Chukwuma Ogwe & Anor V. Inspector General Of Police & Ors (2015)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

The appellants commenced Suit No. PHC/1325/2006 at the Rivers State High Court, Rivers state High Court, hereinafter referred to as the trial court, seeking to enforce their fundamental human right. At the end of the trial, the court its decision delivered on 13th February, 2009 found against the appellants.

Dissatisfied with the judgment of the trial court, appellants appealed to the court below, the Court of Appeal sitting at Port Harcourt. They tendered their Notice and Grounds of Appeal to the Registry of the court and on their being assessed the sum of (N3,100.00) three thousand one hundred naira, paid same and filed their Notice of Appeal, The receipt evidencing payment of the fees assessed by the trial court’s Registry is reflected at page 46 of the supplementary record of Appeal.

With their record of appeal compiled and transmitted to the court below, parties thereto filed and exchanged their briefs of argument as required by the Lower Court’s rules. On 11th March 2015 the Lower Court in the absence of the appellants and their counsel suo motu raised the issue of the adequacy of the filing fees paid by the appellants and having found the fees inadequate struck out the appeal.

Aggrieved by the aforesaid ruling the appellants have appealed to this court on four grounds from which they distilled three issues in their brief for the determination of the appeal thus:-

“3.0. ISSUES FOR DETERMINATION

3.1 My, lords, the following issues call for determination in this Appeal:-

(i) Whether the Court of Appeal was right in holding that the payment of the sum of N3,100.00 (three thousand Naira) only which said sum of money was duly accessed by the Registrar of the Appeal Registry of the High Court of Rivers State in accordance with the provisions of the State’s High Court Civil Procedure Rules as fees for the filing of the Notice of Appeal by the Appellants which is less than the sum of N5,000.00 (five thousand Naira) provided for in Order 12 Rule 1 of the Court of Appeal Rules 2007 robs the Court of Appeal the jurisdiction to entertain the Appeal and the Appeal accordingly struck out. This is distilled from ground A & B of the Notice and grounds of Appeal.

(ii) Whether the fault of a Registrar of Court in assessing inadequate filing fees for the filing of a Notice and Grounds of Appeal is that of an innocent litigant or his counsel. This is distilled from ground C of the Notice and Grounds of Appeal.

(iii) Whether the Court of Appeal has the jurisdiction to strike out the Appellants’ appeal on an issue raised suo motu by the court without first hearing parties to the appeal. This issue is distilled from ground D of the Notice and Grounds of Appeal.”

It must be recalled that on the day this appeal was heard the 1st-3rd respondents conceded the appeal. Also, following counsel’s application to that effect, the name of the 4th respondent who had since died was struck out. Accordingly, the appeal was argued on the appellants, brief alone.

In the appellant’s brief arguments in respect of their 1st and 2nd issues are jointly canvassed. It is submitted that the appellants did pay the sum of three thousand one hundred naira filing fees in respect of their Notice of Appeal against the judgment of the Rivers State High court Enebeli J presiding in Suit No. PHC/1325/2006 to file Appeal No.CA/PH/407/2009 after they were assessed at the Registry of the trial court. Payment of the sum evidenced by the receipt issued to the appellants as shown on page 46 of the supplementary record of Appeal.

It is further submitted that the issue of the payment of inadequate filing fees was raised by the court below suo motu.

The Lower Court, it is contended, failed to distinguish the difference in effect between the non-payment of filing fees at all and the payment of inadequate filing fees. Learned appellant counsel contends that failure to pay adequate filing fees is a mere irregularity and affects proceedings only if objection is taken timeously. Learned counsel submits that the usual remedy for inadequate payment of filing fees is for the court to order that the short fall be paid. Thus, non-payment of adequate fees, it is argued, does not affect the court’s jurisdiction. Learned counsel relied inter-alia on Akpaji V. Udemba (2009) 6 NWLR (Pt.1138) 545 at 561-562; ACB Ltd v. Henshaw (1990) 1 NWLR (Pt.129) 646; Sonuga V. Anadein (1967) NMLR 77; Ezomo V. Oyakhile (1985) 1 NWLR (Pt.2) 195; Noibi V. Fikolati (1987) 1 NWLR (Pt.116) 387; Lawal V. Odejimi (1963) ALL NLR 569 and State V. Ugbor (1979) 1 MSLR 521.