Sylvanus Emeka Madubuike & Ors V. Romanus Elochukwu Madubuike (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.(Delivering the Lead Ruling)

The motion dated 24/2/2015 and filed on 25/2/2015 before the Court was brought by the Appellants/Applicants (hereafter to be simply referred to as Applicants?) pursuant to Orders 7 Rules 1 and 10(1); 20 Rule 3(1) and (2) of the Court of Appeal Rules, 2011 and the inherent jurisdiction of the Court. The orders which the Applicants seek as set out in the motion are: –

1. AN ORDER granting leave to the Applicants to pay fully the stipulated filing fees of N5,000.00 having paid N350.00 in respect of the Notice of Appeal dated 23rd February, 2009 and filed on the 25th February 2009 in this appeal.
2. AN ORDER deeming as properly paid the balance of the filing fee of N5,000.00 in respect of the Notice of Appeal stated above which is N4,650.00 which was paid after the filing of the said Notice of Appeal.

The grounds for the motion as contained therein are: –

(a) This appeal was failed at the Federal High Court Registry, Ado-Ekiti on the 25th February, 2009 and the Registrar of the Court assessed the filing fee to be N350.00

only which was paid by the appellants.

(b) It was later discovered that what the appellant (sic) needed to pay was N5,000.00 for a Notice of Appeal hence the appellant (sic) paid the balance of N4,650 later.

(c) That Court (sic) is empowered by its rules to enlarge the time provided for the doing of anything to which the rules apply.

(d) Equally, Order 20 Rules 1 & 2 of the Rules of this Court empowers the Court to grant waivers on non-compliance in the overall interest of justice.

(e) The Court restored the appeal to the cause list on 25th November, 2014 and struck out the prayers of allowing the appellant (sic) to pay the balance of fees as well as deeming the balance of N4,650 already paid on the said date because it was premature.

(f) It is in the interest of justice to grant the prayers as the appellants are desirous of prosecuting the appeal to its logical conclusion.

(g) That unless the Court allows the application and waive the non-compliance of payment, the appellants may not be able to proceed with the prosecution of appeal.”

The motion is supported by a 10 paragraph affidavit sworn to on 25/2/2015

by one Seun Fatoki. Three exhibits were attached to the supporting affidavit. These are: (i) Exhibit AN.1 a letter dated 19/1/2015 by which P.P. Monde of counsel was authorised to take over/handle the instant appeal; (ii) Exhibit ?AN.2? ? notice of appeal filed on 25/2/2009 and which reflects that the sum of N350.00 was paid for its filing; and (iii) Exhibit AN.3 receipt of the payment of the sum of N4,650.00 in respect of the notice of appeal in the instant appeal.

The facts relied on by the Applicants in bringing the motion and as deposed to in the supporting affidavit are to the effect that the Applicants on 25/2/2009 filed a notice of appeal dated 23/2/2009 against the decision of Allagoa, J; of the Federal High Court delivered on 27/11/2008 in Suit No. FHC/E/33/94.