Chukwma Ogwe & Anor vs. Inspector General of Police (I.G) & Ors

(Supreme Court – February 13th, 2015 )
Legalpedia Electronic Citation L:ER [2015]SC. 214/2013

Areas of Law:
FUNDAMENTAL HUMAN RIGHTS, FAIR HEARING, CONSTITUTIONAL LAW, PRACTICE AND PROCEDURE, STARE DECISIS, APPEAL, WORDS AND PHRASES

Summary of Facts:
The Appellants initiated Fundamental Right Enforcement proceedings against at the Respondents at the Rivers State High Court. The trial Court dismissed the Appellant’s suit. Dissatisfied with the judgment of the trial Court, the Appellants appealed to the Court of Appeal and filed notice of Appeal and paid the requisite filing fees as it was assessed by the Appeal Registry of the trial Court. On the day the appeal came up for hearing, the Appellants’ Counsel went to the premises of the Appellate Court around 8.35am only to find the gate of the Court locked with a notice pasted at the gate to the effect that the Judiciary Staff Union of Nigeria was on strike. The Appellants’ Counsel waited till 10.00am and left when he could not gain access to the court room. Unfortunately, the Appellate Court sat later in the day; raised the issue of the inadequacy of the filing fees by the Appellants suo motu and struck out the appeal in the absence of the Appellants and their Counsel. Dissatisfied with the trial Court’s decision, the Appellants appealed to the apex Court.

Held
Appeal allowed.

Issues for Determination:
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.
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.
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.”

Rationes:
PRESUMPTION OF REGULARITY OF THE RECORDS OF APPEAL- RECORDS OF APPEAL ARE PRESUMED TO BE REGULAR UNTIL THE CONTRARY IS PROVED
“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.” PER M. D. MUHAMMAD, J.S.C.

ISSUE RAISED SUO MOTU – THE COURT SHOULD HEAR PARTIES WHERE IT RAISES AN ISSUE SUO MOTU BEFORE REACHING A DECISION ON SAME
“The law only directs that where the court raises an issue suo motu it hears the parties before reaching a decision on the issue as raised.”PER M. D. MUHAMMAD, J.S.C.

RECORD OF APPEAL – EXTENT OF AN APPELLATE COURT’S JURISDICTION WITH RESPECT TO THE RECORD OF APPEAL
“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.” PER M. D. MUHAMMAD, J.S.C.

DOCTRINE OF STARE DECISIS – OPERATION OF THE DOCTRINE OF STARE DECISIS
“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. 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 (2010) 10 NWLR (Pt 1201) 1 at 16, Shetima and Ors V. Goni &ors (2011) NWLR (Pt.1279) 413 at 425 and Amaechi V. INEC (2007) 18 NWLR (Pt 1065) 42..” PER M. D. MUHAMMAD, J.S.C.

COURT PROCESS – WHEN IS A COURT PROCESS DEEMED DULY FILED?
“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”. PER M. D. MUHAMMAD, J.S.C.

COURT – WHETHER THE COURT WILL VISIT THE SINS OF THE COURT REGISTRY ON A LITIGANT OR HIS COUNSEL
“In C.C.B (Nig) Plc V. AG Anambra State and anor (1992) 8 NWLR (Pt 261) 528 this Court per Olatawura JSC held 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 in fact 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.” PER M. D. MUHAMMAD, J.S.C.

INADEQUATE FILING FEES – APPROPRIATE ORDER TO BE MADE BY THE COURT WHERE THE FILING FEES PAID IS INADEQUATE
“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”. PER M. D. MUHAMMAD, J.S.C.

FILING AN APPEAL – PROCEDURE FOR FILING AN APPEAL WITHIN TIME – SECTION 24 OF THE COURT OF APPEAL ACT
“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.”PER M. D. MUHAMMAD, J.S.C.

PAYMENT OF FILING FEES IN AN APPEAL – PAYMENT OF FILING FEES FOR AN APPEAL BEING FILED BY AN ORDER OF COURT FOR EXTENSION OF TIME TO APPEAL SHALL BE AS PRESCRIBED IN THE THIRD SCHEDULE TO THE COURT OF APPEAL RULES
“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 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.”PER M. D. MUHAMMAD, J.S.C.

APPEAL – DEFINITION 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.”PER M. D. MUHAMMAD, J.S.C.

FILING AN APPEAL – AN APPEAL IS DULY FILED ONCE IT IS SHOWN THAT THE APPELLANT HAS PAID THE FILING FEES
“In any event once it is shown that the appellant has paid the filing fees as assessed by the officer whose responsibly 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.
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 lyalabani Co Ltd V. Bank of Baroda (1995) 4 NWLR (Pt 387) 20, Bowaje V. Adediwura (1976) 6 SC 143, Doherty V. Doherty (1964) 1 NLR 299 and Ahmadu V. Salawu (1974) 1 NLR (Pt 11) 318”. PER M. D. MUHAMMAD, J.S.C.

Statues Referred to:
Constitution of the federal Republic of Nigeria, 1999 as amended
Court of Appeal Rules, 2011
High Court (Civil Procedure) Rules of Rivers State

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