Kano Plastics Limited V. Century Merchant Bank (1998)
LawGlobal-Hub Lead Judgment Report
OGEBE, J.C.A.
By a writ of summons in Suit No. K/427/93 dated 23rd August, 1993 the respondent as plaintiff claimed against the appellant as debt the sum of N24, 014.104.05k before Kano High Court. The debt was alleged to have arisen from certain banking transactions between the parties.
The appellant also made a counter-claim and in its statement of defence the appellant sought a declaration that it was only indebted to the respondent in the sum of N11, 814,940.87 and no more. Based on this and upon a motion on notice by the respondent, part judgment was entered for the amount admitted in favour of the respondent. Later it was discovered that the majority shareholders of the appellant company who were of Lebanese origin had fled the country. Consequently, the Nigerian minority shareholders took over control of the company and instructed their solicitor to introduce a fresh action to set aside the part-judgment given against the appellant on the ground of fraud. The new writ was given No. K/987/94. Sequel to this the respondent filed an application dated the 3rd of October, 1994 asking the court to strike out the new suit on the ground that it was an abuse of court process. The trial court suo motu raised the issue of whether it had jurisdiction to hear the suit. Both sides addressed the court on this point and in a ruling delivered on the 4th of April, 1996 the trial court struck out the suit for want of jurisdiction.
It is against this ruling that the appellant has appealed to this court on three grounds of appeal and in accordance with the rules of court formulated three issues for determination as follows:-
- “Whether the rule of Foss v. Harbottle (1843) 2 Hare 461 precluded the trial Judge from entertaining this action.
- Whether there is any feature in the case that brought the case within the purview of the jurisdiction of the Federal High Court.
- Whether the trial Judge had not acted prematurely in ruling on the issue of jurisdiction at the stage when pleadings had not been exchanged and when only what was before him was the writ of summons.”
The respondent also filed a brief of argument and formulated three issues for determination as follows:-
i. “Whether there is any feature in the case that ousts the jurisdiction of the Kano State High Court and brings it within the exclusive purview of the Federal High Court.
ii. Whether the trial Judge had acted prematurely in ruling on the issue of jurisdiction when pleadings had not been exchanged and only the writ of Summons was before him.
iii. In the event that the preliminary objection to ground one of the notice of appeal fails, the respondent submits that a third issue for determination will be whether the rule in Foss V. Harbottle (1843) 7 HARE 461 precluded the trial Judge from entertaining the action.”
The respondent had earlier on filed a notice of preliminary objection to the competence of the appeal which on the advice of the Court was embodied in the respondent’s brief. The appellant filed a reply-brief in answer to the preliminary objection.
I shall first deal with the preliminary objection. The learned counsel for the respondent submitted that the provisions of Order 3 rule 2(1) of the Court of Appeal Rules are mandatory and a prerequisite for the bringing of an appeal and any notice of appeal which does not contain all the component parts stated in the order is not a notice of appeal properly so called. He said that the only evidence showing where the purported notice of appeal emanates from is the Federal High Court receipt on page 33 of the record while it is clear that the proper registry of the court below is that of the Kana State High Court and not Federal High Court, Kana. There is no known procedure in Kano State or filing a notice of appeal at the Federal High Court and entering the appeal in the State High Court. The learned counsel argued that the question or whether a proper notice of appeal has been filed against the judgment or the court is a matter which touches the jurisdiction of court. It is not merely a matter of procedural law; it is substantive law and if no proper notice has been filed by the appellant the court has no jurisdiction to entertain the purported appeal. Learned counsel relied on the following cases: – Oyebade V. Ajayi (1993) 1 NWLR (Pt.269) 313; Olanrewaju v. BON Ltd (1994) 8 NWLR (Pt.364) 622 and Olowokere v. African Newspaper (1993) 5 NWLR (Pt.295) 583 between the parties.
In the appellant’s reply-brief the learned counsel for the appellant submitted that the payment of any sums as fees can be made to any public treasury or agency authorised to collect same provided evidence of such payment can be offered. He said that the affidavit evidence of Kabiru Aliyu of 13th January showed that the decision to pay fees to the Federal High Court was an administrative decision as the Federal High Court and the Court of Appeal are all part of the Federal Judiciary.
Learned counsel argued that while the fee was paid in the Federal High Court registry the appeal was entered in Kano State High registry.
I agree with the submission of the learned counsel for the respondent that the question of whether or not a proper notice of appeal has been filed in the court below is a matter which touches on the jurisdiction of this court for if no proper notice has been filed, then there is no appeal for this court to entertain. See: the cases of Oyebade v. Ajayi (1993) 1 NWLR (Pt.269) 313; Olanrewaju V. BON Ltd (1994) 8 NWLR (Pt. 364) 22 and Olowookere v. African Newspaper (1993) 5 NWLR (Pt. 295) 583.
The rules of Court are meant to be obeyed and cannot be superseded by administrative arrangement in any court registry. Order 3, rule 2(1) of the Court of Appeal Rules is relevant and it is reproduce hereafter in part:-
“2(1) 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.”From the wording of this rule, a notice of appeal shall be filed in the registry of the court below. “Court below” is defined in Order I as any court or tribunal from which appeal is brought. The present appeal arose from Kano State High Court while the receipt for filing of the appeal shows that the notice was filed in the Federal High Court. The affidavit of one Kabiru Aliyu in opposition to the preliminary objection confirms that he was directed by one Mallam Ibrahim Baba of the Kano State High Court to go and pay the fees at the Federal High Court. He paid the fees on the 19th of April, 1996 to the Cashier of the Federal High Court and was issued receipt No. N673150 and the appeal was entered in the State High Court on 18th April 1996. From the affidavit of Kabiru Aliyu it would appear that the appeal was entered in the State High Court on the 18th of April 1996 before any fee was paid on the 19th of April 1996 at the Federal High Court. An appeal cannot be entered without the payment of the prescribed fees. In my respectful view by the rules of court the filing of the notice of appeal which includes the payment of the prescribed fees must be done in the court from which the appeal emanates. You cannot get a receipt of payment of fees from a different Court and file the notice of appeal in the court from which the appeal emanates, as was allegedly done in this case. I therefore uphold the preliminary objection that no proper notice of appeal was filed in this present appeal. The appeal is therefore incompetent and I hereby strike it out with costs of N2,000.00 in favour of the respondent.
Other Citations: (1998)LCN/0461(CA)