SYLVANUS EMEKA MADUBUIKE & ORS v. ROMANUS ELOCHUKWU MADUBUIKE
(2016)LCN/8378(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of March, 2016
CA/EK/52/2010
RATIO
APPEAL; PAYMENT OF FILING FEES;THE CONSEQUENCE(S) OF PAYMENT OF INADEQUATE OR INAPPROPRAITE FEES FOR THE FILING OF COURT PROCESS AND WHETHER OR NOT ANY SHORTCOMING IN THE PAYMENT OF FILING FEES CAN BE REMEDIED
I have read all the cases cited by parties in their written addresses. What parties have demonstrated by the decisions of the Supreme Court and those of this Court they cited, is that there are two opposing views regarding the consequence(s) of payment of inadequate or inappropriate fees for the filing of Court processes (particularly as it relates to notice of appeal) and whether or not any shortfall in the payment of filing fees can be remedied. This much is clear from the cases of ASTC v. Quorum Consortium Ltd (supra) and Akpaji v. Udemba (supra) cited in the Applicants written address vis-? -vis the cases of Akubue v. COP (supra) and Jerome v. Jerome (supra) cited in the Respondents written address. I would however wish to observe that as far back as the year 2002, this Court in dwelling on the issue of filing fees had in the case of JONPAL LTD V. AFRIBANK NIG. LTD (2002) LPELR 5769 (CA) per M.D. Muhammad, JCA; (as he then was) stated thus: –
“The appellant cannot also succeed on the basis of the quarrel that the lower Court had wrongly assumed jurisdiction in hearing the respondent’s application, since appropriate fees had not been paid by the applicant. By a long chain of authorities, we have held that the question of payment of adequate or inadequate filing fees in respect of documents for use in Court does not raise an issue of jurisdiction and failure to fulfil the provisions of the rule of Court thereto is merely an irregularity, which in the con of the instant case is incapable of affecting the lower Court’s proceedings in any way. See Noibi v. Fikolati (1987) 1 NWLR (Pt. 52) 619 at 632 and Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387 at 405” Also in the case of COMMISSIONER OF HEALTH, NASARAWA STATE V. DADET (2009) LPELR 8907 (CA) this Court dwelling on the issue of payment of inadequate filing fees said per Yahaya, JCA, thus: -“ISSUE NO.3 This has to do with the non-payment of filing fees for new reliefs 22(a) and (b) after the statement of claim was further amended. Counsel for the appellants argued forcefully, that the trial Court was wrong when it held that the non-payment of the filing fees had been regularized by the respondent, when it was a condition precedent to assumption of jurisdiction. He referred to OKOLO VS. UBN (2004) 3 NWLR (Pt. 859) 87 at 108 and ONWUGBUFOR VS. OKOYE (1996) 1 NWLR (Pt. 424) 252 at 292, and submitted that a fundamental defect cannot be regularized in retrospect since filing of fees (sic) is a condition precedent. Counsel for the respondent in his response submitted that since the filing fees in respect of the additional reliefs had been paid by a deeming order of the Court, the defect had been cured and had removed the case from the situation in ONWUGBUFOR VS. OKOYE (Supra) It is not controverted, that the respondent had amended his statement of claim further and had introduced additional reliefs as per paragraphs (a) and (b). These two new reliefs, were not assessed by the Registrar of Court and were not paid for. Counsel for the appellants in his address before the trial Court, raised the issue. In a swift reaction, the respondent filed a motion seeking the leave of Court to pay for these reliefs and having paid same, obtained a deeming order that the reliefs had been properly paid for. This happened before judgment was delivered. It is correct that the Supreme Court, per Niki Tobi, JSC in OKOLO Vs. UBN (supra), also reported in (2004) 1 SCNJ 113 at 123, referred to and applied the case of ONWUGBUFOR VS. OKOYE (Supra) per Iguh JSC where he held that payment of filing fees in respect of each relief claimed is a condition precedent to the commencement of a judicial function. Specifically, it was held that “A Court shall not entertain a relief claimed without payment of the prescribed requisite fees …..” See also SEVEN-UP BOTTLING COMPANY VS. YAHAYA (2001) 4 NWLR (Pt. 702) 47 at 55 E- F and AJA VS. OKORO (1991) 7 NWLR (Pt. 203) 260. It is to be noted, that in the case of ONWUGBUFOR VS. OKOYE (Supra) an exception was made. Iguh JSC went on to say that the Court should strike out a claim whose fees had not been paid “in the absence of an appropriate remedial action or application to regularize such anomaly.” The Supreme Court here, was dealing with a situation in which no fees was paid in respect of the new claim of forfeiture and the Court struck it out for being incompetent. This is not the position in the instant appeal where the respondent applied to the trial Court by way of Motion on Notice, to pay the requisite fees in respect of the new reliefs. The Court granted the prayers and the fees were paid before judgment was delivered. The application, the grant of the prayers and the payment of the fees had therefore regularized the anomaly and were a good remedial action. The trial Court was perfectly in order when it accepted ‘the new reliefs as competent before it, since it was supported by the ONWUGBUFOR’s case. In its overwhelming desire to ensure that substantial justice is what every Court in the land should promote, the Supreme Court has on 13/2/2009, shifted from the position it held in ONWUGBUFOR VS. OKOYE (supra) concerning filing fees. In the case of ALLOYSIUS AKPAJI VS. FRANCIS UDEMBA (2009) 2 SCNJ 202, a similar situation to the case in hand, the Registrar of the trial Court, omitted to make an appropriate assessment for a counter-affidavit. The case was concluded at the trial Court with that anomaly and the issue only surfaced at the Court of Appeal, where the respondent filed an application to pay for the appropriate fees. The Supreme Court, per Ogbuagu J.S.C. in a very pungent and decisive manner, held at page 209, that it is now firmly settled that even the failure to pay filing fees does not raise issue of jurisdiction and the failure to fulfil the provisions of the High Court Rules in that regard is a mere irregularity which when not taken timeously or when acquiesced in becomes incapable of affecting the proceedings in any way. See the case of A.C.B. Ltd. Vs. Henshaw (1990) 1 NWLR (Pt. 129) 646 at 650 CA citing the cases of Sonuga Vs. Anadein (1967) NMLR 77 at 79; Ezemo Vs. Oyakhire (1985) 1 NWLR (Pt. 2) 195 at 202 -203; Noibi Vs. Fikolata & Anor (1987) 1 NWLR (Pt. 52) 619 at 632 (it is also reported in (1987) 3 SCNJ 14) and Alhaji Saude Vs. Alhaji Abdullahi (1989) 4 NWLR (Pt. 116) 387 at 405-406 (it is also reported in (1989) 7 SCNJ 216. The usual remedy, it is also settled, is an order by the lower Court, that the appropriate fees or any short-fall be paid. It has nothing to do with jurisdiction of the lower Court to entertain the counter-claim” The learned justice of the Supreme Court went on to conclude on the issue at page 211 of the report, that “I therefore hold that the non payment in full of the appropriate fees was a mere irregularity and did not vitiate the proceedings and it has nothing to do, with the jurisdiction of the trial Court. At worst, it is voidable not void. As can even be seen, it is not the failure to pay an assessed filing fees, but non-payment of the appropriate or requisite fees – (i.e. inadequate fees). If the Registrar/Registry under-assessed ? i.e. not assessing correctly, can it be said, by any stretch of imagination, that the fault to assess adequately, is that of a litigant or a lawyer or the respondent? I think not.” This is a remarkable development of the law as it has de-emphasised the use of technicalities, to defeat the course of justice. The ills of the Registry in under-assessing the reliefs, should not be visited on the respondent. The additional reliefs were competent before the Court. Issue NO. 3 is thus resolved against the appellants.”
(Underlining provided by me for emphasis). It would however appear that the stance of this Court in the cases of Jerome v. Jerome (supra) and HORSFALL v. AMAIZU (2013) LPELR ? 22874 (CA) is that non-payment of the appropriate fee for the filing of a notice of appeal is fatal and irredeemable as the payment of appropriate filing fee is a condition precedent that must be fulfilled to make a notice of appeal valid. In the aforementioned cases the Court relied substantially on the pronouncement of Aderemi, JSC; in his concurring judgment in the case of Abia Transport Corporation Ltd v. Quorum Consortium Ltd (2009) 9 NWLR (Pt. 1145) 1 SC as well as the case of Onwugbufor & Ors. Vs. Okoye & Ors. (1996) 1 NWLR (Pt. 424) 252 (SC). The relevant pronouncement of Aderemi, JSC; in the Abia case which was decided on 3/4/2009 (and later in time to the decision of the Supreme Court delivered on 13/2/2009 in Akpaji v. Udemba) reads: -I wish to say that generally, payment of a prescribed filing fee, by all litigants except the government, is a pre-condition to the validity of any process filed in the Court. Unless the pre-condition is satisfied, the Court will lack the jurisdiction to entertain a process the prescribed filing fee of which has not been paid. It is my considered view that the Supreme Court in the Ogwe case cited in the Applicants reply on point of law, has now put to rest the issue as to whether or not the non-payment of appropriate filing fee in respect of a process of Court (in contradistinction non-payment at all of filing fee) is a jurisdictional matter. PER. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
APPEAL: WHEN AN APPEAL CAN BE FILED
The practice that has evolved over the years is for an appellant whose appeal is within the time prescribed under Section 24 of the Court of Appeal Act to file his appeal to the lower Court at the registry of the Court against which decision the appeal is being filed. PER. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
APPEAL: FILIING FEES; WHETHER A COURT CAN STRIKE OUT AN APPEAL ON THE GROUNDS OF INSUFFICIENT FILING FEES
I am of the considered view that, even if the fees paid were insufficient, this case is one of such circumstances where this provision should have been invoked. All Courts of law have a responsibility to do substantial justice. The rules of Court are to be used as hand-maids of justice and should not become a clog in the wheel of justice. See: Banna v. Telepower (Nig.) Ltd. (2006) 15 NWLR (Pt. 1001) 198 at 217 D – F; Willoughby vs. I.M.B. (Nig.) Ltd (1987) 1 NWLR (Pt.48) 105 at 131 H. It was a grave miscarriage of justice for the appeal to have been struck out on the grounds of insufficient filing fees when the appellants had paid the amount assessed by the High Court Registry. Abiding by the decision of the Supreme Court in the Ogwe case (as this Court is by law bound to do), it becomes obvious or clear as crystal that the non-payment of the sum of N5,000.00 for the filing of the notice of appeal in the instant appeal cannot be elevated to one that robs this Court of the jurisdiction to entertain the instant appeal and a fortiori, the instant motion, as argued in the written address of the Respondent. The position of the law to the effect that non-payment of appropriate filing fee in respect of a Court process, is an irregularity has been re-affirmed by the Supreme Court in the Ogwe case. It is also clear from the decision in the Ogwe case that the provisions of Order 20 Rule 3(1) and (2) of the Rules of this Court can eminently avail the Applicants as argued in their written address had they not taken step to remedy the anomaly in respect of the shortfall of the filing fee paid for the notice of appeal in the instant appeal. In this regard, it is to be noted that the appellant in Ogwe case never applied for any order to regularise the position of the notice of appeal in the matter by paying any amount as shortfall. The Supreme Court equally did not make any order in that regard, as it was of the view that the filing fee for the notice of appeal in the matter as accessed by the registrar of the lower Court was what ought to have been paid. PER. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
Between
SYLVANUS EMEKA MADUBUIKE
MARTHA ROSE MADUBUIKE
VERONICA MADUBUIKE
EMMANUEL O. MADUBUIKE
PETER C. MADUBUIKE
JUDE C. MADUBUIKE
RAPHAEL MADUBUKE
FRANCIS MADUBUIKE Appellant(s)
AND
ROMANUS ELOCHUKWU MADUBUIKE Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.(Delivering the Lead Ruling): The motion dated 24/2/2015 and filed on 25/2/2015 before the Court was brought by the Appellants/Applicants (hereafter to be simply referred to as Applicants?) pursuant to Orders 7 Rules 1 and 10(1); 20 Rule 3(1) and (2) of the Court of Appeal Rules, 2011 and the inherent jurisdiction of the Court. The orders which the Applicants seek as set out in the motion are: –
1. AN ORDER granting leave to the Applicants to pay fully the stipulated filing fees of N5,000.00 having paid N350.00 in respect of the Notice of Appeal dated 23rd February, 2009 and filed on the 25th February 2009 in this appeal.
2. AN ORDER deeming as properly paid the balance of the filing fee of N5,000.00 in respect of the Notice of Appeal stated above which is N4,650.00 which was paid after the filing of the said Notice of Appeal.
The grounds for the motion as contained therein are: –
(a) This appeal was failed at the Federal High Court Registry, Ado-Ekiti on the 25th February, 2009 and the Registrar of the Court assessed the filing fee to be N350.00
only which was paid by the appellants.
(b) It was later discovered that what the appellant (sic) needed to pay was N5,000.00 for a Notice of Appeal hence the appellant (sic) paid the balance of N4,650 later.
(c) That Court (sic) is empowered by its rules to enlarge the time provided for the doing of anything to which the rules apply.
(d) Equally, Order 20 Rules 1 & 2 of the Rules of this Court empowers the Court to grant waivers on non-compliance in the overall interest of justice.
(e) The Court restored the appeal to the cause list on 25th November, 2014 and struck out the prayers of allowing the appellant (sic) to pay the balance of fees as well as deeming the balance of N4,650 already paid on the said date because it was premature.
(f) It is in the interest of justice to grant the prayers as the appellants are desirous of prosecuting the appeal to its logical conclusion.
(g) That unless the Court allows the application and waive the non-compliance of payment, the appellants may not be able to proceed with the prosecution of appeal.”
The motion is supported by a 10 paragraph affidavit sworn to on 25/2/2015
by one Seun Fatoki. Three exhibits were attached to the supporting affidavit. These are: (i) Exhibit AN.1 a letter dated 19/1/2015 by which P.P. Monde of counsel was authorised to take over/handle the instant appeal; (ii) Exhibit ?AN.2? ? notice of appeal filed on 25/2/2009 and which reflects that the sum of N350.00 was paid for its filing; and (iii) Exhibit AN.3 receipt of the payment of the sum of N4,650.00 in respect of the notice of appeal in the instant appeal. The facts relied on by the Applicants in bringing the motion and as deposed to in the supporting affidavit are to the effect that the Applicants on 25/2/2009 filed a notice of appeal dated 23/2/2009 against the decision of Allagoa, J; of the Federal High Court delivered on 27/11/2008 in Suit No. FHC/E/33/94. That in filing the notice of appeal in the registry of the Federal High Court, the Applicants paid the sum of N350.00 only, as assessed, instead of N5,000.00. That the omission regarding the filing fee paid was not discovered on time and that when it was discovered, the Applicants had caused the balance of N4,650.00 to be paid. That
it was not the intention of the Applicants or their counsel not to pay the appropriate filing fees but that of the registry of the Federal High Court, Ado-Ekiti which assessed the fee payable for the notice of appeal below the appropriate fee.
The Respondent reacted to the supporting affidavit of the instant motion by a counter affidavit sworn to by one Echezona Ezeagu Esq. on 15/5/2015. Therein, the deponent deposed to the effect that the Applicants did not file any valid notice of appeal against the decision of the lower Court. That the Rules of this Court expressly and clearly provide for the full payment of the filing fees of N5,000.00 at the time of the filing of a notice of appeal. That the Rules of this Court make no provision for the payment of filing fees piecemeal or installmentally and that what the Applicants want from this Court by the instant motion, is not in any way supported by the Rules of the Court or any other rules of Court for that matter. That the time within which the Applicants might appeal had since expired before they paid the balance of the shortfall for the filing of their notice of appeal.
?The Applicants filed a further
and better affidavit for the purpose of responding to the counter affidavit of the Respondent. The process was deposed to by Seun Fatoki. Aside from stating that she denied paragraphs 4 ? 13 of the counter affidavit, all that the deponent disclosed was that she was adopting all the depositions in the supporting affidavit.
As the positions of the parties in respect of the instant motion were irreconcilable or conflicting as evinced by the filing of a counter affidavit by the Respondent, the Court ordered that written addresses be filed and served; and parties duly complied with the order. The written address of the Applicants in respect of the instant motion is dated 8/6/2015 and filed on the same date. On 10/7/2015 the Applicants also filed a Reply on points of law to the written address of the Respondent. Both written addresses were prepared by P.P. Monde Esq. Respondent?s written address is dated 25/6/2015 and filed on the same date. It was prepared by Ozonma N.C. Nobis-Elendu and Anugo Offor Esq.
?The motion was entertained by the Court on 20/1/2016 with P.P. Monde Esq. of counsel for the Applicants relying on the affidavits filed
in the motion and also adopting and relying on the written addresses of the Applicants as hereinbefore identified, in urging the Court to grant the orders the Applicants seek. In the same vein, Anugo Offor Esq. learned lead counsel for the Respondent, in opposing the motion equally relied on the counter affidavit of the Respondent and also adopted and relied on the written address of the Respondent also hereinbefore identified, in urging the Court to dismiss the said motion.
Learned counsel for the Applicants formulated a lone issue for the determination of the instant motion. The issue reads: ?whether the applicants have made a case to be entitled for the prayers sought in this application?.
On the other hand, two issues were formulated for the determination of the instant motion in the written address of the Respondent. The issues read thus: –
?(1) Whether the notice of appeal filed on 25/02/2009 in this appeal is competent.
(2) Whether this Court has jurisdiction to grant this application to deem as proper the payment of N4,650.00 paid on 31/10/2012 as balance of filing fee of the Notice of Appeal filed on
25/02/2009 after the statutorily prescribed period of appeal against the judgment appealed against has elapsed?.
In the written address of the Applicants, learned counsel while citing the case of Onwugbufor v. Okoye (1996) 1 NWLR (Pt. 424) 252 in acknowledgment of the position of the law that the payment of filing fees is not only mandatory but also fundamental to the proceedings before a Court and thereby making same a condition precedent to the filing of a valid claim, submitted that step or steps can be taken to rectify any omission to pay prescribed fees and the case of Seven-Up Bottling Co. Ltd v. Yahaya (2001) 4 NWLR (Pt. 702) 47 was cited in aid. This Court was urged to hold that the instant motion which is a step to rectify the omission in paying the prescribed fee for the filing of the notice of appeal in the instant appeal and which was not adequately assessed by the registrar of the lower Court, is proper and ought to be granted. The case of Akpaji v. Udemba (2003) 6 NWLR (Pt. 815) 169, 180, decided by this Court and in which it was decided amongst others that a party would not be punished where it is shown that the registrar of the Court
failed to assess or properly assess or collect the full or appropriate fee payable for the filing of a Court process, was cited in aid. Learned counsel made the point that it was the registrar of the lower Court that assessed the filing fees for the notice of appeal filed in the instant appeal as N350.00 instead of N5,000.00 and the Applicants paid same. That on discovering that the fees paid for the said notice of appeal was inadequate, they had taken steps to rectify/regularize same by paying the balance and have followed up, by bringing the instant motion praying this Court to grant leave to the Applicants to pay the balance in question and to deem as properly paid the already paid fees. He again cited the case of A.S.T.C. v. Quorum Consortium Ltd (2009) 9 NWLR (Pt. 1145) 1 at 33 ? 34 wherein the Supreme Court affirmed its decision in Onwugbufor v. Okoye (supra) and in which case, Iguh, JSC; had stated to the effect that remedial action or application could be taken to regularise an anomaly in the payment of prescribed fee in respect of a claim. Learned counsel urged the Court to grant the instant motion as it a remedial action or application to
regularize the anomaly occasioned by the failure of the registrar of the lower Court to appropriately assess the fees payable by the Applicants in respect of their notice of appeal.
Learned counsel also cited Order 20 Rules 2 & 3(1) & (2) of the Rules of this Court as empowering the Court to direct a departure from the rules in any way if this is required in the interest of justice. That the Court may even direct an appellant to remedy any non-compliance with the rules (as in this case), or may, notwithstanding the non-compliance, order the appeal to proceed or give such directions as it considers necessary in the circumstance(s). He submitted that this Court can properly invoke its powers under Order 20 Rules 2 & 3(1) & (2) of its Rules to accommodate the instant motion as the interest of justice demands this. Learned counsel further submitted that this Court can even invoke its inherent powers to sustain the instant motion so as to determine this appeal on its merit.
?Dwelling on the counter affidavit filed by the Respondent in opposing the motion, learned counsel submitted that it is a misapprehension of the law on the part of
the Respondent to even state that the Rules of this Court do not allow for a motion such as the instant one. This is because it is a remedial action or an application to regularize an otherwise irregular process and is permissible by Order 20 Rules 2 & 3 of the Rules of this Court and which is exercisable in the interest of justice and also pursuant to the inherent powers of this Court. It is the stance of learned counsel that though rules of Court must be obeyed, Courts, being Courts of law and justice must be wary of sacrificing justice on account of technicalities. He submitted that it will be wrong for this Court to visit the omission or inaction of a Court official on parties such as the Applicants who in this case paid what the registrar of the Court below assessed and to also deny them of efforts to remedy or regularize their position. The Court was urged to grant all the prayers sought in the instant motion as it is in the interest of justice and law to grant same and as this Court is empowered by law and its Rules to remedy the anomaly caused by the registrar of the lower Court in assessing the filing fee for the notice of appeal in the instant
appeal, inappropriately and determine the appeal on the merit.
In dwelling on the first of the two issues the Respondent formulated for the determination of the instant motion, learned lead counsel, Offor Esq. submitted that the notice of appeal filed by the Applicants on 25/02/2009 in this appeal is fundamentally defective and is indeed incompetent as the prescribed filing fee was not paid by the Applicants on filing the said notice of appeal. It is the stance of learned lead counsel that a notice of appeal is an originating process and indeed the substratum of any valid and competent appeal. That the payment of the requisite filing fee is mandatory, and not at all, discretionary. That payment of prescribed filing fee especially for an originating process, such as a notice of appeal, is a condition precedent to the filing of a valid appeal and failure to pay the correct filing fee as in this case, rendered the notice of appeal void and incompetent ab initio. That the importance of the validity of a notice of appeal to the jurisdiction of this Court was stated most poignantly by the Court in the case of Onu v. State (2013) All FWLR (Pt. 683) at 2024
? 2025. The cases of Uwazuru v. A-G Federation (2007) All FWLR (Pt. 367) 834; and Adisa v. Mohammed (2014) All FWLR (Pt. 732) at 1842 ? 1843 were also cited in aid. It is the stance of learned lead counsel that the non-payment of the prescribed filing fee therefore robs the Court of the jurisdiction to entertain an appeal or any other application in the appeal. The cases of Oko Memorial Farms Ltd v. NACB (2008) LPELR and Akubue v. COP (1977) 11 MSLR 164 were cited in aid. Learned lead counsel contended that in the Akubue case, this Court followed the authoritative pronouncement of the Apex Court in Madukolu v. Nkemdilim (1962) 1 All NLR (Pt. 4) 587 at 593 where it was decided 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 from exercising its jurisdiction; and the case comes up before the Court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction?.
?Having
posed the question that begs for answer in the instant motion to be ?whether in the circumstances, the notice of appeal filed in this matter had been duly initiated in accordance with the due process of law as to make the said process competent to invoke the jurisdiction of this Court to entertain the appeal or grant the instant application?, learned lead counsel said the answer is a capital NO and he referred to Order 12 Rule 1 of the Rules of this Court relating to payment for notice of appeal and further said that the provision provided for the payment of the appropriate sum at the time of filing a notice of appeal. It is the stance of learned counsel that the failure by the Applicants to pay the requisite filing fee in respect of their notice of appeal at the point of filing same, spells serious doom for the said notice of appeal as same was not initiated by due process of the law. That this is non-fulfilment of a condition precedent, which is fundamental to the exercise of the Court?s jurisdiction. That the lapse also rendered the Applicants? notice of appeal incompetent and incapable of invoking the jurisdiction of this Court to
hear the appeal or entertain or grant the instant motion or any other interlocutory application filed on the basis of this appeal. The Court was urged to resolve this issue in favour of the Respondent. Learned lead counsel pointed it out that the fact that the Applicants have no valid and pending appeal in this matter was admitted by them in paragraph 6(b) of the supporting affidavit of the instant motion. That one can only wonder why the Applicants in the knowledge that they have no valid appeal did not throw in the trowel and do the needful, rather than taunting this Court with the instant strange application.
?Dwelling on the second of the issues the Respondent formulated for determination in the instant motion, learned lead counsel submitted that this Court lacks the jurisdiction to grant the application before it as the statutorily prescribed period within which the Applicants must file their notice of appeal had since elapsed before they allegedly paid the purported remedial sum or balance of N4,650.00. That by the provision of Section 24 (2)(a) of the Court of Appeal Act, the Applicants had ninety days from (27/11/2008) the date of the decision
appealed against, to give or file their notice of appeal. That it is beyond debate that within the statutorily prescribed time within which to appeal, the Applicants did not pay the prescribed filing fee for the notice of appeal filed on 25/02/2009 but only paid N350.00 as against the N5,000.00 mandatorily prescribed by the Rules of this Court during the 90 days period to appeal. That it was after about 3 years and 11 months, of the date of delivery of the judgment appealed against (i.e. 27/11/2008), the Applicants on 31/10/2012 purportedly paid the sum of N4,650.00 as the balance of the filing fee of N5,000.00 outside the statutorily prescribed time to appeal and without an order of this Court enlarging the said period and have now filed the instant motion praying the Court to deem the said payment which they made outside the statutorily prescribed period to appeal as proper. It was contended by the Respondent that the instant motion is grossly incompetent and indeed must collapse to the ground as it is an attempt to validate or cure the fundamental, incurable and fatal defect in the notice of appeal filed on 25/02/2009. Learned lead counsel thereafter
proceeded to make submissions that were rehash of the ones made under the first of the two issues formulated by the Respondent for the determination of the instant motion. The case of Jerome v. Jerome (2013) All FWLR (Pt. 700) at 1443 (a decision of this Court) was cited in aid of the submissions. Learned lead counsel therefore submitted that any notice of appeal, in respect of which filing fee was not paid fully at the time of filing of the appeal within the statutorily prescribed period to appeal is not only invalid but also fundamentally defective, irregular, incompetent and cannot be remedied. The Court was therefore urged to answer Respondent?s issue No. 2 also in the negative and to decline jurisdiction to grant the instant motion.
?Dwelling on the argument of the Applicants as contained in their written address, learned lead counsel said to the effect that the submission of the Applicants to the effect that a party who has paid less than the prescribed filing fee can take steps to rectify or regularise the omission is misconceived in the light of the facts and circumstances of the instant motion. That none of the cases cited by the Applicants
considered the provision of Order 12 Rule 1 and the Third Schedule to the Court of Appeal Rules, 2011. That the cases cited by the Applicants interpreted the rules of various High Courts dealing with claims before the various High Courts and not notice of appeal. That in the instant motion dealing with a relief to deem as properly paid an amount paid as balance of filing fee for notice of appeal outside the statutory period of appeal, the Court lacks the jurisdiction to make or grant the relief sought as the notice of appeal filed cannot be said to have been validly filed within the period prescribed by law for filing the appeal because the correct filing fee was not paid ?on filing? the notice of appeal as directed by the rules. That the argument that the Court lacks the jurisdiction to grant the reliefs sought in the instant motion is founded on the age-long principle that if a Court lacks the jurisdiction to entertain the substantive matter, that is to say, the main appeal, it certainly lacks the jurisdiction to grant interlocutory reliefs sought therein and the cases of Yawere v. Omoh (2013) All FWLR (Pt. 671) 1565 at 580 and Tabik Investment
Ltd v. GTB Plc (2011) All FWLR (Pt. 602) at 1594, were cited in aid. The Court was urged to hold that the defect in the Applicants? notice of appeal filed on 23/2/2009 (sic: 25/2/2009) is not a mere irregularity and therefore cannot be regularized. That the anomaly in the said notice of appeal, which the instant motion seeks to rectify or regularize, is badly infested with a virulent and corrosive virus, which has damaged it beyond repair. That the appeal made to Order 20 Rules 2 & 3(1) and (2) of the Rules of this Court cannot avail the Applicants as the provisions of the rules of Court in question, are absolutely irrelevant and inapplicable to the instant application. That the waiver contemplated under Order 20 Rule 3(1) and (2) cited by the Applicants must be read in conjunction with the provisions of Order 12 Rule 2 of the Rules of this Court. That when this is done, it is not in doubt that the waiver envisaged under Order 20 Rule 3(1) and (2) only applies in cases of official processes from government officials and/or government departments, and not in cases such as this, where the process emanated from ordinary individuals or non-government
entities like the Applicants in the instant motion. That it follows that payment of filing fee may be waived in cases of official processes from government departments but certainly, payment of filing fee is not waiveable in cases involving non-government entities like the Applicants. Learned lead counsel urged the Court to refuse the instant motion as it is grossly incompetent as well as an abuse of Court process.
In the Applicants? reply on points of law, learned counsel said that the Respondent?s submission that inadequate payment of filing fee robs the Court of its jurisdiction to entertain an appeal or any other application in the appeal as in this matter, is grossly misconceived and a misapprehension of the law and should be discountenanced as it is not only unfounded but also a clear misunderstanding of the instant motion. He cited in aid the case of Ogwe v. I. G.P (2015) 7 NWLR (Pt. 1459) 505 at 528 wherein the Supreme Court dealt with the issue of inadequate payment of filing fee for a notice of appeal (which is on all fours with the issue in the instant motion) and urged this Court to hold that inadequate payment of filing fee does
not affect the jurisdiction of the Court but is a mere irregularity which can be remedied by an order for the payment of the shortfall, particularly when the shortfall is occasioned by the registrar of the lower Court who wrongly assessed the fee. Learned counsel thereafter weaved other submissions around the decision in the Ogwe case.
I have read all the cases cited by parties in their written addresses. What parties have demonstrated by the decisions of the Supreme Court and those of this Court they cited, is that there are two opposing views regarding the consequence(s) of payment of inadequate or inappropriate fees for the filing of Court processes (particularly as it relates to notice of appeal) and whether or not any shortfall in the payment of filing fees can be remedied. This much is clear from the cases of ASTC v. Quorum Consortium Ltd (supra) and Akpaji v. Udemba (supra) cited in the Applicants written address vis-? -vis the cases of Akubue v. COP (supra) and Jerome v. Jerome (supra) cited in the Respondents written address.
?I would however wish to observe that as far back as the year 2002, this Court in dwelling on the issue
of filing fees had in the case of JONPAL LTD V. AFRIBANK NIG. LTD (2002) LPELR 5769 (CA) per M.D. Muhammad, JCA; (as he then was) stated thus: –
“The appellant cannot also succeed on the basis of the quarrel that the lower Court had wrongly assumed jurisdiction in hearing the respondent’s application, since appropriate fees had not been paid by the applicant. By a long chain of authorities, we have held that the question of payment of adequate or inadequate filing fees in respect of documents for use in Court does not raise an issue of jurisdiction and failure to fulfil the provisions of the rule of Court thereto is merely an irregularity, which in the con of the instant case is incapable of affecting the lower Court’s proceedings in any way. See Noibi v. Fikolati
(1987) 1 NWLR (Pt. 52) 619 at 632 and Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387 at 405”
Also in the case of COMMISSIONER OF HEALTH, NASARAWA STATE V. DADET (2009) LPELR 8907 (CA) this Court dwelling on the issue of payment of inadequate filing fees said per Yahaya, JCA, thus: –
“?ISSUE NO.3
This has to do with the non-payment of filing fees for new reliefs 22(a) and (b) after the statement of claim was further amended. Counsel for the appellants argued forcefully, that the trial Court was wrong when it held that the non-payment of the filing fees had been regularized by the respondent, when it was a condition precedent to assumption of jurisdiction. He referred to OKOLO VS. UBN (2004) 3 NWLR (Pt. 859) 87 at 108 and ONWUGBUFOR VS. OKOYE (1996) 1 NWLR (Pt. 424) 252 at 292, and submitted that a fundamental defect cannot be regularized in retrospect since filing of fees (sic) is a condition precedent. Counsel for the respondent in his response submitted that since the filing fees in respect of the additional reliefs had been paid by a deeming order of the Court, the defect had been cured and had removed the case from the situation in ONWUGBUFOR VS. OKOYE (Supra) It is not controverted, that the respondent had amended his statement of claim further and had introduced additional reliefs as per paragraphs (a) and (b). These two new reliefs, were not assessed by the Registrar of Court and were not paid for. Counsel for the
appellants in his address before the trial Court, raised the issue. In a swift reaction, the respondent filed a motion seeking the leave of Court to pay for these reliefs and having paid same, obtained a deeming order that the reliefs had been properly paid for. This happened before judgment was delivered. It is correct that the Supreme Court, per Niki Tobi, JSC in OKOLO Vs. UBN (supra), also reported in (2004) 1 SCNJ 113 at 123, referred to and applied the case of ONWUGBUFOR VS. OKOYE (Supra) per Iguh JSC where he held that payment of filing fees in respect of each relief claimed is a condition precedent to the commencement of a judicial function. Specifically, it was held that “A Court shall not entertain a relief claimed without payment of the prescribed requisite fees …..” See also SEVEN-UP BOTTLING COMPANY VS. YAHAYA (2001) 4 NWLR (Pt. 702) 47 at 55 E- F and AJA VS. OKORO (1991) 7 NWLR (Pt. 203) 260. It is to be noted, that in the case of ONWUGBUFOR VS. OKOYE (Supra) an exception was made. Iguh JSC went on to say that the Court should strike out a claim whose fees had not been paid “in the absence of an appropriate remedial action or application to
regularize such anomaly.” The Supreme Court here, was dealing with a situation in which no fees was paid in respect of the new claim of forfeiture and the Court struck it out for being incompetent. This is not the position in the instant appeal where the respondent applied to the trial Court by way of Motion on Notice, to pay the requisite fees in respect of the new reliefs. The Court granted the prayers and the fees were paid before judgment was delivered. The application, the grant of the prayers and the payment of the fees had therefore regularized the anomaly and were a good remedial action. The trial Court was perfectly in order when it accepted ‘the new reliefs as competent before it, since it was supported by the ONWUGBUFOR’s case. In its overwhelming desire to ensure that substantial justice is what every Court in the land should promote, the Supreme Court has on 13/2/2009, shifted from the position it held in ONWUGBUFOR VS. OKOYE (supra) concerning filing fees. In the case of ALLOYSIUS AKPAJI VS. FRANCIS UDEMBA (2009) 2 SCNJ 202, a similar situation to the case in hand, the Registrar of the trial Court, omitted to make an appropriate assessment for a
counter-affidavit. The case was concluded at the trial Court with that anomaly and the issue only surfaced at the Court of Appeal, where the respondent filed an application to pay for the appropriate fees. The Supreme Court, per Ogbuagu J.S.C. in a very pungent and decisive manner, held at page 209, that it is now firmly settled that even the failure to pay filing fees does not raise issue of jurisdiction and the failure to fulfil the provisions of the High Court Rules in that regard is a mere irregularity which when not taken timeously or when acquiesced in becomes incapable of affecting the proceedings in any way. See the case of A.C.B. Ltd. Vs. Henshaw (1990) 1 NWLR (Pt. 129) 646 at 650 CA citing the cases of Sonuga Vs. Anadein (1967) NMLR 77 at 79; Ezemo Vs. Oyakhire (1985) 1 NWLR (Pt. 2) 195 at 202 -203; Noibi Vs. Fikolata & Anor (1987) 1 NWLR (Pt. 52) 619 at 632 (it is also reported in (1987) 3 SCNJ 14) and Alhaji Saude Vs. Alhaji Abdullahi (1989) 4 NWLR (Pt. 116) 387 at 405-406 (it is also reported in (1989) 7 SCNJ 216. The usual remedy, it is also settled, is an order by the lower Court, that the appropriate fees or any short-fall be paid. It has
nothing to do with jurisdiction of the lower Court to entertain the counter-claim” The learned justice of the Supreme Court went on to conclude on the issue at page 211 of the report, that “I therefore hold that the non payment in full of the appropriate fees was a mere irregularity and did not vitiate the proceedings and it has nothing to do, with the jurisdiction of the trial Court. At worst, it is voidable not void. As can even be seen, it is not the failure to pay an assessed filing fees, but non-payment of the appropriate or requisite fees – (i.e. inadequate fees). If the Registrar/Registry under-assessed ? i.e. not assessing correctly, can it be said, by any stretch of imagination, that the fault to assess adequately, is that of a litigant or a lawyer or the respondent? I think not.” This is a remarkable development of the law as it has de-emphasised the use of technicalities, to defeat the course of justice. The ills of the Registry in under-assessing the reliefs, should not be visited on the respondent. The additional reliefs were competent before the Court. Issue NO. 3 is thus resolved against the appellants.”
(Underlining provided by
me for emphasis).
?It would however appear that the stance of this Court in the cases of Jerome v. Jerome (supra) and HORSFALL v. AMAIZU (2013) LPELR ? 22874 (CA) is that non-payment of the appropriate fee for the filing of a notice of appeal is fatal and irredeemable as the payment of appropriate filing fee is a condition precedent that must be fulfilled to make a notice of appeal valid. In the aforementioned cases the Court relied substantially on the pronouncement of Aderemi, JSC; in his concurring judgment in the case of Abia Transport Corporation Ltd v. Quorum Consortium Ltd (2009) 9 NWLR (Pt. 1145) 1 SC as well as the case of Onwugbufor & Ors. Vs. Okoye & Ors. (1996) 1 NWLR (Pt. 424) 252 (SC). The relevant pronouncement of Aderemi, JSC; in the Abia case which was decided on 3/4/2009 (and later in time to the decision of the Supreme Court delivered on 13/2/2009 in Akpaji v. Udemba) reads: –
I wish to say that generally, payment of a prescribed filing fee, by all litigants except the government, is a pre-condition to the validity of any process filed in the Court. Unless the pre-condition is satisfied, the Court will lack the
jurisdiction to entertain a process the prescribed filing fee of which has not been paid.
It is my considered view that the Supreme Court in the Ogwe case cited in the Applicants reply on point of law, has now put to rest the issue as to whether or not the non-payment of appropriate filing fee in respect of a process of Court (in contradistinction non-payment at all of filing fee) is a jurisdictional matter.
It must be stated that the situation in the present appeal in which the instant motion has been brought is clearly that of non-payment of appropriate filing fee of N5,000.00 as stipulated by Order 12 Rule 1 of the Rules of this Court at the lower Court for the notice of appeal upon which the instant appeal is founded. The Applicants paid the sum of N350.00 as assessed by the registrar of the lower Court for the filing of the notice of appeal upon which the instant appeal is founded. In the unanimous judgment delivered by the Supreme Court in the Ogwe case, M.D. Muhammad, JSC; in the leading judgment said on pages 523-525 as follows: –
I agree with learned appellant
counsel that the issue the instant appeal raises has long been settled by the lower Court itself and this Court in a plethora of their decisions. The lower Court by its decision instantly appealed against failed to appreciate the place of the doctrine of stare decisis or precedent in the adjudication process. By the doctrine, judges are enjoined to stand by their decisions and the decisions of their predecessors. The doctrine does not allow for the exercise of discretion in an issue the Court previously decided when that same issue subsequently surfaces before the Court for determination. It is this age old rule of practice that gives law its certainty and equilibrium in the society. See; Rossek V. ACB Ltd (1993) 8 NWLR (Pt.312) 382, Cyril O. Osakwe v. Federal College of Education Asaba & Ors (201) 10 NWLR (Pt.1201) 1 at 16, Shetima and Ors V. Goni & Ors v. Goni & Ors (2011) NWLR (Pt.1279) 413 at 425 and Amaechi V. INEC (2007) 18 NWLR (Pt.1065) 42. Over the years, learned appellant counsel is correct, this Court has stuck to some principal principles in relation to the issue under reference.
Firstly, a document or process is deemed duly filed
when it is taken to the Court registry, assessed, by the officer assigned the responsibility and paid for. The appellant cannot be made to suffer for any shortfall. To do otherwise is to hold him to account for another person’s lapses. In C.C.B (Nig) Plc V. AG Anambra State and Anor (1992) 8 NWLR (Pt. 201) 528 this Court per Olatawura JSC held at page as follows:-
“…The Court will not visit the ‘sins’ of the Court Registry on a litigant or his counsel unless it was shown that the litigant and/or his counsel was a party therefore or had full knowledge of the sin or mistake and encouraged or condoned the act. Therefore, on the authorities, justice equity, fairness and good conscience must persuade me to hold further that this appeal deserves to succeed and it in fact does.”
See also Dike V. Okorie (1990) 5 NWLR (Pt.151) 418 and Mohammed V. Musawa (supra) and Ede & Anor V. Mba (2011) 18 NWLR (Pt.1278) 236 at 266.
Secondly, where inadequate fees are paid, I agree with learned appellants’ counsel, the usual remedy is an order of Court for the short fall to be paid. Non-payment of adequate fees, it has been held, does not ordinarily rob the
Court its jurisdiction. In ACB Ltd v. Henshaw (1990) 1 NWLR (Pt. 129) 646, a decision this Court cited with approval in reiterating the principle, Oguntade JCA (as he then was) at page 651, para. G of the report puts the position succinctly thus:-
“Even if the Defendant/Respondent had not paid the requisite Court fees, this was a matter to be settled before the Lower Court the usual remedy being on order by the Lower Court that the appropriate fees or any short fall be paid. It certainly has nothing to do with the jurisdiction of the Lower Court to entertain the suit.”
This Court in Onwagbufor & 2 Ors v. Okoye & 3 Ors (1996) 1 NWLR (Pt 424) 252 at 291-292 also states per Iguh JSC thus:-
“If the default in payment is that of the plaintiff, the claim in respect of which such prescribed fees have not been paid cannot be said to be properly before the Court and should be struck out in the absence of an appropriate remedial action or application to regularise such anomaly.”
It is mandatory for the lower Court to be governed by the foregoing decisions.
The practice that has evolved over the years is for an appellant whose
appeal is within the time prescribed under Section 24 of the Court of Appeal Act to file his appeal to the lower Court at the registry of the Court against which decision the appeal is being filed. And this is what the appellant herein did. It is at that registry that he paid the fees the officer of Court assigned for the purpose assessed and requested him to pay. Having paid the fees and left his notice of appeal at the registry with the officer responsible, the appeal on the authorities is deemed properly filed.
It does appear to me that Order 12(1) of the Court of Appeal Rules alluded to by the learned appellants counsel will only apply to an appeal being filed following the lower Court’s order for extension of time to appeal and or leave to appeal. In that event, even though the appeal must still be filed at the trial Court’s registry, the filing fees payable would then be as prescribed in the third schedule to the Court of Appeal Rules. After all, the Court of Appeal Rules enacted by the President of the Court pursuant to Section 248 of the 1999 Constitution (as amended) only regulates practice and procedure of the Court of Appeal. It is
worthwhile to note that Section 30 of the Court of Appeal Act defines an appeal to include an application for leave to appeal and an appellant to include the person who makes such application. In any event once it is shown that the appellant has paid the filing fees as assessed by the officer whose responsibility it is to do so, whether at the trial Court or the Court of Appeal as the case may be, the appeal is, on the authorities, duly filed and same cannot be legally struck out. Otherwise the appellants would be made to suffer for the fault, negligence or inadvertence of another. Where the fault of the payment of inadequate filing fees in respect of the appeal is traceable to the officer who assessed the fees it would be unfair not to place the blame where it truly is. See Iyalabani Co Ltd V. Bank of Baroda (1995) 44 NWLR (Pt.387) 20, Bowaje V. Adediwura (1976) 6 SC 143, Doherty V. Doherty (1964) 1 NLR 299 and Ahmadu V. Salawu (1974) 1 All NLR (Pt. II) 318, (1974) II SC 43.
In the case at hand, the lower Court’s refusal to be bound by its own decision and indeed the decisions of this Court, on this issue is manifestly perverse. For the foregoing reasons
appellants’ 2nd issue is resolved in their favour. Their appeal accordingly succeeds. Consequently, the lower Court’s perverse ruling striking out the appellants appeal is hereby set aside. Appeal No.CA/PH/407/2009 is hereby restored to the Court’s list for same to be determined by a panel of Justices other than those whose decision has just been set-aside, and expeditiously too. I make no order as to cost.?
Fabiyi, JSC; in his concurring judgment said thus: –
. I desire to chip in a few words of my own for the sake of emphasis and to demonstrate plausible steps for obviating unwholesome clog to the wheel of progress in the administration of justice. …………………………………………………………………………..<br< p=””
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It is basic to say it without any form of hesitation that based on the position of this Court in the case of Akpaji v. Udemba (supra), payment of inadequate filing fees is a mere irregularity. The usual remedy should be an order that the appropriate filing fees or its short fall be paid. Such a short fall has nothing to do with the jurisdiction to hear the appeal as in the instant appeal and ought not to be a basis for the Court to strike out the appeal.
The Court below cannot claim to be unaware or ignorant of the position of this Court in Akpaji v. Udemba (supra). But it failed to tow the line, as it were, and resultantly flouted the rule of stare decisis which is to the effect that a point of law that has been settled by a superior Court should be followed by a lower Court. There is sense in it so as to avoid confusion or unwarranted mistake. See Royal Exchange
Assurance Nig. Ltd. v. Aswani iles Ind. Ltd. (1991) 2 NWLR (Pt.176) 639 at 672. It is not proper to refuse to follow the decision of a Superior Court as same can be counter-productive as manifest in the order of the Court below. A lower Court should tow the line on a very clear and well pronounced point of law by a Superior Court; I repeat. See Atolagbe v. Awuni & Ors. (1997) 7 SCNJ 1 at paragraphs 20, 24 and 35.
It should be further reiterated that payment of inadequate filing fees cannot rob a Court of jurisdiction to entertain a suit or appeal as herein. This is so, as it is an irregularity that can be remedied by an order for the payment of the short fall. See Ezomo v. Oyakhile (1985) 1 NWLR (Pt 2) 185 and Noibi v. Fikolati (1987) 1 NWLR (Pt. 116) 387.
It is not in dispute that the appellants herein paid the sum of N3,100.00 as assessed by the official of the trial High Court Registry. It is basic that where an intending appellant has done all that is required of him in law to activate his appeal, he cannot be held responsible for any failure attributable to official inaction or negligence. See Alowode v. Semoh (1959) 4 FSC 27 at 29;
Ogbunyiya v. Okudo (no.2) (1990) 4 NWLR (Pt.146) 551 at 571; Adedeji v. Military Administrator, Ekiti State (2008) 1 FWLR (Pt.1104) 11 at 19. Let me also reiterate it that rules of Court are but hand maid to justice. Same cannot stand in the face of doing substantial justice to the parties. If need be, as in this matter, the Court should employ the dictates of the sixth sense to avoid technicality and tow the path of doing substantial justice. The Court should aim at doing substantial justice and avoid undue crass technicality. See Aliu Bello & Ors. v. Attorney-General Oyo State (1956) 5 NWLR (Pt.45) 828. There is no doubt about it that the Court below seriously erred by striking out the appeal at the point it so acted for no justifiable reason”
Kekere-Ekun, JSC; in his concurring judgment also said as follows: –
Having regard to the importance
of the subject matter to the administration of justice in general, I consider it necessary to add a few words of my own in support of the lead judgment for emphasis.
The appellants, as plaintiffs, filed an action before the trial Court for the enforcement of their fundamental rights, Judgment was entered against them. They filed a Notice of Appeal dated 6/5/2009. It was assessed by the Registry of the trial Court and the fee payable was N3,100.00. The endorsement of the filing fee by the registry of the trial Court can be found at page 51 of the record. The bank teller evidencing payment of the fee is at page 46 of the record.
This appeal raises an important issue regarding the assessment and payment of fees for Court processes, Firstly it is pertinent to note that there is a distinction between inadequate or insufficient filing fees and non-payment of filing fees. However, the end result in either case, is that the party in default would not be entirely shut out. In Onwugbufor vs. Okoye (1996) 1 NWLR (Pt.424) 252, one of the issues in contention was failure to pay filing fees in respect of specific reliefs claimed. It was held that the payment of filing fees is a condition precedent to the Court’s assumption of jurisdiction and that where
filing fees were not paid the Court would have no jurisdiction to entertain the matter before it. The Court at page 292 para. A – C (supra) held as follows:
“It is the responsibility of the plaintiff inter alia to pay the requisite fees in respect of each and every relief claimed as prescribed by the rules to enable the Court’s judicial functions to commence. A Court shall not entertain a relief claimed without payment of the prescribed requisite fees unless such fees have been waived or remitted by the Court or such fees are payable by any Government Ministry or Non-Ministerial Government Department or Local Government pursuant to the provisions of the High Court Rules of Anambra State. If the default in payment is that of the plaintiff, the claim in respect of such prescribed fees have not been paid and cannot be said to be proper before the Court and should be struck out in the absence of an appropriate remedial action or application to regularise such anomaly.”
It is significant to note that the Court held that even where no filing fees have been paid at all, the claim would only be struck out “in the absence of remedial action or
application to regularise such anomaly.” This case was cited with approval by this Court in: Okolo vs Union Bank of Nig. Plc (2004) 3 NWLR (Pt. 859) 87; (2004) 1 SC (Pt. I) 1 at 9.
In another recent decision of this Court in: Akpaji v. Udemba (2009) 6 NWLR (1138) 545, (2009) All FWLR (pt. 471) at 828 – 829 G – D, it was held that failure to pay adequate filing fees is an irregularity, which does not rob the Court of jurisdiction, His Lordship, Ogbuagu JSC held inter alia:
“…it is now firmly settled that even failure to pay, does not raise issue of jurisdiction and that the failure to fulfil the provisions of the High Court Rules in that regard is a mere irregularity which when not taken timeously or when acquiesced in, becomes incapable of affecting the proceedings in any way.
..The usual remedy, it is also settled, is an order by the Lower Court that the appropriate fees or any short fall be paid. It has nothing to do with the jurisdiction of the Lower Court to entertain the counter-claim.”
His Lordship cited with approval the dictum of Oguntade, JCA (as he then was) in A.C.B. Ltd v. Henshaw (1990) 1 NWLR (Pt. 129) 646 at 651. See also:
God’s Little Tannery v. Nwaigbo (2005) 7 NWLR (Pt. 924) 298 at 315 – 316 H – D; Lawal & Anor v. Odejimi (1963) WNLR 23; (1963) All NLR 569 at 570. Based on the authorities referred to above, it is clear that payment of inadequate filing fees is not an incurable defect that robs the Court of jurisdiction to entertain the claim. It is an irregularity, which, if not taken up timeously, is incapable of affecting the proceedings.
By Order 7 Rule 11 of the Court of Appeal Rules 2007, “an appeal shall be deemed to have been brought when the notice of appeal has been filed in the registry of the Court below.” A document is deemed duly filed when it is brought to the registry of the Court and is assessed and paid for, except where there is a dispensation under the Rules of Court that the document can be filed without payment. See: Akpaji vs Udemba (supra). In the instant case, the appellant paid the fees assessed by the High Court in accordance with its rules. If there was any error in the assessment, such error ought not to be visited on the litigant. This Court, per Olatawura, JSC, stated in: C.C.B. (Nig.) Plc. vs A.G. Anambra State & Anor (1992) 8 NWLR
(Pt. 261) 528 at 561:
“It will be contrary to all principles to allow litigants to suffer the mistake of the Court Registry. In other words, the Court will not visit the “sins” of the Court’s Registry on a litigant or his counsel unless it was shown that the litigant and/or his counsel was a party thereto or had full knowledge of the “sin” or mistake and encouraged or condoned the act, Therefore, on the authorities, justice, equity, fairness and good conscience must persuade me to hold further that this appeal deserves to succeed and it in fact does.”
See also: Famfa Oil Ltd v. A.G. Federation & Anor (2003) 18 NWLR (Pt. 852) 453; (2003) 9-10 SC 31; Ede & Anor v. Mba (2011) 18 NWLR (Pt. 1278) 236 at 266 F – H.
In any event, it seems to me that where the Court of Appeal Rules provide that the notice of appeal should be filed in the Court below, the fees applicable must be the fees prescribed by the Court in which the process is filed. It may be necessary for the Court of Appeal Rules to specify that the schedule of fees for the filing of a notice of appeal in the Court of Appeal relates to any notice of appeal filed in that
Court, for instance, pursuant to an order for extension of time to appeal or to seek leave to appeal, or where a notice of appeal to the Supreme Court is filed in the Registry of the Court of Appeal pursuant to Order 2 Rule 30 of the Supreme Court Rules (sic) ?.
Section 248 of the 1999 Constitution (as amended) provides as follows:
“248. Subject to the provisions of any Act of the National Assembly, the president of the Court of Appeal may make rules for regulating the practice of the Court of Appeal.”
It follows, in my humble view, that the Court of Appeal cannot regulate the filing fees in respect of processes filed in the High Court.
Furthermore, Order 20 Rule 3 (1) and (2) of the Court of Appeal Rules provides as follows:
(1) The Court may, in an exceptional circumstance, and where it considers it in the interest of justice so to do, waive compliance by the parties with these Rules or any part thereof.
(2) Where there is such waiver of compliance with the Rules, the Court may, in such manner as it thinks right, direct the Appellant or the Respondent as the case may be, to remedy such non-compliance or may,
notwithstanding, order the appeal to proceed or give such directions as it considers necessary in the circumstance.
I am of the considered view that, even if the fees paid were insufficient, this case is one of such circumstances where this provision should have been invoked. All Courts of law have a responsibility to do substantial justice. The rules of Court are to be used as hand-maids of justice and should not become a clog in the wheel of justice. See: Banna v. Telepower (Nig.) Ltd. (2006) 15 NWLR (Pt. 1001) 198 at 217 D – F; Willoughby vs. I.M.B. (Nig.) Ltd (1987) 1 NWLR (Pt.48) 105 at 131 H.
It was a grave miscarriage of justice for the appeal to have been struck out on the grounds of insufficient filing fees when the appellants had paid the amount assessed by the High Court Registry. ?
?Abiding by the decision of the Supreme Court in the Ogwe case (as this Court is by law bound to do), it becomes obvious or clear as crystal that the non-payment of the sum of N5,000.00 for the filing of the notice of appeal in the instant appeal cannot be elevated to one that robs this Court of the
jurisdiction to entertain the instant appeal and a fortiori, the instant motion, as argued in the written address of the Respondent. The position of the law to the effect that non-payment of appropriate filing fee in respect of a Court process, is an irregularity has been re-affirmed by the Supreme Court in the Ogwe case. It is also clear from the decision in the Ogwe case that the provisions of Order 20 Rule 3(1) and (2) of the Rules of this Court can eminently avail the Applicants as argued in their written address had they not taken step to remedy the anomaly in respect of the shortfall of the filing fee paid for the notice of appeal in the instant appeal. In this regard, it is to be noted that the appellant in Ogwe case never applied for any order to regularise the position of the notice of appeal in the matter by paying any amount as shortfall. The Supreme Court equally did not make any order in that regard, as it was of the view that the filing fee for the notice of appeal in the matter as accessed by the registrar of the lower Court was what ought to have been paid.
?The Applicants in the instant motion have shown that the sum of N350.00 they
paid for the filing of their notice of appeal was as assessed by the registrar of the lower Court. I am of the considered view that the last two pages of Exhibit ?AN. 2? bear this out. Despite the fact that the Applicants had paid the filing fee as assessed by the registrar of the lower Court for their notice of appeal, they had before bringing the instant motion also paid the sum of N4,650.00 which they believed to be the short fall in the filing fee for their notice of appeal. This they did for the purpose of complying with the provision of Order 12 Rule 1 of the Rules of this Court regarding fees payable for the filing of a notice of appeal and which provision they believed the registrar of the lower Court should have complied with in assessing the fee to be paid for the filing of their notice of appeal. I cannot but say that if the decision in the Ogwe case had been handed down prior to 31/10/2012 when the Applicants paid the shortfall in the filing fee for their notice of appeal in order to comply with the provision of Order 12 Rule 1 of the Rules of this Court, they would undoubtedly have had no cause to make the payment. This is in the light
of the position of the Supreme Court in the Ogwe case to the effect that the Rules of this Court cannot properly provide for the filing fee in respect of a notice of appeal to be filed in the lower Court. In other words, the Applicants having paid the filing fee for their notice of appeal as assessed by the registrar of the lower Court at the time of the filing of the notice of appeal would have had no cause to take the remedial action to pay any shortfall as they have done by the instant motion. In the light of the fact that the Applicants have already paid what they considered to be the shortfall in the filing fee they paid for their notice of appeal, before the decision of the Supreme Court in the Ogwe case was handed down, I am of the considered view that the Applicants properly brought the instant ?remedial motion to regularise what they had done to wit: paying the shortfall of N4650.00 for the filing of their notice of appeal. It is not in doubt that this Court can grant orders to regularise anything that ought to have been done by a party when it is so done.
Flowing from all that has been said is that the instant motion succeeds and
the orders sought by the Applicants granted as prayed. Accordingly, the Applicants are hereby granted the following orders: –
1. AN ORDER granting leave to the Applicants to pay fully the stipulated filing fees of N5,000.00 having paid N350.00 in respect of the Notice of Appeal dated 23rd February, 2009 and filed on the 25th February 2009 in this appeal.
2. AN ORDER deeming as properly paid the balance of the filing fee of N5,000.00 in respect of the Notice of Appeal stated above which is N4,650.00 which was paid after the filing of the said Notice of Appeal.
I make no order as to costs as I am of the considered view that the Respondent ought not to have opposed the instant motion had learned lead counsel for the party taken the pains to read the Ogwe case before the Court entertained the said motion.
AHMAD OLAREWAJU BELGORE, J.C.A.: I agree
FATIMA OMORO AKINBAMI, J.C.A.: I have had the privilege of reading in advance, the Ruling just delivered by my learned brother, AYOBODE LOKULO-SODIPE, J.C.A. I agree with his reasoning and conclusions reached thereat. I have nothing useful to add. I also grant the orders prayed.
Appearances
P. P. MondeFor Appellant
AND
A. Offor with him, C.E. NnachettaFor Respondent
