MR. TIMIDIDEKDE OMALE & ORS V. ATANA SOFADOH & ORS
(2013)LCN/6042(CA)
In The Court of Appeal of Nigeria
On Thursday, the 21st day of March, 2013
CA/PH/320/2006, CA/PH/321/2006
RATIO
INTERPRETATION OF STATUTES: WHERE THE WORDS IN A STATUTE ARE CLEAR AND UNAMBIGUOUS
It is cardinal principle of interpretation of statutes that where the words in a statute are clear and unambiguous, they should be giving their plain and ordinary meaning: See Buhari v. Obasanjo (2005) 13 N.W.L.R part 941 page 1.PER MODUPE FASANMI, J.C.A
NOTICE OF APPEAL: FILING FEES MUST BE PAID IN ORDER FOR IT TO BE VALIDLY FILED
A notice of appeal cannot be said to have been validly filed within the period prescribed for filing the same unless the correct fee has been paid as prescribed by the rules. See the cases of Ndaeya v. Ogunaya (1977) 1 S.C page 11 and Owena Bank of Nigeria Plc. v. Olatunji (1991) 3 N.W.L.R. part 694 page 218 at 230.PER MODUPE FASANMI, J.C.A
FILING FEE: IF NOT PAID, CAN AFFECT THE JURISDICTION OF THE COURT
The court of Appeal Rules in operation when the notice of appeal in this suit was filed was the court of Appeal Rules 2002. Order 1 Rule 5 provides for the appropriate fees to be paid for a valid notice of appeal. It was then (N500) five hundred naira only. Rules of court are meant to be obeyed by litigants and counsel appearing before it. The statutory requirement that the Appellant shall pay filing fee is not only mandatory but also fundamental to the proceedings. See the case of Madukolu v. Nkemdilim (1962) 1 All N.L.R page 587 at 593. Payment of filing fees is a condition precedent to give validity to the notice of appeal or process of court.
See Onwugbufor & Ors v. Okoye & Ors (1996) 1 N.W.L.R part 424 page 252, Seven Up Bottling Co. Ltd v. Yahaya (2004) 4 N.W.L.R Port 702 page 47 and Abia Transport Corporation & Ors v. Quorum Consortium Ltd (2009) 9 N.W.L.R part 1145 page 1.PER MODUPE FASANMI, J.C.A
JUSTICES
EJEMBI EKO Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
S. J. ADAH Justice of The Court of Appeal of Nigeria
Between
1. MR. TIMIDIDEKDE OMALE
2. MRS. TITI ENDELEY
3. MADAM ERABO OMALE
4. HON. MARTINS GBAREGOLO
5. MR. BOSS NAIRO Appellant(s)
AND
(1) ATANA SOFADOH
(2) MR. BARRICK SOFADOH
(3) MR. ANGALABIRI OWEI SOFADOH
(4) MR. ROBERT SOFADOH Respondent(s)
MODUPE FASANMI, J.C.A (Delivering the Leading Judgment): This is an Appeal against the judgment of the Bayelsa State High Court of Justice, sitting in Sagbama delivered on the 16th of June 2005. The appeal no. CA/PH/320/2006 and the Appeal No. CA/PH/321/2006 emanated from the same judgment delivered on 16/6/2006. The parties in both appeals are the same. Appeal No.CA/PH/321/2006 is in the nature of a cross-appeal.
An application seeking the order of this court consolidating the two appeals was filed on the 4th of May 2011.
The application was granted on the 6th of Nov.2012.
The Appellants who described themselves as Petitioners in the lower court i.e. Sagbama Customary Court took out summons against the Respondents. The claim by the Appellants was for the following reliefs.
(1) petitioners seeking from this Honourable Court for a title of ownership of four pieces or parcels of land lying and situate in between Tungbabiri town and Biugbene respectively.
(2) An order of interlocutory injunction restraining all the Respondents, for themselves, their servants,
agents and privies from further entry into the said land pending the determination of this matter.
The lower court i.e. the Sagbama Customary Court delivered a reserved judgment on the 15th of Jan 2001 after hearing the parties and their witnesses and also undertaking a visit to the locus in quo inter alia, as follows:
“The four pieces or parcels of land lying and situates (sic) in between (sic) Tungbabiri and Biugbene respectively are founded by Adoun (i.e.) the land belongs to the Plaintiffs”.
The Respondents were not satisfied with the judgment of the lower court and through their learned counsel Enie Otrofanowei filed a notice of appeal to the High court containing the following grounds of appeal.
“The learned president and members of the Sagbama District Customary Court erred in law when they entered judgment for the plaintiff’s in terms of their claim.
PARTICULARS OF ERROR OF LAW:
(a) Plaintiffs did not prove their title to the land in dispute.
(b) From (sic) the evidence before the court, it was clear that the land was commonly owed by both parties to the suit.
(c) The judgment is against the weight of evidence led in this case.
With the leave of the Court, Respondents who were then Appellants of the High Court filed additional grounds of appeal. The learned trial judge Justice M. A. A. Adumein (as he then was) took oral arguments after which he on 16th of June 2005 delivered his Judgment whereby he sets aside the judgment of the Sagbama Customary Court and sent the case bock for retrial.
CA/PH/320/2006
Appellants before this court been dissatisfied with the judgment of the High Court Sagbama Bayelsa State appealed to this court, the notice of appeal was dated 1st Sept. 2005 of pages 103 -105 of the record. Appellants filed three grounds of appeal.
In compliance with the rules of this court, Appellants filed their brief of argument on the 29th of Dec.2006. It was deemed properly filed and served on the 30th of May 2007.
Respondents filed their brief of argument on the 16th of July 2007. It was deemed properly filed and served on the 6th of Nov. 2012. Appellants distilled three issues for determination as follows:
(1) Whether the lower court can competently raise the issue of the Sagbama Customary Court not stating separately the facts derived from its visit to the locus in quo and to resolve the appeal on the basis of the procedure adopted of the visit to the locus in quo in the absence of any complaint in respect of same.
(Distilled from ground one).
(2) Whether the issue of identity of boundaries was in issue and thus: the lower court was right when it held that the Appellants did not prove the boundaries of the parcels of land in dispute (Distilled from ground two).
(3) Whether in view of the fact that the proceedings appealed against being that of a Customary Court the lower court was justified or right when it held that the Sagbama Customary court did little or nothing in the appraisal, assessment and evaluation of the evidence adduced by both parties (Distilled from ground three).
Learned counsel for the Respondents also distilled three issues for determination as follows:
(1) Was the learned trial Judge sitting on appeal wrong in law when he set aside the judgment of the customary Court Sagbama and in any case, did the Appellants prove on entitlement to the judgment of the Customary Court?
(2) Was the learned trial Judge sitting on appeal wrong in law, when he held that the Customary Court foiled to evaluate the evidence before it?
(3) Was the learned trial Judge sitting on appeal wrong in the circumstances of this case when he remitted the case for retrial in the customary court?
At hearing of the appeal, learned counsel for the parties respectively adopted and relied on their briefs of arguments.
I have carefully examined the issues formulated by the parties; the issues formulated by the Respondents appear more succinct and apt in the determination of this appeal.
For this reason, the appeal will be determined on the issues formulated by the Respondents while the Appellants, issues are subsumed in the Respondents’ issues.
The court on a close look of the notice of appeal at pages 103 105 of the record found that there is no evidence of payment on the record of the notice of appeal. Order 12 Rule I of the Court of Appeal Rules 2011 and the Third Schedule dealing with fees prescribed the appropriate fees to be paid when filing a notice of appeal.
These provisions are very lucid, clear and completely devoid of any confusion. It is the cardinal principle of interpretation of statutes that where the words in a statute are clear and unambiguous, they should be giving their plain and ordinary meaning: see Buhari v. Obasanjo (2005) 13 N.W.L.R part 941 page 1.
A notice of appeal cannot be said to have been validly filed within the period prescribed for filing the same unless the correct fee has been paid as prescribed by the rules. See the cases of Ndaeya v. Ogunaya (1977) 1 S.C page 11 and Owena Bank of Nigeria Plc. v. Olatunji (1991) 3 N.W.L.R. Part 634 page 218 at 230.
The Court of Appeal Rules in operation when the notice of appeal in this suit was filed was the Court of Appeal Rules 2002. Order 1 Rule 5 provides for the appropriate fees to be paid for a valid notice of appeal. It was then (N500) five hundred naira only. In the appeal of hand, there is no evidence of payment of any fee for the filing of the notice of appeal. Rules of Court are meant to be obeyed by litigants and counsel appearing before it.
The statutory requirement that the Appellant shall pay filing fee is not only mandatory but also fundamental to the proceedings. See the case of Madukolu v. Nkemdilim (1962) 1 All N.L.R page 587 at 593. Payment of filing fees is a condition precedent to give validity to the notice of appeal or process of court.
See Onwugbufor & Ors v. Okoye & Ors (1996) 1 N.W.L.R Part 424 page 252, Seven Up Bottling Co. Ltd v. Yahaya (2001) 4 N.W.L.R Part 702 page 47 and Abia Transport Corporation & Ors v. Quorum Consortium Ltd (2009) 9 N.W.L.R Part 1145 page 1.
The non-compliance with the filing fee therefore goes to the root of the validity of the appeal. Since there is no evidence of payment of the filing fee in the notice of appeal dated 1st of September 2005. The notice of appeal is incompetent and it is accordingly struck out.
Parties are to bear their respective costs.
CA/PH/321/2006
This is a sister case having the some facts as in CA/PH/320/2006. Appellants appealed against the judgment of Hon. Justice M.A.A Adumein, sitting on appeal over the judgment of the Customary Court, Sagbama delivered on the 16th of June 2005. Appellants filed three grounds of appeal.
In compliance with the rules of this court, Appellants filed their brief of argument on the l6th of July 2007. It was deemed properly filed and served on the 15th of Sept. 2008.
Appellants abandoned grounds 2 and 3 of the notice of appeal and pursue only ground one wherein they distilled one issue for determination as follows:
(a) Was the learned trial Judge sitting on appeal right in law when he remitted the case to the Customary Court for retrial?
Learned counsel for the Respondents filed the Respondent’s brief of argument on the 10th of Nov. 2008. It was deemed properly filed and served on the 20th of May 2009. Respondents filed a preliminary objection on the 10th Nov. 2008. The Respondent’s preliminary objection was incorporated in the Respondent’s brief of argument.
Learned counsel for the parties respectively adopted and relied on their briefs of argument.
The court on a close look of the notice of appeal at pages 103 105 observed that the Appellant did not pay the requisite or appropriate fees. Order 12 Rule 1 of the court of Appeal Rules 2011 and the Third schedule dealing with fees prescribed the appropriate fees to be paid when filing a notice of appeal. These provisions are very lucid, clear and completely devoid of any confusion. It is cardinal principle of interpretation of statutes that where the words in a statute are clear and unambiguous, they should be giving their plain and ordinary meaning: See Buhari v. Obasanjo (2005) 13 N.W.L.R part 941 page 1.
A notice of appeal cannot be said to have been validly filed within the period prescribed for filing the same unless the correct fee has been paid as prescribed by the rules. See the cases of Ndaeya v. Ogunaya (1977) 1 S.C page 11 and Owena Bank of Nigeria Plc. v. Olatunji (1991) 3 N.W.L.R. part 694 page 218 at 230.
The court of Appeal Rules in operation when the notice of appeal in this suit was filed was the court of Appeal Rules 2002. Order 1 Rule 5 provides for the appropriate fees to be paid for a valid notice of appeal. It was then (N500) five hundred naira only. Rules of court are meant to be obeyed by litigants and counsel appearing before it. The statutory requirement that the Appellant shall pay filing fee is not only mandatory but also fundamental to the proceedings. See the case of Madukolu v. Nkemdilim (1962) 1 All N.L.R page 587 at 593. Payment of filing fees is a condition precedent to give validity to the notice of appeal or process of court.
See Onwugbufor & Ors v. Okoye & Ors (1996) 1 N.W.L.R part 424 page 252, Seven Up Bottling Co. Ltd v. Yahaya (2004) 4 N.W.L.R Port 702 page 47 and Abia Transport Corporation & Ors v. Quorum Consortium Ltd (2009) 9 N.W.L.R part 1145 page 1.
The Appellant in this case paid thirty naira only as against the five hundred naira prescribed for the filing of a valid notice of appeal in the Court of Appeal Rules 2002 which was in operation then.
The non-compliance with the filing fee goes to the root of the validity of the appeal. Even if we order the Appellant to pay the shortfall, that cannot revive the process or notice of appeal that had been invalid since 14th of August 2005.
Consequently, the notice of appeal filed on 14th of August 2005 is incompetent and it is accordingly struck out.
Parties are to bear their respective costs.
EJEMBI EKO, J.C.A.: These two appeals, consolidated by the order of this Court, emanate, supposedly, from the judgment delivered on 16th June, 2005 by M.A.A. ADUMEIN, J. (as he then was) in the appeal No. SHA/10A/2001 at the High court of Bayelsa state, sitting at Sagbama.
Appeal no. CA/PH/321/2006 was purportedly filed on 4th August, 2005. See page 105 of the Record. The fee paid for the notice of appeal was N30.00. The extant Rules of this Court then was the Court of Appeal Rules, 2002. By Order 1, Rule 5 and part 11 of the Third Schedule to the said Rules,2002 the minimum fee payable for filing Notice of Appeal against final judgment of the High court was N500.00. This inadequate fee, as paid, could not kick start a proper and competent appeal. I said so in ENGR. IBEABUCHI v. IKPOKPO (CA/PH/406/2009 of 16th January, 2013). The appeal, therefore, had not been initiated in accordance with due process of law upon fulfillment of the condition precedent for its filing. See MADUKOLU v. NKEMDILIM (1962) 1 All N.L.R. 587 at 593; ONWUGBUFOR v. OKOYE (infra); 7UP BOTTLING CO. LTD v. YAHAYA (infra). Payment of prescribed filing fee is what gives validity to the process before the court. The appeal is therefore incompetent.
In the appeal No. CA/PH/320/2006 the Notice of Appeal is at pages 103 -105 of its Record. Paragraph 1 of this notice of appeal at page 103 shows that the appeal is against the final judgment of “the High Court of Justice, Sagbama Bayelsa State”. It does not state the jurisdiction of the said “High court of Justice,” whose address is merely Sagbama Bayelsa State. It is, therefore, not clear whether the appeal is against the decision of either the Federal High court or any state High court. The jurisdiction vested in this court by Section 240 of the 1999 constitution limits the jurisdiction of this court to the courts listed therein. The courts include the Federal High court, High court of the Federal capital Territory or a state High court. It has no jurisdiction over any other High court, either of a town, clan or Local Government.
In respect of this appeal No. CA/PH/320/2006 the fee paid for the filing of the Notice of Appeal (at pages 103 – 105 of its Record) is neither stated nor endorsed thereon. There is no evidence that any fee was paid for the filing of the Notice of Appeal, contrary to order 1, Rule 5 and part II of the 3rd schedule to the court of Appeal Rules, 2002. This fact renders the appeal incompetent. This same appeal, from the Appellants’ lpsit dixit in paragraph 1.0.1 of the Appellants’ Brief filed on 29th December, 2006 but deemed filed on 30th May 2007, was said to have been filed on 14th August, 2006.
Going therefore by this disclosure in paragraph 1.0.1. of the Appellants’ Brief, as the date of filing and fee paid were not endorsed thereon the notice of appeal, this appeal No. CA/PH/320/2006 filed, allegedly, against the final decision of “the High Court, Sagbama” on 16th June, 2005 clearly offends Section 24 of the court of Appeal, Act which enjoins an appellant to file his notice of appeal within 3 months (90 days) after the decision. This court in SEVEN-UP BOTTLING CO. LTD V. ALHAJI TLJJANL YAHAYA (2001) 4 N.W.L.R. (Pt.702) 47 had held that a proper and competent notice of appeal is the one filed within the period prescribed by the Court of Appeal Act and that even if the notice of appeal were filed within the period prescribed, the Sine qua non for its competence is the payment of mandatory filing fee. See also ONWUGBUFOR v. OKOYE (1996) 1 N.W.L.R. (Pt. 424) 252. Where there is requirement for payment of filing fees to set a process in motion, and the mandatory fee was not paid, the process will be incompetent and the court will equally be incompetent to deal with it. See PROVISIONAL COUNCIL, OGUN STATE UNIVERSITY & ORS V. IYABODE ALANI MAKINDE (1991) 2 N.W.L.R. (Pt.175) 572 AND AJA V. JOHN OKORO (1991) 7 N.W.L.R. (Pt.203) 260. These authorities including 7UP BOTTLING CO. LTD v. YAHAYA (supra), all follow and espouse the principle in MADUKOLU v. NKEMDILIM (supra): that a court is competent in any matter, if among other things, the action or suit was initiated in accordance with the due process of law and upon fulfillment of the conditions precedent for initiating the action.
From my observations above; the two appeals – Nos. CA/PH/321/2006 and CA/PH/320/2006 are both incompetent, and they are both hereby struck out.
I have read the judgment of my learned brother, MODUPE FASANMI, JCA which I hereby agree with and adopt.
STEPHEN JONAH ADAH, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother Fasanmi, JCA and I am in complete agreement with his conclusion that the appeal No. CA/PH/320/2006 and the appeal No. CA/PH/321/2006 consolidated are incompetent.
Payment of the appropriate filing fees is the condition precedent to hearing any appeal. The Appellants in the appeals are under obligation to pay the correct filing fees as specified under the Rules of this court. By order 6 rule 7 of the Rules of this court, 2011 the Registrar of the court below or of this court is obligated by the Rules to endorse the amount of fees paid and the date fees were paid on the notice of appeal. This is necessary to proof payment of filing fees. On Appeal No. CA/PH/320/2006, there is no endorsement of fees. This means no filing fee was paid.
In Appeal No. CA/PH/320/2006 the endorsement on the notice of appeal shows payment of N30 as filing fees instead of N500 prescribed by the 2002 Rules of this court under which these Appeals were purportedly filed.
Since the appropriate fees have not been paid in these two appeals, there are incompetent.
I therefore order that the two appeals be struck out and they are hereby struck out. I also order that parties shall bear their respective costs as ordered by my learned brother.
Appearances
V. R. Edoh appears for the Respondents in the appeal in 320 and Appellants in 321.For Appellant
AND
E. M. Essien appears for the Appellants in 320 and Respondents in 321.For Respondent
