QUALITY COMPUTRONICS SYSTEM LTD & ANOR V. TOKI RAINBOW COMMUNITY BANK LTD
(2013)LCN/5948(CA)
In The Court of Appeal of Nigeria
On Thursday, the 21st day of February, 2013
CA/PH/167/2001
RATIO
“A Notice of Appeal cannot be said to have been validly filed within the period prescribed for filing the Notice of Appeal unless the correct and appropriate fee has been paid as directed by the rules. In Ngoh vs.Ndoke (1960) 5 F.S.C. 90, the apex court, per Ademola C.J.F. (as he then was) held that an election petition, is deemed duly presented only when the copies required by law are left at the registry and the prescribed fees duly paid. This also was the position this court expressed in Ochigbo vs. Umoru (2009) LPELR 8752 and,Usmanu Dan-Fodiyo University, Sokoto vs. Balogun (2006) 13 NWLR (PT. 984) 124 at 140. This is also the view of the Supreme Court in Ndaeyo vs. Ogunaya (1977) 1 S.C. 11. In Abia State Transport Corp. vs. Quorum consortium Ltd. (2009) 9 NWLR (PT. 1145) 1 S.C. the Supreme Court had categorically stated that payment of prescribed fee by all litigant, except Government, is a pre-condition on the validity of any process filed in the court, and that unless the pre-condition is satisfied, the court will lack jurisdiction to entertain the process if the prescribed filing fee has not been paid. Rules of each court are meant to be obeyed by both litigants and counsel appearing before it.” Per TSAMIYA, J.C.A.
“In Akubue vs. C.O.P. (1977) 11 MSLR 164 at 168 it was held that every Notice of Appeal must be filed in strict compliance with the rule, failing which the appellate court cannot exercise jurisdiction. The decision follows the line of the authoritative pronouncement of the Supreme Court in Madukolu vs. Nkemdilim (1962) 1 All NLR 587 at 593 to the effect that: “A court is competent when it is properly constituted as regards members of the Bench, and no member is disqualified for one reason or the other, and the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court exercising its jurisdiction; and the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.” Per TSAMIYA, J.C.A.
JUSTICES:
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
Between
1. QUALITY COMPUTRONICS SYSTEM LTD.
2. MR. E.S. WOKOMA – Appellant(s)
AND
TOKI RAINBOW COMMUNITY BANK LTD. – Respondent(s)
MOHAMMED LADAN TSAMIYA, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the judgment the Rivers State High Court (herein referred to as the trial court) sitting in Port Harcourt Judicial Division, where the plaintiff (herein referred to as the respondent) claims against the defendants (herein referred to as the appellants) as follows, through undefended list.
1. The sum of N1,580,420.73 (ONE MILLION FIVE HUNDRED AND EIGHT THOUSAND, FOUR HUNDRED AND TWENTY NAIRA, SEVENTY-THREE KOBO) being and representing principal and accrued interest element on loan and over-draft facilities as at 31st April 1999 granted by the respondent to the defendants/appellants which is due.
2. 10% per month interest on the stated sum, effective from 1/5/1999 until full and final payment on the liquidation of the said sum.
At the conclusion of the hearing, the trial judge gave judgment in favour of the respondent. Dissatisfied with the judgment of the trial court, the appellants appealed to this court on 20th July 2000 on three grounds of appeal as contained in their Notice of Appeal dated 19/7 /2000.
In accordance with the Rules of this court 1981, the appellants filed their brief of argument on 10/7/2002 and was deemed as properly filed and served on 26/5/2003 by virtue of order 3 rule 4(1) of the said Rules 1981. The respondent also filed its brief on 11/6/2003. In the appellants’ brief, raised the following issues for determination of this court:
1. Whether the learned trial Judge was right in law when he disregarded the fact that the defendant/appellant has repaid part of the debt and entered judgment in favour of the plaintiff/respondent for the total amount including interest thereon under the undefended list.
2. Whether the learned trial judge was right in law when he held the 2nd defendant/appellant liable for a loan contract between the 2nd defendant/appellant’s employer and the plaintiff/respondent.
OR
Whether there exists privity of contract between the plaintiff/respondent and the 2nd defendant/appellant.
3. Considering the weight and conflict in affidavit evidence of the parties, whether the learned trial Judge ought not to have called for oral evidence.
OR
Considering the affidavit evidence before the trial court, whether the judgment is not against the weight of affidavit evidence before the trial court.
4. Whether considering the circumstances the learned trial Judge was right in law when he awarded interest at the rate of 10% per-month on the total debt from 1st May 1999 until the full and final payment or liquidation of the debt disregarding the agreed interest of 28.5% on the overdraft as contained in Exhibit D.
The respondent in its brief filed on 11th June 2003 adopted the appellants’ issues in toto.
It is important to mention that although the appellants filed what could be termed as a joint appellants’ brief, none of them did appear in court on the date of hearing of this appeal, i.e 19/2/2013, even though service was effected on them. That being the case and pursuant to Order 6 rule 6 of this court’s Rules 2011 which empowers this court to strike out any Notice of Appeal when an appeal is not competent, or for any other sufficient reason. It says:
“0.6.r.6 The court shall have power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason.”
Rule 24 of the 1981 rules of this court enabled any party to the appeal to file a declaration in writing that he does not wish to be present in person or by a legal representative on the hearing of the appeal. Having reached this decision he shall serve a copy of such declaration upon every other party who has filed an address for service and thereupon the appeal shall be dealt with as if the party had appeared.
From the record of this appeal, there is nothing to show that this Rule 24 (supra) has been complied with by the appellants and failure to take action under this Rule 24 (supra) this court has no alternative but to invoke the provisions of the said Rule 24 (supra) and dismiss this appeal.
Similarly, at pages 42-44 of the record of appeal is the Notice of Appeal dated 19/7/2000 which is the original process. Endorsed at page 44 of the record are two stamps from the cashier’s office of Rivers State Judiciary with a date of 20/7/2000, suggesting that the Notice of Appeal was filed on the said date. The Notice of Appeal was signed by Mr. O.K. Chinda of counsel to the appellant.
As there was no endorsement as to the fees paid for the filing of this appeal and had the appellants been present in court or represented by a counsel, we would have drawn their attention to page 44 of the record and ask how much was paid as filing fee for this appeal. Also we would have further drawn their attention to order 3 rule 28 and Third Schedule to this court’s Rules 1981. At this stage, it is necessary to reproduce the said order 3 rule 28 (supra). It provides:
Order 3 rule 28(1) save as herein after provided, the fees prescribed in the Third Schedule hereto shall be charged in respect of the matters to which they are respectively assigned and shall be paid to the Registrar of the court below or of the court as the case may be (italics mine).
This provision is IPISSIMA VERBA with order 3 rule 25(1) of the Court of Appeal Rules, 2002 and order 12 rule (1) of this court’s Rules 2007 and order 12 rule 1 of the 2011 Court of Appeal Rules. The fee prescribed in the Third Schedule of this court Rules 1981, “on filing of Notice of Appeal against a final judgment or decision” is N500.00. The Notice of Appeal at pages 42 – 44 of the record in the instant appeal is against the final judgment of the High Court of Rivers State. This, it is clear from the provisions of Order 3 rule 28 (supra) that, sum of N500.00 is the fee to be charged and the fee to be paid by the appellant to the Registrar, “on filing Notice of Appeal against the final “judgment” or “decision” of Rivers State High Court delivered on 17/7/2000.
This order 3 rule 28(1) in my view, is mandatory or imperative. Reason being that the words “shall be charged” are peremptory. They impose obligation on the Registry to demand and receive only the fees set out in the Third Schedule. Any discretion whatsoever is taken away. The words “shall be paid,” also leave the litigant no discretion to pay any fee less than those stipulated in the Third Schedule.
In Akubue vs. C.O.P. (1977) 11 MSLR 164 at 168 it was held that every Notice of Appeal must be filed in strict compliance with the rule, failing which the appellate court cannot exercise jurisdiction. The decision follows the line of the authoritative pronouncement of the Supreme Court in Madukolu vs. Nkemdilim (1962) 1 All NLR 587 at 593 to the effect that:
“A court is competent when it is properly constituted as regards members of the Bench, and no member is disqualified for one reason or the other, and the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court exercising its jurisdiction; and the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.”
However, part V of this Court Act, 1976 (as amended) prescribed the period within which appeals may be filed. So also order 3 rule 28(1) of this court’s Rules (supra) is one of such manner directed by the rules for filing a valid Notice of Appeal within the period prescribed by the provision of part V of this court Act 1976 (as amended).
A Notice of Appeal cannot be said to have been validly filed within the period prescribed for filing the Notice of Appeal unless the correct and appropriate fee has been paid as directed by the rules. In Ngoh vs.Ndoke (1960) 5 F.S.C. 90, the apex court, per Ademola C.J.F. (as he then was) held that an election petition, is deemed duly presented only when the copies required by law are left at the registry and the prescribed fees duly paid. This also was the position this court expressed in Ochigbo vs. Umoru (2009) LPELR 8752 and,Usmanu Dan-Fodiyo University, Sokoto vs. Balogun (2006) 13 NWLR (PT. 984) 124 at 140. This is also the view of the Supreme Court in Ndaeyo vs. Ogunaya (1977) 1 S.C. 11. In Abia State Transport Corp. vs. Quorum consortium Ltd. (2009) 9 NWLR (PT. 1145) 1 S.C. the Supreme Court had categorically stated that payment of prescribed fee by all litigant, except Government, is a pre-condition on the validity of any process filed in the court, and that unless the pre-condition is satisfied, the court will lack jurisdiction to entertain the process if the prescribed filing fee has not been paid. Rules of each court are meant to be obeyed by both litigants and counsel appearing before it. The Privy Council also in Ratnam vs. Cumarasamy (1964) All E.R. 933 had added that the court demands strict compliance with the rules of appeal than the rules of trial court. Similarly, in Seven-Up Bottling Co. LTD. vs. Yahaya (2001) 4 NWLR (PT. 702) 47 this court decided that it is the duty of the appellant to pay the appropriate fee to enable the court’s function to start. Unless the fee for filing Notice of Appeal against a final decision of the High Court was previously paid, as charged under order 3 rule 28(1) and the Third Schedule to the 1981 Rules of this court, the appeal has not been kic-stated(Sic) and this court cannot exercise its jurisdiction over such a process or Notice of Appeal. Partial or inadequate or even non-payment of filing fee render the process both inchoate and invalid as at the time of the filing of the process. The filing of the process is only complete upon payment of the balance or short fall. Therefore, where time is of essence as in filing Notice of Appeal, and upon effluxion of time, the late payment of the short-fall does not revive the process.
In view of what I have said above, this Notice of Appeal purportedly filed on 20/7/2000 is incompetent and is hereby struck out.
CHIOMA E. NWOSU-IHEME (Ph.D) J.C.A.: I have had a preview of the read judgment just delivered by my learned brother, MOHAMMED .ADAN TSAMIYA, JCA. I am in complete agreement with the reasoning and conclusion contained therein, which I adopt as mine. I also strike out the incompetent Notice of Appeal and affirm the judgment of the trial Court dated 17/7/2000 in suit No. PHC/121/2000. I also make no order as to costs.
STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother, Tsamiya, JCA and I am complete agreement with him that this appeal is incompetent.
I also order this appeal struck out.
Appearances
N.J Ogbomor For Appellant
AND
Appellant absent and unrepresented although duly served. For Respondent
