DURU v. FEDERAL REPUBLIC OF NIGERIA (2013)

In The Supreme Court of Nigeria

On Friday, the 8th day of February, 2013

SC.256/2006

Before Their Lordships

IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria

JOHN AFOLABI FABIYI Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

OLUKAYODE ARIWOOLA Justice of The Supreme Court of Nigeria

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria

Between

MR. UGOCHUKWU DURU- Appellant

AND

FEDERAL REPUBLIC OF NIGERIA –Respondent

…………………….A…………………….MUSA DATTIJO MUHAMMAD, J.S.C. (Delivering the leading Judgment): This interlocutory appeal emanates from the decision of the Lagos Division of the Court of Appeal, hereinafter referred to as the court below, striking out appellant’s appeal for incompetence. The decision being appealed against is dated 6th day of June, 2005. The brief facts of the case on which the appeal predicates are hereunder supplied.
The appellant was tried and convicted in absentia on two counts at the Lagos Zone of the Failed Banks (Recovery of Debts and Financial Malpractices) Tribunal. He was sentenced to two and three years’ imprisonment respectively on the two counts. The terms are to run concurrently.
Dissatisfied with the decision, the appellant sought leave to appeal against the tribunal’s 23rd January, 2003 decision and filed his Notice of Appeal following the time extended by the court below for him to do so.
Parties subsequently filed and exchanged their briefs of argument and the appeal was fixed for hearing. On the hearing date the court, at the prompting of both counsel observed that the appellant has remained a fugitive and proceeded, in spite of the application for adjournment by appellant’s counsel, on the further preliminary objection raised by the respondent’s counsel that appellant’s presence at his trial was mandatory, to strike out appellant’s appeal under Order 4 rule 4(1) of the Court of Appeal, 2002 Rules for incompetence. Aggrieved, the appellant has appealed against the decision to this Court.
At the hearing of the appeal, parties adopted and relied on their briefs of argument which were earlier filed and exchanged.
The two issues formulated in the appellant’s brief for the determination of his appeal read:-
(i) Was it not wrong of the lower court to strike out the appeal, as a result of the Appellant’s absence at the hearing when no law makes his presence mandatory apart from the fact that the question of the propriety of the pursuit of his appeal from outside Nigeria was foreclosed by the earlier decision of that court granting him leave to appeal in full knowledge that he was resident abroad.
(ii) Was the appellant’s right to fair hearing not flagrantly violated by the omission of the lower court to decide the application of his counsel for an adjournment but rather proceeding to hear and to uphold the respondent’s oral preliminary objection to the appeal which was made without advance Notice to Appellant’s counsel?
The three issues distilled in the respondent’s brief of argument as having arisen for the determination of the appeal are:-
(I) Whether the appellant’s appeal does not amount to abuse of court process.
(II) Whether the lower court was not right in striking out the appeal for being incompetent.
(III) Whether the lower court was bound to grant the application for adjournment sought by the appellant’s counsel.
The appeal shall be determined on the basis of the two issues formulated by the appellant. They capture appellant’s complaints against the decision of the court below. Any complaint outside these and by a party other than the appellant himself is hypothetical and uncalled for. After all, a sympathiser is not entitled to weep more than the aggrieved person. See Global Trans S. A. v. Free Enter (Nig) Ltd. (2001) 5 NWLR (part 706) 426 and Okotie-Eboh V Manager (2004) 18 NWLR (part 905) 242.
Under their 1st issue, learned appellant’s counsel contends that Order 4 Rule 4(1) of the Court of Appeal rules the court below purports to have invoked in striking out appellant’s appeal is unavailing. Neither the particular rule nor any other rule of the court confers on the court the powers the court asserts it has. The words which make up the rule the court relies upon to strike out appellant’s appeal, it is submitted, being clear and unambiguous, must be assigned their ordinary literal meaning. The court’s failure to do so, argues learned counsel, renders the court’s decision perverse. The rule of court only requires the appellant to sign his Notice of Appeal which he has done. The court that has obliged the appellant extension of time to seek leave, leave and extension of time to file the appellant’s very Notice of Appeal is estopped from questioning the validity or otherwise of the Notice subsequently. Learned counsel supports his contention with the following authorities: Ebba v. Ogodo (2000) 10 NWLR (part 675) 387 and Magor & St Mellous RDC v. Newfort Corporation (1951) 2 ALL ER 839 at 849.
Further arguing the appeal, learned appellant’s counsel contends that the court’s position that appellant is obliged to be present at his trial except if the court has permitted him to be absent is not supported by the law, which the court lacks the vires to re-write. The law allows the appellant to be absent from the court once he so indicates. Having indicated that he does not require to be present at his trial which the appeal is a continuation of, learned counsel submits, the court below is wrong to insist that the appellant must necessarily be in court during the proceedings and that his absence disentitles him from prosecuting the appeal. Learned counsel urges that the issues be resolved in appellant’s favour and his appeal allowed.
Responding under their 2nd and 3rd issues, learned respondent’s counsel submits that the lower court’s proceedings of 6th June 2005 at page 109 of the record clearly shows that the appellant is neither in prison custody nor is his counsel able to say how the appellant signed his Notice of Appeal. Learned appellant’s counsel indeed told the court below that appellant is still at large. With such information coming from appellant’s counsel, the application for adjournment has therefore become evidently diversionary and inappropriate. The intendment of Order 4 Rule 4(1) of the Court of Appeal Rules under which appellant’s appeal is struck out, learned respondent counsel concedes, is very clear. He however insists that the court below is well within the meaning of the particular order and rule of court in striking out appellant’s appeal. Notice of Appeal, learned counsel further submits, is what gives the appellate court the necessary jurisdiction to hear an appeal. Any doubt or defect pertaining to the Notice goes to the root of the appeal and vitiates it. Since appellant’s Notice of Appeal has not been shown to be signed by the appellant himself, the court below is right to have struck out the appeal. The issues, learned counsel urges should be resolved against the appellant. He urges also that the appeal be dismissed.
Now, the entire proceedings including the decision of the lower court being appealed against spans pages 109 – 110 of the record of appeal and are hereunder reproduced for ease of reference.
“Njoku: The accused is not in prison custody. He is at large. I do not know how he signed the notice of appeal. I ask for an adjournment.
Ikpeme: I do not think this appeal is competent. The appellant having fled the Country before the notice of appeal was

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filed. I ask that this appeal be dismissed and not adjourned. I asked for N25,000.00 costs.
Njoku: The accused was tried in absentia. He should be allowed to appeal in absentia. His property was confiscated.
Court: This appeal was brought by the appellant when he is still a fugitive from the law of the country contrary to the express provisions of Order 4 Rule 4(1) of the Court of Appeal Rules 2002 which requires thus.
4-(1) every notice of appeal or notice of application for extension of time within which such notice shall be given, shall be signed by the appellant himself except under the provisions of paragraphs (5) and 6 of this rule.
The provision is not applicable to the circumstances of this case. The provision deals with accused persons who have been convicted and are in prison custody. The appellant is not in prison custody nor is he insane.
He has voluntarily chosen to stay away. In addition the appellant who is not in custody is not in court today for the hearing of the appeal and there is nothing before us granting permission to be absent from the court. Consequently the appeal, assuming it is validly brought without de (sic) could not be heard in the absence of the appellant.
The appeal being incompetent is struck out. The respondent is not entitled to costs and so we made (sic) no order as to costs.” (Underlining supplied for emphasis)
It is glaring from the foregoing that the finding of the court below that appellant’s appeal is incompetent is strictly because the appellant “is still a fugitive” and has absented himself from court without permission. The observation of counsel that the appellant has signed his Notice of appeal and the court’s further assumption that the appeal “is validly brought” must be highlighted as well. Respondent’s objection to the competence of the appeal rests squarely on the fact of the appellant’s fleeing the country before filing his Notice of Appeal. Learned counsel does not dispute the fact that appellant has signed his notice of appeal before fleeing.
It is also an integral part of the decision of the lower court that the provisions of paragraphs (5) and (6) of Order 4 do not apply to appellant’s circumstance. This aspect of the decision of the court has not been appealed against. It accordingly persists. See F.I.B. Plc v. Pegasus Trad Office (2004) 4 NWLR (part 863) 369; Govt. of Gongola State v. Tukur (1989) 4 NWLR (part 117) 592 and Martius v. Nicanner Food Co. Ltd (1988) 2 NWLR (part 74) 75.
The narrow issue this appeal raises is whether the court below is right in its decision that following his absence from court, appellant’s appeal has, pursuant to Order 4 Rule 4(1) of its rules, been rendered incompetent. It is my firm and considered view that in so ruling the court below is in manifest error.
Paragraph 4(1) of Order 4 of the Court of Appeal Rules 2002 purportedly invoked by the court below provides:-
“4(1) Every notice of appeal or Notice of application for leave to appeal or notice of application for extension of time within which such shall be given, shall be signed by the appellant himself, except under provision of paragraphs (5) and (6) of this rule” (underling supplied for emphasis).
Assigning the literal and ordinary meaning of the words which make the foregoing, an appellant is only required to personally sign his Notice of Appeal without more. Learned appellant’s counsel, see page 109 of the record as reproduced above, drew the attention of the court below to the fact that the notice has been so signed. The court itself proceeded on the “assumption” that the appellant has signed the notice as required by the relevant rules. The rule does not require that appellant must sign his notice at a particular location. Learned respondent’s counsel has not and could not have, on the evidence on record, contended that the appellant did not sign the Notice of Appeal. His contention remains that the Notice of appeal was filed after the appellant had fled. Notices of appeal are filed after they have been signed. If however it is learned respondent counsel’s objection that the signature on the appellant’s notice of appeal is not that of the appellant, it remains respondent’s burden to prove what he asserts. See Osawaru v. Ezeiruka (1978) NSCC (Vol. 1) 390 and Apataku & Ors. v. Alabi (1989) NSCC (Vol. 16 part 1) 294. All that Order 4 Rule 4(1) of the rules the court below invoked to arrive at its decision requires is for the notice to be signed by the appellant. Evidence clearly abounds on the record regarding compliance with the requirement. The particular rule of court does not require the presence of the appellant at the hearing of his appeal. The lower court’s ruling to the contrary derogates from and frustrates appellant’s right of appeal.

In Sagay v. Sajere (2000) 6 NWLR (part 661) 360 at 364 and 365, this Court has held that for courts to reach correct and just decisions, it is incumbent on them not only to properly ascertain the facts in contention but to deftly apply the law relevant to the issue in controversy to the ascertained facts. In the instant case, the court below stands in breach of this very rewarding principle. Both counsel are rightly one that whenever the words that make-up a statute, be the statute substantive or adjectival, the intendment of the law giver and the meaning of the statute is necessarily deciphered by assigning the clear and unambiguous words which make up the statute their ordinary literal meaning. I further agree with learned appellant’s counsel that the duty of the court of law is limited to interpreting the law within the context of its constitutive words. It is not within the province of the court to seek the meaning of the statute outside the clear words the legislators employed. A court does not rewrite the law. See N.D.I.C. v. Okem Enterprises Ltd. (2004) 10 NWLR (part 880) 107; Adigun v. AG Oyo State (1987) 1 NWLR (part 53) 678; Ojokolobo v. Alamu (1987) 3 NWLR (part 61) 377 SC and Tasha v. UBN Plc (2002) 3 NWLR (part 753) 99.

It must always be remembered too, that the essence of the rules of court, here put in place pursuant to S. 243 (1) (b) of the very 1999 Constitution that confers on the appellant his right of appeal, is to effectuate the right as conferred. The courts by virtue of both the Constitution and the rules are, therefore, under duty not only to facilitate but to do everything possible to enhance the right of appeal. Being a very important constitutional right, its exercise ought not be unduly fettered. The right must neither be derogated from nor frustrated. See Ohaka v. State (1988) 1 NWLR (part 72) 539, Tukur v. Govt of Gongola State (1988) 1 NWLR (part 68) 41 Obikoya v. Wema Bank Ltd. & Anor. (1989) (part 1) 1 NSCC 113.

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In conclusion, it must be observed that the lower court’s decision which seeks to frustrate appellant’s right of appeal because of his being absent when the appeal was to be heard is all the more difficult to comprehend in the face of the further fact that the trial and conviction of the appellant were conducted in his absence. Decisions such as this which constitute miscarriage of justice, being perverse, are necessarily interfered with on appeal. See Emenimaya v. Okarji (1987) 3 NWLR (part 59) 6 and Adigun v. AG Oyo State (No.2) (1987) 2 NWLR (part 56) 197.I resolve appellant’s first issue in his favour. The consideration of his 2nd issue will not add any value to my decision in respect of the appeal. I find merit in the appeal and do hereby allow it. The lower court’s decision striking out appellant’s appeal is hereby set-aside. The appeal is remitted to the court below for same to be heard and determined expeditiously by justices other than those who heard and determined the matter earlier.

IBRAHIM TANKO MUHAMMAD, J.S.C.: My learned brother, M. D. Muhammad, J.S.C, graciously afforded me the opportunity to read in draft, the judgment just delivered. I agree with my learned brother that the appeal is full of merit and it should be allowed. Two reasons were given by the court below for striking out the appeal before it, i.e. non-compliance with the provision of Order 4 Rule 4(1) of the Court of Appeal Rules, 2001 which requires an appellant in a criminal matter to sign the Notice of Appeal by himself except where sub-paragraphs (5) and (6) thereof apply and, secondly, that the appellant was a fugitive and was not in custody and was absent from court on the day of hearing the appeal.
The court below did not say much on the Notice of Appeal filed, so I cannot say anything on that. The court, rather, decided to dwell on the absence of the appellant from trial and because of that the appeal could not be heard. I think it is stretching the law too far to demand, or make it a condition that, an appeal cannot be heard simply because the appellant is not present in the court. Then what is the essence of a counsel employed by such a person? Presence of a counsel in any matter for a person that desires it is so important such that a court of law or tribunal cannot arbitrarily shut out or make ineffective by choosing to ignore the presence of such a chosen counsel by the person involved in such proceedings.
There are several provisions of the Constitution, which is the Supreme law, which are very clear on that.
The following provisions from the Constitution of the Federal Republic of Nigeria, 1999 (as amended), are very apt:
“35(2) – Any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice.
36(4) a court or such a tribunal may exclude from its proceedings other than the parties thereto or their legal practitioners in the interest of defence…”
36(6) Every person who is charged with a criminal offence shall be entitled to:
(c) defend himself in person or by his legal practitioners of his own choice.
(d) examine, in person or by his legal practitioners, the witness called by the prosecution before any court or tribunal.”
(underlining supplied for emphasis)
My lords, I think even before the commencement of the constitution, it had been the practice in the courts, for quite long, in holding that it is not a legal requirement, and is therefore unnecessary, that a party to a matter before a court must be present in court once he is legally represented and his counsel can conduct his case in his absence. However, when the matter is one in which the party will be required to give evidence or say or do something which his counsel cannot legally do, then his presence in court becomes necessary.In the appeal on hand, the court below did not show the necessity or indefatigability of the personal appearance of the party (appellant). The court has no power to compel the doing of anything which the law (constitution) has prohibited or prohibit the doing of anything which the law (constitution) has made lawful. Several cases from this court and the court of Appeal have laid down the guiding principle. See: Kehinde v. Ogunbunmi (1967) 1 All NLR 306; Nigeria Bank of Commerce and Industry v. Marine and General Insurance Co. Ltd. (1992) 2 NWLR (Pt. 221) 71.

It was therefore wrong of the court below to refuse to hear the appeal on the premises that the appellant was a fugitive and was not present in court when his chosen counsel was present.
For this and the more detailed reasons ably adumbrated by my learned brother, M. D. Muhammad, I too allow the appeal. I abide by the re-hearing order made in the leading judgment including any other order made therein.

JOHN AFOLABI FABIYI, J.S.C.: I have had a preview of the judgment just delivered by my learned brother – M. D. Muhammad, J.S.C. I agree with the reasons advanced therein to arrive at the conclusion that the appeal is meritorious and should be allowed.
The appellant was tried and convicted by the failed Banks Tribunal in absentia. He felt unhappy and sought leave to appeal against the Tribunal’s verdict of 33rd January, 2003. The court below granted the desired leave.
On 6th June, 2005 when the appeal was slated for hearing, the court struck it out under the guise that it was filed contrary to the provision of Order 4 Rule 4(1) Court of Appeal Rules and that the appellant was not in court. The respondent’s counsel raised oral objection to the appeal which prompted the appellant’s counsel to apply for adjournment. The application for adjournment was not considered.
The appellant felt unhappy with the position taken by the court below and has appealed to this court. The two issues decoded on behalf of the appellant have been reproduced in the judgment, I need not repeat them here.
Let me first of all say a word on whether or not the presence of the appellant at the hearing of the appeal is mandatory. I have not come across any law which provides for same and none was referred to by the respondent. The appellant had answered ‘No’ to the question in his notice of appeal whether he desired to be present at the hearing of the appeal. Further, the respondent decided to try the appellant in absentia at the trial Tribunal. Why should any issue be made out by the court blow in respect of his absence at the appeal level? No one should blow hot and cold over two situations with similar back ground.
There is the complaint of the appellant that the court below failed to consider his application for adjournment when the court raised the issue of appellant’s absence. Learned counsel for the appellant felt that such failure of the court below

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was a fundamental error in procedure which occasioned injustice on the appellant as same compromised his constitutional right to fair hearing.
It is now trite that a court must rule on all applications brought before it and decide all issues between the parties. Before striking out the appeal, the court below should have taken the application and ruled on it one way or the other.
The procedure adopted, no doubt, engendered some measure of injustice to the appellant as same compromised his constitutional right to fair hearing. In a similar situation, this court, per Udoma, JSC in Ilona v. Dei (1971) All NLR 8 cited by the appellant’s counsel, pronounced in the same vein without any equivocation.
The lower court upheld the respondent’s oral preliminary objection without prior notice. The appellant felt that such constituted a violation of his right to fair hearing. I tend to agree with him. The essence of giving prior notice to the other side is to avoid the art of springing surprise to the detriment of the other party. Courts should be wary of entertaining oral application on weighty issues as such can be to the detriment of the other side; as herein.

Finally, it is glaring that the appellant signed his notice of appeal personally. The fact that he did so outside the shores of Nigeria is of no moment. I cannot see how the provision of Order 4 Rule 4(1) of the Court of Appeal Rules was flouted.
With due respect to the justices of the court below, I wish to say it that steps taken by them as highlighted above on the fateful day appear peremptory, if not outrightly arbitrary. The end result has led to what may be likened to ‘much haste, less speed.’
For the above reasons and those carefully adumbrated in the lead judgment, I too feel that the appeal is meritorious and should be allowed. I order accordingly and endorse all the consequential orders contained in the said lead judgment.

MARY UKAEGO PETER-ODILI, J.S.C.: I am in total agreement with the judgment just delivered by my learned brother, MUSA DATTIJO MUHAMMAD, JSC. I also agree with the reasoning and would make a few comments.
This is an interlocutory criminal appeal by the 2nd Accused person.
This is an appeal against the ruling of the Court of Appeal (Lagos Division) delivered on the 6th day of June, 2005.
FACTS BRIEFLY STATED:
The Appellant as 2nd Accused person was charged with six other persons on 18 Count Charge at the failed Banks (Recovery of Debts) and Financial Malpractices Tribunal, Lagos Zone V. He was tried and convicted on two counts in the judgment of the Tribunal delivered on 18th November, 1996 and sentenced to two and three years’ respectively to run concurrently.
The Appellant through his counsel sought and obtained the following reliefs from the Lower Court on 23rd January, 2003.
i. Extension of time within which to apply for leave to appeal against the tribunal’s judgment of 18th November, 1996 per Augie J. (as she then was).
Leave to appeal.
Extension of time within which to file notice and grounds of appeal.
The Appellant and the Respondent subsequently filed and exchanged briefs of argument and thereafter the appeal was fixed for hearing. The Lower court in observing that the Appellant was still a fugitive from the law of the country contrary to the express provisions of Order 4 Rule 4 (1) of the Court of Appeal Rules 2002 which requires that every Notice of Appeal or notice of application for extension of time within which such notice shall be given shall be signed by the Appellant himself except under the provisions of paragraphs (5) and (6) of the said rule coupled with the Respondent’s preliminary objection to the appeal, the Appellant’s counsel not rendering a defence, the Lower Court upheld the objection and struck out the appeal for being incompetent.
This court upon application by the Appellant on 26th April, 2007 enlarged time and granted leave to the Appellant to appeal against the Lower court’s decision.
On the 15th day of November 2012, learned counsel for the Appellant adopted their Brief settled by F. C. A. Okoli Esq. and filed on 17/5/07. In the Brief were raised two issues for determination, viz:-
(i) Was it not wrong of the Lower Court to strike out the appeal as a result of the Appellant’s absence at the hearing when no law makes his presence mandatory apart from the fact that the question of the propriety of the pursuit of his appeal from outside Nigeria was foreclosed by the earlier decision of that court granting him leave to appeal in full knowledge that he was resident abroad.
(ii) Was the Appellant’s right to fair hearing not flagrantly violated by the omission of the Lower Court to decide the application of his counsel for an adjournment but rather proceeding to hear and to uphold the Respondent’s oral preliminary objection to the appeal which was made without advance notice to Appellant’s counsel.
Learned counsel for the Respondent adopted their Brief settled by R. A. Lawal-Rabana Esq, filed on 2/10/07 and deemed filed on 27/3/08. In the Brief were distilled three issues for determination as follows:-
1. Whether the Appellant’s appeal does not amount to an abuse of court process.
2. Whether the Lower Court was not right in striking out the appeal for being incompetent.
3. Whether the Lower Court was bound to grant the application for adjournment sought by the Appellant’s counsel.
The two issues of the Appellant are interwoven and can be taken together since they bother on the absence of the Appellant at the time of hearing, conviction and sentence and the subsequent striking out of his application for adjournment through Appellant’s counsel.
Learned counsel for the Appellant contended that it was not disputed that the Notice of Appeal was duly signed by the Appellant and the supporting affidavit before a notary public in New York, United States in compliance with Order 4 Rule 4 (1) of the Court of Appeal Rules. That the Court of Appeal was wrong to read into Order 4, Rule 4 (1) a non-existent provision that the Notice of Appeal must be signed in Nigeria to be valid. That in doing what the Court below did, it infringed upon the golden rule of interpretation which stipulates that statutory provisions be assigned their ordinary, literal meaning. He cited Magor & St.Mellous RDC v. Newport Corporation (1951) 2 All ER 839 at 849; Ebba v. Ogodo

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(2000) 10 NWLR (pt.675) 387.
For the Appellant it was also contended that perusing the Appellant’s Notice of application for extension of time to appeal as in Criminal Form 7 in the 2nd Schedule to the Court of Appeal Rules incorporates the requirements or format to Criminal Form 2 which accords the accused/appellant the option to be either physically present on the hearing of the appeal or not. To which question in the form the Appellant answered “no” to the effect that he would not be physically present.
Learned counsel for the Appellant said the failure of the Court of Appeal to rule on the application for adjournment was a fundamental error in procedure which occasioned injustice on the Appellant having compromised his constitutional right to fair hearing. He cited Ilona v. Dei (1971) All NLR 8; Okonji v. Njokanma (1991) 7 NWLR (Pt. 202) 131; Onyekwuluje v. Animashaun (1995) 3 NWLR (Pt. 439) 637.
That it is noteworthy that the Court of Appeal Rules make no provision for preliminary objections in criminal appeals though for civil appeals it is allowed. He referred to Order 3 Rule 15 (1) & (3) of the Court of Appeal Rules.
Responding, learned counsel for the Respondent said the Appellant fled the country and was convicted in absentia and sentenced to two years and three years imprisonment respectively and so remained a fugitive up till date. That the result is that he had not served the sentence nor made any effort towards processing his bail and so being in disobedience of the court’s order is not entitled to the court’s discretion. That the implication of what the Appellant did is an abuse of court process by filing a Notice of Appeal while in disobedience of the court’s order. He cited Shugaba v. U. B. N. Plc (1999) 11 NWLR (Pt. 627) 457 at 477; Israel Amaefuna & Ors. v. The State (1985) 2 NWLR (Pt. 75) 156 at 177.
For the Respondent it was contended that an adjournment is at the discretion of the Court and the appellant had not done anything to warrant that discretion being exercised in his favour. He cited Alathom S. A v. Saraki (2005) 3 NWLR (Pt. 911) 208 at 233; Donatus Ndu v. State (1990) 12 SCNJ 50; that Order 3 Rule 15 (1) and (3) of the Court of Appeal Rules is not applicable to the instant case.
That what should concern this appellate court is the rightness of the decision and not the reasons for the decision. He relied on I.T.P.P. Ltd. v. U.B.N. Plc (2006) 12 NWLR (Pt.995) 483 at 504; Ndayako v. Dantoro & Ors. (2004) 5 SCNJ 152 at 172 & 177.
The origin of this appeal stems from what transpired at the Court of Appeal when the judgment of the Failed Banks Tribunal which convicted the accused in absentia came up at the Court below and an application for adjournment made on behalf of the Appellant.
The application for adjournment was not considered and the Court of Appeal struck out the appeal in these words:-
“This appeal was brought by the appellant when he is still a fugitive from the law of the country contrary to the express provisions of Order 4 Rule 4 (1) of the Court of Appeal Rules which requires thus.
4 – (1) Every notice of appeal or notice of application for extension of time within which such notice shall be given shall be signed by the appellant himself except under the provisions of paragraphs (5) and (6) of this rule.
This provision is not applicable to the circumstances of this case. The provisions deal with accused persons who have been convicted and are in prison custody. The appellant is not in prison custody nor is he insane.
He has voluntarily chosen to stay away. In addition the appellant who is not in custody is not in court today for the hearing of the appeal and there is nothing before us granting permission to be absent from the court. Consequently the appeal assuming it is validly brought… could not be heard in the absence of the appellant. The appeal being incompetent is struck out.”
I am persuaded to the line of thinking of the Appellant on the issue of the interpretation of Order 4 Rule 4 (1) of the Court of Appeal Rules embedded in that Ruling aforesaid and that is that the words being unambiguous their ordinary, literal meaning is that the Notice of Appeal or application for extension of time to file a notice of Appeal must be signed either by the Appellant himself as was done in this case or his counsel on his behalf.
Again, I am of the same mind that the same Court of Appeal having granted the appellant the application for extension of time to file his Notice of Appeal is estopped from later on querying from what territory that authentication was made especially since the Rule of court did not circumscribe the particular territorial boundary within which the signature was to be made for the process to be valid.
The facts show that the Appellant was in the United States when the process of hearing and his conviction was made at the Trial Tribunal. Also not in question is that he signed his Notice of Appeal and the application for extension of time to appeal in the United States, therefore the bringing into light his ‘fugitive status’ as the Court of Appeal stated is neither here nor there, the issue having been foreclosed and estoppel in operation. I relied on Magor & St. Mellous RDC v. Newsport Corporation (1951) 2 All ER 839 at 849; Ebba v Ogodo (2000) 10 NWLR (pt. 675) 387.
That background having been cleared, there was an application by Appellant’s counsel for adjournment which ought to have been first considered and ruled upon before the Court below entertained the Respondent’s preliminary objection to the appeal and in ruling on it struck out the appeal. There is no way the stance of the Appellant in this regard would not hold sway since there was a duty on the Court below to have first dealt with the application for adjournment before any other thing like the preliminary objection to the appeal especially in this instance where the required minimum of three days notice on the objection was lacking in a failure to comply with Order 3 Rule 15 of the Court of Appeal Rules.
The resultant effect of what happened is that the fundamental error occasioned an injustice on the Appellant whose right to fair hearing had been compromised. See Ilona v. Die (1971) All NLR 8; Okoyi v. Njokanma (1991) 7 NWLR (Pt. 202) 131; Onyekwuluje v. Animashaun (1996) 3 NWLR (pt. 439) 637.
My conclusion is that in the light of what transpired both at the Trial Tribunal and the Court of Appeal, if the Appellant could have his criminal process heard and determined with a conviction in his absence then there was an obligation to have his appeal heard and possibly determined in his absence so long as the legal requirements are met.
With the above and the better articulated lead judgment I too allow the appeal and set aside the order striking out the appeal by the Court of Appeal. I abide by the consequential orders in the lead judgment.

OLUKAYODE ARIWOOLA, J.S.C.: I had the opportunity of reading in draft the lead judgment just delivered by my learned brother, Dattijo Muhammad, JSC. I am in total agreement with the reasoning and conclusion arrived thereat in the said lead judgment. I allow the appeal.
I abide by the consequential order.

Appearances

F. C. A. Okoli. For Appellant

AND

Ms Olufunke Aboyade with Adewale Odeleye Esq. For Respondent.

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