Can the payment of insufficient filing fees rob the court of jurisdiction?

 

SPDCN Ltd v. Agbara [2016] 2 NWLR (Pt. 1496) 353 at 407, paras. A-C, per Muhammad, JSC:

“The law has for long been settled that payment of inadequate filing fees can only make a process irregular and not capable of affecting the jurisdiction of the court.”

Notes:

The relevant facts of this case are that the Respondents filed an action against the Appellants at the Federal High Court, Asaba, arising from alleged oil spills in the course of the Appellants’ activities and Judgment to the tune of N17 Billion was awarded against the Appellants. The Appellants appealed to the Court of Appeal. In filing the Notice of Appeal at the registry of the Federal High Court, the Appellants were charged N500 for the Notice of Appeal. The Appellants later amended the said Notice of Appeal pursuant to the Order of Court. (Just to mention, the Appellants had filed a prior Notice of Appeal which was abandoned).

The Respondents thereafter filed a preliminary objection challenging the competence of the appeal and jurisdiction of the Court on the ground that the filing fee of N500 paid by the Appellants was inadequate/insufficient given that the fee prescribed by the Court of Appeal Rules, 2007 was N5,000 (also retained in the Court of Appeal Rules 2016, Part II, Third Schedule, Order 12 Rule 1).

Given the objection, the Appellants took steps and paid the balance of N4,500 on the Notice of Appeal and filed a Motion exhibiting the official receipt in respect of the additional/balance sum paid. This Motion was later withdrawn by the Appellants.

The Court of Appeal sustained the preliminary objection filed and struck out the appeal for being incompetent due to the alleged inadequate filing fees in respect of the Appellants’ Notice of Appeal.

The Appellants appealed to the Supreme Court which allowed the appeal. The apex Court took time to consider a number of authorities on the point and at the end concluded that insufficient payment of filing fees was a mere irregularity neither capable of rendering the appeal incompetent nor robbing the court of jurisdiction. The Court held that the word inadequate cannot be interpreted to mean non-payment. The Supreme Court was of the view that ‘The Appellants did all that they were required to do at that point in time. The mistake, if any, was that of the court officials who did the assessment.’ This mistake, according to the Court, cannot be visited on the Appellants. See p. 407 of the report. The Court reasoned that ‘The initial payment of N500.00 made in respect of the Notice of Appeal filed at the trial court is capable of sustaining the Notice of Appeal in suspense and the Court shall not act upon it unless it has been regularized.’ See p. 407 of the report.

One interesting point which arose in the consideration of the appeal was the withdrawal, by the Appellants, of the Motion exhibiting the official receipt in respect of the additional/balance sum of N4,500 paid as a remedial step. The Supreme Court also found that this development perhaps influenced the mind of the Court of Appeal in striking out the appeal. The apex Court held that although the Appellants’ Counsel might have goofed by withdrawing the said Motion, nevertheless, the Court of Appeal ought to have simply directed that such insufficient/inadequate shortfall be remedied. This direction becomes imperative given that, according the apex Court, the Court of Appeal was not obliged to look at the exhibited official receipt for the N4,500 since the Motion which it accompanied had been withdrawn and struck out. In order words, the Appellants were now at liberty to file a further process (which may be an Affidavit of Compliance) showing that the shortfall had been paid. Had the Motion exhibiting the official receipt not been withdrawn and struck out, that would have sufficed in the circumstances as it is expected that it ought to have been reasonably granted.

Notably, contrary to the Respondents’ argument in the case, the shortfall in filing fees can be remedied without obtaining a prior court order/direction to that effect. In a recent case of Richard Adepeju v. Stanbic IBTC Bank Plc Appeal No. CA/L/628M/2013, Appellant’s Counsel, Stephen Azubuike Esq., applied for leave to pay the shortfall in the filing of the Appellant’s Notice of Appeal at the registry of the trial court and to deem the already paid shortfall as a remedial step properly taken. The Court of Appeal, Lagos Division, granted the application without much ado.

One other important issue settled by the Supreme Court was that it is the Court of Appeal Rules made pursuant to Section 248 of the the 1999 Constitution (as amended) that governs the exercise of any right of appeal to the Court of Appeal. In which case, the N5,000 prescribed by the Court of Appeal Rules is what is payable to the registry of the trial court with respect to notice of appeal. The apex Court restates that filing of a notice of appeal must be at the registry of the trial court. The rationale for this, according to the Court, is to give the lower court notice of complaint against its decision. Thus, a notice of appeal should always be filed at the registry of the court that delivered the decision which is the subject matter of the appeal. In order to clarify further, the Supreme Court gave the following guide:

  • Filing fees payable in respect of any appeal which is as of right must be paid to the registry of the High Court, whether Federal or State.
  • Equally, where time is extended within which to file notice of appeal, the filing fees should be paid to the registry of that same High Court, Federal or State, within the time extended.
  • However, where leave is granted to an applicant o file his notice of appeal, and/or, where the appeal has already been entered at the appeal court, that applicant shall file his notice of appeal at the registry of the appeal court.
  • Equally, where there is an amendment to the notice of appeal, filing fees in respect of the amended notice of appeal should be paid to the registry of that appeal court.


Stephen Azubuike
Author: Stephen Azubuike
Stephen is a lawyer with expertise in Commercial Dispute Resolution and Technology Law practice. He is a Partner at Infusion Lawyers. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts on behalf of financial institutions, other corporate bodies and multinationals. He has worked with a number of startup tech companies. He tweets @siazubuike.

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