3PLR – ZARA MUCELLA V. THE QUEEN

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ZARA MUCELLA

V.

THE QUEEN

FEDERAL SUPREME COURT OF NIGERIA

F.S.C. 191/1962

29TH OCTOBER, 1962.

3PLR/1962/95  (FSC)

OTHER CITATIONS

BEFORE THEIR LORDSHIPS

SIR LIONEL BRETT, F.J. (Presided and Read the Judgment of the Court)

JOHN IDOWU CONRAD TAYLOR, F.J.

SIR VAHE BAIRAMIAN, F.J.

MAIN ISSUES

PRACTICE AND PROCEDURE – APPEAL – Criminal appeal – Murder – Appeal out of time – Power of the Fed­eral Supreme Court to extend time when death sentence is involved-Sec­tion 31(2) (b) of the Federal Supreme Court Act 1960.

CRIMINAL LAW AND PROCEDURE – Prisoner wishing to exercise right of appeal – Duty of prison authority.

PRACTICE AND PROCEDURE – APPEAL – Criminal appeal – Notice of appeal filed without the date of filing endorsed on it- Effect.

REPRESENTATION

1. A. Cole -for the Appellant.
2. A. Isikalu -for the Respondent.

BRETT, F.J. (Delivering the Judgment of the Court):      On the 12th January, 1962, the appellant was convicted in the High Court of Northern Nigeria on a charge of culpable homicide punishable with death, contrary to s. 221 of the Penal Code, and sentenced to death. After his conviction and sentence he was confined in the Native Authority Prison at Mubi, in Sardauna Pro­vince, and there he completed a document which purports to be a notice of appeal, but which does not bear the date on which he affixed his thumb­print, as required by Criminal Form 1 in the Second Schedule to the Federal Supreme Court Rules, 1961. This document was filed with the registrar of the Jos Division to the High Court. Although the practice does not appear to be enjoined by any statute or rule of court, it is normal for the registrar to en­dorse on any document filed with him the date on which it was received, but this also was not done in the present case, and a copy of the document was in­cluded in the typed record of appeal with no note on the document itself either of the date on which it was made or of that on which it was filed. A let­ter was, however, addressed separately by the registrar of the High Court to the registrar of this Court, stating that after inquiries had been made as to whether the appellant wished to file a notice of appeal, a telegram was re­ceived from the Resident of Sardauna Province on the 22nd May, four months after the date of conviction, asking for a supply of copies of the form to be used. The outer cover of the record of appeal is signed by the registrar of the High Court, and includes the words:­

“5.     Nature of Appeal and date Notice of Application filed. Notice of Appeal by person sentenced to death – 9/6/62.”

Mr. Cole, who was assigned to represent the appellant, submitted that if there was no endorsement on the notice of appeal itself the Court was bound to assume that the notice was filed in time, and should not look to any other source of information. We regard this as too restrictive, and we con­sider that whatever may be the position as regards the letter written by the registrar of the High Court, the registrar’s signed statement on the cover of the record of appeal is something of which the appellant or his counsel had notice and on which, since no application was made for an adjournment so that evidence might be called to challenge its correctness, the Court is enti­tled to rely as accurate.

The period prescribed by s.31(2)(b) of the Federal Supreme Court Act, 1960, for the giving of notice of appeal in a criminal case is thirty days from the date of the decision appealed against, so that this notice is clearly out of time, and subsection (4) of the same section, which gives this Court power to extend the time in other cases, with-holds it in the case of a conviction in­volving sentence of death. It follows that we have no power to grant an ex­tension of time, and that the appeal must be struck out as not being properly before us.

We have two comments to add. The first is that if prisoners who have a right of appeal to this Court are to be kept in the Native Authority Prison at Mubi we trust, without wishing to be unduly critical, that the prison au­thorities will be enabled to give prisoners wishing to exercise that right the same facilities as are available for the purpose in Government prisons. The second is that Mr. Cole conceded that, having read the record, he was unable to find anything to urge in support of the appeal, supposing it to be properly before the Court, and that having read the record ourselves we are of the same view.

TAYLOR, F.J.:      I concur.

BAIRAMIAN, F.J.:         I concur.

Appeal struck out.