Alloysius Akpaji V. Francis Udemba (2009)

LAWGLOBAL HUB Lead Judgment Report

F. OGBUAGU, J.S.C

This is an appeal against the decision of the Court of Appeal, Enugu Division (hereinafter called “the court below”) delivered on 25th April, 2002 affirming the decision of the trial court delivered on 28th June, 1999 – Per Nguta, J. (as he then was) dismissing the Plaintiff/Appellant’s claim and granting the counter-claim of the Defendant/Respondent.

Dissatisfied with the said decision, the Appellant has appealed to this Court on six (6) Grounds of Appeal. Briefs were filed and exchanged. The Appellant formulated four (4) Issues for determination which read as follows:

“1. Whether the Lower Court and the Trial High Court has (sic) Jurisdiction to hear and enter Judgment on a Counterclaim when the condition precedent to the filing of a valid claim being payment of prescribed fees was wanting and whether by section 16 Court of Appeal Act the Court of Appeal is empowered to validate the said Judgment retrospectively or retroactively by an order to pay the said filing fees on the claim 3 years ex post the Trial Court Judgment (sic) thereon.

2. Whether ‘a special order of the Court on a process on which no fee has been paid, virtue (sic) of order 6 Rule 5 of the High Court Rules of Anambra State 1988 Applicable in Ebonyi State and by section 16 Court of Appeal Act, exempted and can avail a party who though made aware of irregularity, defended his steps and where no evidence on record of any mistake on the part of Court officials.
3. Whether upon a proper direction on the evidence and on the evaluation of credible evidence adduced, the Defendant/Respondent was entitled to Judgment on his Counterclaim (albeit a nullity) on the mere failure (or mistake) of filing a Defence to some by the Plaintiff and in spite of controverting evidence in proof of said counterclaim as opposed to plaintiff/Appellant who led credible evidence on his claims”.

On his part, the Respondent formulated two (2) issues for determination, namely,

“3.1 Whether or not it was proper in view of 5.16 Court of Appeal Act for the lower court to retroactively order the Respondent to pay filing fees on his counter-claim in this appeal. This issue arose from grounds 1,2,3,& 4 of the appellant’s grounds of appeal.

3.2 Whether the Court of Appeal was right in affirming the findings of fact made by the trial High Court dismissing the Appellant’s claim and awarding judgment to the Respondent on his counter-claim. This issue arose from grounds 5 & 6 of the appellant’s grounds of appeal.”

In my respectful view, the issues of the Respondent, appear to me, apt for the determination of the appeal. The facts of the case appear to me not necessary to be set out by me having regard to issues 1 and 2 of the Appellant and issue 3.1 of the Respondent. However, having regard to issue 3 of the Appellant and issue 3.2 of the Respondent, I will, even briefly state the facts. The parties were good or bosom friends. Both of them, entered into a written Agreement titled a “LOAN AGREEMENT”. It is Exh. “A” prepared by a lawyer and it is a free loan without interest. For the avoidance of doubt; the terms of the Agreement, are as follows:

“NOW THIS AGREEMENT WITNESS that:

1. The Borrower hereby acknowledges the receipt of the sum of N1,484,535 (One million, four hundred and eighty four thousand, five hundred and thirty five Naira) from the lender.
2. The said sum is to enable the Borrower meet the cost of repairs of the aforementioned vehicles.
3. The Borrower shall repay the loan in monthly installments depending on the proceeds accruing from the Commercial use of the Vehicles.
4. On payment, the lender shall issue a receipt to the Borrower acknowledging receipt of sum and the latter shall be deducted from the outstanding sum.

5 The parties shall meet every three months to review the operation of this agreement.

6. Any dispute arising from this agreement shall be referred to arbitration comprising of four men to be nominated by the parties.

The Respondent, by two instalmental payments which were receipted for by the Appellant, (Exhibit “B” and “C”), made a total refund of N1,074,805 (One million, seventy four thousand eight hundred and five naira) leaving a balance of N411,730.00 (Four hundred and eleven thousand seven hundred and thirty naira). The Appellant was appointed as a Manager at his instance, in respect of two Mercedes Lorries owned by the Respondent who was a businessman. The Appellant, was authorised by the Respondent to employ drivers and conductors for the two vehicles and the service of the vehicles and was to render account to the Respondent. The Appellant was to invest the proceeds from the two vehicles. When in 1996, the Respondent demanded from the Appellant, an account of the proceeds, the Appellant claimed that there was no credit balance and that in fact, he had spent his own money on repairs of the vehicles which he put at N1,484,535.00. It was at the instance of the Appellant, that Exhibit “A”, was made. When the Appellant thereafter rendered an account amounting to N550,000.00, the Respondent told him to deduct the balance of N411,730.00 and to pay over to him, the sum of N138,270.00 and also issue him with a receipt in respect thereof. The Appellant did not comply. When the Respondent, insisted on the said balance of N138,270.00 and the receipt in respect of N411,730.00, the Appellant sued him under the Undefended List. The Respondent filed a Notice of Intention to Defend the suit. The trial court later, transferred the suit, to the general cause list for hearing. Pleadings were filed and exchanged. The Respondent in his Statement of Defence counter-claimed. I note that the Appellant did not file a defence or Reply to the counter-claim.

At the trial, the Appellant testified and did not call a witness. The Respondent testified and called two witnesses. After the addresses of learned counsel for the parties, the learned trial Judge, in a well considered Judgment, dismissed the Appellant’s claim and entered Judgment for the Respondent in respect of the counter-claim. The Appellant appealed to the court below which also dismissed the appeal and affirmed the Judgment of the trial court. It also, pursuant to Section 16 of its Rules, ordered that appropriate fees for the counter-claim, be paid, hence the instant appeal.

When this appeal came up for hearing on 18th November, 2008, the Appellant and his learned counsel were absent although served. The learned counsel for the Respondent – Ugwuanyi, Esqr, adopted their Brief and urged the Court, to dismiss the appeal. Pursuant to Order 6 Rule (6) of the Rules of this Court, the Appellant’s appeal was deemed to have been argued. Judgment was therefore reserved till to-day.

In dealing with the merits of this appeal, I note in respect of Issues 1 and 2 of the Appellant and issue 3.1 of the Respondent, that during the pendency of the appeal in the court below, the Respondent, filed an application dated 26th March, 2001, for an order directing the Respondent to pay the filing fees for the counter-affidavit which according to him, was inadvertently omitted in the correct or appropriate assessment by the Registrar of the trial court. In paragraphs 10, 11, 12 and 13 of the supporting affidavit, he swore that the omission for the proper or correct assessment, was not his but that of the Registry/Registrar. That he only became aware of the incorrect assessment, when the appeal in the court below, came up. I note that what was assessed by the Registry and paid for, is N37:00 (thirty seven naira) and this amount, was for the said Statement of Defence containing the Counter-claims in paragraph 13 thereof. The fault for not adverting his mind to the counter-claims, was surely and certainly, that of the Registrar or Registry and not that of the Respondent. The Appellant filed a counter-affidavit. The court below at page 165 of the Records, found as a fact that, “the record shows that the fees assessed by the Registry were paid fully”.

On 6th June, 2001, the Respondent filed another motion asking for the same relief as in the previous application and having paid the sum of N540.00 (five hundred and forty naira) which he described as the correct fees, sought leave of the court below, to file the receipt in respect thereof and a deeming order.

I have no doubt that these motions, were panicky actions. See pages 121 and 144 of the Records. In my respectful view, they were most unnecessary. I say so because, it is now firmly settled that even the failure to pay, does not raise issue of jurisdiction and that the failure to fulfill the provisions of the High Court Rules in that regard, is a mere irregularity which when not taken timeously or when acquiesced in, becomes incapable of affecting the proceedings in any way. See the case of A.C.B. Ltd. v. Henshaw (1990) 1 NWLR (Pt.129) 646 @ 650 CA citing the cases of Sonuga v. Anadein (1967) NMLR 77 @ 79; Ezemo v. Oyakhire (1985) 1 NWLR (Pt.2) 195@ 202-203; Noibi v. Fikolata & anor. (1987) 1 NWLR (Pt. 52) 619 @ 632 (it is also reported in (1987) 3 SCNJ 14) and Alhaji Saude v. Alhaji Abdullahi (1989) 4 NWLR (Pt.116) 387 @ 405-406 (it is also reported in (1989) 7 SCNJ 216)

The usual remedy, it is also settled, is an order by the lower court, that the appropriate fees or any short fall, be paid. It has nothing to do with jurisdiction of the lower court to entertain the counter-claim. Indeed, Oguntade, JCA (as he then was) in A.C.B. v. Henshaw (supra) at page 651, stated inter alia, as follows:

“even if the defendant/respondent had not paid the requisite court fees, this was a matter to be settled before the lower court, The usual remedy being an order by the lower court that the appropriate fees or any short-fall be paid. It certainly has nothing to do with jurisdiction of the lower court to entertain the counter-claim”

In the case of Lawal & anor. v. Odejimi & anor. (1963) WNLR 23; (1963) ANLR 569@ 570 – per Charles J. where inadequate fees were paid for a writ of summons, the trial court allowed the plaintiff, time to pay the balance of the fees. See also the case of The State v. Sunday Ugbor & ors. (1979) 1 MSLR 521 @ 523 – per Ukattah, J. (as he then was) citing Lawal & anor. v. Odejimi (supra).

I am aware and this is also settled that a document or process of court, is deemed duly filed, when a paper or the document or process is brought to the Registry, and is assessed and paid for, that such a document, etc, can be said to be filed in law, except where there is a dispensation under the Rules of court that the document etc, can be filed without payment. Of course, this will be a question of fact if fees are paid in respect of a document brought to the court. See the case of Dike v. Okorie (1990) 5 NWLR (Pt.161) 418 @ 428-429 C.A. citing the case of Government or Imo State v. Orisakwe FCA/109/82 of 2/7/85. It was also held that a document is deemed to have been properly filed in court, when same is deposited in a court’s office with the proper court officer assigned with the responsibility. See the case of Mohammed v. Musawa (1985) 3 NWLR (Pt. 11) 89.

In the case of Onwugbufor & 2 ors. V. Okoye & 3 ors. (1996) 1 NWLR (Pt. 424) 252 @ 291 – 292; (1996) 1 SCNJ 1 @ 36 cited by the parties in their respective Brief, (it is also reported in (1996) 34 LRCN 1), although it was held that payment of filing fees is a condition precedent necessary to the exercise of jurisdiction, this Court – per Iguh, JSC, stated inter alia:

“If the default in payment is that of the plaintiff- the claim in respect of which such prescribed fees have not been paid cannot be said to be properly before the court and should be struck out in the absence of an appropriate remedial action or application to regularize such anormaly…”

So, it can be seen that there is a rider so to speak. The appropriate remedial action was the said order by the court below even without the said motions of the Respondent afore-stated. But in any case, not only did the Respondent, apply for leave of the court below, to pay the appropriate fees, it exhibited, the receipt of the payment. Afterwards, as stated by Charles, J. in Lawal v. Odejimi (supra), the object of the provisions of payment of filing fees in the said Rules of the High Court is to protect the public revenue. The material averments in the said paragraphs 7 to 13 of the affidavit of the Respondent in support of his said motion, were merely stated by the Appellant in his counter-affidavit, to be an after-thought and false. Can paragraph 8 thereof which the Respondent swore as follows:

“That the said Court Registrar informed me, and I verily believed him that the total court fees was the sum of N37.00 (thirty seven naira) which was contained in the Statement of Defence” be said to be false I or one may ask.

I have noted earlier in this Judgment that the Respondent’s Statement of Defence containing the counter-claim at pages 12 to 14 of the Records, was assessed at N37.00 (thirty seven naira) and this was paid for by the Respondent. The Respondent in paragraphs 10, 11, 12 and 13 of the said affidavit, swore as follows:

“10. That at the time of handing in the said Statement of Defence and Counter Claim, I had in my possession enough money to pay any sum of money to be assessed as Court fees thereof”.

11. That the default in assessment and the resultant nonpayment of a specific court fee for counter claim is not my fault.
12. That I was not aware that the Counter Claim was not assessed for payment at the time of assessment.
13. That I became aware that my Counter Claim was omitted in the assessment of Court fees by the Registrar of the Court below only when this matter came of an appeal (sic)”.

These averments are clear and unambiguous. The said Registrar has not controverted paragraphs 11 – 13 of the said affidavit. At page 4 of the Appellant’s Brief before “issues for Determination”, it is stated inter alia, that,

“…and in spite of evidence on record of Defendant being aware of the irregularity of his counter claim and yet defending his steps…”

See also his issue 2.

Surely and certainly, the error or inadvertence of the said Registrar, cannot, in my respectful and firm view, be said to be that of the Respondent. The Registrar saw and assessed the Statement of Defence. If he must read the entirety of the Statement of Defence before assessing it (and I doubt it) and he failed correctly or properly to do so, his error or omission, cannot be ascribed to be that of the Respondent and/or his learned counsel. With profound humility, it will be unfair and unjust in the instant appeal, to state by anybody including this Court, that ignorance of the law is no excuse. The Records show that the Respondent, who took the document to the Registry for assessment and payment, is only a Business-man. There is no evidence, that he is a lawyer or one who knows the business or procedure in the court’s Registry as regards assessment of court processes brought before it. I therefore, hold that the non-payment in full of the appropriate fees, was a mere irregularity and did not vitiate the proceedings and it has nothing to do, with the jurisdiction of the trial court. At worst, it is voidable not void. As can even been seen, it is not the failure to pay an assessed filing fees, but nonpayment of the appropriate or requisite fees – (i.e. inadequate fees). If the Registrar/Registry under-assessed – i.e. not assessing correctly, can it be said, by any stretch of imagination, that the fault to assess adequately, is that of a litigant or a lawyer or the Respondent I think not.

Before I am done with the said issues, I note that the issue of nonpayment of the filing fees was never raised in the trial court. This fact is conceded by the Appellant. However, since it touches on jurisdiction and therefore, can be raised at any stage, I say no more about the raising of the said issue for the first time in the court below not-withstanding of the decision of this Court in the case of Alhaji Ndayako (Etsu Nupe (Chairman Niger State Council of Chiefs) Jikantoro & 6 ors. v. Alhaji Dantoro & 6 ors. (2004) 13 NWLR (Pt. 889) 189; (2004) 5 SCNJ.152 @ 196; (2004) 5 S.C. (Pt. II) 1 @ 20 to the effect also that rules on payment of requisite court fees, are rules of natural justice and that objection thereof, ought appropriately to have been taken, at the stage of trial and not at the appellate level. This referred to Order 3 Rule 4 of the Niger State High Court Rules which requires that particulars of claim shall not be amended except by leave of court as well as rules of natural justice.

I had in this Judgment, noted as did the court below, that the Appellant, never filed any defence or reply to the counter-claim (even on his admission), it was “irregularly” filed. I am aware however, and this is also settled, that where a plaintiff fails to or neglects to file a defence or a Reply to a counter-claim, it is of no moment and it is not fatal to the claim. This is because, if the Plaintiff succeeds in his claim, the counter-claim is useless. See the case of Dabup v. Kola (1993) 9 NWLR (Pt.317) 254 @ 270, 281; (1993) 12 SCNJ.1. It is not that the plaintiff is deemed to admit the counter-claim as stated at page 166 of the Records by the court below. It is only so, where it relates to the failure of the defendant, to file a Statement of Defence. In that case, all material facts alleged in the Statement of Defence, are put in issue. See the case of Akeredolu v. Akinremi (1989) 3 NWLR (Pt.108) 164@ 172; (1989) 5 SCNJ. 71- per Kawu JSC, referred to in the case of Obot v. Central Bank of Nigeria (1993) 8

NWLR (Pt.310) 140 @ 162; (1993) 9 SCNJ. (Pt. II) 268. See also T. A. Aguda paragraph 109 page 101 – 102 Practice and Procedure in Civil Actions in the High Court of Nigeria.

However, or in any case, can it be fairly or justly said from the Records, that the Appellant’s case remained unchallenged, in the absence of the counter-claim With respect, I think not. The Respondent, filed a Statement of Defence and testified in support of the defence and called witnesses to controvert the Appellant’s Claim. The trial court, thoroughly, evaluated the evidence of the parties before coming to a decision dismissing the Appellant’s case.

As regards issue 3 of the Appellant, the court below at page 166 of the Records, stated inter alia, as follows:

“…the learned trial Judge of the lower court made painstaking review of the evidence led before him and made in depth findings of fact which findings are unimpeachable. I cannot fault the findings. I am of the view that the findings of fact made by the Judge are in accordance with the evidence before him which he believed. The conduct of the Appellant in this case must be deprecated. There is no merit in this appeal which must be dismissed”.

I agree and I will add that the Appellant, by his greed, ingratitude, bad faith and dishonesty, has now broken and truncated the age long friendship between him and the Respondent – his mentor and benefactor. It is a pity!

The attitude of this Court in respect of findings of facts by the two lower courts is no longer in doubt. It is firmly settled that it will not disturb or interfere with the said concurrent findings of fact/facts. See the cases of Onwugbufor & ors. v. Okoye & ors. (supra) citing the cases of Hassan Said v. Nigerian Automobile Co. Ltd. (1956) 1 FSC 107 and Alhaji A.W Akibu v. Joseph Opalye (1974) 11 S.C. 189. See also the cases of Enang v. Ada (1981) 11 – 12 S.C. 25 @ 39 and Eigbajale v. Oke & 6 ors. (1996) 5 SCNJ 49 @ 64 and too many others.

It is from the foregoing, that I unhesitatingly, dismiss this appeal which with respect, is bereft of any merit or substance. I hereby and accordingly, affirm the decision of the court below.

Costs follow the event. The Respondent is awarded N50, 000.00 (Fifty Thousand Naira) costs payable to him by the Appellant. I wish I could have awarded more.

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SC.247/2002