Jonpal Limited V. Afribank Nigeria Limited (2002)
LawGlobal-Hub Lead Judgment Report
M.D. MUHAMMAD, J.C.A.
This is an appeal against the decision of Justice K. N. Udeh of the Enugu State High Court, sitting at Enugu delivered on 7th May, 2001. By the decision, the lower court dismissed the plaintiff/appellant’s preliminary objection challenging the jurisdiction of the lower court entertaining the defendant’s/respondent’s application to set aside it’s judgment given in favour of the appellant as plaintiff against the respondent then being the defendant. Henceforth, the parties will be referred to simply as appellant and respondent respectively.
The brief facts of the case which brought about the appeal are hereunder supplied.
The appellant initiated a writ and claim in suit No. E/74/2000 at, the lower court seeking, inter alia, certain declaratory reliefs, special and general damages against the respondent. By a motion on notice dated 23/3/2000, the appellant prayed the court for an order entering judgment in his favour against the respondent, who was said to have defaulted in filing its pleadings. The prayer was obliged by the court.
On 11/5/2000, the respondent filed its motion seeking from the lower court the undermentioned orders:-
“1 An order to set aside the default judgment dated 14th April, 2000, obtained by -the plaintiff/judgment creditor/ respondent (herein after called the respondent) against the appellant, in the absence of the applicant, the court processes not having (sic) served on the applicant.
- An order of extension of time within which the applicant may file its statement of defence in this suit.
- An order deeming the statement of defence annexed herewith as exhibit ‘A’ as having been properly filed and served, the necessary filing fees having been duly paid.
- Any further order or orders as the court may deem fit to make.”
A twenty-nine paragraph affidavit and series of annexures supported the respondent’s motion. The most important of these paragraph for the purpose of the instant appeal are paragraphs 5, 6, 7, 23 and 28, are hereunder reproduced:-
“5. That to the best of my knowledge, information and belief, the writ of summons, statement of claim and other court processes in this suit were not served on the said Branch Manager aforenamed, or on any other responsible officer of the applicant.”
“6. That counsel to the applicant, Pat Ofili (Mrs), has informed me and I verily believed her that her inquiries
at High Court Registry Enugu, revealed that the aforementioned court processes meant for service on the
applicant were delivered to “A Secretary attached to Afribank Nig. Plc at No. 36 Okpara Avenue, Enugu,”
“23. That the applicant never knew of the pendency of the substantive suit at the High Court Enugu, as the said suit was never brought to its notice,”
“28 That the applicant is able and willing; to defend the “‘said suit.”
Respondent also filed a further affidavit as reflected at p. 42 to 44 of the print record.
On 14/7/2000, the appellant filed a preliminary objection, challenging the jurisdiction of the trial court to entertain the respondent’s application and grant the orders sought therein. The motions were consolidated and taken together at the end of which exercise appellant’s preliminary objection was overruled. With the dismissal of the objection, the lower court proceeded to make the following orders:
“(i) The judgment of this court dated 14th April, 2000, obtained by the plaintiff/judgment creditor/respondent against the applicant, being a default judgment is hereby set aside.
(ii) That time is extended for the applicant within which it may file its statement of defence in this suit.
(iii) That the statement of defence annexed as exhibit ‘A’ shall be reproduced and properly filed and served on the plaintiff/respondent within 7 days from the date of this ruling.
(iv) Costs assessed and fixed at N2,000.00 is awarded against the applicant in favour of the plaintiff/respondent.
It is instructive to mention as well that the appellant had registered the lower court’s judgment at the Federal High Court Enugu, after the judgment order had been drawn up and before arguments into the consolidated motion of the two were taken and determined.”
The appellant is dissatisfied with the lower court’s decision as to his objection and has therefore, filed this appeal.
Parties have filed and exchanged briefs which on their adoption stand as arguments for or against the appeal.
In the appellant’s brief the following three issues have been formulated for the determination of the appeal.
“A Whether the trial Judge discharged the duty cast on him of resolving the issue of the non payment by the respondent of the mandatory, statutory fees of N 1,500.00, the sum payable as three-fifths charged under “Second Schedule, Order 6, rule 1, Item 1-5, “Second schedule, Order 6, rule 1, Item 24( iii) and (iv), rules 5, 7 and 8, of the High Court Rules 1988; as against the N99.00 only paid, a condition precedent before he can reopen the default judgment?
B. Whether the trial court (as the home court) had the jurisdiction setting aside default judgment, which had been registered as the judgment of the Federal High Court of Nigeria, and a process issued by the Court of registration, an Order Nisi already executed, by attaching in the mean time the funds of the respondent in the hands of Central Bank of Nigeria as garnishee?
C. Whether the trial court discharged the duty cast on it, when it failed to dismiss the application before it, which constituted an abuse of process, after becoming aware of the pendency of another application on the same subject matter, the judgment award of N8,500,000.00 instituted latter by the respondent at the Federal High Court without any order staying proceeding in the coexisting matter by the Federal High Court?”
The respondent has formulated three issues as well. These are:-
(i) “Whether the assessment of fees payable in court for the filing of actions, interlocutory applications or other court processes, is the responsibility of the litigant or the officers of court?
(ii) Whether a default judgment obtained against a party without the fulfillment of one of the fundamental conditions precedent for the institution of an action-service of processes is a valid judgment registrable in some other court (The Federal High Court) or at all and whether such a default judgment can be executed?
(iii) Whether the subject matter of respondent’s application at the High Court, Enugu, is the same as its application before the Federal High Court, Enugu, so as to constitute an abuse of process of Court thereby necessitating an order of stay of execution by the Federal High Court, Enugu, pending the determination of the application before the High Court, Enugu.
In arguing its first issue, the appellant contended in the brief that the trial Judge had failed to make judicious finding on the issue of the respondent’s failure to pay the statutory fees in filing his motion praying the lower court to set aside its judgment, cardinal as the issue was. The brief referred to p. 102 of the print record and submitted that the conclusion reached by the court was wrong since the Judge was in no position to waive the issue of fees. By Order 6, rules 5, 7 and 8, of the trial court’s rules of procedure, non-payment of the statutory fees had robbed the court of its competence to consider the prayers before it let alone grant the reliefs sought. Reliance was put on Nwakanma v. Iko Local Government of Cross River State (1996) 3 NWLR (Pt. 439) 732; Saude v. Abdullahi (1989) 4 NWLK (Pt. 116) 387; Gambari v. Gambari (1990) 5 NWLR (Pt. 152) 572 and Provisional Council Ogun State University & Ors. v. Mrs. Makinde (1991) 2 NWLR (Pt. 175) 613.
In essence, appellant argued, the lower court had exercised its discretion wrongly, when it granted the reliefs asked of it by the respondent. Where a court’s discretion is exercised in a non judicial and non-judicious manner, on the authority of Igwe v. Kalu (1993) 4 NWLR (Pt. 285) 1 and Vincent Standard Trading Co. Ltd. v. Xtodeus Trading Co. Nig. Ltd. (1993) 5 NWLR (Pt. 296) 675, appellant submitted, the court’s decision would on appeal be set aside.
On its 2nd issue, it has been argued for the appellant that since the Federal High Court, Enugu, had issued a Decree – Nisi, which order had been drawn up, the lower court being one of co-ordinate jurisdiction with toe former court, was in no position to set aside the order made by the Federal High Court. It was contended that by the order which reversed its judgment, the lower court had in effect set aside the order of the Federal High Court which it could not.
The decisions in Uku v. Okumagba (1974) 3 SC 35, (1974) 9 NSCR 118; Okoye v. NCFC Ltd. (1991) 6 NWLR (Pt. 199) 501; Emordi v. Kwentoh (1996) 2 NWLR (Pt. 433) 656 SC have been cited to support the appellant’s arguments in this regard.
Appellant also contended that by virtue of sections 2, 4, 8 and 109, of the Sheriff’s and Civil Process Act, Cap. 407, Laws of Federation, 1990, as well, the lower court’s decision cannot hold. Appellant argued that once a Decree Nisi had been issued, unlike other modes of execution of judgment, the process cannot be halted even by the pendency of appeal, let alone the process of the lower court adopted. Appellant cited as authority the case of Nigeria General Ins. v. Bello (1994)1 NWLR (Pt.319) 207.
As to its 3rd and last issue, the appellant contended that the respondent’s application to set aside the lower court’s decision in suit No. E/74/2000 had existed concurrently with the respondent’s bid to set aside the Decree nisi obtained by the appellant in suit No. FHC/EN/CS/41/2000. This tact made the respondent’s various resort to obtain a single remedy an abuse of the court’s process. By the decisions in Attahiru v. Bagudu (1998) 3 NWLR (Pt.543) 656 and Balewa v. Muazu & Ors. (1999) 7 NWLR (Pt.609) 124, once there was an abuse of the process of the court, the lower court and indeed this court should dismiss the respondent’s prayers.
On the whole, appellant has urged that the appeal be allowed because of the foregoing reasons.
The respondent in arguing the first issue it formulated, referred to the record of appeal, the judgment of the lower court at p.96 lines 21-29 and p.102 lines 8-25 and submitted that the trial court had demonstrated a clear grasp of Order 6 rules 5, 7 and 8, of its rules of practice. It is argued that with the payment of a fee of N99.00 by the respondent, pursuant to the assessment given by the Court’s Registrar who not only initialled the fact of the payment of the fees but also issued receipt No. CR 000773698 of 11/5/2000, the court’s decision that there had been compliance was proper and so was the court’s refusal to strike out respondent’s application. Respondent relied on Onwugbufor v. Okoye (1996) 1 NWLR (Pt.424) 252.
It is further argued that appellant’s reference to items 24(iii) and (iv) to second schedule was misconceived because the items have nothing to do with the assessment of fees. Under the 2nd issue, it is contended that failure to effect service of necessary processes on a defendant by a plaintiff to enable the former attend court to answer the claim takes away the court’s jurisdiction. This failure renders proceedings a nullity no matter how well conducted and as held in Skenconsult & Anor. v. Ukey (1981) 1 SC 6 at 26 submitted the respondent, a person affected by such a nullity is entitled to have it set – aside as did the respondent in the instant case.
For the 3rd issue, it is submitted that since the judgment obtained by the appellant was from the very beginning a nullity same was incapable of being registered at the Federal High Court. The Order Nisi issued by the Federal High Court pursuant to the garnishee proceedings commenced in execution of a void judgment were equally null and void.
It was further argued, the respondent’s application to have the lower court’s judgment set aside did not co-exist with its application to the Federal High Court to have the Order Nisi set aside. In any event neither the parties nor the reliefs in the two applications were the sam6. The facts of the present case respondent argued, cannot, as rightly held by the lower court, constitute an abuse of the process of the court.
Respondent has prayed that the appeal be dismissed.
Going through the seemingly indentical issues formulated by both parties to this appeal, it appears that it is no longer in dispute that respondent had not in fact been served the court processes in consequence of which the lower court’s judgment in favour of the appellant was granted, which null and void decision had been set aside. What the appellant is saying is that notwithstanding the fact that the judgment was void for non-service of the writ and the claim, the lower court lacked the necessary jurisdiction to set the illegal judgment aside for three reasons. Firstly, respondent did not pay the appropriate fees for the filing of the very application which prayed the court to set aside its own judgment. Secondly, that in view of the fact that the lower court’s judgment had been registered in another court of co-ordinate jurisdiction, void as the judgment was, the respondent’s right to have the judgment set aside had become ineffective. Lastly, the application was in itself an abuse of the process of the court since respondent had equally applied to the Federal High Court to have the Nisi Order granted to the appellant pursuant to the registration of the latter’s void judgment set aside. I am afraid appellant is wrong in all the three situations. It must be remarked outrightly that respondent’s application praying the lower court to set aside its null and void judgment cannot in the circumstances of the instant case be said to constitute an abuse of the process of the court. The analysis of the lower court and the conclusion it reached as a result of the painstaking exercise is unassailable. Quite correctly, an abuse of the process of court occurs when a party improperly uses the judicial process to the irritation and annoyance of his opponent or in order to overreach such an opponent. Although, it is true that abuse of the process of the court often manifests in the institution of multiplicity of actions, the fact that multiple actions; had been commenced by a party against another without more may not necessarily amount to an abuse of the process of the court. There is an abuse only where the multiple actions were between the same parties and in respect of the same subject-matter. See Okorodudu v. Okoromadu (1971J) 3 SC 21, and Okafor v. A.-G., Anambra State (1991) 6 NWLR (Pt.200) 659 at 681. Such was not the position in the instant case. The subject-matter in the application at the lower court to have the void judgment set aside was not the same as in the application at the Federal High Court. Nor were the parties in the two causes the same. Given this circumstance, the lower court had rightly found that respondent’s application-could not be adjudged an abuse of its process to make same impossible of being entertained. See also Oyegbola v. Esso West Africa Inc (1966)1 All NLR 170.
The respondent had taken the right steps in the two courts. It is by now a settled principle of law that any breach of the fundamental right provisions renders any act subsequent to such a breach a nullity.
Obtaining a judgment without service of the processes by which the action in which the judgment was acquired, rendered not only the judgment so gotten, but the purported execution of same a nullity. A party like the respondent affected by a null decision or order of a law court is entitled ex debito justitiae to have same set aside. He does so in the manner resorted to by the respondent, who applied to the very court that gave the null decision or issued the void order for it was that very court that had the inherent jurisdiction to revisit such a decision in the first place see Nwosu v. Udeaja (1990) 1 NWLR (Pt. 125) 188.
The appellant cannot also succeed on the basis of the quarrel that the lower court had wrongly assumed jurisdiction in hearing the respondent’s application, since appropriate fees had not been paid by the applicant.
By a long chain of authorities, we have held that the question of payment of adequate or inadequate filing fees in respect of documents for use in court does not raise an issue of jurisdiction and failure to fulfil the provisions of the rule of court thereto is merely an irregularity, which in the con of the instant case is incapable of affecting the lower court’s proceedings in any way. See Noibi v. Fikolati (1987) 1 NWLR (Pt. 52) 619 at 632 and Saude v. Abdullahi (1989) 4 NWLR (Pt.116) 387 at 405.
It is the appellant who asserted that respondent did not pay the appropriate fees. It has remained his burden to prove what the appropriate fees are and to what extent the payment of ninety-nine naira by the respondent had fallen short of the appropriate mark. Appellant having failed to prove the extent to which respondent had fallen short of what the rules of court required, will not be obliged the indulgence of overturning a decision so commendably reached.
Besides, by the combined effect of Order 6 and regulations 27(a) & (b) and 28 of the second schedule to the Anambra State High Court Rules applicable to Enugu State, one is unable to read inadequacy into the amount of fees paid by the respondent. Even if such inadequacy had been shown to exist, the usual remedy has always been for the lower court, and here we would have invoked section 16 of the Act, to ask the respondent to pay the appropriate fees or the short fall. See ACB v. Henshaw (1990) 1NWLR (Pt.129) 646 at 650; Eke v. Eluwa (2000) 14 NWLR (Pt.688) 560 at 568.
In the instant case, even though the appellant had taken up the issue of non payment of the appropriate fees timeously we are satisfied that in the light of the facts supplied by the respondent, the appropriate fees had been paid and the lower court was right in its treatment of the respondent’s application.
The point has been made in the respondent’s brief that appellant is raising a fresh issue in its 2nd issue for determination having drawn same from the 2nd ground of appeal that had been filed without the leave of this court. Ordinarily we would have upheld this submission. However, since the issue seem to have brought the jurisdiction of the lower court into focus, and the issue of jurisdiction being crucial and cardinal, appellant’s bid as contained in the 2nd issue will be considered as well.
We note in this regard that no prayer was made to the lower court for the order of the Federal High Court Nisi to be set aside. The court did not make such an order any way. S.109 of the Sheriffs and Civil Process Act and the rules thereto allowed the courts to issue a Decree Nisi or absolute in any garnishee proceedings only where a valid judgment had been obtained and same subsists. Where no judgment validly subsists no lawful order can therefore be made.
The appellant’s suggestion that by the respondent’s resort to the lower court to have a nullity set aside, the court had reversed the decision of a court of co-ordinate jurisdiction is an unimpressive ingenuity. Respondent had to have the Order Nisi at the Federal High Court set aside, the nullity that the order was inspite of the fact that the decision being enforced by the Order Nisi had been reversed by the lower court. Nullities subsist until set aside by a competent tribunal.
Resultantly, the three issues for the determination of this appeal are hereby, resolved in favour of the respondent. The appeal is without merit and same is hereby, dismissed with N4,000.00 cost to the respondent.
Other Citations: 2002)LCN/1175(CA)
