ENGR. OKEY IBEABUCHI & ORS. v. MR. SAMUEL M. IKPOKPO & ORS.
(2013)LCN/5843(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 16th day of January, 2013
CA/PH/406/2009
RATIO
COURT: DUTY OF THE COURT TO SEE THAT ACTIONS BEFORE IT ARE PROPERLY CONSTITUTED
We took these steps on the basis or footing of the trite principle that it is the duty of the court to see that actions before it are properly constituted. See OKAFOR V. NNAIFE (1973) 3 SC 85 at 95. PER EJEMBI EKO, J.C.A.
APPEAL: EFFECT OF FAILURE TO FILE NOTICE OF APPEAL IN COMPLIANCE WITH THE RULES
It was held in Akubue v. C. O. P. (1977) 1 IMSLR 164 at 168 that every Notice of Appeal must be filed in strict compliance with the rules, failing which the appellate court can not exercise jurisdiction. The decision follows the line of the authoritative pronouncement of the Supreme Court in MADUKOLU v. NKEMDILIM (1962) 1 ALL N.L.R. 587 of 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 jurisdicfion.
See also SKENCONSULT (NIG) LTD V. UKEY (1981) 1 SC 1 (Reprint) PER EJEMBI EKO, J.C.A.
INTERPRETATION: CARDINAL PRINCIPLE OF INTERPRETATION OF STATUTES
It is trite and a cardinal principle of interpretation of statutes that where the words in a statute are clear and unambiguous, they should be given their plain ordinary meaning. See Buhari v. Obasanjo (2005) 13 NWLR (Pt.941) 1, Akuneziri v. Okenwa (200) 15 NWLR (Pt.991) 526, Okotie-Eboh v. Manager (2004) 18 NWLR (Pt.905) 242 referred to in the case of Federal Ministry of Health & Anor v. Comet Shipping Agencies Ltd (2009) 9 NWLR (.Pt.1145) 193 SC. In its interpretative function the court is bound to limit itself to what the law is and not what the law ought to be. See the case of Uwagba v. FRN (2004) 15 NWLR (Pt.1163) 91 at page II4 paragraph C. PER STEPHEN JONAH ADAH, J.C.A
JUSTICES
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
EKO EJEMBI EKO Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
Between
1. ENGR. OKEY IBEABUCHI
2. ENGR. CHINEDU IBEABUCHI
3. MR. CHUKWUGOZIE IBEABUCHI
4. ENGR. EMENIKE IBEABUCHI
5. MR. NATHANIEL IBEABUCHI
(suing in a representative capacity for themselves and on behalf of the beneficiaries of the Estate of Mr. Isaiah Ibeabuchi (late) Appellant(s)
AND
1. MR. SAMUEL M. IKPOKPO
2. ATTORNEY-GENERAL OF RIVERS STATE
3. RIVERS STATE HOUSING AND PROPERTY DEVELOPMENT AUTHORITY. Respondent(s)
EJEMBI EKO, J.C.A. (Delivering the Lead Ruling): This appeal was set down for hearing on 8th January, 2013. The record of appeal was transmitted on 25th August, 2009. At pages 167 – 173 of the record of appeal is the Notice of Appeal, the originating process. Endorsed at page 173 of the record are two stamps from the cashier’s office of Rivers State Judiciary with a date of 19th March, 2009 suggesting that the Notice of Appeal was filed on the said date. The Notice of Appeal was signed by Sir C. I. Enweluzo of counsel for the Appellant.
As there was no endorsement as to the fees paid for the filing of this appeal, we drew the attention of C. I. Enweluzo of Counsel to page 173 of the Record and asked him how much was paid as filing fees for this appeal. Counsel answered that they “paid the sum of N2,600.00 assessed by the Registrar for the appeal”. Thereupon Counsel’s attention was further drawn to Order 12, Rule 1 and the Third Schedule to the Court of Appeal Rules 2007 and was asked whether the said fees, as allegedly assessed by the Registrar and paid by the appellant, was sufficient to ignite the appeal in view of the directives in Order 12 Rule 1 which is in pari materia with Order 12 Rule I of the 2011 Rules of this Court. At this juncture it is necessary for me to reproduce counsel’s submissions. That is –
It is not our responsibility to assess fees payable for Notice of appeal. We paid the fees duly assessed by the Registrar of the lower court. Where a litigant has done all within his powers, and there is any omission as a result of negligence of the Registrar of Court, such should not be visited on the innocent litigant. See ANATOGU V. ANATOGU-decision of this court in Part 519 of N.W.L.R. The inadequate assessment is the fault of the registry and not the Appellant. In the interest of Justice we should be asked to pay the balance.
M/S T. O. P. Afagha for 1st Respondent and H. N. Amadi Senior State Counsel (Rivers State) for 2 – 3rd Respondents offered no useful comment. They merely, each, left the matter to the discretion of the Court.
We took these steps on the basis or footing of the trite principle that it is the duty of the court to see that actions before it are properly constituted. See OKAFOR V. NNAIFE (1973) 3 SC 85 at 95.
There is no evidence that the process was presented to the Registrar for filing by the Appellant himself and not by the Counsel who signed it. The rebuttable presumption is that the process was presented to the Registrar by the Counsel who signed or settled it.
Order 12 Rule 1 and the Third Schedule in part II of the Court of Appeal Rules, 2007, the rules then extant as of 19th March, 2009 when the Notice of Appeal was filed, are statutory provisions. The Counsel who settled the process knows the law. He is therefore in a better position, if not in the same position as the Registrar of the Court, to interpret the law as to the correct assessment of the fees payable for any process he has to file of the registry. He can not shirk that responsibility and hide under the cover of error of assessment by the Registrar of the correct fees payable for the filing of his process, and submit that the error of the Registrar should not be visited on the litigant. This is a matter of law, the interpretation of which can not be left to the Registrar alone. It will be saying the most obvious to state that the Counsel who settled the notice of appeal knows the law and the rules of appeal.
Order 12 Rule 1 Court of Appeal Rules, 2007 is very clear.
It provides:-
1. Save as hereinafter provided, the fees prescribed in the Third Schedule hereto shall be charged in respect of the matters 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.
This provision is Ipissima verba with order 3 rule 28(1) of the Federal Court of Appeal Rules, 1981 ; Order 3 Rule 25(1) of the Court of Appeal Rules 2002 and Order 12 Rule 1 of the Court of Appeal Rules, 2011. It is not a new rule.
The fee prescribed in the Third Schedule of the Court of Appeal Rules 2007 “on filing of Notice of Appeal against a final judgment or decision” is N5,000.00. The Notice of Appeal, at pages 167-173 of the Record in the instant appeal, is against the final judgment of the High Court of Rivers State delivered by E. N. Thompson, J. on 9th December, 2009. Therefore, it is clear from the unambiguous provisions of Order 12 Rule 1 that the N5,000.00 is the fee to be charged, and the fee to be paid by the Appellant “on filing the Notice of Appeal against the final judgment or decision” of Rivers State High court delivered on 19th March, 2009. Order 12 Rule 1 is doubly mandatory or imperative. The Registrar has no discretion in this regard. He cannot, in my view, charge any amount less thon N5,000.00 for filing Notice of Appeal against a final judgment. Only this Court or the court below by dint of Order 12 Rule 3 of the 2007 Rules (in pari materia with Order 12 Rule 3 of 2011 Rules) is empowered, on account of the wont of means of any party or for other sufficient reason, to dispense with payment of filing fee. This is not the situation in this case.
IKENNA AMECHI, ESQ & ANOR V. MR. EGWUOYIBO OKOYE (2008) 12 N.W.L.R. (PT.1101) 546 CA can not avail this Appellant in view of the mandatory or imperative wordings of Order 12 Rule 1 . 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. They take away any discretion whatsoever. Similarly, the words shall be paid leave the litigant no discretion to pay any fee less than Third Schedule.
I read the opinion of Ubaezonu, JCA in ANATOGU V. ANATOGU (1997) 9 N.W.L.R. (Pt.519) 49. I do not think it avails the Appellant. The defective form, the subject of that decision is curable by amendment. The issue here, in the instant appeal, is whether the appeal had been duly initiated in accordance with the due process of law as to make the appeal competent. The issue is not about the form of the Notice of Appeal, but whether the appeal had been duly initiated in accordance with the due process of law. ANATOGU V. ANATOGU (supra) is about form. The summary of ANATOGU V. ANATOGU (supra) is that since Equity follows the law; Equity looks of the substance and not the form.
It was held in Akubue v. C. O. P. (1977) 1 IMSLR 164 at 168 that every Notice of Appeal must be filed in strict compliance with the rules, failing which the appellate court can not exercise jurisdiction. The decision follows the line of the authoritative pronouncement of the Supreme Court in MADUKOLU v. NKEMDILIM (1962) 1 ALL N.L.R. 587 of 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 jurisdicfion.
See also SKENCONSULT (NIG) LTD V. UKEY (1981) 1 SC 1 (Reprint)
I am aware of the debate in judicial circles as to whether or not payment of filing fee is a condition precedent. On the side of the proposition that nonpayment or payment of inadequate filing fee is a mere irregularity we have, to mention a few: ALLOYSIUS AKPAJI v. FRANCIS UDEMBA (2009) 6 N.W.L.R. (Pt.1138) 545 SC. and N.N.P.C. & ANOR v. CHIEF M. I. AHAMBA (SAN) (2009) 10 N.W.L.R. (PT.1149) 266 CA (a decision of this Division).
On the other hand the following cases, out of many more others, posit that payment of filing fees is a condition precedent to give validity to the Notice of Appeal or process of Court i.e. ONWUGBUFOR & ORS V. OKOYE & ORS (1996) 1 N.W.L.R. (pt.424) 252 SC; SEVEN-UP BOTTHNG CO. LTD V. YAHAYA (2001) 4 N.W.L.R. (pt.702) 47 CA; ABIA TRANSPORT CORPORATION & ORS v. QUORUM CONSORTIUM LTD (2009) 9 N.W.L.R. (Pt.145) 1 SC and MOYOSORE V. GOV. KWARA STATE (2012) 15 NWLR. (PT.1292) 242 CA.
None of these cases, including AMECHI V. OKOYE (supra) considered Order 12 Rule 1 and Third Schedule of the 2007 Rules of this court. The rules interpreted in these cases were the rules of the High Courts. There are conflicting decisions of the Supreme Court on this issue. ALLOYSIUS AKPAJI V. UDEMBA (supra) was decided on 13th February, 2009. Aderemi JSC dissented. Ogbuagu JSC, expressing the opinion concurred by the majority (Musdapher JSC, Oguntade JSC and Coomassie JSC), stated that the failure to pay filing fees does not raise any issue of jurisdiction, and that the failure to fulfill 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. And that the usual remedy is an order that the appropriate fees or any shortfall be paid. It is assumed in this opinion that when the shortfall of the appropriate fee is paid the originating process is given a retrospective or retroactive validity. In view of Section 24 of the Court of Appeal Act, 2004 that assumption may be faulty. Section 24 of the Court of Appeal Act, prescribing the period within which appeals may be filed, states inter alia:
“24. (1) where a person desires to appeal to the Court of Appeal, he shall give Notice of Appeal in such manner as may be directed by the rules of court within the period prescribed by the provision of subsection (2) of this Section that is applicable to the case.
(2) The period for giving of Notice of Appeal or Notice of application for leave to appeal are –
(a) In an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision.
(b) …………………………………..
Order 12 Rule 1 is one of such manner directed by the rules for filing a valid Notice of appeal “within the period prescribed by the provision of” Section 24(2) of the Court of Appeal Act, 2004
A Notice of Appeal can not be said to have been validly filed within the period prescribed for filing the same unless the correct fee has been paid as directed by the rules. Ademola CJF said so in NGOH V. NDOKE (1960) 5 FSC 90 when, in an election petition, he held that a petition is deemed duly presented only when the number of copies required by law are left at the registry and the prescribed fees duly paid. This also is the position of this court expressed in OCHIGBO V. UMORU (2009) LPELR 8752, USMAN DANFODIO UNIVERSITY, SOKOTO V. BALOGUN (2006) 13 N.W.L.R. (pt.984) 124 of 140 etc. This too is the position of the Supreme Court as can be seen in the cases of NDAEYO V. OGUNAYA (1977) 1 SC 11, OWENA BANK OF NIGERIA PLC V. OTATUNJI (1991) 13 NWLR (pt.634) 218 of 230 etc. It is for this reason that my learned brother, Mbaba, JCA stated in Moyosore v. Gov. Kwara State (supra) at page 270 that, it is the filing fee that vests legitimacy or validity on a court process, except such fees are waived. For this statement of law he relied on ONWUGBUFOR V. OKOYE (supra).
Subsequent to AKPAJI v. UDEMBA (supra), decided by the Supreme Court on 13th February, 2009, the same Court in ABIA STATE TRANSPORT CORPN V. QUORUM CONSORTIUM LTD (supra), on 3rd April, 2009, reinforcing their earlier decisions notably ONWUGBUFOR V. OKOYE (supra), OKOLO V. UNION BANK OF NIGERIA LTD (2004) 3 N.W.L.R. (pt.859) 87, had categorically stated that payment of prescribed fee by all litigants, except Government, is a precondition to the validity of any process filed in the court, and that unless the precondition is satisfied, the court will lack jurisdiction to entertain the process the prescribed filing fee of which has not been paid. As rules of each court are meant to be obeyed by litigants and Counsel appearing before that court, it is incumbent on both to submit themselves to the rules of the court, particularly Order 12 Rule 1 of the 2007 Rules of this Court. The Privy Council stated so in RATNAM V. CUMARASAMY (1964) 3 ALL E. R. 933 and added that the courts demand stricter compliance with the rules of appeal than the rules of trial court.
ABIA STATE TRANSPORT CORPN. V. QUORUM (supra) is not only later in time to AKPAJI V. UDEMBA (supra); it is a unanimous decision of the Supreme Court on the issue whether payment of filing fee is the sine qua non for the validity of every process purportedly filed, particularly an originating process as the notice of appeal. The dissenting judgment of Chukwuma-Eneh, JSC did not question the principle of law of great antiquity subscribed to by all the Justices on that panel: that payment of the prescribed fees gives validity to the process. ABIA STATE TRANSPORT CORPN. V. QUORUM (supra) is in tandem with the previous opinions or pronouncements of the Supreme Court on the issue, particularly OKOLO V. U.B.N. (supra), ONWUGBUFOR & ORS V. OKOYE & ORS (supra), and the old West African Court of Appeal in MOORE V. TAYEE (1934) WACA 43, that held that payment of filing fee is a condition precedent or pre-condition to the court’s assumption of jurisdiction, and that where filing fees are not paid the court will not have jurisdiction to entertain the action or matter before it. This is because the rules of court, particularly Order 12, Rule 1 of this Court, make it mandatory for the litigant or appellant to pay filing fees. The rules are meant to be obeyed.
The statutory requirement that the appellant shall pay filing fee stipulated in the Third Schedule to the 2007 Rules of this Court, as directed by Order 12 Rule 1 thereof, is not only mandatory but also fundamental to the proceedings. It is a condition precedent to the filing of a valid Notice of Appeal. The non-compliance therefore goes to the root See ONWUGBUFOR V. OKOYE (supra); SEVEN-UP BOTTLING CO. LTD V. YAHAYA (supra); MADUKOTU V. NKEMDIIIM (supra). In the words of Salami JCA (as he then was) in SEVEN-UP BOTTUNG CO. LTD V. YAHAYA (supra) of 55; 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 12 Rule 1 and the Third Schedule to the 2007 Rules of this court, the appeal has not been kick-started and this Court can not exercise its jurisdiction over such a process or Notice of Appeal. Partial or inadequate payment of filing fee renders the process both incohoate and invalid as of the time of the filing of the process. The filing of the process is only complete upon payment of the balance or shortfall. Accordingly, where time is of essence and upon effluxion of time, the late payment of the shortfall does not revive the process.
The Notice of Appeal purportedly filed on 19th March, 2009 is incompetent and it is hereby struck out. The payment of N2,600.00 as filing fee, alleged without proof by the Appellant’s Counsel, falls short of the filing fee for Notice of Appeal against final judgment or decision of a High Court stipulated by Order 12 Rule 1, read together with the Third Schedule to the 2007 Rules of this court. I had earlier given enough reasons why we must, my Lords, depart from the previous decisions of this Court and the Supreme Court in AKPAJI v. UDEMBA (supra) to the effect that non-payment or inadequate payment of filing fee is a mere irregularity curable by on order to pay the shortfall. Even if we, now, order this Appellant to pay the shortfall, that can not revive the process or notice of appeal that had been invalid since 2009.
There is also no question of the respondents acquiescing in the conduct of the Appellant failing to
pay filing fee or his paying inadequate fee. Acquiescence or collusion of parties does not confer court’s jurisdiction that is extrinsic and statutory. Since payment of filing fee is statutory and mandatory and it gives the process, on which the Courts jurisdiction is predicated and invoked, validity, neither the collusion nor the acquiescence of the parties can save the situation of incompetence of the court created by the fact of non-payment or insufficient payment of filing fees.
Parties shall bear their respective costs.
M. L. TSAMIYA, J. C. A.: I had the benefit of appraising in draft the Ruling just delivered by my learned brother, Ejembi Eko, JCA. I am in complete agreement with the reasoning and the great academic approach with which he arrived at his conclusions. He had adequately dealt with the issue for determination in this matter, which is non-payment or payment of inadequate filing fees in the appeal to this court, against the final decision of the lower court.
However, I wish to particularly add that my decision in Ikenna Amechi, Esq. & Anor. Vs. Mr. Egwuoyibo Okoye (supra) as rightly observed by my learned brother in this lead Ruling cannot avail this appellant. This is because my decision is in respect of the interpretation of Federal High Court Rules. Under the Federal High Court Rules then applicable, it is required that an application for a summons (writ or originating) be made by the applicant/plaintiff to the Registrar who is responsible for the assessment of fees payable and such fees shall be paid by the applicant. Thus the assessment of the fees payment is within the sole responsibility of the trial High Court’s Registry while the role of the litigant is to pay the fees assessed. The assessment also in the trial court is not a matter within the knowledge/power of a litigant to control, but a domestic affair of a registry of the trial court. In the instant case, the Rules of this court provide the schedule of fees which shall be charged in respect of any matter to be filed to this court, and which shall be paid to the Registry of the court below or this court as the case may be, (the underlined mine for emphasis). Thus, the fees charged in the third schedule of this court’s Rules, 2007 for filing ‘Notice of Appeal’ against the final judgment/decision has already been assessed and prescribed in the schedule and what the appellant must do is to pay such fees to the Registry. In this circumstance, the Registry either in the court below or this court plays no role in the assessment but its role is to demand the payment of the prescribed fees. The whole exercise is a matter of law, the interpretation of which cannot be left to the Registry alone as the counsel who filed the said notice of appeal knows /or ought to know the law and the rules of appeal as regards the filing of Notice of Appeal brought before the lower court.
There has been hue and cry about the observation of the rules of procedure: I wish to state that observance and compliance with rules of procedure is the beginning of wisdom in legal practice and judicial administration.
Finally as I said above, l am in total agreement with this Ruling, consequently, I too hold the view that the Notice of Appeal filed on 19/3/2009 in this appeal is incompetent for non-payment of prescribed fees in accordance with Order 12 R.1 and the Third Schedule in part 11 of this Court’s Rules 2007.
STEPHEN JONAH ADAH, J.C.A.: I had the privilege of reading in advance, the Ruling just delivered by my learned brother, Ejembi Eko, JCA and I agree with him entirely that this appeal be struck out for being incompetent.
The provisions of Order 12 Rule 1 of the Rules of this Court 2007 and the Third Schedule dealing with fees need no construction. These provisions are very lucid, clear and completely devoid of any confusion. It is trite and a cardinal principle of interpretation of statutes that where the words in a statute are clear and unambiguous, they should be given their plain ordinary meaning. See Buhari v. Obasanjo (2005) 13 NWLR (Pt.941) 1, Akuneziri v. Okenwa (200) 15 NWLR (Pt.991) 526, Okotie-Eboh v. Manager (2004) 18 NWLR (Pt.905) 242 referred to in the case of Federal Ministry of Health & Anor v. Comet Shipping Agencies Ltd (2009) 9 NWLR (.Pt.1145) 193 SC. In its interpretative function the court is bound to limit itself to what the law is and not what the law ought to be. See the case of Uwagba v. FRN (2004) 15 NWLR (Pt.1163) 91 at page II4 paragraph C.
In the instant case, Order 12 Rule 1 of the Court of Appeal Rules 2007 which was ably reproduced by my brother in the Ruling provides that the fees prescribed in the Third Schedule hereto shall be charged in respect of the matters 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. The word “shall” used in this provision cannot be interpreted to mean anything other than its ordinary or literal meaning. In the case of Agip (Nig) Ltd v. Agip Petroleum Int’l & Ors (2010) 5 NWLR (Pt.1187) 348 at page 419 paragraphs F – H, the Supreme Court per Adekeye JSC held that-
The word “shall” in the ordinary meaning is a word of command which is normally given a compulsory meaning because it is intended to denote obligation. When the word “shall” is used in a statute it is not permissive it is mandatory, it imports that a thing must be done. Nigeria LNG Ltd. v. African Development Insurance Co. Ltd. (1995) 8 NWLR (Pt.416) page 677; Col. Kalie (Rtd.) v. Alhaji Aliero (1999) 4 NWLR (Pt.597) page 139.
More important is that where a statute or rule of court provides for a procedure for the commencement of an action, failure to follow that procedure renders any suit commenced otherwise incompetent.
Under the Rules of this Court, applicable to the instant appeal, no Registrar is given any right of assessment of fees to be paid. It is also very clear that there is no provision in the Rules of this Court for instalmental or partial payment of fees for originating processes. The Rules also do not discount the fees payable for filing of the notice of appeal. The Rules made specific provision for payment of a fee of N5,000.00. The only authority that can legitimately defer payment of fees is the court and this is under Order 12 rule 3 of the Rules of this Court 2007. There is no deferment of payment by the Court in this case.
The Appellant only paid N2,600.00 for the appeal as against the sum of N5,000.00 prescribed by the Rules.
The learned counsel for the Appellant Mr. C. I. Enweluzo in his submission contended that it was not the responsibility of the Appellant to assess fees payable for notice of appeal. This of course is farfetched because no law will consign the responsibility of assessing fees payable for a notice of appeal to the Appellant. For that assumption to be probable would be tantamount to one saying a buyer should fix price at which he would purchase the goods he wants to buy from the seller. This will be unconventional and is not the case here. The only responsibility the Rules placed on the shoulders of the Appellant under Order 12 Rule 1 and the Third Schedule regarding payment of fees is for the Appellant to pay to the Registry, the exact fee charged thereunder.
I believe, my Lords, that payment of the appropriate filing fees is a requisite pre-condition for a competent appeal. The jurisdiction of the court to hear and determine any appeal is invoked by the filing of a notice of Appeal in the Registry of the court. Filing of a notice of appeal means payment by the Appellant of the appropriate filing fees as prescribed by the Rules of court. When a notice of appeal is not duly filed before the court, it does not in the eyes of the law exist and as such cannot provoke the jurisdiction of the court. See the case of Ogli Oko Memorial Farms Ltd. & Anor v. Nigerian Agricultural & Co-op Bank Ltd & Anor (2008) 12 NWLR (pt.1098) 412.
I am therefore in full agreement with the reasoning and conclusion reached by my learned brother Ejembi Eko JCA that the notice of Appeal purportedly filed on 19th March, 2009 is incompetent and I also order striking it out.
In the instant case, we noticed a disturbing situation which I believe should not be ignored. Ignoring the situation cannot be helpful in the desire of this court to achieve justice without delay. The notice of appeal at pages 167 – 173 of the Record of Appeal does not have any endorsement as to the fees paid for the filing of this appeal. This is clearly contrary to the Rules of this court. Order 6 Rule 7 of the extant Rules of this court provides:
“The Registrar of the court below shall endorse on the notice of appeal or application the fees paid thereon, receipt number and the date of payment.”
The parties in the instant appeal have not raised the issue but it is the responsibility of this court to ensure that the Rules of court are complied with by both the parties and the officers of the court. By section 240 of the 1999 Constitution of the Federal Republic of Nigeria, this court is mandated to hear appeals from the lower courts. This then makes it necessary for the first step in the appeal process to be taken at the court below. The Registrar of the court below is therefore made to bear the first responsibility for the compilation of records of the case and to transmit same to this court. The Rules of this court require the Registrar of the lower court to endorse on the notice of appeal the fees paid thereon, receipt number and the date of payment. The requirement of the Rules of this Court for endorsement of fees is not for fun. It is to prove payment of fees for the process. See the case of Seven-up Bottling Company Ltd. v. Alhaji Tijani Yahaya (2001) 4 NWLR (Pt.702) 47. This directive was completely ignored by the Registrar of the court below before transmitting the record of appeal to this court. This attitude of the Registrar in this case is not good enough and it is condemned. The Registrar of the court is an officer of the court and responsibility is laid on him to ensure that due diligence is exhibited in the performance of his statutory duties. Great care must be taken by him not to ride rough shod over the Rules of court. Rules of Court must be obeyed. If there has been a non-chalant non compliance with the Rules no indulgence of the Court can be granted. See Chief Onwuka Kalu v. Chief Victor Odili & Ors (1992) 6 SCNJ 76.
The failure of the Appellant to pay the complete filing fees charged under the Rules of this Court cannot be explained away under the canopy of error of the Registrar. The responsibility to pay what the Rules prescribed is absolutely that of the Appellant.
For this and the fuller reasons given by my brother Ejembi Eko, JCA I order striking out this appeal on grounds of incompetence. I also agree that the parties shall bear their respective costs.
Appearances
Sir C. I. Enweluzo with A. J. K. ChukwuFor Appellant
AND
T. O. P. Afogho, Esq for 1st Respondent.
H. N. Amodi, Esq SSC Ministry of Justice, Rivers State for 2nd – 3rd Respondents.For Respondent
