IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 20TH DAY OF FEBRUARY 1970
MONDAY ENWELIKU ................................................ APPELLANT
THE STATE ..................................................... RESPONDENT
BEFORE: Coker, Lewis and Fatai-Williams JJ.S.C.
Criminal Law-Homicide-Murder-Notice of Appeal-when given-Supreme Court Act, 1960, sections 31(2)(b); 31(4).
Appeal from the High Court (Mid-West).
(1) The notice of Appeal where posted is deemed to have been given on the day that it was developed for registered posting and any delay in the post cannot effect the timorousness of the Notice.
(2) In the case of an appellant from a conviction for murder, he can do no more than hand over his Notice of Appeal to the prison authorities for onward transmission to the Registrar of the court which convicted him. It would by the same argument for registered posting be injudicious to damnify such an appellant for any delay in the course of the transmission of his Notice of Appeal by the prison authorities.
(3) In this case, the appellant executed his Notice of Appeal and delivered it to a recognised channel within time and it was not "given" outside the prescribed time limit.
Cases referred to:
Raimi Akinwale v. The Queen SC. 322/63 of 23-12-63.
Act referred to:
Supreme Court Act, 1960, 31(2)(b); 31(4).
Rules and Orders referred to:
Rules of the Supreme Court, Order VIII, rule 4(2).
APPEAL from the High Court (Mid-West).
Akinsanya for Cole for the Appellant.
Gbemudu (Ag. D.P.P.) for the Respondent.
Coker, J.S.C. (delivering the judgment of the court):-We dismissed this appeal at the hearing on the 4th February, 1970, and now give our reasons for doing so. The appellant was convicted by Prest, J. (High Court, Ughelli) of the murder on or about the 2nd August, 1968, or one Ishiekwene Ukpoh, alias Sanko, and sentenced to death. The facts given in evidence by the prosecution and accepted by the learned trial Judge were to the effect that the appellant was one of a number of villagers who had set upon the deceased and killed him because as a member of the Civil Defence he had earlier on arrested and handed over to the Army authorities one Peter Eleh on the grounds that Peter was in unlawful possession of some dangerous drugs. The name of the appellant became known as a result of the confession made by some of the villages who had hands in the killing of the deceased and the appellant himself had made a statement to the police soon after his arrest in which he stated, inter alia, that:-
"About one month ago one Johnny Onyesue native of Umukwata, Paul Onowu of Ogume, Emili Onowu Ogume all now residing at Ogume Utute village gathered in Johnny's house at Ugute. I met them discussing that they want to kill the deceased Sanko Ishikwene... On the 29th July, 1968, the above mentioned people and one Samuel of Ebedei arranged in my presence that all of them will kill Sanko Ishikwene in farm on 2-8-68... Samuel threw rope he was holding on the deceased riding towards Ugute village when he was returning from his farm and he fell down. As he fell down all I mentioned above carried him away into my farm. Johnny later hit him with a big stick he was holding, and he became weak. Samuel, Johnny Onyesue and Osakuni Osagie killed Sanko Ishikwene by hitting him sticks on his head. Others held the deceased when these three men were hitting him with stick. Later, I gave them the hoe inside my hut which they used in digging the ground that Ishikwene was buried in my farm. I took the hoe from them later back to my hut. Sanko's bicycle is with Samuel at Ebedei (m). We killed the deceased at about 7 pm. on 2-8-68... I did not tell anybody that we have killed Sanko Ishikwene up till the 5-8-68 when police came to arrest Johnny Onyesue who mentioned all of us to police. We drank and smoke cigarette on the 3-8-68, for the fact that the deceased who use to worry us has been killed by us... Johnny Onyesue told police that the deceased was buried in my farm. Then, Johnny Onyesue, Ugbe Animam and I took the policemen to my farm and we showed them the spot Sanko Ishikwene was buried. Police removed the dried grass we packed on the grave of the deceased."
At his trial, the appellant stated that he only signed the statement under duress and that although the deceased was stated to have been buried in his farm and that the hoe used belonged to him yet he was unaware of this fact and stated also that the hoe did not belong to him. The learned trial Judge not unjustifiably rejected his story and took the view, again justifiably, that he had made the statement ascribed to him voluntarily. He thereafter convicted him as charged.
Before us on appeal, the only point put forward was that the learned trial Judge was "in error of law" to have treated the statement as a confessional one when it was not. One would have thought in any case that whether or not a particular statement was confessional is an issue of fact. We had examined the contents of the statement however and had taken the view, which learned Counsel for the appellant himself eventually conceded, that the statement in substance confessed to the complicity of the appellant in the killing of the deceased. There were a number of other circumstances also properly considered by the learned trial Judge which made the truth of the statement consistent with a finding that it was voluntarily made by the appellant. See Raimi Akinwale v. The Queen. SC.322/63/ of 23/12/63. We therefore dismissed the appeal at the hearing.
There is however a point which had caused us some concern. The appellant was convicted on the 18th September, 1969, and his notice of appeal shows that it was thumb impressed on the 13th October, 1969. By the provisions of section 31(2)(b) of the Supreme Court Act, 1960, an accused person has thirty days from the date of his conviction to "give" notice of appeal against his conviction. The data on the notice of appeal signed by the appellant shows therefore that the notice was prepared within the time limited by the law for giving notice of appeal. That, prima facie, was the date on which the appellant signed the notice but manifestly it is not effective until, according to law, it is "given" in the way directed by law. There is then this endorsement on the notice of appeal:-
"Notice and grounds of appeal filed on 23-10-69."
Learned Ag. D.P.P. had submitted, in limine, that the notice of appeal was given out of time and that this Court had no power to enlarge the time within which to appeal from a conviction for murder. In this connection the provisions of section 31 subsection (4) of the Supreme Court Act are relevant and they read as follows:-
"31. (4) The Supreme Court may extend the periods prescribed in subsection (2) except in the case of a conviction involving sentence of death."
Counsel therefore suggested that the appeal should be struck out. Learned council for the appellant on the other hand submitted that the "giving" of the notice of appeal was not out of time and that this Court should entertain the appeal.
We decided to hear argument on the merits of the appeal since we were not satisfied that the notice of appeal was "given" out of time. The Supreme Court Rules contain little or nothing concerning when a notice of criminal appeal is given although the Rules do clearly specify how such notice should be given. Order VIII, rule 4(2) of the Supreme Court Rules provides as follows:-
"Any notice or other document which is required or authorised to be given or sent shall be deemed to be duly given or sent if forwarded by registered post addressed to the person to whom such notice or other document is so required or authorised to be given or sent."
It seems therefore that the notice of appeal where posted is deemed to have been given on the day that it was delivered for registered posting and it cannot be disputed in those circumstances that any delay in the post could not effect the timorousness of the notice.
In the case of an appellant from a conviction for murder, it is common knowledge that he can do no more than hand over his notice of appeal to the prison authorities for onward transmission to the Registrar of the court which convicted him. It appears to us therefore that it would by the same argument for registered posting be injudicious to damnify such an appellant for any delay which might have occurred in the course of the transmission of his notice of appeal by the prison authorities. To request the prison authorities to expedite action on such processes is beside the point in context although the desirability cannot be over-stressed. In the case in hand we have no evidence to impugn the authenticity of the date shown on the notice of appeal. It was so made in the prison at Benin City where the appellant was incarcerated and the endorsement concerning the filing was expressed to have been made at the High Court, Ughelli. We do not know how the notice of appeal was sent to Ughelli and it is not a clear case for the application of the provisions of Order VIII, rule 4(2) which we have quoted before. Howbeit, we are satisfied that the appellant executed his notice of appeal and delivered it to a recognised channel within time and we are not prepared to hold that it was "given" outside the prescribed time limit. This point is being decided by us in this case as a matter of fact and the circumstances attending other cases either ex facie or proved may compel a different finding on a similar point.
However, having heard the appeal on the merits we did, as stated before, come to the conclusion that it should be dismissed and it was dismissed.