day outside the 14 days prescribed period without an application for an extension of time to seek leave to appeal at the Supreme Court, the notice of appeal was held to be incompetent and struck out.
And, where the judgment of the Court of Appeal was delivered on 21st February, and the Notice of Appeal at the Supreme Court was filed on 22nd April, a period of 61 days. This was 31 days after the expiration of the stipulated period within which a criminal appeal ought to be initiated. The Notice of Appeal filed outside the 30 days prescribed by statute, (Section 27, of the Supreme court Act, Cap. S15, Laws of the Federation of Nigeria, 2004) was statute barred.
Appeals generally are creations of statute and failure to comply with the statutory provisions of the requirements prescribed by the relevant laws under which each appeal may be competent and properly before the appellate court, will deprive the appellate court of jurisdiction to entertain the appeal.
In the latter scenario, it, therefore, takes the position of a condition precedent for the exercise of the right of appeal in the light of a failure to seek and obtain leave to appeal. The result is the incompetence of the Notice of Appeal renders the appeal a nullity, translating to there being no appeal.
Where the statutory period of appeal has expired, the appellate court loses jurisdiction to hear an appeal on the matter, and where a court has no jurisdiction in a case, the only order it can validly make is that of striking out the proceedings. Therefore, any notice of appeal filed out of time will be incompetent and void.
See, Ayodeji v. State (2021) 18 NWLR (Pt. 1808) 367 @ 376, Paras C-E; and Afribank (Nig.) Plc. V. Akwara (2006) 5 NWLR (Pt.974) 619 S.C.
The Supreme Court held in Idahosa v. State (2022) 8 NWLR (Pt. 1833) 397 at 405, para. F-H, that;
A notice of appeal filed after the expiration of the period of time prescribed by statute within which it is to be validly filed, is incompetent, and is incapable of properly and validly invoking the requisite jurisdiction of the court over an appeal. [In Re: Otuedon (1995) 4 NWLR (Pt. 392) 655; Adelekan v. Ecu-Line NV (2006) 12 NWLR (Pt. 993) 33; Aderigbigbe v. Abidoye (2009) 10 NWLR (Pt.1150) 592].
It is instructive to note that notices filed out of time must seek and obtain leave to appeal because it is not a mere irregularity that can be cured by consideration of substantial justice, but a fundamental defect fatal to the adjudication.
LEGAL TIPS is anchored by Ms CIA Ofoegbunam, an Abuja-based lawyer who is passionate about legal practice.LEGAL TIPS offers quick hints on substantive law, as well as rules of practice and procedure, and serves as a handy reference guide to lawyers, especially in court.Published on a weekly basis, the LEGAL TIPS Series is CIA’s modest contribution to legal development in Nigeria.
