Abia State Transport Corporation V. Quorum Consortium (2009)

LAWGLOBAL HUB Lead Judgment Report

S. N. ONNOGHEN, J.S.C.

This is an appeal against the judgment of the Court of Appeal holden at Jos in appeal NO.CA/J/322/98 delivered on the 7th day of November, 2002 dismissing the appeal of the appellant against the decision of the High Court of Plateau State in Suit N0.PLD/J153/95 holden at Jos delivered on the 29th day of May, 1995 under the undefended list procedure.

From the records, the respondent was a business consultant based in Jos whose services was engaged by the 2nd appellant in July, 1992 for the procurement of foreign aid from the Japanese Government to enable the 2nd appellant import some vehicles and spare-parts for use by the 1st appellant as evidenced in exhibit A attached to the affidavit in support of the application for the issue of a writ under the undefended list, It is the case of the respondent that it rendered the service in Jos and by delivery note dated 18th September, 1992, the 2nd appellant through its agent collected the original copy of the Japanese Aid approval totaling Two Million US Dollars ($2,000,000,00) by the Japanese Government from the respondent in Jos, as evidenced in exhibit B.

The appellants were to pay to the respondent the agreed fee of Two Hundred Thousand US Dollars ($200,000.00) but when they failed to do so, the respondent instituted the action resulting in the instant appeal, claiming the following reliefs:-

“The plaintiffs claim is for:-

(1) The sum of 200,000 US Dollars (N4,400,000.00) four million, four hundred thousand being charges for consultancy and sundry services rendered to the 1st defendant by the plaintiff.

(2) Interest at 21% on the said sum of 200,000US Dollars from the 1st day of October, 1992 until date of judgment and interest at the rate of 10% from the date of judgment until final liquidation of the debt.

(3) Cost of this suit”.

The writ of summons was issued and served on the appellants out of jurisdiction upon leave granted on the 29th day of March, 1995 which was duly carried out on the 27th day of April, 1995. On the 16th day of May, 1995 the appellants filed their Notice of Intention to defend the suit together with an accompanying affidavit at the High Court Registry, Umuahia, Abia State which were later transmitted to the High Court of Plateau State Registry, Jos on the 22nd day of May, 1995. When the matter came up for hearing on the 29th day of May, 1995 being the return date, the appellants and counsel were absent while the respondent and their counsel were present in court as a result of which the learned counsel for the plaintiff/respondent Dr. Ameh, SAN requested the court to enter judgment in favour of the respondent which the trial court obliged. The appellants were dissatisfied with the said judgment and appealed to the Court of Appeal, Jos which dismissed the appeal resulting in the instant further appeal to this court.

The issues for determination as identified by learned counsel for the appellants, Chief Okoroafor C. Uche in the appellants’ brief of argument filed on the 25th day of July, 2003 and adopted in argument of the appeal on the 19th day of January, 2009 are as follows;-

“1. Whether the Court of Appeal was right in its view that non-payment of filing fees by the defendant/appellants nullified the notice of intention to defend the suit filed by the appellants which is a government not ordinarily expected to pay fees upon filing such process.

2. Was the Court of Appeal right when it held that the appellants did not enter appearance and did not file any notice of intention to defend the respondent’s suit when the same was before the court timerously.
3. Whether the Court of Appeal was right when it held that the trial court had the jurisdiction to entertain the suit of the respondent”.

In arguing issue 1 learned counsel for the appellants submitted that the appellants are government of a state and state government official and agency who are not supposed to pay fees for filing of processes in court, referring to Order 2 (13) (2) of the Rules of the Supreme Court and Nwadialo on Civil Procedure in Nigeria page 956; that by the provisions of Order 54 of the High Court of Plateau State, it is the duty of the Court Registry to demand and collect fees from litigants and on account of that initial on the process before him as received; that the Registrar failed to demand fees for the filing which failure ought not to be visited on the appellants, relying on First Bank us May Clinics (2001) 4 SCNJ5; that the registrar by not demanding payment is deemed to have waived the right to the payment; that by stamping the document “received” the registry confirmed the document as duly filed and therefore regular. Learned counsel urged the court to resolve the issue in favour of the appellants.

On his part, learned counsel for the respondent, G. S. Pwul, Esq submitted that the Court of Appeal is right in holding that a process is not properly filed in the High Court of Plateau State except it is duly assessed and paid for; that Order 54(1)(i) of the High Court of Plateau State Civil

Procedure Rules makes payment of fees set out in the first, second, third, fourth and fifth schedules mandatory and condition precedent to the filing of processes before the court; that since no payment was made for the filing of the document in issue, it means the process or documents are not properly before the court and can therefore not be looked into by the court. That there is no provision in the relevant rules of court exempting the appellants from payment of filing fees; that the assessment in this case was not done by the registrar of the High Court of Plateau State but that of the High Court of Abia State who also stamped same with ”Fee Official” which amounts to filing the process in the High Court of Abia State sitting in Umuahia; that no officer of the High Court ofAbia State has the power to waive fees payable in Plateau State High Court; that the appellants merely transmitted the processes after filing in Abia State to the High Court of Plateau State, Jos registry where the registrar duly acknowledged receiving same; that the mere receipt of the documents by the registrar in Jos does not amount to filing of same without payment of filing fees. Learned counsel urged the court to resolve the issue against the appellants.