Nigerian Agip Oil Company Limited V. Mr Prophet Nwaketi (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment)

On 17th June, 2004 the appellant was ordered to pay the following sums to the respondent; i.e.:

i. N1,000,000.00 as general damages for the detention of the Plaintiff/Respondent for 4 hours in the defendant/appellant’s caravan.

ii. N2,000,000.00 general damages for detaining plaintiff/respondent at the Okwuze police station for 3 days.

iii. N5,000,000.00 general damages for malicious prosecution of the plaintiff/respondent at the Magistrate’s Court, Omoku in MCO/63C/96 for stealing.

Aggrieved by the judgment and the orders of the High Court of Rivers State (coram: E. N. T. Ebete, J) the appellant on 18th June, 2004, filed the notice of appeal at pages 90 – 92 of the Records of Appeal. The appellant paid N30.00 filing fee for the said notice of appeal.

The notice of appeal was filed under the 2002 Rules of this Court, which in Order 1, Rule 5 provides:

The fees set out in the Third schedule shall be payable in respect of matters to which they relate.

Under the said Third Schedule the fee payable for filing notice of appeal is N500.00. That is mandatory and a condition precedent for bringing an appeal under Order 3 Rule 5 of the same Rules. Rule 5 of Order 3 says that “an appeal shall be deemed to have been brought when the notice of appeal has been filed in the Registry of the court below”.

The balance of N450.00 was not paid within the period prescribed for bringing an appeal, or filing the notice of appeal, against the decision of the Rivers State High Court delivered on 17th June, 2004. The three months stipulated for filing appeal against that decision elapsed on or about 15th September, 2004. Upon effluxion of the period stipulated by Section 24 of the Court of Appeal Act and the appellant refusing, failing or neglecting to pay the correct fees prescribed by the Rules of this Court, the appeal brought on the notice of appeal filed on 18th June, 2004 became invalid and a nullity.

It has to be struck out for being incompetent on the authority of MADUKOLU v. NKEMDILIM (1962) ALL NLR 357 which held that a court is competent to entertain a matter when, among others, the matter before it is initiated in accordance with the due process of law and upon fulfillment of all conditions precedent for the court to assume jurisdiction.

We have held in a number of cases including ENGR. IBEABUCHI v. IKPOKPO (CA/PH/406/2009 of 16th January, 2013; MGBENWA & ORS v. KINGSLEY NNAGU & NIG. AGIP OIL CO. LTD (CA/PH/515/2009 of 22nd November, 2013) that the payment of the correct and appropriate filing fee within the time prescribed for bringing an appeal is what gives a validity to the notice of appeal.

See ONWUGBUFOR v. OKOYE (1996) 1 NWLR [pt.424] 252 SC; 7UP BOTTLING CO LTD v. YAHAYA (2001) 4 NWLR [pt.702] 47; ABIA TRANSPORT CO. v. QUORUM CONSORTIUM LTD (2009) 9 NWLR [pt.1145] 1. In other words, that a notice of appeal filed upon an inadequate filing fee is incompetent. We have no cause to depart from this rule. Consequently, this appeal being incompetent is hereby struck out.

I am enjoined to consider the merits of the appeal, as an intermediate court, in case I may be wrong in my stance that the appeal is incompetent.