FYNEBOY NYEUNETOR JEROME V. CHIEF CHIDI CHARLES JEROME & ANOR
(2013)LCN/5915(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of February, 2013
CA/PH/494/2009
RATIO
“Appeals generally are creation of statutes. Failure to comply with the statutory requirement prescribed by the relevant laws, under which such appeals may be competent and properly before the Court will deprive such appellate Court of jurisdiction to adjudicate on the appeal. The jurisdiction of the Court of Appeal to entertain or to adjudicate on any matter brought before it, is statutory. Thus there may be circumstances when the Court would have no constitutional jurisdiction to deal with a matter therefore when the competence of an appeal is raised, the Court is duty bound first to determine whether the appeal is competent before taking any further step in the appeal.” See MUSDAPHER, J.S.C. (as he then was) in the case of Tiza v. Begha (2005) 15 NWLR (pt.949) 616.” Per TSAMIYA, J.C.A.
“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 cannot exercise its jurisdiction over such a process or Notice of Appeal. Partial or inadequate payment of filing fee renders the process both inchoate and invalid as at the time of the filing of the process. See Seven-up Bottling Co. Ltd. vs. Yahaya (2001) 4 NWLR (PT.702) 47 C.A. Applying the above principles of law, I am of the view that the Notice of Appeal is incompetent.” Per TSAMIYA, J.C.A.
JUSTICES
MAHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
Between
FYNEBOY NYEUNETOR JEROME Appellant(s)
AND
1. CHIEF CHIDI CHARLES JEROME
2. AHOADA CUSTOMARY COURT Respondent(s)
MOHAMMED LADAN TSAMIYA, J.C.A. (Delivering the Leading Judgment): This appeal arises from the Ruling of the Rivers State High Court, (herein referred to as the lower court) sitting at Port Harcourt Judicial Division, delivered on 9/4/2009 in a certiorari application made before it by the applicant (herein referred to as “the 1st respondent”) who was the plaintiff in the Ahoada Customary Court, the 2nd respondent. In the Ruling, the lower court uphold the jurisdiction of the 2nd respondent in suit No. ACC/56/2007 between the 1st respondent and the appellant.
Before the 2nd respondent as the trial court, the 1st respondent instituted the said suit No. ACC/56/2007 against the appellant claiming as follows:
1. An order of interim injunction restraining the respondent by himself, his servants, agents, assigns and privies from further act of trespass and or laying claim to the one room he forcefully entered. The said one room is lying and situate at No. 65, Omoku Road, Ahoada Town in Ahoada East L.G.A. within the jurisdiction of this court pending the determination of the substantive suit.
2. An order of this court asking the respondent by himself, his servants, agents, assigns and privies to vacate from the disputed one room lying and situate at No. 65, Omoku Road, Ahoada Town pending the determination of the substantive suit.
While the suit was pending, the 1st respondent filed two motions, one exparte and one on notice seeking substantially the same set of reliefs, namely:
1. An order of interim injunction restraining the defendant/appellant by himself, his servants, agents, assigns and privies from further act of trespass and or laying claim to the one room he forcefully entered. The said room is laying and situate at No. 65, Omoku Road, Ahoada Town in Ahoada East L.G.A. within the jurisdiction of this court pending the determination of the substantive suit.
2. An order of this court asking the defendant/appellant, by himself, his servants, agents, assigns and privies to vacate the disputed one room lying and situate at No. 65, Omuku Road, Ahoada Town Pending the determination of the substantive suit.
After hearing both parties to the applications, the 2nd respondent granted the said reliefs, first on 7/8/2007, and 3/9/2007 respectively.
(See page 7 of the record).
Being dis-satisfied with the rulings of the 2nd respondent, the appellant applied to the lower court for judicial review of the said two rulings. Leave was first granted to apply for the judicial review by the lower court. Thereafter, the appellant filed a motion on notice praying for the following reliefs.
1. An order of this court (lower court) removing the proceeding/process/rulings/orders of the 2nd respondent in suit No. ACC/56/2007 dated 7/8/2007 and 3/9/2007 from Ahoada Customary Court to the High Court (lower court) with a view to quashing same.
2. An order of certiorari quashing the said proceedings, processes and Rulings/Orders of the 2nd respondent in the aforesaid suit No. ACC/56/2007.
After hearing the submissions of both parties to the case, the lower court in its Ruling delivered on 9/4/2009, granted the application and quashed the orders of injunction/proceedings of the 2nd respondent but the main suit was not quashed, rather it was returned to the 2nd respondent for trial/continuation of trial.
Being dis-satisfied with the part of the Ruling of the lower court particularly for not quashing the substantive suit the appellant appealed to this court via his Notice and Grounds of Appeal. The date of filing this appeal is not shown on the Notice of Appeal. The notice contained two grounds of appeal. See pages 190-192 of the record.
In accordance with the Rules of this court, both appellant and the 1st respondent filed their respective briefs of arguments. The appellant filed his brief on 19/11/2009 and on receipt of the 1st respondent brief, filed a reply brief on 1/4/2011.
The 1st respondent on receipt of the appellant’s brief’ filed his own brief on 14/3/2011. The appellant in his brief of argument raised one issue only, which reads thus:
“Whether the learned trial judge (in the lower court) was not wrong to uphold the jurisdiction of Ahoado Customary Court in suit No.ACC/56/2007 as constituted”.
While, the respondent raised in his brief, one issue which also reads thus:
“Whether the issue as to jurisdiction raised in the circumstances of this case is not misconceived.”
As I said above, it is only the 1st respondent that filed his brief but the 2nd respondent did not filed its 2nd respondent’s brief notwithstanding, the fact that the briefs of the appellant and the respondent were served on her and it was aware of date fixed for hearing the appeal. The absence of the 2nd respondents brief did not remind the appellant to file his application to hear this appeal in the absence of the 2nd respondent’s brief.
In the process of writing the judgment in this appeal, I observed that order 12 rule (1) and Third Schedule part 11 of this Court’s Rules 2007 were not complied with.
At pages 190-192 of the record of appeal is the Notice and Grounds of Appeal which is the originating process. Endorsed at page 192 of the record of appeal is a stamp from the cashier’s office of Rivers State Judiciary with N2000.00 purportedly paid as filing fees but without any date suggesting the date that the Notice of Appeal was filed. The Notice of Appeal was signed by one Tuduru Ede Esq. of counsel for the appellant.
Order 12 Rule 1 of this court’s Rules, 2007, under which this appeal was initiated, provides:-
“Rule 12. 1. save as herein after provided, the fees prescribed in the Third schedule hereto shall be charged inrespect 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.”
From the Third schedule of the court of Appeal Rules, 2007 the fees prescribed “on filing of Notice of Appeal against either final, or interlocutory order or decision is N5,000.00. The Notice of Appeal at pages 190-192 of the record is against the final decision of the lower court delivered by C.A. Okirie, J. on 9/4/2009. The above provision of order 12 rule 1 and the Third Schedule part 11 of this court’s Rules 2007 is clear and unambiguous provisions. It prescribed 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 decision appealed against, and delivered on 9/4/2009. The provisions of this order 12 rule 1 is undoubtedly mandatory to be complied with. The words, “shall be paid” leave the appellant no discretion to pay any fee less than those stipulated in the Third schedule.
Having stated the above, the question now is, whether, in these circumstances, the appeal had been duly initiated in accordance with the due process of law as to make the appeal competent. In Akubue v. C.P.O (1977) 11 MSLR 164 at 168, this court held that every Notice of Appeal must be filed in strict compliance with the rules, failing which the appealable court cannot exercise jurisdiction. This decision follows the authoritative pronouncement of the Apex Court of our land in Madukolu vs. Nkemdilim (1962) 1 All NLR 587 at 593 where it was decided thus:
“A court is competent when it is properly constituted as regards members of the Bench, and no member is disqualified for one reason or the other, and the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court exercising its jurisdiction; and the case comes before the court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction ” (italics mine for emphasis).
There has been a debate in the judicial circle as to whether or not payment of filing fee is a condition precedent. On one side there is a proposition that non-payment or payment of inadequate filing fee is a mere irregularity. See Alloysius Akpaji vs. Francis Udemba (2009) 6 NWLR (PT. 1138) 545 S.C. The other proposition is to the effect that payment of filing fees is a condition precedent to give validity to the Notice of Appeal on process of court. See Abia Transport Corporation Ltd (2009) 9 NWLR (PT. 1145) 1 S.C. and Onwugbufor & Ors. Vs. Okoye & Ors. (1996) 1 NWLR (PT. 424) 252 SC.
But, I wish to point out that non-of these cases mentioned above considered Order 12 rule 1 and Third Schedule to the 2007 Rules of this court. In these cases, the rules interpreted, however, were the rules of various High Courts.
A Notice of Appeal cannot be said to have been validly filed within the period prescribed for filing the appeal unless the correct filing fee has been paid as directed by the rules. This is the view held by the Supreme Court per-Ademola, C.J.F. (as he then was) in Ngoh vs. Ndoke (1960) 5 F.S.C 90, when, he said; an election 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 too is the position of the Supreme Court as can be seen in the case of Ndaeyo vs. Ogunaya (1977) 1 S.C. 11. Similarly, in Moore vs. Tayee (1934) W.A.C.A. 43, it was 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 that action or matter before it. Reason is that rules of court, particularly order 12 rule 1 of this Court’s Rules, make it mandatory for the litigant or appellants to pay filing fees.
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 cannot exercise its jurisdiction over such a process or Notice of Appeal. Partial or inadequate payment of filing fee renders the process both inchoate and invalid as at the time of the filing of the process. See Seven-up Bottling Co. Ltd. vs. Yahaya (2001) 4 NWLR (PT.702) 47 C.A. Applying the above principles of law, I am of the view that the Notice of Appeal is incompetent.
In view of what I said above the Notice of Appeal purportedly filed is incompetent, having filing fees not adequately paid, and is hereby struckout. No costs ordered.
EJEMBI EKO, J.C.A.: The substance of the dispute of the Customary Court at Ahoada Rivers State is rival claims of the parties, two brothers, to intestate property of their deceased father. The customary court assumed jurisdiction over the dispute. The appellant sought, unsuccessfully, to quash the decision of the Customary Court of the Rivers State High Court through the procedure of an Order of Certiorari. He predicated the certiorari proceeding on the lack of jurisdiction of the Customary Court to entertain the claim since the real property, subject matter of the suit of the customary Court, is allegedly situate in Ahoada urban area over which the customary court lacks jurisdiction.
The appellant of the court below founded his argument heavily on the Rivers State Designation of Urban Areas Order No. 28 vol. 19 of 1987 of the Laws of Rivers State, made pursuant to the provisions of the Land Use Act. It was also his contention that the laws of Rivers State which conferred jurisdiction on the customary court to hear and determine land matters cannot override the Land Use Act. This argument, prima facie, looks veritable and strong. But a face value can be deceptive. The substance of the claims of the parties is the actual determinant of the issue in real dispute inter partes. I will come anon to this.
I had the privilege of reading in draft the judgment just delivered by my Learned brother, M. L. TSAMIYA, JCA. Having had a closer view of page 192 of the Record of Appeal wherein the fees paid for the filing of the Notice of Appeal are endorsed thereon pursuant to order 6 Rule 7 of the Court of Appeal Rules, 2007 (ipsissima verba with Order 6 Rule 7 of the 2011 Rules) I have no doubt that the Notice of Appeal, the Originating process in this appeal, is incompetent.
Order 6 Rule 6 of the Court of Appeal Rules provides that this Court shall have power to strike out a Notice of appeal when the appeal is not competent, or for any other sufficient reason. As my Learned brother in the judgment just delivered observed; the notice of appeal of pages 190 – 192 of the Record is incompetent, the same having been purportedly filed with inadequate filing fees contrary to Order 12 Rule 1 of, and the Third Schedule to, the 2007 Rules then extant. The appeal is in the circumstance incompetent.
Amongst the numerous authorizes cited by the appellant on when the court is competent to entertain a cause or matter is MADUKOLU v. NKEMDILIM (1962) 1 SCNLR 341; (1962) 1 ALL NLR 587 wherein it was held that a court is competent to assume jurisdiction and entertain any cause or matter when inter alia the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Payment of correct filing fees, in accordance with Order 12, Rule 1 read with the Third Schedule to the extant Court of Appeal Rules, is a condition precedent to a valid appeal or notice of appeal. Without a valid notice of appeal this Court can not legally assume jurisdiction in this appeal. This matter has been exhaustively dealt with by my Learned brother in the judgment just delivered and I am in complete agreement with him. The judgment and the consequential orders therein are hereby adopted by me.
I may be wrong. And in case of a further appeal I need to express my opinion on the merits of the instant appeal.
As I earlier stated the substance of the dispute of the Customary Court is a dispute over intestate property of the father of the appellant and 1st respondent. They are brothers fighting over inheritance, and that is the heart or pith of their dispute. Having found as such, I hold the view that the Customary Court has jurisdiction over the subject matter of the dispute between the parties of the said Court.
All I am saying is that the court below was right when it held of page 185 of the Record that –
Having regard to the subject matter in Exhibit TU. 2 and the provisions of section 6(1) of the Customary Court Law cap 4, Laws of Rivers state 1999, I hold the firm view that 2nd Respondent has jurisdiction to hear and determine Suit No. ACC/56/2007 pending before it. The ground of lack of jurisdiction as raised in this application therefore fails.
But for my earlier position in this matter, I would have entered an order dismissing the appeal in its entirety.
STEPHEN JONAH ADAH, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my brother Tsamiya, JCA. I am in complete agreement with his decision that the notice of Appeal in this case is incompetent and I also order it struck out.
It is my understanding that this distinguished Court can only exercise jurisdiction over cases that are competently brought before it. A Court can only be competent if among other things all the conditions precedent for its having jurisdiction are fulfilled.
In Madukolu & Ors. v. Nkemdilim (1962) 1 All N.L.R. 587 Bairamian, FJ, (as he then was) stated the principles which have been accepted in successive cases in this court. “A court is competent”, he said, “when:- (1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject matter of the case is within jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and (3) the case comes before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. (underlining mine) Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication. See Nnamani, J.S.C. in SKENCONSULT (NIG) LTD & ANOR. V. UKEY (1981) 1 S.C. (REPRINT) 4.
Appeals generally are creation of statutes. Failure to comply with the statutory requirement prescribed by the relevant laws, under which such appeals may be competent and properly before the Court will deprive such appellate Court of jurisdiction to adjudicate on the appeal. The jurisdiction of the Court of Appeal to entertain or to adjudicate on any matter brought before it, is statutory. Thus there may be circumstances when the Court would have no constitutional jurisdiction to deal with a matter therefore when the competence of an appeal is raised, the Court is duty bound first to determine whether the appeal is competent before taking any further step in the appeal.” See MUSDAPHER, J.S.C. (as he then was) in the case of Tiza v. Begha (2005) 15 NWLR (pt.949) 616.
In the instant case, Order 12 rule 1 and the third Schedule of the Rules of this Court 2007 make it obligatory that the filing fee payable for, Notice of Appeal is N5,000.00. As is clearly indicated at pages 190 – 192 of the record of appeal, the amount paid by this appellant as filing fee for, the appeal is N2,000.00, There is a short fall of N3,000.00 which by simple arithmetic makes the amount paid to be less than half of the amount prescribed by the Rules of this Court, 2007. Even if the said amount is converted into decimal in algebra and effort is made at rounding up the decimal into the next whole number it cannot in any form be transformed into the amount prescribed by the extant Rules of this Court. What is then certain is the fact that the required filing fee has not been paid. The amount of N2,000.00 paid by this appellant is not the condition precedent for filing a valid appeal.
I had in the ruling of this Court in the earlier case of Engr. Okey Ibeabuchi & 4 Ors v. Mr. Samuel M. Ikpokpo & 2 Ors delivered on Wednesday, the 16th day of January 2013 (Appeal NO. CA/PH/406/2009) (unreported) ruled as follows:-
“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 still hold this view and I apply it to this instant case.
This appeal therefore, having not been filed as required under the Rules is not a competent appeal. For this and more detailed reasons given in the judgment of my learned brother, Tsamiya, JCA, I also hold that this appeal is incompetent and I abide by the order striking out, I also order no costs.
Appearances
TUDURU EDE WITH P.P. ELUKE (MRS).For Appellant
AND
DAUPHIN E. HANSONFor Respondent
