The Payment of Insufficient Filing Fees Does Not Render a Court Process Incompetent
It is a correct principle of law as held by the Supreme Court in the instant appeal that a shortfall in the appropriate filing fees payable for the filing of a court process will not render such process incompetent but that such infraction is at best an irregularity which can be subsequently remedied. The Supreme Court took the view that holding otherwise is tantamount to interpreting the provisions of an enactment slavishly in such a way as to deny litigants access to justice.
Facts Following a diesel spill from the Appellant’s facility that occurred on 20 August 2011, which polluted the Respondents’ creeks and pond channels, the Respondents filed an action at the Federal High Court, Port Harcourt (the “trial court”), seeking various declaratory reliefs and monetary compensation. The trial court entered judgment in favour of the Respondents and awarded the sum of N313, 247,056.00 against the Appellant.
Aggrieved by the decision of the trial court, the Appellant appealed to the Court of Appeal, Port Harcourt Judicial Division (the “Court of Appeal”). In filing the appeal, the Appellant paid the sum of N200.00, being the filing fees assessed by the registry of the trial court for the notice of appeal instead of the sum of N5, 000 prescribed by the Court of Appeal Rules. As a result of this, the Respondents filed a notice of preliminary objection challenging the competence of the notice of appeal. The Appellant, subsequently filed a motion seeking to regularise its notice of appeal by the payment of the appropriate filing fees. In its ruling delivered on 20th March 2013, the trial court dismissed the Appellant’s application and struck out the Appellant’s appeal on the basis that its notice of appeal was incompetent by reason of the payment of insufficient filing fees.
Dissatisfied with the decision of the Court of Appeal, the Appellant appealed against same to the Supreme Court on the 4th day of April, 2013. The Appellant formulated the following issues for determination: (i) whether the provisions of Order 12 Rule 1 of the Court of Appeal Rules are unconstitutional, having regard to the provisions of sections 248, 254 and 274 of the Constitution; (ii) whether in the light of the principle of stare decisis, the Court of Appeal was right when in striking out the Appellant’s appeal, it preferred its decision in IBEABUCHI & 4 ORS. v IKPOKPO & 2 ORS to the decision of the Supreme Court in AKPAJI v UDEMBA; and (iii) whether it would not have been fair and proper in the circumstances for the Court of Appeal to have ordered the Appellant to pay the appropriate filing fees in respect of its notice of appeal, the Appellant having taken remedial steps to regularise same. The Respondents, on their part, embedded a preliminary objection in their brief of argument, seeking to challenge the competence of the notice of appeal on the ground that same was filed outside the time prescribed by section 27 of the Supreme court Act.
On the Respondents’ preliminary objection, the Respondents contended that the ruling of the Court of Appeal delivered on 20th March 2013 was an interlocutory decision and as such the Appellant’s appeal against same, having been filed fifteen days after the ruling was delivered, was incompetent. The Respondents relied on the case of FIRST BANK OF NIGERIA PLC. v TSA INDUSTRIES LIMITED (2010) 4 -7 SC (Pt.1) 242.
In response, the Appellant argued that the said ruling of the Court of Appeal was a final decision as same determined the rights of the parties. The Appellant thus, submitted that its notice of appeal filed on 4 April 2013, was competent, having been filed within three months in accordance with section 27(2) of the Supreme Court Act.
On issue number one, the Appellant submitted that the provisions of Order 12 rule 1 of the Court of Appeal Rules, which provides that the sum of N5,000 shall be paid to the registry of a high court as filing fees in respect of a notice of appeal, is unconstitutional and therefore null and void. The Appellant predicated this submission on the ground that the President of the Court of Appeal, under whose hands the said Court of Appeal rules were made, can only validly make rules limited to the practice and procedure of the Court of Appeal, by virtue of the powers conferred on it by section 248 of the Constitution. The Appellant relied on the case of NWAIGWE & ORS v OKEREKE (2008) 13 NWLR (Pt. 1105) 445.The Appellant argued further that by the provision of section 44 of the Federal High Court Act, only the Chief Judge of the Federal High Court is clothed with the power to determine the fees payable in respect of the filing of any document at the registry of the Federal High Court.
On issue number two, the Appellant submitted that, having regard to the principle of stare decisis, the Court of Appeal erred in law when it held that it was bound to follow its decision in the case of IBEABUCHI v IKPOKPO (Unreported – CA/ PH/406/2009), which is to the effect that the failure to pay filing fees as prescribed in the Court of Appeal Rules for a notice of Appeal, robs the Court of Appeal of the jurisdiction to entertain an appellant’s appeal. The Appellant argued that the principle of law applied in IBEABUCHI v IKPOKPO (supra) is inconsistent with the decision of the Supreme Court in the case of AKPAJI v
UDEMBA (2009) 10 NWLR (Pt.1138) 545, which held otherwise. On issue number three, the Appellant submitted that the failure to pay appropriate filling fees is an irregularity which can be remedied and which does not affect the validity of a process. The Appellant relied on AKPAJI v UDEMBA (supra). The Appellant submitted further that having regard to its application to regularise its position and to deem the payment of the shortfall as having been properly paid, it was patently unjust for the Court of Appeal to strike out the appeal. Furthermore, the Appellant contended that in any event, the Appellant ought not to be punished for the negligence of the registrar, whose duty it was, to assess the fees payable for the filing of the notice of appeal. The Appellant relied on the case of BBN v OLAYIWOLA (2005) 3 NWLR (Pt. 912) 434 at 457.
In response to the arguments of the Appellant on issue number one, the Respondents submitted that, the contention of the Appellant that Order 12 Rule 1 of the Court of Appeal Rules usurps the function/powers of the Chief Judge of the Federal High Court is flawed, by reason of the fact that, section 32 of the Federal High Court Act, recognises the application of both the Court of Appeal Act and Rules to matters relating to appeals emanating from the Federal High Court. The Respondents urged the Supreme Court to hold that there is no conflict between the Federal High Court Act/Rules and the Court of Appeal Act/Rules.
On issues number two and three, the Respondents submitted that by virtue of the provisions of Order 6 Rules 6 and 7, Order 7 rule 11 of the Court of Appeal Rules and the Third Schedule to the Court of Appeal Rules, the Court of Appeal was right in law when it struck out the Appellant’s appeal, as the said provisions are emphatic and unequivocal on the question of payment of appropriate filing fees.
The Respondents submitted further that the case of AKPAJI v UDEMBA relied upon by the Appellant was inapplicable to the instant appeal because the Supreme Court in that case, excused the shortfall in filing fees on the basis that the Respondent who took the process to the registry for assessment was a business man and not a lawyer who knows the procedure in the court’s registry. Additionally, the Respondents submitted that in any event, as at the time the Appellant filed its application to regularise the notice of appeal, the appeal was already incompetent and the Court of Appeal was therefore right to refuse it. The Respondents relied on the case of MACFOY v UNITED AFRICA CO. LTD (1961) 3 All ER 1169.
On the Respondents’ preliminary objection, the Supreme Court observed that the applicable test, as laid down in the case of BOZSON v ALTRINHAM UDC (1903) 1 K. B. 547 and applied by Nigerian courts, for determining whether a judgment/order is interlocutory or final is a consideration of the nature of the order made, as to whether same finally disposes of the rights of the parties. Applying this test to the ruling of the Court of Appeal, the subject of the instant appeal, the Supreme Court held that the said ruling was a final order as it was decisive of the rights of the parties in the appeal. The Supreme Court relied on the cases of IGUNBOR v AFOLABI (2001) 11 NWLR (pt. 723) 1483 and OMONUWA v OSHODI & ANOR (1985) 2 SC 1. Accordingly, the Supreme Court held that the Appellant’s appeal was competent; having been filed within three months from the date the ruling was delivered and, thereafter, dismissed the preliminary objection.
On issue number one, the Supreme Court primarily embarked upon a thorough construction of sections 243 (1), 248 and 254 of the Constitution and section 32 of the Federal High Court Act and held that Order 12 Rule 1 of the Court of Appeal Rules is not unconstitutional as contended by the Appellant. The Supreme Court observed that no provision was made in the Federal High Court Rules on the fees to be paid for the filing of a notice of appeal against the decision of the Federal High Court to the Court of Appeal and that by the provisions of Order 56 Rule 8 of the same rules, this omission can be remedied by resort to the rules of the Court of Appeal. The Supreme Court relied on the case of CLEMENT & ANOR v IWUANYANWU & ANOR (1989) 3 NWLR (pt. 107) 39.
Further, the Supreme Court held that the import of the provisions of section 243 (1)(b) of the Constitution is that the right of appeal to the Court of Appeal from the decisions of a High court, shall be exercised in accordance with the Court of Appeal Act/Rules. The Supreme Court held further that, by virtue of the provisions of the aforesaid section, the applicable rules for determining the filing fees payable in respect of the instant appeal are the rules of the Court of Appeal made by the President of the Court of Appeal pursuant to the powers conferred on him by section 248 of the Constitution. In addition, the Supreme Court held that pursuant to section 32 of the Federal High Court Act, which provides that subject to the provisions of the Constitution and the Court of Appeal Act/Rules, appeals shall lie from the decision of that court to the Court of Appeal and any right of appeal from the decision of the Federal High Court is exercisable in accordance with the rules of the court of Appeal. The Supreme Court thus held that a community reading of the provisions of the aforesaid laws, reveal that order 12 rule 1 is not unconstitutional as same is the applicable rule for determining the fees payable for the filing of a notice of appeal to the Court of Appeal. The Supreme Court also held that the said rule does not rob the Chief Judge of the Federal High Court of his power to make rules regulating the practice and procedure of the Federal High Court. The Supreme Court resolved this issue in favour of the Respondents.
On issue number two, the Supreme Court held that on the principles of stare decisis, a lower court is bound by the decision of a superior court, irrespective of its palatability and that in the instant appeal, the lower court ought not to have preferred its decision over and above the decisions of the Supreme Court. The Supreme Court relied on section 287 of the Constitution and the case of DALHATU v TURAKI (2003) 15 NWLR (Pt. 843) 310.
On issue number three, the Supreme Court adopted its decision in Appeal No. SC/693/2013 – THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED & 2 ORS. v CHIEF ISAAC OSARO AGBARA & 9 ORS., which is ‘on all fours’ with the instant appeal. The Supreme Court observed that although the power of a court to refuse an application seeking to regularise a process is largely discretionary, such discretion must be exercised judicially and judiciously. On the above premises, the Supreme Court held that in the instant appeal, the Court of Appeal exercised its discretion wrongly, when it held that the inadequate filing fees was fatal to the Appellant’s appeal. The Supreme Court held further that the Court of Appeal ought to have directed that the inadequate/shortfall in the filing fees be remedied. In the words of the Supreme Court “The principle of law as settled by this court, as seen supra, in relation to the settlement of insufficient filing fees on documents placed before the registry of a court is for the court to direct that such insufficient, inadequate, shortfall be remedied. The striking out of the appeal at the stage the court below did, was certainly unnecessary and improper.” The Supreme Court accordingly resolved this issue in favour of the Appellants.
The Supreme Court allowed the appeal and set aside the decision of the Court of Appeal. The Supreme Court accordingly ordered that the appeal be restored back on the Court of Appeal’s cause list and thereafter directed the Appellant to take steps towards regularising its Notice of Appeal. Representation For the Appellant: A. A. Adegbonmire, SAN with M. Mordi, T.J Krukrubo, H. Chibor, O.E. Aliu (Mrs.), D. D. Killi and C. Caleb.
For the Respondents: J. U. Igwe SAN with S. Onyemenam, Esq. and E. Abiri (Miss.)
Amicus Curiae: Dr. Onyechi Ikpeazu, SAN with J. Mba
Amicus Curiae: Mr. Y. Maikyau SAN with A. Z. Teru Esq., Nwabueze Obasi-Obi Esq., T. A. Rapu Esq., and Mohammed Adelodun, Esq.
Reported by Tochukwu J. Anaenugwu, Aluko & Oyebode, Lagos