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Home » Nigerian Cases » Supreme Court » Chukwuma Ogwe & Anor V. Inspector General Of Police & Ors (2015) LLJR-SC

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

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.

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Further relying on Dike V. Okorie (1990) 5 NWLR (Pt 151) 418 at 428-429 and Mohammed V. Musawa (1985) 3 NWLR (Pt.11) 89. Learned appellant counsel submits that a document deemed to have been properly filed when same is deposited in court with the proper officer assigned with the responsibility. Though the payment of filing fees is a condition precedent necessary to the exercise of jurisdiction, it only affects the court’s jurisdiction if either the failure to pay the adequate fees or any fees at all is the fault of the plaintiff.

In further argument, learned appellants’ counsel insists that by item 7 the 2nd schedule of the High Court (civil procedure) Rules of Rivers State, to enter an appeal to the court of Appeal against the decision of the High Court, the appellant must pay the fees the High Court Registry assessed and required him to pay. In the case at hand, counsel submits, the appellants had done exactly so.

Order 12(1) and (3) of the Court of Appeal Rules under which the court below struck out appellants’ appeal does not apply to the appellant’s appeal before that court. The President of the Court of Appeal, contends learned counsel, lacks the vires to make rules which bind the trial court. Were Order 12(1) and (3) of the Court of Appeal Rules to apply to the trial court, learned counsel submits, the rules not being mandatory but merely directory cannot rob the Lower Court of its jurisdiction in respect of the appeal in the event of not being complied with. Learned Counsel relies on Ifezue V. Mbadugha (1984) NSCC (Vol. 15) 314 at 331-332; Halsbury Laws of England 4th Edition in Vol. 1 Article 25; Ogbunyinya V. Akudo (No 2) (1990) 4 NWLR (Pt.146) 551 at 571 and Alawode V. Semoh (1959) 4 FSC 27 at 29-30.

Concluding his arguments in respect of their first two issues, learned counsel submits that to allow the decision of the Lower Court to remain is to allow the triumph of technicality over the substance of the matter. And this, counsel further submits, has been avoided by courts for a very long time. He refers in support to Duke v. Akpabuyo LG (2005) 19 NWLR (Pt.959) 130; Ajuwa V. SPDC 12 SC (Pt.IV) 118 at 160-161 and Bello V. AG Oyo State (1985) 12 SC 1 and urges that the two issues be resolved in appellants’ favour.

On appellant’s 3rd issue, learned appellants’ counsel contends that the Lower Court though empowered to raise the issue of inadequate payment of fees suo motu, lacks the vires of deciding the matter without hearing the parties to the appeal before it. It is submitted that on the 11th March 2013 when the matter came up at the court for hearing, appellant counsel arrived at the court’s premises around 8.35am only to find the gate locked and a notice pasted to the effect that the Judiciary Staff Union of Nigeria was on strike. The court for that reason would not sit. Unable to gain access to the court, it is further submitted, appellant counsel left the premises by 10.00am. The court sat subsequently and struck out appellants’ appeal for appellants’ failure to pay adequate filing fees. This came about despite the fact that appellant and his counsel had never failed to attend to court but for the strike of the Judiciary Staff Union of Nigeria that disabled the court from sitting. The court’s failure to allow the appellants address it before it ruled on the issue it suo motu raised, being a breach of Section 36 (6)(a) of the 1999 Constitution, renders the court’s decision thereon a nullity. Relying inter-alia on the decisions in Kraus Thompson Organisation Ltd v. University of Calabar (2004) 9 NWLR (Pt.879) 631 at 651, Enekwe V. International Merchant Bank of Nigeria Ltd (2006) 19 NWLR (Pt.1013) 147 at 173, Okere V. Amadi (2005) 14 NWLR (Pt.945) 545 at 559, Sterling Civil Eng. (Nig) Ltd V. Yahaya (2005) 11 NWLR (Pt 935) 181 and Adeleke V. Raji (2002) 13 NWLR (Pt.783) 142, learned counsel prays that resolving all their three issues in their favour to also allow the appeal.

Now, even though this appeal has not been contested, the question that must still be answered is whether the law is on appellants’ side to enable us allow the appeal.

Page 89 of the record of Appeal contains the Lower Court’s proceedings including its decision that form the basis of this appeal. The relevant part of the court’s proceedings is herein under reproduced for ease of reference.

“CT – Registrar say the appellant (sic) was served on 18/1/2013 but absent and unrepresented. The appeal is fixed for hearing today and having all the briefs, the appeal ought to have been deemed as fully argued but in the present circumstances where the appropriate filing fee had not been paid, we cannot deemed (sic) the appeal as having been argued.

Congruently on the non-payment of appropriate filing fee the appeal is incompetent and is hereby struck out for being in competent.” The law, it must be stated and this fact has been alluded to by learned appellant counsel, presumes the regularity of the foregoing record of the Lower Court’s judgment until the contrary is proved in this case by the appellant. See; Eyisi V. State (2000) 12 SCNJ. From the record, it is glaring that inspite of the fact that the appellants had been served on the day the court raised the issue of the inadequacy of the filing fees they were neither present in the court nor represented. The law only directs that where the court raises an issue suo it hears the parties before reaching a decision on the issue as raised.

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The appellants who inspite of their being served chose not to attend court proceedings wherein the issue was raised suo motu cannot complain that their right to fair hearing has been compromised. In the appellants’ brief, a desperate bid has been made to show that their counsel was in court up till 10.00am on the day the ruling appealed against was delivered and that because of the Jusun strike the court’s gate remained sealed. It appellants’ suggestion that the court did not sit on the particular day. This court cannot rely on these suggestions.

An appellate court has no jurisdiction to read into the Record what it does not contain or to read out of the Record what it contains. It must read, interprete and apply the exact content of the record without more. On the cold facts of the Lower Court’s proceedings reproduced supra, the Lower Court is right to have proceeded with the day’s business having established the fact that the appellants though absent and not represented had been duly served. See; Tim Orugbo & anor V. Bukra UNA & ors (2002) 13 SCM 153, Alhaji Bani Yaa Nuhu V. Alhaji Isola Are Ogue Ogele (2003) 12 SCM 209 and Otunba Adesesan Oguntayo v. Fatai Adelaja (2009) 6-7 SC (Pt 111) 91. The fact that the Lower Court is empowered by law to proceed on the issue it raised suo motu, inspite of the absence of the appellants because they had been served, does not necessarily mean that the court’s decision striking out appellant’s appeal is correct in law.

I agree with learned appellant counsel that the issue the instant appeal raises has long been settled by the Lower Court itself and this court in a plethora of their decisions. The Lower Court by its decision instantly appealed against failed to appreciate the place of the doctrine of stare decisis or precedent in the adjudication process. By the doctrine, judges are enjoined to stand by their decisions and the decisions of their predecessors. The doctrine does not allow for the exercise of discretion in an issue the court previously decided when that same issue subsequently surfaces before the court for determination. It is this age old rule of practice that gives law its certainty and equilibrium in the society. See; Rossek V. ACB Ltd (1993) 8 NWLR (Pt.312) 382, Cyril O. Osakwe v. Federal College of Education Asaba & Ors (201) 10 NWLR (Pt.1201) 1 at 16, Shetima and Ors V. Goni & Ors v. Goni & Ors (2011) NWLR (Pt.1279) 413 at 425 and Amaechi V. INEC (2007) 18 NWLR (Pt.1065) 42. Over the years, learned appellant counsel is correct, this court has stuck to some principal principles in relation to the issue under reference.

Firstly, a document or process is deemed duly filed when it is taken to the court registry, assessed, by the officer assigned the responsibility and paid for. The appellant cannot be made to suffer for any shortfall. To do otherwise is to hold him to account for another person’s lapses. In C.C.B (Nig) Plc V. AG Anambra State and Anor (1992) 8 NWLR (Pt.201) 528 this court per Olatawura JSC held at page as follows:- “…The court will not visit the ‘sins’ of the court Registry on a litigant or his counsel unless it was shown that the litigant and/or his counsel was a party therefore or had full knowledge of the sin or mistake and encouraged or condoned the act. Therefore, on the authorities, justice equity, fairness and good conscience must persuade me to hold further that this appeal deserves to succeed and it infact does.”

(Underlining mine for emphasis).

See also Dike V. Okorie (1990) 5 NWLR (Pt.151) 418 and Mohammed V. Musawa (supra) and Ede & Anor V. Mba (2011) 18 NWLR (Pt.1278) 236 at 266.

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Secondly, where inadequate fees are paid, I agree with learned appellants’ counsel, the usual remedy is an order of court for the short fall to be paid. Non-payment of adequate fees, it has been held, does not ordinarily rob the court its jurisdiction. In ACB Ltd v. Henshaw (1990) 1 NWLR (pt 129) 646, a decision this court cited with approval in reiterating the principle, Oguntade JCA (as he then was) at page 651 of the report puts the position succinctly thus:-

“Even if the Defendant/Respondent had not paid the requisite court fees, this was a matter to be settled before the Lower Court the usual remedy being on order by the Lower Court that the appropriate fees or any short fall be paid. It certainly has nothing to do with the jurisdiction of the Lower Court to entertain the suit.” This Court in Onwagbufor & 2 Ors v. Okoye & 3 Ors (1996) 1 NWLR (Pt 424) 252 at 291-292 also states per Iguh JSC thus:- “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 properly before the court and should be struck out in the absence of an appropriate remedial action or application to regularise such anomaly.”

It is mandatory for the Lower Court to be governed by the foregoing decisions.

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

It does appear to me that Order 12(1) of the Court of Appeal rules alluded to by the learned appellants, counsel will only apply to an appeal being filed following the Lower Court’s order for extension of time to appeal and or leave to appeal. In that event, even though the appeal must still be filed at the trial Court’s Registry, the filing fees payable would then be as cathedral prescribed in the third schedule to the Court of Appeal Rules. After all, the Court of Appeal Rules enacted by the President of the court pursuant to Section 248 of the 1999 constitution (as amended) only regulates practice and procedure of the Court of Appeal. It is worthwhile to note that Section 30 of the Court of Appeal Act defines an appeal to include an application for leave to appeal and an appellant to include the person who makes such application. 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. See Iyalabani Co Ltd V. Bank of Baroda (1995) 44 NWLR (Pt.387) 20, Bowaje V. Adediwura (1976) 6 SC 143, Doherty V. Doherty (1964) 1 NLR 299 and Ahmadu V. Salawu (197411 NLR (Pt.11) 318.

In the case at hand, the Lower Court’s refusal to be bound by its own decision and indeed the decisions of this court, on this issue is manifestly perverse. For the foregoing reasons appellants’ 2nd issue is resolved in their favour. Their appeal accordingly succeeds. Consequently, the Lower Court’s perverse ruling striking out the appellants appeal is hereby set aside. Appeal No.CA/PH/407/2009 is hereby restored to the court’s list for same to be determined by a panel of Justices other than those whose decision has just been set-aside, and expeditiously too. I make no order as to cost.


SC.214/2013

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