➥ CASE SUMMARY OF:
Alloysius Akpaji v. Francis Udemba (2009) – SC
by “PipAr” Branham-Paul C. Chima.
➥ COURT:
Supreme Court – SC.247/2002
➥ JUDGEMENT DELIVERED ON:
ON Friday, the 13th Day Of February, 2009
➥ AREA(S) OF LAW
Payment of filing fee;
Finding of fact;
➥ PRINCIPLES OF LAW
⦿ FAILURE TO PAY FILING FEE DOES NOT RAISE THE ISSUE OF JURISDICTION
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. — F. Ogbuagu, JSC.
⦿ WHEN IS A DOCUMENT DEEMED TO BE PROPERLY FILED BEFORE THE COURT
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. — F. Ogbuagu, JSC.
⦿ FAILURE TO FILE REPLY TO COUNTERCLAIM IS NOT ADMISSION OF THE COUNTERCLAIM
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. — F. Ogbuagu, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
F. Ogbuagu, JSC.
➥ APPEARANCES
⦿ FOR THE APPELLANT
⦿ FOR THE RESPONDENT
Ugwuanyi, Esq.
➥ CASE FACT/HISTORY
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.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
I. Whether or not it was proper in view of Court of Appeal Act for the lower court to retroactively order the Respondent to pay filing fees on his counter-claim in this appeal?
RULING: IN RESPONDENT’S FAVOUR.
A. THE FAULT OF NOT ASSESSING THE COUNTERCLAIM IS THAT OF THE REGISTRAR
“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.”
.
.
II. 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?
RULING: IN RESPONDENT’S FAVOUR.
A. THE APPELLANT’S CASE WAS DISMISSED AND THE COUNTERCLAIM UPHELD
“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’”
.
.
.
✓ DECISION:
“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.”
➥ MISCELLANEOUS POINTS
***DISSENTING
**O. Aderemi JSC:
⦿ THE CONDITION PRECEDENT OF PAYING THE FILING FEE MUST BE FULFILLED
“True it is that all courts must strive to do substantial justice in all cases before them; they must jettison technicalities and not allow same to stand in their way to dispensing justice. Section 16 of the Court of Appeal Act supra and Section 22 of the Supreme Court Act Cap 424 Laws of the Federation of Nigeria 1990 empower the two appellant courts respectively to strive to do substantial justice in all the matters before them. But if the statute says that there shall be no jurisdiction to entertain a claim or a claim or a counter-claim, as in the instant case, until the filing fee is first paid until that event the payment of filing fee occurred, the trial court would have no jurisdiction to entertain it. Every court is bound by the statute and its provisions cannot be circumvented under the thin guise of desire to do justice. The condition precedent must not only be fulfilled it must be seen to be properly fulfilled. That is the righteousness of the matter. The respondent has further argued that the non-payment of the filing fee was not his fault as it was his duty to assess the process. My quick reply is that it is he who is seeking a redress from the court that must see to it that all righteousness is fulfilled. His ignorance of the law pertaining to the payment of the filing fee, even if he relies on that cannot avail him. The saying is quite sacrosanct. “IGNORANCE OF THE LAW WHICH EVERYBODY IS SUPPOSED TO KNOW DOES NOT AFFORD EXCUSE”- the Latin Maxim is IGNORANTIA JURISQUOD QUISQUE SCIRE TENETUR NON EXCUSAT””
➥ REFERENCED (CASE)
⦿ PAYMENT OF FILING FEE IS REQUISITE
✓ In ONWUGBUFOR & ORS VS OKOYE & ORS (1996) 1 NWLR (Pt. 424) 252: “It is the responsibility of the plaintiff inter alia to pay the requisite fees in respect of each and every relief claimed as prescribed by the rules to enable the court’s judicial functions to commence. A court shall not entertain a relief claimed without payment of the prescribed requisite fees unless such fees have been waived or remitted by the court or such are payable by any Government Ministry or non- Ministerial Government Department or Local Government pursuant to the provisions of the said High court Rules of Anambra State. 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 anomaly. In the present case, no payment whatsoever was made by the appellants in respect of their new claim for forfeiture. Payment of the prescribed fees being a condition precedent to the filing of a valid claim before the court, it seems to me clear that the claim for forfeiture in the present suit is incompetent, improperly before the court and sought to be struck out. In the circumstance, it becomes entirely idle and academic to examine the various reasons given by both courts below in refusing the appellant’s claim for forfeiture which must be and is hereby struck out.”
✓ In OKOLO & AN VS. UBN LTD (2004) 3 NWLR (Pt. 859) 57, “this court in following its decision in ONWUGBUFOR (Supra) said per Tobi JSC at page 109. “In the light of the above, I have not the slightest difficulty in accepting the invitation of Chief Akpofure to strike out the new reliefs Nos. 21 E and D and I hereby accordingly strike them out. But the all-important question to ask is whether the counter-claimant paid the filing fee for the counter-claim he filed? The answer to this question can only be found in page 167 of the record where Ubaezonu who read the lead judgment reasoned and ordered: “I dismiss the appeal. I order the respondent to pay to the lower court the necessary fee for filing a counterclaim.” By this order it admits of no argument that the official necessary fee for the counter-claim was never paid and the counter- claim, for reason of non-payment of the fee, ought to have been struck out. It should not have been entertained. The process filed by the defendant was not captioned “STATEMENT OF DEFENCE and COUNTER-CLAIM.” It is deliberately misleading.”
Vide: OHENE MOORE VS AKESSEH TAYEE 2 WACA 43;
➥ REFERENCED (OTHERS)
