The Shell Petroleum Development Company Of Nigeria Limited & Ors V. Chief Isaac Osaro Agbara & Ors (2015)

LAWGLOBAL HUB Lead Judgment Report

IBRAHIM TANKO MUHAMMAD, J.S.C.

This is an interlocutory appeal against the Ruling of Port-Harcourt division of the Court of Appeal (court below) of 23rd October, 2013, wherein the court below struck out appellants’ appeal against the judgment of the Federal High Court (trial court) holden at Asaba, delivered on the 14th of June, 2010. Facts relevant to this appeal as contained in the records of appeal are that the respondents, herein, as plaintiffs, instituted an action against the appellants, herein, as defendants. The plaintiffs claimed damages in excess of N17 Billion Naira against the defendants arising from alleged oil spills in the course of defendants operations. The trial court entered judgment in favour of the plaintiffs and awarded a sum in excess of N17 Billion Naira as damages against the defendants. Dissatisfied with the decision of the trial court the defendants filed an appeal to the court below. Two Notices of Appeal, according to the appellants were filed by them: first Notice of Appeal was dated and filed on 14/06/2010 (it is copied at pages 1607 – 1614 of Vol 4 of the Records of Appeal). The second

1Notice of Appeal was dated and filed on 8/9/2010 (copied at pages 1905 – 1912 of Vol. 5 of the Records of Appeal). The two Notices of Appeal, according to the appellants, were both filed within the three months period for appealing against the ruling of the court below as of right.

After assessment by the Registry of the trial court, the appellants paid a total sum of N800 00 in respect of the Notice of Appeal filed on 08/09/2010. On the 26th day of November, 2012, the appellants as applicants at the court below, filed a Motion on Notice for leave to amend their Notice of Appeal dated 8th day of September 2010 (see page 2735 of Vol. 7 of the Records of Appeal). A ruling was delivered or 3/12/2012 by the court below, granting leave to the appellants/applicants to amend their Notice of Appeal dated 8/9/2010 and that the amended Notice of Appeal was to be filed within 7 days. The appellants, pursuant to the ruling of the court below reflected above, filed their amended Notice of Appeal on the 5th day of December 2012. The appellant claimed to have paid N1000 for filing of an Amended Notice of Appeal as stipulated under the 3rd schedule of the Court of Appeal Rules (pages

22761 -2768. Vol. 7 of the Records of Appeal). Further, the appellants paid an additional amount of N4,500.00 in respect of the original Notice of Appeal although amended with leave of court. An official receipt for the said additional sum was exhibited before the lower court (page 2861, Vol. 7 of the Records of Appeal.

Learned Counsel for the respondents Mr Nwosu, SAN, filed a Preliminary Objection on 11/04/2013 (page 2849 – 2851 Vol. 7 of the Records of Appeal) challenging the competence of the appellants, appeal on the sole ground that the filing fee paid by the appellants was less than the sum of N5, 000.00

On the 23rd day of October 2013, the court below heard arguments on the Preliminary Objection and gave a bench ruling. It sustained the Preliminary Objection and struck out, accordingly the appellants appeal before it as being incompetent due to the alleged inadequate filing fees paid in respect of the appellants’ Notice of Appeal (pages 2915 – 2917, Vol. 7 of the Records of Appeal).

Dissatisfied with the ruling of the court below, the appellants filed their Notice of Appeal to this court.

After settlement of briefs of argument, including a reply

3 brief filed by the appellants, the learned senior counsel to the respondents embedded a Notice of Preliminary Objection with its argument in paragraphs 2.0 and 2.01 of the respondents brief of argument. He also filed what he termed ‘respondents’ reply on points of law to appellants reply.

On the hearing date of this appeal, 13th day of October, 2015 each of the learned senior counsel for the respective parties adopted his brief of argument. Learned senior counsel for the appellants urged this court to overrule the respondents Preliminary objection and allow his appeal. Learned senior counsel for the respondents urged the court to uphold his Preliminary Objection and dismiss the appeal, or, dismiss the appeal still, where the court alternatively determines the appeal on its merits.

My Lords should be reminded that, where for the sake of convenience the court deems it fit to hear a Preliminary Objection to an appeal along with the appeal, the usual practice, always is to determine the preliminary objection first so as to know what line of action next, the court shall adopt. See: Onyekwulaje v. Animashaun & Anor (1996) 3 SCNJ; Godwin v. The

4 Apostolic Church (1998) 12 SCNJ 213. I will thus, treat the respondents Preliminary Objection hereunder.

As stated earlier, the respondents embedded their Notice of Preliminary Objection and its arguments in their brief of arguments dated and filed on 13/4/2015. They also filed on the same date a separate Notice of preliminary Objection. The grounds upon which the Preliminary Objection was raised are as follows:

i. “The three grounds of appeal do not relate to the factual basis upon which the Ruling of the lower court appealed against was based. In grounds 1 and 3 which complained that the lower court was wrong to have struck out the appeal of the appellants for failure to pay the prescribed fees in respect of the Notice of Appeal filed on 8/9/2010 does not arise from the Ruling of the lower court appealed from. The Ruling of the lower court was based on the incompetent Notice of Appeal filed on 14/6/2010. See page 2916 (last line) to page 2917 of Vol. 7 of the Records. Ground 2 of the Notice of Appeal also relates to complaints that did not arise from the Ruling of the lower court.

ii. The appellants sole issue formulated at para 3.2 at page 6 of the appellants’

5brief and the argument proffered thereto also relate to complaint that the lower court stuck out the appeal of the appellants for failure to pay the prescribed filing fees in respect of the Notice of Appeal dated 8/9/2010.

In his submission on the Preliminary Objection the learned SAN for the respondents argued that the three grounds of appeal having not related to or arisen from any issue decided by the lower court, they are incompetent and ought to be struck out. He cited the case of Akibu v. Oduntan (2000) 13 NWLR (Pt. 685) 446 at 462 F – G. The appellants, sole issue he argued further, distilled from the incompetent grounds of appeal, is also incompetent and liable to be struck out. He cited Alakija v. Abdulai (1998) 6 NWLR (Pt. 552) 1 at page 17 A B. The appeal he thus argued, is incompetent and liable to be dismissed.

In his response to the Preliminary Objection, the learned senior counsel for the appellants submitted in his reply brief that the instant appeal arose from the lower court’s Ruling which terminated the appellants appeal at the court below in CA/PH/396/2012. Leaned SAN stated further that the respondents’ objection is clearly factually

6 incorrect and misconceived. The grounds of appeal simply and pointedly challenge the lower courts premature termination of the appellants’ appeal without reference to any specific Notice of Appeal. The grounds of appeal adequately highlight the appellants’ grievance against the decision of the lower court.

Learned senior counsel for the respondents made several submissions on points of law in his reply to the appellants reply brief. This court at the hearing stage asked the learned senior counsel for the respondents whether he was entitled to file a reply to appellants’ reply to his preliminary objection. The learned SAN for the respondent’s replied that he had a right to reply to a point of law raised by the opposite side irrespective of his position in the appeal whether as appellant or respondent. I may refer to some of the points responded to, by him, only if the need arises. Suffice it to say however that it is the general practice since the introduction of brief writing that there may be need for an appellant to file a reply brief when an issue of law or argument is raised in the respondent’s brief not necessarily being a mere repetition of what the

7 appellants brief contained. In other words, where a respondent’s brief raises issues on points of law not covered in the appellant’s brief an appellant should file a reply to deal with such new points/matters. See: Nwali v. State (1991) 3 NWLR (PT 182) 663 at p. 671. Filing of a reply brief even by the appellant, where desirable should not be used to either extend the scope of the arguments in the appellant’s brief or to raise issues that did not arise as new issues or matters in the respondents brief. It is to be noted generally, that although filing of a reply brief is not mandatory as held in Popoola v. Adeyemo (1992) 9 SCNJ 79 at p.108, appellant’s failure to reply to an issue or point of law raised in the respondents brief and where he merely relies on or adopts his brief at the hearing of the appeal without an oral reply that may amount to a concession of the issue or point of law raised. See Okonji v. Njokanma (1992) 12 SCNJ 259 at 277.

I think a respondent may be placed on an equal footing, where he introduces an objection to the hearing of an appeal. His objection and submissions thereon may be regarded as the basis of his first brief. Where the

8 appellant responds to the objection and new points or issues are raised therein, the respondent may equally be entitled but limited to reply to such new points or matters of law as raised by the appellant/respondent to the Preliminary Objection. The points of law replied by the respondents in their Preliminary Objection, are, in my humble view, properly raised Emodi v. Kwento (1996) 2 SCNJ 134; Okonji v. Njokanma (supra). This, in my view is also in compliance with the law of fair hearing.

The crux of the objection by the respondents is that the three grounds of appeal in this appeal do not relate to the factual basis upon which the Ruling of the court below was based on the incompetent Notice of Appeal filed on 14/6/2010. Secondly, the sole issue for the determination of the appeal which is distilled from the incompetent grounds of appeal is also incompetent. Learned SAN for the respondents cited and relied on the case of Alakija v. Abdulai (supra).

My lords, I find it interesting (although boring) to start by setting out the proceedings, including the Ruling of the court below, conducted on the 23rd day of October. 2013:”

Dr. A. I. Layonu, SAN with O. Awonuga

9 and Isa Seidu for appellants L. E. Nwosu, SAN with E. E. Asido, Mary Ann Nnamani and A. Nworgu for respondents/preliminary objectors.

Dr. Layonu, SAN: We as appellants have pending applications. There are also pending motions by the respondents on preliminary objection.

Nwosu, SAN: We filed preliminary objection and we are prepared to move it now.

Dr. Layonu, SAN: We ask for adjournment I am here this naming at the instance of Mr. Akoni, SAN who is counsel to appellants. He is presently stuck in London.

COURT: Adjournment sought is hereby refused. We have had so many adjournment previously at the instance of Mr. Akoni SAN in this matter. We cannot continue to over indulge him.(Sgd)

Ejembi Eko

Justice, Court of Appeal

Presiding

23/10/2013

Dr. Layonu SAN: We have pending applications filed on 15/4/2013 (to amend) 15/4/2013 (to pay shortfall of filing fee) 17/9/2013 (for stay of further proceedings)

I will allow Nwosu, SAN to take his preliminary first, then I respond.

Nwosu SAN: Our motion filed on 11/4/2013 prays that the appeal being incompetent be struck out. The ground for the application is inadequate filing fee.

To give credence to our application the appellants on

10 15/4/2013 filed a motion praying that they be allowed to pay shortfall of the filing fee. They originally paid N500.00. They wanted the court to allow thempay the balance of N4,500.00. By this conduct appellants admit our preliminary objection vide their Exhibit AEA 2.

The Notice of Appeal was filed on 14/6/2010 – See p 1758 of Vol. 4 at the Record. They paid only N500.00

There is no appeal before this court. The appeal is incompetent. We urge that the appeal be struck out.

Dr Layonu, SAN. The preliminary objection did not mention the Notice of Appeal in question. That is a question of fact. We filed no counter-affidavit because it did not come by way of motion on Notice.

In March this year an application was granted to appellant to amend the Notice of Appeal. We have since amended and served an (sic) amended Notice of Appeal. The original Notice of Appeal is no longer a life process. It is gone forever. The only extant Notice of Appeal is the amended Notice of Appeal.

Once an amendment has been granted it relates back to the time of filing. The life Notice of Appeal now is the further amended Notice of Appeal filed on 21/1/2013. We paid N1,100.00 for filing that

11 process, as assessed by the registry of this court. See Part II Third Schedule p. 157 Rules of this Court the fee is N1,000.00. Preliminary Objection be dismissed. There are dead parties see pp.2239, 2285 and 2292 3rd 4th, and 7th respondents are dead. See Order 15 Rule 3 . See: Unity Bank Plc. v. Denclan (2012) 18 NWLR (pt 1332) 293 at 327 B – F. A litigant should not suffer for fault of his counsel.Preliminary Objection be dismissed.

Nwosu SAN: Order 7 Rule 11 says appeal is brought when the Notice of Appeal was filed at the court below. It no Notice is brought there is no appeal.

Dr. Layonu says some parties are dead. He sued dead parties. That vitiates the appeal. This appeal deserves to be struck out, on authorities of even this court.

Court: Dr. Layonu move your motion for us to make composite Ruling.

Dr. Layonu SAN: We move motion filed on 17/9/2013 first. It prays for stay of further proceedings in this appeal pending the outcome of Supreme Court decision in this matter particularly SC.162/2013: NAOC v. NKWEKE.

I now say that we ask for adjournment instead of stay of proceedings, see: Bames v. Black Horse (2012) EWHC 1950 QB delivered on 14/6/2012. Where

12 there are numerous appeals on one issue atSupreme Court it is desirable that there is an adjournment pending determination by the Supreme Court.

At this Juncture, I prefer that our application for Order to pay shortfall on filing fee be adjourned until the Ruling in the two applications.

Nwosu, SAN:He cannot orally pray for alternative prayer outside the Relief on the motion on notice.

We are not parties to the suit at the Supreme Court. We oppose the adjournment sought in alternative. If there is no appeal there is nothing to stay proceedings in.

Court: Dr. Layonu. SAN please move your motion filed on 15/4/2013 for leave to pay shortfall of N4,500.00 filing fee.

Dr. Layonu, SAN: I hereby withdraw the motion.

Nwosu SAN: No objection

Court: Motion filed on 15/4/2013 for leave to pay shortfall of filing fee is hereby struck out having been withdrawn.

(Sgd)

Ejembi Eko

Justice, Court of Appeal

Presiding

23/10/2013

Dr. Layonu, SAN Motion filed on 16/4/2013 seeks leave to further amend the Notice of Appeal. I want to defer that motion.

Court: A date will be given for the motion filed on 16/4/2013 will be given (sic) after the Rulings in the preliminary Objection and motion for

13 stay of further proceedings.

(Sgd)Ejembi Eko

Justice, Court of Appeal

Presiding

23/10/2013

RULING

On 11/4/2013 L. E. Nwosu, SAN of counsel for the respondents/objectors in this appeal filed Notice of Preliminary Objection urging inter alia that the appeal be struck out for being incompetent. The ground for preliminary objection is that the appellants paid N500.00 instead of N5,000.00 filing fee for the Notice of Appeal at pages 1607 – 1614 at Vol. 4 of the Records of Appeal.

This court is entitled to look at its own records, and we have looked at pages 1607 – 1614 of Vol. 4 of the Records of Appeal. The fee paid for the said Notice of Appeal filed on 16/6/2010 was N500.00. The Appeal was filed under the 2007 Rules of this court. Order 12 Rule 1 and Part II Third Schedule to the 2007 Rules are impari – materia with Order 12 Rule 1 and Part II Third Schedule to the 2011 Rules of this Court .

The judgment appealed was delivered on 14/6/2010. That means the appellants had up to 12/9/2010 to file appeal in accordance with Section 24 of the Court of Appeal Act 2004 which allows an aggrieved litigant to appeal within 3 months or 90 days. We had stated in Engr O. Ibeabuchi

14 & Ors v. Samuel Ikpokpo & Ors (CA/PH/406/2009 on 16/1/2013) that it is the duty of the litigant to pay the prescribed filing fee to enable the courts to function to start and that unless the fees for filing Notice of Appeal against the decision of the court below 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 lacks jurisdiction over such an appeal or process since as at the close of 90 days prescribed for filing the Notice of Appeal the partial or inadequate payment of the filing fee would render the process both inchoate and invalid as at the close at expiration at the 90 days prescribed for filing that process.

Dr. A. I. Layonu, SAN says that the original Notice of Appeal having been amended the defect in the original process had been cured. The question then is whether an invalid process void ab initio, can be amended. Lord Denning MR had stated in UAC v. MACFOY that one cannot place something upon nothing and expect it to say. That takes care of Dr Layonu SAN submission. The Notice of Appeal is the originating process. If it is invalid

15 and void ab initio then the entire appeal founded on it including the amended Notice of Appeal all remain invalid and a nullity.

Having looked at page 1614 of Vol. 4 of the Records of Appeal and seen that the fee endorsed as having been paid for filing the Notice of Appeal is N500.00 N4,500.00 short of what is mandatorily required to be paid by dint of Order 12 Rule 1 of the Third Schedule to the 2007 Rules of this Court, it is my firm view that the appeal is incompetent and it is hereby struck out. I said so in IBEABUCHI v. IKPOKPO (supra) and I have no cause to depart therefrom. I commend the ingenuity of Dr. Layonu, SAN in this matter. He was bright but the facts do not support his position. Dr. Layonu, SAN argued his notion filed on 17/9/2013 praying for stay of further proceedings in the matter pending the outcome of the numerous appeals on this issue of filing fee at the Supreme Court. He later abandoned that sole relief in the motion for an application for adjournment. L. E. Nwosu, SAN is right in the submission that he could not pray orally for alternative relief outside his motion on Notice. The effect of this is that the sole relief in the motion has

16 been abandoned and so it deserves to be, and is hereby struck out.

In view of all I have been labouring to say in the matter appeal No. CA/PH/396/2012, being incompetent is hereby struck out. All pending motions in the appeal are also struck out.

I agree.

(SGD) S. J. ADAH JCA

23/10/2013

(SGD) EJEMBI EKO JCA (PRESIDING)

23/10/2013

(SGD) MODUPE FASANMI JCA

23/10/2013″.

Now, I think as far as this appeal is concerned, the only valid notice of Appeal which is extant is the one filed by the appellants on the 23rd day of October, 2013. This is fortified by both the senior learned counsel for the appellants as well as the senior learned counsel for the respondents respective introductory parts of their briefs.

Permit me to quote both one after the other.

Mr. Akoni, SAN

“This is an appeal against the Ruling of the Port-Harcourt division of the Court of Appeal … delivered on 23rd October, 2013 whereby the court stuck out the appellants appeal against the judgment of the Asaba division of the Federal High Court …which was delivered on 14th June, 2010.

The Appellants’ Notice of Appeal to this Honourable Court was filed on 23rd October, 2013 at the registry of the lower court and the

17Registrar of the lower court consequently compiled and transmitted the 7 volume Record of Appeal (the Record) to this Honourable court in line with the relevant rules of this Hon. Court. This is the appellants’ brief of argument containing arguments on the appellants grounds of appeal. Mr. Nwosu, SAN”

(ii) What gave rise to this further appeal was the Ruling striking out of an incompetent Notice and Grounds of appeal at the court below.

(iii) The Notice and Grounds of appeal arising therefrom dated and filed on 23/10/13 is characteristically replete with manifest falsehood as we shall demonstrate later in this brief.(underlining for emphasis)

It is thus, pretty clear my lords, that this appeal is only anchored on the Notice and Grounds of Appeal filed on 23/10/13 against the Ruling of the court below delivered on same date.

The said Notice and Grounds of Appeal are contained on pp.2918 of Vol. 7 of the Records of Appeal. For ease of reference and clarity the grounds of appeal are as set out below:

“GROUND 1

The court below erred in law when it struck out the appellants appeal on the ground of lack of jurisdiction.

PARTICULARS OF ERROR

i. Payment

18 of insufficient fees does not render a case incompetent and does not affect in any way the jurisdiction of the court.

ii. The party who inadvertently pays insufficient filing fees must take adequate steps to remedy the irregularity by filing an application for leave to pay the shortfall of the fees

iii. By virtue of a plethora of Supreme Court authorities the usual remedy for a party who pays insufficient filing fees for a court process is for the court to make an order for the balance to be paid.

GROUND 2

The Court of Appeal erred in law in refusing to adhere to the decision of the Supreme Court in the cases of Akpaji v. Udemba (2009) 10 NWLR (Pt.1138) 545 and Onwugbufor & 2 Ors v. Okoye & 3 Ors (1996) 1 NWLR (Pt. 424) 252.

PARTICULARS OF ERROR

i. The Supreme Court has held in a plethora of judicial decisions that the proper order for a court to make in respect of payment of insufficient fees for a process in the face of a remedial application is payment of the shortfall.

ii. All courts by virtue of the doctrine of stare decisis or judicial precedent are duty bound to adhere to the decision of superior courts and it is bedrock of Nigerian judicial

19 policy.

iii. The finding of the court below flies in the face of the settled position of the law on the bindingness of the judgements of superior courts on lower courts.

GROUND 3

The court below erred in law when it struck out the appellants appeal owing to payment of inadequate filing fees.

PARTICULARS OF ERROR

i. Payment of insufficient fees does not render a case incompetent and does not affect in any way the jurisdiction of the court.

ii. The party who inadvertently pays insufficient filing fees must take adequate steps to remedy the irregularity by filing an application for leave to pay the outstanding fees. The appellants filed such an application dated 15th April, 2013, after paying the outstanding fees in order to regularise. However the court below discountenanced same and struck it out.

iii. By virtue of a plethora of Supreme Court authorities the usual remedy for a party who pays insufficient filing fees for a court process is for the court to make an order for the balance to be paid.”

These are the grounds of appeal challenged by the learned SAN for the respondents that they do not relate to the factual basis upon which the Ruling of the lower court

20 appealed against was based.

On the other hand, the issue for determination of the appeal as couched by the appellants reads as follows:

“Whether the jurisdiction of the lower court to hear the appellants appeal was ousted by the inadequacy of filing fees assessed by the Registry of the trial court with regard to the appellants’ Notice of Appeal dated 8th September, 2010.”

Learned SAN for the respondents argued that the appellants sole issue which is distilled from the above incompetent grounds of appeal is also incompetent and liable to be struck out. He relied on Alakija v. Abdulai (supra).

Consequent upon that he argued further, that the appeal is incompetent and liable to be dismissed.

Your noble lordships a sober comparison and reflection over the Ruling of the court below delivered on the 23/10/13: the Notice and Grounds of Appeal filed by the appellants on 23/10/13 against the said Ruling: the sole issue framed by the appellants for deciding the appeal and the Notice and arguments for and against the Preliminary Objection, I am left in no doubt that the grounds of appeal as per the Notice of Appeal of 23/10/13, particularly grounds Nos 1 and 3 do properly

21relate to the said Ruling of 23/10/13 by the court below. The complaints by the appellants in grounds Nos. 1 and 3 of the said Notice of Appeal were primarily to show that payment of insufficient filling fees could not render an appeal incompetent as held by the court below. The court below held inter alia:

”Having looked at pages 1614 of Vol.4 of the Records of Appeal and seen that the fee endorsed as having been paid for filing the Notice of Appeal is N500.00. N4,500.00 short of what is mandatorily required to be paid by dint of Oder 12 Rule 1 of the Third Schedule to the 2007 Rules of this Court , it is my firm view that the appeal is incompetent and it is hereby struck out. In view of all I have been labouring to say in this matter appeal No. CA/PH/396/2012 being incompetent is hereby struck out…”(underlining for emphasis)

Thus, if grounds 1 and 3 of the said Notice of Appeal do not relate to the court below’s Ruling of the 23/10/13, I wonder what would be more appropriate

Equally I am of the humble view that the sole issue formulated by the appellants is properly and adequately covered by the said grounds of appeal particularly grounds 1 and 3.

On ground of

22 appeal No. 2 of the Notice of Appeal of 23/10/13. I tried to locate it within the con of the said Ruling. I find it difficult to make a headway! Perhaps, I may have to agree with the learned senior counsel for the respondents in his submission in the reply on points of law on the Preliminary Objection that appellants’ contention in their reply brief that having made mention of the cases of Akpaji v. Udemba (supra) and Onwugbufor v. Okoye (supra) a total of 18 times in their brief of argument it cannot be said that they abandoned ground 2 of the appellants’ Notice of Appeal is also misconceived. Learned senior counsel for the respondents went on to argue as follows:

“We further submit in the first place that there is nowhere in the appellants brief where the appellants showed from which grounds of appeal their issues for determination was distilled from (sic). Secondly, going by the tenor and manner the issue was couched by the appellants, it can only be referable to grounds 1 and 3 of the Notices (sic) of Appeal and not to ground 2 which complained of an entirely different matter from grounds 1 and 3. Finally assuming the ground 2 is validly argued under the

23 appellants said issue the respondents have responded to same in respondents’ issue”

(underlining for emphasis)

I do not have to belabour this point any further, my lords. It is crystal clear that ground No.2 of the three grounds of appeal contained in the said Notice of Appeal of 23/10/13, cannot relate to the court belows Ruling of 23/10/13. It must be deemed abandoned by the appellants and it is hereby struck out.

On the whole, the preliminary objection is largely overruled while it only succeeds on ground 2 of the grounds of appeal. As the remaining two grounds of appeal i.e. 1 and 3 are found by me to be properly related to the Ruling of the court below of 23/10/13 and have fully covered the issue formulated by the appellants. I shall now, as a result go ahead to consider the appeal proper.

I earlier on made reference to the briefs of argument filed by the parties Learned senior counsel for the appellants formulated the following issue for the determination of the appeal:

“Whether the jurisdiction of the lower court to hear the appellants appeal was ousted by the inadequacy of filing fees assessed by the Registry of the trial court with regard to the

24 appellants Notice of Appeal dated 8th September, 2010.

“The learned senior counsel for the respondents submitted on the above sole issue for determination by the appellants that the issue appears to be distilled from grounds 1 and 3 of the Notice of Appeal filed on 23/10/13. He stated that the issue is incompetent having been distilled from incompetent grounds of appear. However he proffered an alternative argument in the circumstances and without prejudice to the notice of preliminary objection. He then proceeded to formulate his issue for determination from same grounds 1 and 3 of appeal filed in his appeal, as follows:

“Whether the court below was right when it struck out the appellants appeal on ground of incompetent (Grounds 1 and 3 of the Notice of Appeal)

While treating respondents’ preliminary objection earlier, I set out the grounds of appeal as contained in the Notice of Appeal of 23/10/13. Both parties agree that the live ground of appeal are Nos. 1 and 3. Both senior counsel related their respective sole issue to these grounds of appeal. Ordinarily I would have gone ahead to treat this appeal on appellants, sole issue But now that the senior

25 counsel for the respondents showed his disagreement with the appellants sole issue and went ahead to formulate his own, makes me feel bound to examine the two issues vis-a-vis the said grounds of appeal. But let me observe firstly that the appellants’ sole issue is on whether the court below lacked the necessary jurisdiction (ouster of jurisdiction) to entertain the appeal brought to it through Notice of Appeal of 23/10/13. The question of lack of jurisdiction was as a result of the lower court’s finding of inadequacy of filing fees” assessed by the Registry of trial court.

Respondents’ issue, on the other hand, distilled from the same grounds of appeal is supported by the argument of the learned SAN for the respondents that:

“The arguments under this issue are premised on the ground that even if the appellants appeal had been premised on the Notice of Appeal filed on 14/6/2010 which was the object of the Ruling of the lower court, this appeal would also have been liable to fail as it is devoid of merit the simple reason being that even the Notice of Appeal filed on 8/6/2010 but corrected by the learned SAN to 8/9/2010) is also defective the appellants having

26 failed to pay the prescribed fee of N5, 000.00 thereon.”

It can thus, be seen clearly, that what ousts the jurisdiction according to the learned SAN for the appellants is “inadequacy of filing fees” assessed by the Registry of the trial court. What makes the appeal incompetent before the lower court, according to the learned SAN for the respondents is the simple reason that even the Notice of Appeal filed on 8/9/2010 is a so defective the appellants having failed to pay the prescribed fee of N500.00 thereon.”

My humble understanding is that both issues are aiming, primarily at one and the same thing, and that is: whether payment of inadequate filing fee can affect the competence, capacity of court action/appeal and ipso facto, affecting equally, the authority, power or jurisdiction of a court of law. In case of the former, the defect makes the action or appeal, incompetent. In the case of the latter, the defect per se removes, the power, capacity authority or jurisdiction of the court or tribunal. In other words, the defect ousts the jurisdiction of that court or tribunal. Black, says, incompetency, is a relative term which may be employed as meaning

27disqualification, inability or incapacity and it can refer to lack of legal qualifications or fitness to discharge the required duty and to show want of physical or intellectual or moral fitness.

Jurisdiction, on the other hand is the authority by which courts and judicial officers take cognizance of and decide cases. It is the legal right by which judges exercise their authority. Black, says further, it exists when court has cognizance of class of cases involved proper parties are present and point to be decided is within powers of court.

In Madukolu v. Nkemdilim (1962) 2 SCNLR 341, this court laid down in clear terms factors determining the jurisdiction of a court:

a) that the subject matter of the case is within its jurisdiction:

b) that there is no feature in the case which prevents the court from exercising its jurisdiction;

c) that the case comes before the court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.

The point in dispute in this appeal is, as it appears to me and as is agreed to by both learned senior counsel for the respective parties i.e. payment of inadequate filing fee at the trial

28 court’s Registry. So each of the two respective sole issues framed by the learned senior counsel for the respective parties, to my mind is just on issue of much of a muchness. They are almost alike. Thus, in view of the new issue formulated by me as shown by the underlining before the last as above. I will now proceed, hereunder to determine the appeal.

The learned SAN for the appellants, submitted that the respondents though, belatedly, challenged the competence of the appellants appeal at the court below based upon the ruling of the same court in CA/PH/406/2009 – Engr. Okey Ibeabuchi & Ors v. Mr. Samuel Ikookpo & Ors on the sole ground that the appellants paid the sum of N500.00 for the filing of its Notice of Appeal of 8th September, 2010 as against the sum of N5, 000.00 prescribed under Order 2 Rule 1 of the Court of Appeal Rules, 2011. The appellants submitted further, that they being aware of the Ruling of the lower court in CA/PH/406/2009 (supra), had paid the alleged outstanding sum of N4, 500 00 and they exhibited an official receipt to that effect. Learned SAN for the appellants argued further, that the holding of the lower court that the

29 shortage in payment of the required fee made the appeal incompetent, thus, striking out the appeal occasions a devastating miscarriage of justice to the appellants and the decision is manifestly erroneous. Learned SAN for the appellants supported his above argument with more reasons amongst which are that:

i. the Court of Appeal Rules cannot validly stipulate the appropriate filing fees for a process filed at the Federal High Court;

ii. payment of inadequate/insufficient filing fees cannot and does not rob the lower court of jurisdiction to hear the appellants appeal:

iii. The appellants’ ought not to be punished for an alleged error by the registry of the trial court.

iv. the appellants’ Notice of Appeal dated 8th September, 2010 had been amended by a subsisting Order of the lower court and as such, the said Notice of Appeal was no longer a live process before the lower court.

Learned senior counsel for the respondents, made his submissions in support of the issue he formulated. He argued that even if the appellants’ appeal had been premised on the Notice of Appeal filed an 14/6/2010 which was the object of the Ruling of the lower court this appeal would also

30 have been liable to fail as it is devoid of merit. The simple reason being that even the Notice of Appeal filed on 8/9/2010 is also defective the appellants having failed to pay the prescribed fee of N5,000 00 thereon. Learned senior counsel then went on to make further submissions on grounds of appeal numbers 1 and 3 and their particulars. He argued that on 23/10/13, appellants deliberately withdrew their motion dated 15/4/2013 for leave to regularize and pay the shortfall of the filing fees after counsel to respondents had introduced their motion dated 11/4/2013 to strike out the appeal for non payment of the full filing fees. He pointed out that by that withdrawal there was not in existence any application to regularize the defect in the payment of the filing fees. Learned SAN for the respondents submitted further, that by the authorities of Onwugbufor v. Okoye (supra) and Akpaji v. Udemba (supra) relied heavily upon by the appellants the law is pretty settled that the duty imposed by law is on the plaintiff or an appellant as the case may be to pay requisite fees in the filing of their originating processes as prescribed by the relevant statute and rules

31 of court made thereunder to enable the court’s judicial function to commence. He argued further that a process which was filed without payment of the requisite fees ought to be struck out in the absence of an appropriate remedial action or application to regularize such anomaly. He relied on the two cases cited above.

In response to the nine points raised by the appellants in their brief of argument some of which I set out earlier. Learned senior counsel for the respondents submitted inter alia: that the Court of Appeal Rules. Order 12 Rule 1, cannot validly stipulate the appropriate filing fees for a process filed at the Federal High Court, was not raised at the court below and is being raised as a fresh point without leave of this court and it could be discountenanced. Or alternatively, it lacks merit. He cited the cases of Maskala v. Silli (2002) 13 NWLR (Pt. 784) 216 at 226 E-F: Onyemaizu v. Ojeako (2010) 4 NWLR (Pt. 1185) 504 at 525 – 526 H-E. On the cases cited by the appellants i.e. Ogwu v. IGP (supra) and Onwugbufor v. Okoye (supra) in support of their submissions on which Rules of court control payment of filling fees the learned SAN for the

32 respondents argued that those cases arose from State High Courts and that such State High Court Rules made provisions for fees payable on appeal to the court below in contradistinction to appeals from the Federal High Court to the court below which by its establishment Act are subject to the Rules of the Court of Appeal. He argued that such provisions in the various state High Court Rules, to the extent of their inconsistency to S.243(1) of the Constitution, are pro tanto void. That from the provisions of Section 248 of the Constitution and S.32 of the Federal High Court Act any right of appeal from the decisions of the Federal High Court to the Court of Appeal shall be exercised in accordance with the Rules of the Court of Appeal and not the Rules of the Federal High Court. He urged this court to hold that the Rules of the court below regulate and govern the fees payable in respect of appeals from the decisions of the Federal High Court to the court below.

On the payment of inadequate/insufficient filing fees the learned SAN for the respondents submitted in paragraph 4.15.1 that the respondents cannot and will not contest the fact that the payment of insufficient

33 filing fees does not affect the jurisdiction of the court as it has been settled by a plethora of decisions by this apex court. He stated that the decisions of this court were not extended to mean that a carte blanche has been handed to an erring appellant to get away with either non or short payment of prescribed filing fees. There are conditions attached. The learned SAN for the respondents made copious submissions on other points raised by the appellants in their brief such as acquiescence by the respondents: rectification of the insufficient filing fees; appellants ought not to be punished for an alleged error by the registry of the trial court; the appellants Notice of Appeal dated 8/9/2010 having been amended was no longer a live process before the lower court and that injustice was occasioned to the appellants I may be referring to some of these submissions as circumstances may demand, anon. The learned SAN for the respondents urged this court to answer his issue in the affirmative against the appellants.

The Learned senior counsel for the appellants found that new points of law were raised by the learned senior counsel for the respondents in his brief

34of argument. He replied to these new points in his reply brief. I shall take these new points along with my consideration of the main briefs filed and argued by the parties in this appeal.

My Lords, it is elementary to state that an appeal in our adversarial system is initiated by filing a Notice of Appeal. The Notice of Appeal is the foundation of a proper and valid appeal. Relying on some decisions of this court, the famous legal writer, Nwadialo SAN, in his book: Civil Procedure in Nigeria (2nd ed. page 802), re-stated the settled law as follows:

Where an appeal lies as of right, it is brought by the appellant filing in the registry of the High Court or any other court or tribunal from the decision of which the appeal is brought a notice of appeal in Form 3 of the First Schedule the notice of appeal is the foundation of a proper appeal. Where the notice of appeal is null and void there can be no valid appeal pending before the appellate court. The notice is filed in the registry of the court below and not in that of the Court of Appeal. An appeal is deemed to have been brought upon filing of the Notice of appeal in the registry of the High

35 Court.

(underlining for emphasis)

Nwadialo, SAN: cited and relied on the cases of: Oketie v. Olughur (1995) 5 SCNJ 217; IBWA v. Pavex International (2000) 4 SCNJ 200 at 227; Harriman v. Harriman (1987) 3 NWLR (Pt) 244 at 256; and some court rules Order 6 of the Court of Appeal Rules of 2007. Rule 1 (one) thereof, provides that Part 2 (two) of the Rules shall apply to appeals to the court (Court of Appeal) from any court or tribunal acting either in its original or appellate jurisdiction in civil cases and to matters related thereto Order 6 Rule 2, sub-rule (1) provides as follows:

“(1) All appeals shall be by way of rehearing and shall be brought by Notice of appeal (hereinafter called “The notice of appeal”) to be filed in the registry of the court below. (underlining for emphasis)

By the above provisions therefore, any party who is aggrieved by the decision of any High Court, including the Federal High Court the High Court of the Federal Capital Territory and now the National Industrial Court and or Tribunal, shall (by way of necessity not by choice) file his Notice of Appeal in the registry of that trial/first instance court or tribunal. Thus, a Notice

36 of appeal in respect of decisions of such trial courts or tribunals filed at the registry of the Court of Appeal is a non starter and the Court of Appeal will discountenance same as it cannot deem it properly filed. That of course, is its right and proper venue.

However, a Notice of appeal filed at the registry of the Court of Appeal after the record of appeal has been compiled and transmitted to the Court of Appeal and served on all parties and appeal has been entered is properly filed because it will amount to duplicity of efforts, resolves and a waste of time if such notice of appeal is to be filed in the registry of the court below. Equally, for appeals emanating from the decisions of the Court of Appeal to the Supreme Court, notice of appeal in respect thereof should be filed at the Court of Appeal (Order 2 Rule 4 of the 2007 Supreme Court Rules). It is to be noted however, that there are several Judicial Divisions of the Court of Appeal and a notice of appeal must be filed at the relevant registry of the appropriate judicial Division from which the appeal emanates within the time prescribed time limit. An appeal is deemed to have been brought upon filing

37of the Notice of appeal in the registry of the Court of Appeal.

Filing fees in civil appeals are generally set out by the Rules of Court and paid to the registrar of the appropriate court from which the appeal emanates.

The filing fees for appeals to the Court of Appeal are provided by Order 12 Rule 1 of the Court of Appeal Rules of 2007.

It states, inter alia:

“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…”

(underlining for emphasis)

Third Schedule of the said Rules, prescribes amongst others, the following:

“On filing of Appeal against a final judgment or decision … N5,000.00-

On filing Notice at Appeal against an interlocutory order or decision N5,000.00-

On filing Notice of Appeal where leave is granted … N5,000.00-

On filing Amended or Additional Grounds of Appeal (various fees ranging from N1,000.00 – N2,000.00 depending on the period of filing).”

Before considering the actual Notice of Appeal filed by the appellants from the decision of the Federal High Court, it is

38 pertinent to state that two Notices of appeal were filed by the appellants against the decision of the Federal High Court of 14th June, 2010. Both the appellants and the respondents indicated in their briefs of arguments that two Notices of Appeal were initially filed Learned SAN for the appellants stated in paragraph 2-3 of his reply brief that:

“Following the judgment of the Trial Court on 14th June, 2010, the appellants filed two Notices of Appeal within the three months period for appealing against the judgment as of right. The first Notice was filed an the same 14th June, 2010 (copied at pages 1607 – 1614, Vol.4 of the Record) while the second Notice was filed on 8th September, 2010 (copied at pages 1905-1912 Vol. 5 of the Record)

Learned senior counsel for the respondents stated in paragraph 1.20 of his brief of argument as follows:

“Before the lower court the appellants filed two separate Notices of Appeal. The first one was dated and filed on 14/6/2010, while the second one was filed and dated 8/9/2010. See pages 1607 – 1614 of Volume 4 of the Record; and page (sic) 2742 – 2749 of Volume 7 of the Records respectively. The appellants themselves compiled

39 the records of appeal and purportedly paid the sum of N500.00 for each Notice of Appeal as prescribed by the Rules of the Court of Appeal which governed the filing of such processes”

I think I should remind your lordships that in a plethora of cases, this court has permitted an appellant to select and rely on one Notice of Appeal where he filed several Notices of Appeal. The one he has chosen or selected or relied upon must be the extant Notice of Appeal. All others, whether they are 101 or more, must be taken to be abandoned whether there is a formal application to strike out such abandoned notices of appeal or not; Neither the appellants, nor any of the parties can be heard again on any such ‘dead’ notice(s) of appeal. In the appeal before the court below, the appellants selected and relied on the Notice of Appeal filed by them on the 8th of October, 2013. That was why they sought and obtained leave to amend it. Motion to amend was moved and same was granted by the court below, without objection on the 3rd day of December, 2012 (p. 2760 of Vol. 7 of the Records of Appeal). The appellants were granted seven days within which to file amended notice of

40 appeal. Appellants filed their amended notice of appeal on the 5th day of December, 2012 (two days after the ruling). It must therefore, be taken, for all intents and purposes that the amended Notice of Appeal (filed within time and paid for as per Order 12 Rule 1 of the Court of Appeal Rules 2007) was properly filed and I so hold.

The contention of the learned senior counsel for the respondents (paragraph 4.33 of his brief of argument) that the appellants, notice of appeal filed on 8/9/2010 being an incompetent originating process remains incompetent notwithstanding that it was subsequently amended. On the legal effect of an amendment of an incompetent originating process as having no curative effect on the originating process, the learned SAN for the respondents cited and relied on the case of Ministry of works and Transport. Adamawa State v. Yakubu (2013) 6 NWLR (pt. 1351) 481 at p.496 C – E.

But, one may ask: what makes the Notice of Appeal filed by the appellants on 8/9/2010, incompetent The learned SAN for the respondents (paragraph 4.33 of his brief of argument) argued as follows:

“Although the incompetent nature of the notice of appeal of the appellants in this case did

41 not arise from the signing of the originating process by a law firm, we humbly submit that failure to pay the prescribed fee for filling of the Notice of appeal as in this case also renders the notice of appeal incompetent. See: Onwuobufor v. Okoye (supra) Consequently, the only way to remedy the defective notice of appeal is through “an appropriate remedial action or application to regularize such anomaly.” See Onwugbufor v. Okoye (supra), and not by amendment of the originating summons. We finally submit on this point that the anomaly and incompetence that plagued the original notice of appeal was not cured by the subsequent amendment. And we humbly so urged.”

(underlining for emphasis)

The defect in the said notice of appeal and its suggested remedy have now been identified.

However, in the case of Onwuobufor & 2 Ors v. Okoye & 3 Ors (1996) 1 NWLR (Pt. 424) 252, cited and relied upon by both senior counsel for the respective parties, the salient facts in that case show that appellants as plaintiffs at the trial court filed an application for the amendment of their statement of claim to include, inter alia an additional claim for forfeiture of the

42 respondents tenancy over the land in dispute. The application was granted and amendment sought was allowed. The plaintiffs were to file same within 7 days and also pay the appropriate court fees for forfeiture claimed on paragraph 14(d). That was on the 21st of April, 1983. On the 25th April the plaintiffs duly filed their amended statement of claim which EX FACIE showed that no summons fees as ordered by the court in respect of the new claim for forfeiture were paid by the appellants. On appeal to the Supreme Court on same issue, the Court, per Igwu JSC (rtd.) commented, inter alia:

”Quite apart from the fact that court orders must be obeyed as directed, it cannot be overemphasised that for a valid and effective commencement of a claim, an intending plaintiff shall strictly comply with the provisions of relevant statutes and the rules made thereunder and governing the claims made such as the High Court Law and Rules of Anambra State. 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 courts judicial functions to commence. A court shall not

43 entertain a relief claimed without payment of the prescribed requisite fees unless such fees have been WAIVED at REMITTED by the court or such fees are payable by a Government Ministry or non- Ministerial Government Department or Local Government pursuant to the provisions of the said High Court Rules of Anambra State. 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 property before the court and should be struck out in the absence of an appropriate remedial action or application to regularise such anomaly.

In the present case NO PAYMENT whatever was made by the appellants in respect of their new claim for forfeiture. Payment of the prescribed fees being a condition precedent to the filing of a valid claim before the court it seems to me clear that the claim for forfeiture in the present suit is incompetent improperly before the court and ought to be struck out.

(underlining for emphasis)

From the above quoted portion of the decision in Onwugbufor v. Okoye (supra), as cited and relied upon by the learned SAN for the respondents, four points are clear to me. They are as

44 follows:

1) Court Rules must be obeyed

2) Where a statute prescribes payment of fees for initiating an action, that fees as a matter of law must be paid before the commencement of action.

3) Where the plaintiff who is required to effect payment of the prescribed fees, refuses, fails or neglects to make such payment as required, his action/claim shall be struck out by the Court.

4) Where there is a remedy to regularise the claim/action, the court should allow an application for the remedy to take effect.

It has been seen earlier that the only defect identified with the Notice of Appeal of 8/9/2010 is that insufficient/inadequate filing fees was paid at the point of filing. There is dire need to find out what really happened. I recapitulate the events in steps as follows:

1) Judgment was delivered by the trial Court on the 14th of June, 2010

2) 1st notice of appeal was filed on the same 14th of June 2010

3) Another (2nd) notice of appeal was filed on the 8th of September, 2010.

4) Appellants filed motion which was granted by the Court below on 3rd of December, 2012 for the amendment of the notice of appeal filed on 8/9/2010.

5) Amended Notice of Appeal was filed on

45 5/12/12

6) On the 11/4/2013, learned counsel for the respondents filed a Notice of Preliminary Objection. He again filed a Motion on Notice on same date. The Notice of Preliminary Objection and the Motion on Notice sought for the striking out of the appeal as it was incompetent on the ground of shortfall of the filing fees.

7) On the 15/4/2013 appellants filed a motion on Notice for leave to pay shortfall of filing fees which was withdrawn and strike out on 3/10/2013.

8) The Motion on Notice was moved by the learned SAN for the respondents. It was responded to by the learned SAN for the appellants/respondents.

9) The court below delivered on the bench ruling. I made a finding that the appeal was filed under the 2007 Rules of the Court of Appeal, Order 12 Rule 1, Part 11, Third Schedule thereof which required the appellants to pay N5,000 00 (Five Thousand Naira) instead of N500.00 (Five Hundred Naira). It also made a finding that the partial or inadequate payment of the filing fees rendered the process both inchoate and invalid.

10) Based on the findings as in step (8) above, the court below held that the appeal was incompetent and struck it out.

The appeal at the court

46 below was filed pursuant to the provisions of the Court of Appeal Rules 2007. (The court below made a finding to that effect). The filing fees for a Notice of Appeal in respect of final judgment or decision is N5, 000 00 (Five Thousand Naira Only) Learned SAN for the appellants stated that the appellants filed a Notice of Appeal to the lower court dated 8th September 2010. The said Notice of Appeal was assessed for filing at the registry of the trial court and consequently, the appellants paid a total sum of N800.00 for filing of the said Notice of Appeal at the registry of the trial court. On filing the amended Notice of Appeal on 5/12/12, at the court below, the appellants paid the sum of N1,000 00 (One Thousand Naira Only) which is the filing fee stipulated under the 3rd Schedule of the Court of Appeal Rules for filing an amended Notice of Appeal.

The said Notice of Appeal filed by the appellants on 8/9/2010 is contained on pages 1905 – 1912 of Vol. 5 of the Records of Appeal Endorsed on page 1912 (last page of the Notice of Appeal), the following was made by the cashier’s office of the Federal High Court, Asaba, Delta State:

“N/Appeal – N500.00

S/M –

47 N200.00

folio – N100.00

= = = = =

N800.00

= = = = =

In his further submissions in his brief of argument, learned SAN for the appellants stated that the court below delivered a ruling in Appeal No.CA/PH/406/2009: Engr. Okey Ibeabuchi & Ors v. Mr. Samuel Ikpokpo & Ors on 16th January, 2013 to the effect that the appropriate filing fees for a Notice of Appeal under the Court of Appeal Rules is N5,000.00 and any Notice of Appeal filed without payment of the sum of N5,00.00 is incompetent and liable to be struck out. He said he paid the outstanding filing fees of N4,500.00 in respect of the original Notice of Appeal, even though amended with leave of court. He said he notified the Lower Court accordingly by exhibiting before the Lower Court an official receipt for the said sum.

Now, a Motion on Notice to regularize the payment in respect of the Notice of Appeal, was filed at the Court below in the 15th of April, 2013. There were four reliefs mainly for leave, to the appellants to pay the remainder of the prescribed filing fees in respect of the appellants/applicants’ appeal against the judgment of the Federal High Court in suit No.FHC/ASB/CS/57/2010 delivered

48on 14th June, 2010 by Hon. Justice I. N. Buba and etc. The Motion was supported by six grounds and a seven paragraph affidavit. From the grounds and the affidavit in support (grounds 2 and 3 and paragraphs 3(i) – (vi), the basis for the application was stated. Exh. AEA 1 is a certified true copy of the receipt of payment and endorsement by the registry of the court below. Exh. AEA 1 shows a total of N4,600.00 for payment of “Notice of Appeal Shortfall and Applications”. This, on the face of it, presupposes that payment of the shortfall in respect of the Notice of Appeal (of 8/9/2010) has been made by the appellants.

However, looking carefully at the submissions made by the learned SAN for the respondents on this same issue (as contained in paragraphs 4.17 – 4.17.4 on pages 23 – 26 of respondents’ brief of argument. The learned SAN for the respondents stated, among other things:

“The appellants under paras 4.25 – 4.37 at pages 13 – 17 of their brief contended to the effect that inspite of the decision of this court, especially Onwugbufor v. Okoye (1996) 1 NWLR (Pt.424) 252, the Lower Court appeared to regard the issue of inadequate filing fees as an incurable

49defect which cannot be regularized by any appropriate remedial action.

We humbly submit that this contention of the appellants is also misconceived. In further reply to this contention, we rely on our earlier submissions above at paras 3.3 to 3.12. Furthermore, the cases of ACB Ltd. v. Henshaw (1990) 1 NWLR (Pt.129) at page 646 and Onwugbufor v. Okoye (supra) relied on by the appellants clearly showed the need of an appellant who has failed to pay the prescribed fees to obtain an order of court to regularize the payment of the shortfall. As we had shown above, the appellants duly filed a motion dated 15/4/2013 to regularize the shortfall. But for some inexplicable reasons they decided to withdraw the said motion and same was accordingly struck out on 23/10/2010 before the preliminary objection of the respondents was taken and granted. The only circumstances the appellants could have sustained their contention in this regard would have been if the Lower Court had considered the merit of their motion filed on 15/4/2013 and refused to grant same. Curiously, the same appellants who deprived the Lower Court of considering the merit of their application filed on 15/4/2013 are the same parties impugning the Lower Court

50 for having not allowed them to regularize their Notice of Appeal. The further contention of the appellants under para 4.28 at page 14 of their brief to the effect that they, suo motu as it were, look appropriate remedial action of paying the alleged shortfall at the registry of the trial court is also misconceived. The receipt of the purported shortfall they alleged they paid shows that it is in respect of another suit and not this suit. In any event, we submit that whatever remedial action that ought to be taken in the circumstances must be by an order of court which is seised of the matter, in this case the order of the Court of Appeal. This position is supported by the case at A.C.B. Ltd v. Henshaw (supra) and Onwuagbufor v. Okoye (supra) relied on by the appellants.

Furthermore, as at the time the appellants constituted themselves into a court, and went ahead to suo motu and purportedly regularized the shortfall at the trial court, the appeal had been entered in the Lower Court, which was the only court at the material time seised of the matter.

The appellants’ further contention at paras 4.32 to 4.37 at pages 15-17 at their brief to the effect that by the

51provisions of Order 20 Rule 3 and Order 12 Rule 3 of the Court at Appeal Rules which provide for waiver of noncompliance with the Rules and exemption from payment of fees by poor people, it was wrong for the Lower Court to designate inadequate payment of filling fees as incurable defect is also misconceived and irrelevant. The appellants did not apply for a waiver of the Rules upon any ground including the ground that they are poor.

We further submit that all that the Lower Court did in line with the decision of this Hon. Court in Onwugbufor v. Okoye (supra) at p.292 paras A – D is that in the absence of an appropriate remedial action or application by the appellants to regularize the shortfall in the fees paid in respect of the notice of appeal to the Lower Court (the motion to that effect filed on 5/4/2013 having been withdrawn and struck out) was to take out the said Notice of Appeal as incompetent. This was the situation at the Lower Court and not the false premise the appeal is founded upon as contained in particular (ii) of ground 3 of the Notice of Appeal to this court where it was alleged that court below allegedly discountenanced the motion filed on

52 15/4/2013 and struck it out”

I ready reproduced what transpired at the court below on the 23/10/2013. Both learned SANS for the respective parties said that they had pending matters such as motions and preliminary objection. Dr Layonu SAN (who was in the court that morning at the instance of Mr. Akoni. (SAN) for the appellants stated inter alia:

“We have pending applications filed on 15/4/2013 (to amend), 15/4/2013 (to pay shortfall at filing fee), 17/9/2013 (for stay of further proceedings)

I will allow Nwosu, SAN to take his Preliminary first, then I respond.”

The respondents Preliminary Objection was taken. The court below then asked Mr. Layonu, SAN, to move his pending motions. He started moving the motion filed on 17/9/2013 for stay of further proceedings pending outcome of an appeal at the Supreme Court, but ended up asking for adjournment instead of the stay. On the other application, Mr. Layonu, SAN, said:

At this juncture, I prefer that our application for order to pay shortfall on filling fee be adjourned until the Ruling in the two applications.

Mr. Nwosu, SAN, opposed the adjournment. The court below then asked Mr. Layonu:

“Dr. Layonu, SAN please move

53 your motion filed on 15/4/2013 for leave to pay shortfall of N4,500 filling fee.”

Dr. Layonu, SAN then answered:

”I hereby withdraw the motion.”

Mr. Nwosu, SAN did not object. The court below accordingly struck out the Motion for leave to pay shortfall for filing fee.

The learned SAN for the respondents argued that in view of the above striking order, there was absence of an appropriate remedial action or application to regularise the anomaly. Learned SAN for the appellants responded in his reply brief that the Court of Appeal Rules cannot determine the filling fees for a process filed at the trial court. Thus, filing fees paid by the appellants at the lower (trial) court was sufficient and proper having been paid upon assessment by the officials of the registry of the trial court. That means he further submitted, the appellants were under no obligation to file a motion for leave to pay any shortfall and the appellants withdrawal of such motion has become quite irrelevant in the present circumstances. He argued that it was incorrect to state that no remedial action was taken. He referred to page 2861 of Volume 7 of the Records of Appeal which confirms that the

54appellants had EX ABUNDANTIA CAUTELA paid N4,600.00 despite the reasoning in Akpaji v. Udemba (2009) 2 NWLR (Pt.183) at 189 that a defect in the payment of filling fees cannot be cured by any remedial step, pointing out however, that the decision in Akpaji case (supra) has been set aside by this court in SC.80/2013 Ibeabuchi & Ors v. Ikpokp & Ors .

Yes! It is true that the Learned Senior Counsel for the appellants, Mr. Layonu withdrew motion filed by appellants on 15/4/2013, seeking leave to pay the shortfall of the filling fees and the court below struck it out. It is also true that page 2861 of Vol. 7 of the Records of Appeal contained a receipt of payment in the sum of N4,600.00 in respect of “Notice of Appeal Shortfall and Applications” FHC/PH/CS/231/2011, issued by the Registry of the Federal High Court, Port Harcourt. This receipt had been exhibited and marked “Exhibit AEA 1 (paragraph 3(ii) of the affidavit in support of the motion filed on 15/4/2013 which was withdrawn and struck out.

Mr. Nwosu, SAN, for the respondents submitted that the receipt of the purported shortfall they alleged they paid shows that it is in respect of another suit and not

55this suit and whatever remedial action that ought to be taken in the circumstances must be by an order of court which is seised of the matter, i.e. the order of the Court of Appeal. Learned SAN for the appellants in his reply referred this court to same page 2861 of Vol. 7 of the Records of Appeal which shows that the said receipt was duly issued in respect of the suit at the trialcourtalbeit with an obvious mistake in the suit numberFHC/PH/CS/231/2001. The payment of the alleged shortfall sufficiently amounts to a remedial action in a situation of insufficient fees with or without an order of court. In this regard, he further said, the shortfall was paid within time on 12th April, 2013. My Lords I think it is enough for the rhetorics now. It is time we face the real issue.

On the 23rd of October, 2013 when the court below delivered its on the bench ruling, the case of Chukwuma Ogwe v. IGP & 2 Ors which was delivered on 13th of February, 2015, did not come not existence. That notwithstanding, the law has for long been settled by authorities that payment ofinadequate filing fees can only make a process irregular and not capable of affecting the jurisdiction of the court. See: Onwugbufor & 2 Ors v. Okoye & 3 Ors

56 (supra) Akpaji v. Udemba (2009) 6 NWLR (Pt.1138) 545. Thus, the initial payment of N500.00 made in respect of the Notice of Appeal filed at the trial court is capable of sustaining the Notice of Appeal in suspense and the court shall not act upon it unless it has been regularized. There was a motion before the court below to regularize the shortfall in the payment of the requisite filing fees. It was however, withdrawn and struck out and the appeal too, was struck out being incompetent. But was the appeal or Notice of Appeal filed by the appellants incompetent I do not think so. Firstly, the appellants paid the fee assessed by the trial court’s registry/cash office in the sum of N500.00 (Five Hundred Naira Only), if there was no compliance with the Rules in respect of payment of filing full fees at the time of filing, it was not a mistake committed by the appellants. The appellants did all that they were required to do atthat point in time. The mistake, if any, was that of the court officials who did the assessment. In the case of Akpaji v. Udemba (supra), dispute rose between two bossom friends on settlement of account on a business they were operating.

57 plaintiff at the trial court but appellant at this court sued the defendant/respondents. The respondent filed a counter claim. The appellant did not tile a defence on reply. However, the registry of the trial court only assessed the respondents’ statement of defence for payment of filing fees, but did not assess the counter-claim for payment of filing fees. At the conclusion of trial, the trial court dismissed the appellants claim and entered judgment for the respondent on his counter-claim. The appellant appealed to the Court of Appeal. The issue of non-payment of filing fees on the counter-claim came up at the Court of Appeal for which the respondent took steps to regularize. The Court of Appeal having dismissed the appellants’ appeal affirmed the judgment of the trial court. It also made an order pursuant to Section 16 of the Court of Appeal Act that APPROPRIATE FEES for the counterclaim be paid by the respondent.

Aggrieved by the order of the Court of Appeal directing payment of appropriate fees on the counter-claim, the appellant appealed to the Supreme Court. In dismissing the appeal the majority judgment (as there was a dissent) delivered by Ogbuagu, JSC

58 (rtd) stated clearly as follows:

“In the case of Onwuagbufor & 2 Ors v. Okoye & 3 Ors (1996) 1 NWLR (Pt 424) at 291 – 292, (1996) 1 SCNJ 1 at 36 cited by the parties in then respective brief, (it is also reported in (1996) 34 LRNC 1), although it was held that payment of filing fees, is a condition precedent necessary to the exercise of jurisdiction, this court – per Ighu, JSC stated inter alia:

“Ifthe 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 should be struck out in the absence of an appropriate remedial action or application to regularize such anomaly…’

So, it can be seen that there is a rider so to speak. The appropriate remedial action was the said Order by the court below even without the said motions of the respondents afore-stated. But in any case not only did the respondents, apply for leave of the court below, to pay the appropriate fees, it exhibited, the receipt of the payment. Afterwards, as stated by Charles, J. in Lawal v. Odegimi (supra) the object of the provisions of payment of filing fees in the said Rules of

59 the High Court, is to protect the public revenue.

(underling supplied)

On the attitude of the registrar of the trial court who failed to do the proper assessment of the filing fees Ogbuagu, JSC continued:

“Surely and certainly, the error or inadvertencies of the said registrar, cannot, in my respectful and firm view, be said to be that of the respondent. The Registrar saw and assessed the statement of defence. If he might read the entirety of the statement of defence before assessing it (and I doubt it) and he failed correctly or properly to do so, his error or omission cannot be ascribed to be that of the respondent and/or his learned counsel. With profound humility, it will be unfair and unjust in the instant appeal, to state by anybody including this court, that IGNORANCE OF THE LAW IS NO EXCUSE. The records shows that the respondent who took the document to the registry for assessment and payment, is only a businessman. There is no evidence that he is a lawyer or one who knows the business or procedure in the courts Registry as regards assessment of court processes brought before it. I therefore, hold, that the non-payment in FULL OF THE APPROPRIATE FEES, WAS

60 A MERE irregularity and did not vitiate the proceedings and has nothing to do with the jurisdiction of the trial court. At worst, it is VOIDABLE not VOID:

My Lords, not quite along ago, this court had another opportunity to straighten the position of the law, where an official of the court, through commissions or omissions, fails to do what the law mandates him to do correctly. It happened in the case of Chukwuma Ogwe & Anor v. Inspector General of Police & 2 Ors, Appeal No.SC.214/2013 delivered on the 13th day of February, 2015. In this matter, the appellants at this court as plaintiffs at the Rivers State High Court of Justice, commenced suit No.PHC/1325/2006, seeking to enforce their fundamental human rights. At the end of trial, the trial court found against the appellants. The appellants proceeded on appeal to the Court of Appeal Port Harcourt division. They tendered their Notice and Grounds of Appeal to the Registry of the Court and on their being assessed, the sum of N3,000.00 was to be paid to the Registry. Same was accordingly paid and appellants filed their Notice of Appeal. Parties were absent on the hearing date, 11/3/2015. The court below,

61 suo motu raised the issue of the adequacy of the filing fees paid by the appellants and having found the fees paid to be inadequate, it struck out the appeal.

The appellants filed their appeal to this court on the court below’s ruling of the 11/3/2015, challenging the issue of the inadequacy of the filing fees. My learned and noble brother, M. D. Muhammad. JSC, with whom I agreed, held inter alia:

”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.”

So, the sin committed by the officials of the court registry, cannot, justifiably, be visited on the appellants in this appeal.

Secondly, a motion to regularize the payment of the shortfall

62was withdrawn by the learned SAN, Mr. Layonu, for the appellants and it was struck out by the court below. This perhaps influenced the mind of the court struck out by the court below. This perhaps influenced the mind of the court below to strike out the appeal. It is true that such a decision is always placed within the discretionary powers of a court. Exercise of discretion, however must always be judicial and judicious. A discretionary decision based on a principle that inadequate/shortfall of filing fees is fatal to an appeal is certainly a wrong exercise of discretion. It is settled law that a court of law will not allow the provisions of an enactment to be read in such a way to deny access to court by citizens. Thus, it is not the intention of the law to deny any litigant access to justice. A rule of courts stands to guide the court in the conduct of its business and I must not hold as a “mistress” but as a hand maid. See: Onwucheka v. NDIC (2002) 5 NWLR (Pt.760) 371 at 393; Chrisdom Ind. Co. Ltd v. AIB Ltd (2002) 8 NWLR (Pt.768) 152 at 178 C – D; UTC Nig. Ltd. v. Pamotei (1989) 2 NWLR (Pt.103) 244 at 296; Chime v. Chime (2001) 3 NWLR (Pt.701) 527 at 553.

63 The established practice of the courts is to lean towards granting a litigant access to court rather than denying him of such access. The principle of the law as settled by the court, as seen supra, In relation to settlement of insufficient filing fees on documents placed before the registry of a court is for the court to direct that such insufficient inadequate, shortfall be remedied. The striking out of the appeal at the stage the court below did, was certainly unnecessary and improper.

Thirdly, should the sin of counsel be visited on his client It is to be remembered that the earned SAN for the appellants, Mr. Layonu, withdrew the motion filed to remedy the shortfall in the filling fees prescribed by the court Rules. It was argued a so by the learned SAN Mr. Akoni, that the shortfall was paid and that a receipt was exhibited before the court below and trial court should have taken judicial notice or that receipt of payment. Now Counsel may mess-up; they may be under misapprehension of a nature they may goof. They are human beings subject to err. It is a well laid down principle of the law that a court of law, because of the counsel’s error of judgment,

64 carelessness misapprehension commission or omission will not punish a litigant or visit that innocent litigant with the sin committed by his counsel unless it can be shown that the litigant himself was a party to the commission of the sin. See: Amadi v. Acho (2008) 12 NWLR (Pt.939) 386 at 405; Famfa Oil v. AG Federation & Anor (2003) 8 NWLR (Pt.852) 453: Ede & Anor v. Mba (2011) 18 NWLR (Pt.1278) 236. It was certainly a mistake from Mr. Layonu’s side to withdraw his motion for leave to pay the shortfall in the filling fees although one could clearly see what transpired on the 23/10/2013 when he asked for adjournment of the sad motion. It is naive too, for Mr. Akoni, to expect the court below to take judicial notice of the cash receipt in respect of the payment for the shortfall in the filling fees which was exhibited to a struck out motion although the court below made mention of it. The correct position of the law regarding a struck out matter is that the court lacks jurisdiction to make any subsequent order on it. See: Akinbobola & Sons v. Plisson Fizko Nig. Ltd. & 2 Ors (1991) 1 NWLR (Pt.167) 270 at 288.

The next point under consideration is

65 whether the court below can make Rules of Court for the trial court. Mr. Nwosu, SAN says, it can, Mr. Akoni, SAN, disagreed. Each supported his contentions with authorities.

Let me say right away that Court Rules are meant to guide the court in the conduct of its affairs. The filing of Notice of Appeal by intending appellant has grown along with appellate courts practice whereby the intending appellants specifically requested by the Rules of the Appeal Court to liaise with the court which handed down the decision he would want to appeal against by putting that court on notice of his complaint against its decision. That is why the Appeal Court mandates him to file his notice of appeal with the registry of that court/tribunal. In almost all the appellate courts including this court, the Court Rules guiding the Practice and Procedure of that court stipulate that Notice of Appeal should be filed at the registry of the court that delivered the decision which is the subject matter of the appeal. The Supreme Court Rules of 1999 (as amended) were made pursuant to the provision of Section 236 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Order 8

66 of the Rules deals with Civil Appeals to the court. Order 9 deals with criminal appeals. In instituting an appeal to the court, each of the above orders stipulates in the main:

“All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called ‘the notice of appeal”) TO BE FILED IN THE REGISTRY OF THE COURT BELOW”

(emphasis supplied by me)

The Court of Appeal Rules 2007, Order 12 Rule 1, thereof, replicates the above rule of practice and it provides as follows:

“Save as hereinafter provided, the fees prescribed in the 3rd Schedule hereto shall be charged in respect of the matters which they are respectively assigned and shall be paid to the Registry of the court below or of the court as the case may be.”

The above rule is saying, in other words, to my humble understanding, that filing fees payable in respect of any appeal which is as of right must be paid to the registry of the High Court, whether federal or state. Equally, where time is extended within which to file Notice of Appeal, the filing fees should be paid to the registry of that same High Court, Federal or State within the time extended. However, where leave is granted to

67 an applicant to file his notice of appeal, and or, where the appeal has already been entered at the appeal court, that applicant shall file his Notice of Appeal at the Registry of the Appeal Court. Equally. where there is an amendment to the Notice of Appeal, filing fees in respect of the amended Notice of Appeal should be paid to the registry of that appeal court. In relation to the appeal on hand, it is to be noted that the Federal High Court is not an appellate court and except for matter specified in Order 54 (appeal to the court from Professional Bodies), no appeal lies to the court. The Rules do not provide either, fees for processing appeals to the court. The Rules do not provide either, fees for processing appeals to the Court of Appeal. A Lacunae should not be allowed to peep into the conduct of affairs of that court. In any event, the Constitution is very clear in Section 243(1)(b) where it provides, inter alia:

“243(1) Any right of appeal to the Court of Appeal from the decision of the Federal High Court, National Industrial Court or a High Court conferred by this Constitution shall be –

(b) exercised in accordance with any Act of the National

68 Assembly and Rules of court for the time being in force regulating the Process, Practice and Procedure of the Court of Appeal.”

I am thus, in agreement with Mr. Nwosu, SAN in his submission that by the very IPSISIMA VERBA of the above provisions, it is the Rules of the Court of Appeal made pursuant to Section 248 of the Constitution, 1999 (as amended) that govern any right of appeal from the decision of a Federal High Court to the Court

“32 – Appeals to the Court of Appeal

Subject to the provisions of the Constitution of the Federal Republic of Nigeria, the Court of Appeal Act and the Rules of the Court of Appeal, appeals shall lie from the decisions of the court in its original at appellate jurisdiction to the Court of Appeal.”

Thus, any right of appeal from the decision of the Federal High Court including the appeal on hand, is exercisable in accordance with the Rules of the Court of Appeal and not the Rules of the Federal High Court. Order 12 Rule 1 is the correct Rule to guide the Registry of the trial court in assessing the fees payable in respect of the appeal on hand. I do not believe that the Rules as competently made by the President of the Court of

69 Appeal are meant to rob or deprive the Federal High Court of its power to make Rules regulating its own practice and procedure as provided by Section 254 of the 1999 Constitution (as amended) . M. D. Muhammad, JSC, is again quoted, per his dictum, in Ogwe v. IGP & 2 ORS (supra) that:

“The practice that has evolved over the years is for an appellant whose appeal is within time prescribed under Section 24 of the Court of Appeal Act to file his appeal to the Lower Court at the registry or 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.”

My Lords, that in my view, is the correct position of the law. I may even add that by the principle of hierarchy of courts, the Supreme Court supervises all other courts in this country. The Court of Appeal, thus, is not only an appellate court, but has supervisory role as well on all other courts in

70 the Federation apart from this court. Where it is mandated to make rules in respect of any matter, I do not think that such rules can easily be thrown away by the waive of hand. They should be complied with.

I commend both learned senior counsel Mr. Akoni. SAN and Mr. Nwosu, SAN, for the industry and professional skill exhibited in their respective briefs of argument. My other words to the senior members of the profession are that counsel, especially senior ones should respect one another, regardless of motives. They should remember, they have no other profession apart from the one in the wig and gown.

Finally, I find merit in the appeal and same is allowed by me. The order striking out the appeal by the court below is hereby set aside. The appeal is hereby restored to the Court of Appeal list. The appellants should take steps to remedy the defect in their Notice of Appeal filed on the 8th day of September, 2010, thereby reviving their amended Notice of Appeal of 5th December, 2015. I make no order as to costs.

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