Engr. Okey Ibeabuchi & Ors. V. Mr. Samuel M. Ikpokpo & Ors. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A. (Delivering the Lead Ruling)

This appeal was set down for hearing on 8th January, 2013. The record of appeal was transmitted on 25th August, 2009. At pages 167 – 173 of the record of appeal is the Notice of Appeal, the originating process. Endorsed at page 173 of the record are two stamps from the cashier’s office of Rivers State Judiciary with a date of 19th March, 2009 suggesting that the Notice of Appeal was filed on the said date. The Notice of Appeal was signed by Sir C. I. Enweluzo of counsel for the Appellant.

As there was no endorsement as to the fees paid for the filing of this appeal, we drew the attention of C. I. Enweluzo of Counsel to page 173 of the Record and asked him how much was paid as filing fees for this appeal. Counsel answered that they “paid the sum of N2,600.00 assessed by the Registrar for the appeal”.

Thereupon Counsel’s attention was further drawn to Order 12, Rule 1 and the Third Schedule to the Court of Appeal Rules 2007 and was asked whether the said fees, as allegedly assessed by the Registrar and paid by the appellant, was sufficient to ignite the appeal in view of the directives in Order 12 Rule 1 which is in pari materia with Order 12 Rule I of the 2011 Rules of this Court. At this juncture it is necessary for me to reproduce counsel’s submissions. That is –

It is not our responsibility to assess fees payable for Notice of appeal. We paid the fees duly assessed by the Registrar of the lower court. Where a litigant has done all within his powers, and there is any omission as a result of negligence of the Registrar of Court, such should not be visited on the innocent litigant. See ANATOGU V. ANATOGU-decision of this court in Part 519 of N.W.L.R. The inadequate assessment is the fault of the registry and not the Appellant. In the interest of Justice we should be asked to pay the balance.

M/S T. O. P. Afagha for 1st Respondent and H. N. Amadi Senior State Counsel (Rivers State) for 2 – 3rd Respondents offered no useful comment. They merely, each, left the matter to the discretion of the Court.

We took these steps on the basis or footing of the trite principle that it is the duty of the court to see that actions before it are properly constituted. See OKAFOR V. NNAIFE (1973) 3 SC 85 at 95.

There is no evidence that the process was presented to the Registrar for filing by the Appellant himself and not by the Counsel who signed it. The rebuttable presumption is that the process was presented to the Registrar by the Counsel who signed or settled it.

Order 12 Rule 1 and the Third Schedule in part II of the Court of Appeal Rules, 2007, the rules then extant as of 19th March, 2009 when the Notice of Appeal was filed, are statutory provisions. The Counsel who settled the process knows the law. He is therefore in a better position, if not in the same position as the Registrar of the Court, to interpret the law as to the correct assessment of the fees payable for any process he has to file of the registry. He can not shirk that responsibility and hide under the cover of error of assessment by the Registrar of the correct fees payable for the filing of his process, and submit that the error of the Registrar should not be visited on the litigant. This is a matter of law, the interpretation of which can not be left to the Registrar alone. It will be saying the most obvious to state that the Counsel who settled the notice of appeal knows the law and the rules of appeal.

Order 12 Rule 1 Court of Appeal Rules, 2007 is very clear.

It provides:-

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.

This provision is Ipissima verba with order 3 rule 28(1) of the Federal Court of Appeal Rules, 1981 ; Order 3 Rule 25(1) of the Court of Appeal Rules 2002 and Order 12 Rule 1 of the Court of Appeal Rules, 2011. It is not a new rule.

The fee prescribed in the Third Schedule of the Court of Appeal Rules 2007 “on filing of Notice of Appeal against a final judgment or decision” is N5,000.00. The Notice of Appeal, at pages 167-173 of the Record in the instant appeal, is against the final judgment of the High Court of Rivers State delivered by E. N. Thompson, J. on 9th December, 2009. Therefore, it is clear from the unambiguous provisions of Order 12 Rule 1 that the N5,000.00 is the fee to be charged, and the fee to be paid by the Appellant “on filing the Notice of Appeal against the final judgment or decision” of Rivers State High court delivered on 19th March, 2009. Order 12 Rule 1 is doubly mandatory or imperative. The Registrar has no discretion in this regard. He cannot, in my view, charge any amount less thon N5,000.00 for filing Notice of Appeal against a final judgment. Only this Court or the court below by dint of Order 12 Rule 3 of the 2007 Rules (in pari materia with Order 12 Rule 3 of 2011 Rules) is empowered, on account of the wont of means of any party or for other sufficient reason, to dispense with payment of filing fee. This is not the situation in this case.

IKENNA AMECHI, ESQ & ANOR V. MR. EGWUOYIBO OKOYE (2008) 12 N.W.L.R. (PT.1101) 546 CA can not avail this Appellant in view of the mandatory or imperative wordings of Order 12 Rule 1 . The words “shall be charged” are peremptory. They impose obligation on the registry to demand and receive only the fees set out in the Third Schedule. They take away any discretion whatsoever. Similarly, the words shall be paid leave the litigant no discretion to pay any fee less than Third Schedule.