CASE SUMMARY OF:
Chukwuma Ogwe & Anor v. Inspector General Of Police & Ors (2015) - SC
Court of Appeal rules;
1. Chukwuma Ogwe
2. Pius Agi
1. Inspector General of Police (I.g.)
2. Commissioner of Police, Rivers State
3. D.S.P. Iregbu Barasua
LEAD JUDGEMENT DELIVERED BY:
Musa Dattijo Muhammad, J.S.C
LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
- C. I. Enweluzo
* FOR THE RESPONDENT
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The Appellant's cases was dismissed in the Court of Appeal for inadequacy in payment of the filing fee. However, it was the registrar who assessed and instructed the Appellant to pay the fee. The Court of Appeal raised the inadequacy suo moto and dismissed the Appellant's cases. Hence, this appeal.
1. 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.
2. 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.
HOLDING & RATIO DECIDENDI
1. Issue 1 was held in favour of the Appellant.
i. Firstly, 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. The appellant cannot be made to suffer for any shortfall. To do otherwise is to hold him to account for another person's lapses. Secondly, 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.
ii. 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.
2. Issue 2 was held for the Appellant.
i. 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 cases by the appellant. See; Eyisi V. State (2000) 12 SCNJ. From the record, it is glaring that inspite of the fact that the appellants had been served on the day the court raised the issue of the inadequacy of the filing fees they were neither present in the court nor represented. The law only directs that where the court raises an issue suo it hears the parties before reaching a decision on the issue as raised.
By Order 7 Rule 11 of the Court of Appeal Rules 2007, "an appeal shall be deemed to have been brought when the notice of appeal has been filed in the registry of the court below."
Section 248 of the 1999 constitution (as amended) provides as follows: "248. Subject to the provisions of any Act of the National Assembly, the president of the Court of Appeal may make rules for regulating the practice of the Court of Appeal."
Order 20 Rule 3 (1) and (2) of the Court of Appeal Rules provides as follows:
(1) The court may, in an exceptional circumstance, and where it considers it in the interest of justice so to do, waive compliance by the parties with these Rules or any part thereof.
(2) Where there is such waiver of compliance with the Rules, the court may, in such manner as it thinks right, direct the Appellant or the Respondent as the cases may be, to remedy such non-compliance or may, notwithstanding, order the appeal to proceed or give such directions as it considers necessary in the circumstance.
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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. - Dattijo Muhammad, J.S.C. Ogwe v. IGP (2015)
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. By the doctrine, judges are enjoined to stand by their decisions and the decisions of their predecessors. 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. - Dattijo Muhammad, J.S.C. Ogwe v. IGP (2015)
It should be further reiterated that payment of inadequate filing fees cannot rob a court of jurisdiction to entertain a suit or appeal as herein. This is so, as it is an irregularity that can be remedied by an order for the payment of the short fall. - Afolabi Fabiyi, JSC. Ogwe v. IGP (2015)
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