KANTOMA v. WUTA (2022)

KANTOMA v. WUTA

(2022)LCN/16984CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, March 18, 2022

CA/A/146/2018

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Between

ALI KANTOMA APPELANT(S)

And

SAMARI SARKIN (MAGACI) WUTA (For Himself And On Behalf Of Sarkin Wuta Family) RESPONDENT(S)

RATIO

THE POSITION OF LAW ON RATIO DECIDENDI

It is rudimentary law that the part of the judgment which constitutes the decision of the Court and which is appealable is the ratio decidendi. It is the principle decided that is the important thing and it constitutes the ratio decidendi which can be appealed against. The manner in which the Court argues or reasons the case in arriving at its decision is not important. See UTC (NIG) LTD vs. PAMOTEI (1989) 2 NWLR (PT 103) 244, AFRO CONTINENTAL NIG. LTD vs. AYANTUYI (1995) 9 NWLR (PT 420) 411, AIC LTD vs. NNPC (2005) LPELR (6) 1 at 24-25, OLEKSANDR vs. LONESTAR DRILLING CO. LTD (2015) LPELR (24614) 1 at 22-23 and SAIPEM CONTRACTING NIGERIA LTD vs. FIRS (2018) LPELR (45118) 1 at 64. PER OGAKWU, J.C.A.

THE MEANING OF OF THE LATIN TERM “FUNCTUS OFFICIO”

Now, was the lower Court correct in holding that it was functus officio? The Latinism functus officio, literally means “having performed his or her office”. In the context of a Judge, it means that the duty or function that the Judge was legally performed or charged to perform, has been wholly accomplished and that the Judge has no further authority or legal competence to revisit the matter. See ALOR vs. NGENE (2007) 17 NWLR (PT 1062) 163 at 170-180, OGOLO vs. OGOLO (2006) 5 NWLR (PT. 972) 173 at 187 and UGO vs. UGO (2017) LPELR (44809) 1 at 25-26. PER OGAKWU, J.C.A.

THE POSITION OF LAW ON THE PRINCIPLE OF ISSUE ESTOPPEL

The principle of issue estoppel is an estoppel inter partes which is applicable where an issue had previously been decided upon by a Court of competent jurisdiction and the issue comes up again in the same or subsequent proceeding between the same parties (or their privies), a party is precluded from contending the contrary or opposite of the issue that had been so decided. In the circumstance of this matter, the lower Court having decided the Appellant’s preliminary objection in the manner in which it did, the Appellant cannot be had to again contend in his final address that the Respondent’s action was caught by the doctrine of estoppel per rem judicatam. The lower Court was therefore correct when it held that the issue as raised by the Appellant again, was a “non issue” and “dead issue” which “can only be resuscitated by appeal”. See generally FADIORA vs. GBADEBO (1978) LPELR (1224) 1 at 12-14, ODJEVWEDJE vs. ECHANOKPE (1987) LPELR (8049) 1 at 42, ORIOYE vs. ABINA (2019) LPELR (47864) 1 at 30-38 and PROJECT VISION ACTUALIZERS LTD vs. ILUSHIN ESTATES LTD (2021) LPELR (55629) 1 at 37. PER OGAKWU, J.C.A.

THE POSITION OF LAW ON THE CONSEQUENCES OF THE FAILIRE TO PAY FILING FEES ON A PROCESS

Now, a lot of judicial ink has been spilt on the consequences of the failure to pay filing fees on a process. Hitherto, the attitude of the Courts has been that where the filing fees had not been paid, that the process is incompetent and the Court was bereft of jurisdiction in respect of the process. However, there seems to be a change of heart by the Courts on the consequences of non-payment of filing fees.

For instance in AKPAJI vs. UDEMBA (supra), the facts as it relates to payment of filing fees therein are on all fours with the facts of this matter, it was held that failure to pay filing fees does not raise the issue of jurisdiction but was a mere irregularity which can be remedied by payment of the appropriate fees.
The majority decision of the Supreme Court in AKPAJI vs. UDEMBA (supra) was delivered on 13th February, 2009. Subsequent to the said decision, on 3rd April, 2009 in ABIA STATE TRANSPORT CORPORATION vs. QUORUM CONSORTIUM LTD (2009) 9 NWLR (PT 1145) 1 at 33-34, the apex Court held in another majority decision that the payment of the prescribed filing fee is a precondition to the validity of any process filed in Court and that unless the precondition is satisfied, the Court will lack the jurisdiction to entertain a process on which the prescribed filing fee had not been paid. So it seems that what the apex Court gave in AKPAJI vs. UDEMBA (supra), it withdrew in ABIA STATE TRANSPORT CORPORATION vs. QUORUM CONSORTIUM LTD (supra).
Happily however, there seems to now be some clarity on the legal position in this regard. In SPDC vs. AGBARA (2015) LPELR (25987) 1 at 56, the apex Court held that the payment of inadequate filing fees can only make a process irregular and not capable of affecting the jurisdiction of the Court. It was further held as follows at pages 63-64 of the LPELR:
“Exercise of discretion however must always be judicial and judicious. A discretionary decision based on a principle that inadequate/shortfall of filing fees is fatal to an appeal is certainly a wrong exercise of discretion. The established practice of the Courts is to lean towards granting a litigant access to Court rather than denying him of such access. The principle of the law as settled by the Court, as seen supra, in relation to settlement of insufficient filing fees on documents placed before the registry of a Court is for the Court to direct that such insufficient, inadequate shortfall be remedied.”
A similar decision was also arrived at in the later decision of G. E. INT’L OPERATIONS (NIG) LTD vs. Q. OIL AND GAS SERVICES LTD (supra) at 330. So, on the now settled state of the law, I hold that the lower Court was wrong when it struck out the Appellant’s counter-claim on the ground that non-payment of filing fee on the counter-claim robbed it of jurisdiction in respect of the counter-claim. In tandem with the established practice of granting litigants access to Courts, the lower Court ought to have directed that the shortfall in the filing fees should be paid. Accordingly, it is hereby ordered that the irregularity in paying the fees on the counter-claim in this matter did not affect the jurisdiction of the lower Court to entertain the counter-claim, the proper filing fees are to be assessed and paid. This issue number two is resolved in favour of the Appellant. PER OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The dispute in this matter is in respect of land situate at Tsohon Kabula in Niger State. The parties claim entitlement to a declaration of title in respect of the disputed land. So, there was a claim and a counter-claim. The Respondent was the Plaintiff at the lower Court while the Appellant was the Defendant. They both pleaded and relied on traditional history as their root of title to the disputed land. The Respondent’s root of title as pleaded is that his father, Sarkin Wuta, was the first person to cultivate the disputed land having settled there with his family many years ago when it was still a thick forest. The Respondent stated that undisturbed possession and ownership of the land remained in his family until after his father’s death when the Appellant’s father, who came from Lukuma Village, trespassed on the land and laid claim to ownership about seven years prior to the institution of the action.

For the Appellant, the root of title pleaded is that his ancestor, Zarumai, was the first settler on the disputed land and that Zarumai deforested the land for settlement and farming and that after Zarumai’s death, the Appellant’s father inherited the land and upon his death the land devolved on the Appellant by inheritance. The Appellant further pleaded that the land had been subject of previous litigation before the Upper Sharia Court, Kuta, the Upper Sharia Court, Sarkin Pawa and the Magistrate Court, Sarkin Pawa, all of which found in favour of the Appellant.

The Respondent, as Plaintiff before the lower Court claimed the following reliefs:
“a) A declaration of title of the land in dispute as described and presented in the sketched Plan in favour of the Plaintiff as rightful owner against the Defendant.
b) A declaration that the Defendant is a trespasser on the land in dispute.
c) An Oder [sic] of perpetual injunction restraining the Defendant and his privies, agents, assigns or any one claiming what so aver [sic] through him all or any part of the land as described in the sketch plan from further trespassing on the said land.
d) General damages of (N2,000,000.00).” The Appellant on his part counterclaimed for the following reliefs:
“a) A declaration that the defendant/counter-claimant is entitled to the Customary Right of Occupancy over the land in dispute which is clearly and accurately described at paragraph 9 of the counter-claim.
b) An order of perpetual injunction forever restraining the plaintiff or his agents, assigns, privies, heirs, personal representatives or whomsoever that may be claiming through him from disturbing the counter claimant’s quiet possession and peaceful enjoyment or further acts of trespass on the disputed land.
c) General damages of One Million Naira (N1,000,000.00k) only.
d) The cost of defending this action put at Five Hundred Thousand Naira (N500,000.00k) only.”

The parties filed and exchanged pleadings, however, before the matter proceeded to trial, the Appellant filed a “NOTICE OF MOTION ON PRELIMINARY OBJECTION” challenging the competence of the suit and jurisdiction of the lower Court to entertain the same, consequent upon which he sought for an order dismissing the suit. The grounds of the objection and particulars of the objection are as follows:

“GROUNDS OF OBJECTION
1. The defendant/applicant shall contend that the plaintiff is barred from instituting this suit by estoppel per rem judicata.
2. The suit as presently constituted is an abuse of Court/judicial process.
3. The Honourable Court lacks jurisdiction to entertain same.
PARTICULARS OF OBJECTION
Same suit with same parties and same subject-matter was litigated before Upper Sharia Court Sarkin Pawa (in Munya Local Government Area of Niger State) and final judgment delivered by His Honour Honourable Alhaji Ibrahim M. On the 13th May, 2008 in Suit N0:27/CV/2008.”

The lower Court took argument on the said objection which is predicated on the application of the doctrine of estoppel per rem judicatam and in its ruling which was delivered on 17th March, 2016, it dismissed the objection, conclusively holding that the Appellant failed to establish all the conditions for upholding a plea of res judicata. The said ruling is at pages 204-212 of the records. The Appellant did not appeal against the said ruling. The matter thereafter proceeded to trial. The parties adduced testimonial and documentary evidence at the trial and in its judgment, the lower Court struck out the Appellant’s counter-claim on the ground that filing fees were not paid for the counter-claim as a result of which the lower Court did not have jurisdiction to entertain the counterclaim. After due consideration of the Respondent’s claim, the lower Court held that the Respondent had established his case and that the evidence of the Appellant’s witnesses were contradictory and had no probative value. It accordingly entered judgment in favour of the Respondent. The Appellant being dissatisfied with the judgment appealed against the same. The chafed judgment of the lower Court which was delivered on 10th November, 2017 is at pages 303-330 of the Records, while the Notice of Appeal which was filed on 8th January, 2018 is at pages 331-335 of the Records.

In obeisance to the Rules of Court, the Records of Appeal was compiled and transmitted on 26th February, 2018 and the Appellant filed his brief of argument on 2nd March, 2018. Notwithstanding the due service of the appeal processes and the Appellant’s brief on the Respondent, the Respondent failed to file any brief of argument. In consequence thereof, upon the application of the Appellant, this Court on 23rd January, 2019 ordered that the appeal be heard on the Appellant’s brief alone. At the hearing of the appeal, learned counsel for the Appellant adopted and relied on the Appellant’s brief in urging the Court to allow the appeal.

Let me start by saying that the concomitance of the Respondent not having filed a brief is that he is deemed to have admitted the truth of everything stated in the Appellant’s brief, in so far as it is borne out by the records. But even at that, it will not eo ipso entitle the Appellant to judgment since the Appellant must still succeed on the strength of his appeal and establishing that the judgment appealed against is wrong. In the words of Ogbuagu, JSC in UNITY BANK PLC vs. BOUARI (2008) LPELR (3411) 1 at 24-25:
“… the failure of a Respondent to file a reply brief is immaterial. This is because, an Appellant, will succeed on the strength of his case. But a Respondent will be deemed to have admitted the truth of everything stated in the Appellants brief in so far as such is borne out by the Records. In other words, it is not automatic. An Appellant, must succeed or fail on his own brief.” See also ECHERE vs. EZIRIKE (2006) LPELR (1000) 1 at 20, CAMEROON AIRLINES vs. OTUTUIZU (2011) LPELR (827) 1 at 17, JOHN HOLT VENTURES vs. OPUTA (1996) 9 NWLR (PT 470) 101, POLYVENT NIGERIA LTD vs. AKINBOTE (2010) 8 NWLR (PT 1197) 506 and ULEKE vs. KAKWA (2013) LPELR (20819) 1 at 7-8. So there is no shortcut; it still behoves the Court to consider the merits of the appeal and ascertain if there is any justification in the complaints of the Appellant against the decision of the lower Court. This I intend to do presently.

The Appellant formulated five issues for determination namely:
“1. Whether having regard to the pleaded facts, materials, oral and documentary evidence before the Court, the respondents claim does not amount to an abuse of Court/judicial process and ought to be dismissed. (Distilled from ground 1 of the notice of appeal)
2. Whether the fault of a Registrar of Court in assessing inadequate filing fees or his omission to assess the various heads of claim is that of an innocent litigant or counsel. (Distilled from ground 2 of the notice of appeal).
3. Whether having regard to the totality of evidence place [sic] before the trial Court, the trial Judge was right in holding that the respondent was in possession of the land in dispute. (Distilled from ground 3 of the notice of appeal).
4. Whether having regard to the totality of evidence before Court, the trial judge was justified in law in awarding general damages of One Million Naira (N1,000,000.00k) only against the appellant. (Distilled from ground 4 of the notice of appeal).
5. Whether or not from the totality of evidence before Court, it can be said that the respondent’s case preponderate [sic] against that of the appellant as to warrant the declaration of title in his favour. (Distilled from ground 5 of the notice of appeal).”

The issues distilled by the Appellant are properly raised from the grounds of appeal. It is therefore on the basis of the said issues that I would consider the submissions of the Appellant’s counsel and resolve this appeal. However, issue numbers three, four and five are on the same genus of evaluation of evidence and ascription of probative value thereto. I would therefore take the three issues together since they are bound by the same thread of evaluation of evidence.

ISSUE NUMBER ONE
Whether having regard to the pleaded facts, materials, oral and documentary evidence before the Court, the respondent’s claim does not amount to an abuse of Court/judicial process and ought to be dismissed.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
It is the Appellant’s submission that he pleaded facts and adduced evidence that the same matter had been litigated before by the Respondent before the Upper Sharia Court and that judgment was given in favour of the Appellant, but that the lower Court dismissed the preliminary objection on the point. It was stated that based on the evidence adduced at the trial, the issue of estoppel per rem judicatam was raised again in the final address, but the lower Court wrongly held that the present action was maintained in a representative capacity. It was opined that the persons represented by the Respondent in the present action were privies in the earlier suit and therefore parties and bound by the previous judgment. The cases of LSDPC vs. PURIFICATION TECH. (NIG) LTD (2013) 7 NWLR (PT 1352) 82 at 109 and 114, DIKE-OGU vs. AMADI (2008) 12 NWLR (PT 1102) 650 at 673 and AGBOGUNLERI vs. DEPO (2008) 3 NWLR (PT 1074) 217 at 235 were referred to. It was consequently asserted that this later action was an abuse of Court process vide COLE vs. JIBUNOH (2016) 4 NWLR (PT 1503) 499 at 540.

It was further contended that the lower Court misapplied the ratio in FIRST BANK vs. T. S. A. IND. LTD (2010) 15 NWLR (PT 1266) 247 at 305-306, when it held that having ruled on the issue in the preliminary objection, he cannot revisit the same to overrule itself. It was posited that from the pleadings and evidence adduced, the first ruling on the preliminary objection was made without jurisdiction and so the lower Court could have set the same aside. The issue of res judicata was on the authority of MAKUN vs. F. U. T. MINNA (2011) 18 NWLR (PT 1278) 190, said to be one of jurisdiction and therefore the decision of the lower Court dismissing the preliminary objection was said to be perverse. The Appellant next proffered argument on why the decision reached by the lower Court on the preliminary objection was wrong and occasioned a miscarriage of justice. It was conclusively submitted that the lower Court did not meticulously examine the evidence before it on the estoppel question and therefore arrived at a perverse decision which must be set aside. The cases of MINI LODGE vs. NGEI (2010) 41 NSCQR (PT I) 1 at 9 ratio 13 and IKENTA BEST (NIG) LTD vs. A-G RIVERS STATE (2008) NWLR [no volume stated] (PT 1084) 612 at 623 were relied upon.

RESOLUTION OF ISSUE NUMBER ONE
At the outset, I stated that the Appellant had raised the issue of estoppel per rem judicatam as a preliminary objection before evidence was adduced. The lower Court in its ruling held that the doctrine of estoppel per rem judicatam was inapplicable. The Appellant, I iterate, did not appeal against the said ruling. I have already set out the grounds and particulars on which the preliminary objection was predicated. The issue which the Appellant distilled for determination on the preliminary objection and which was adopted by the lower Court (see page 206 of the Records) is “whether or not the instant suit constitutes an abuse of Court process and liable to be dismissed.”

Notwithstanding the manner in which the preliminary objection was resolved, the Appellant trudged on without appealing against the same. After adduction of evidence at the trial, the Appellant in his final address formulated the first issue for determination in the trial, as follows:
“Whether from the pleadings and totality of evidence before the Court, the plaintiff’s claim does not constitute an abuse of Court/judicial process and liable to be dismissed.”

It is rudimentary law that the part of the judgment which constitutes the decision of the Court and which is appealable is the ratio decidendi. It is the principle decided that is the important thing and it constitutes the ratio decidendi which can be appealed against. The manner in which the Court argues or reasons the case in arriving at its decision is not important. See UTC (NIG) LTD vs. PAMOTEI (1989) 2 NWLR (PT 103) 244, AFRO CONTINENTAL NIG. LTD vs. AYANTUYI (1995) 9 NWLR (PT 420) 411, AIC LTD vs. NNPC (2005) LPELR (6) 1 at 24-25, OLEKSANDR vs. LONESTAR DRILLING CO. LTD (2015) LPELR (24614) 1 at 22-23 and SAIPEM CONTRACTING NIGERIA LTD vs. FIRS (2018) LPELR (45118) 1 at 64.

Now, how did the lower Court resolve this issue number one distilled by the Appellant in his final address before the lower Court. This is what the lower Court stated at page 312 of the records:
“I agree with the submission of the plaintiff’s Counsel that by virtue of the aforesaid ruling in respect of the preliminary objection, this Court is functus officio as far as the ground of objection i.e. abuse of Court process is concerned.”

The lower Court then conclusively held as follows at pages 313-314 of the Records:
“In conclusion, I agree absolutely with submission of the Plaintiff’s Counsel that the 1st issue is a non-issue. It is indeed a dead issue as far as this Court, as a trial Court, is concerned. It can only be resuscitated by appeal.
The only live issue before the Court therefore is issue No. 2 …”

From the above extract from the judgment of the lower Court, the decision of the lower Court on the said issue is that based on the ruling on the preliminary objection, it had become functus officio and could no longer revisit the said issue and that the Appellant’s recourse ought to be by way of appeal against the Ruling on the preliminary objection. Before I consider whether the lower Court was correct in holding that it was functus officio, let me state that the Appellant is not correct in his contention that the lower Court misapplied the ratio in FIRST BANK vs. T. S. A. IND. LTD (supra). This is what the lower Court said at page 313 of the records:
“More specifically, in FIRST BANK OF NIGERIA PLC. V. T.S.A. INDUSTRIES LIMITED supra, the Supreme Court held that once an issue has been decided one way or the other by the Court in a matter between the same parties, it cannot revisit or review the said decision except under certain conditions. In other words unless there are established grounds before the Court to set aside its decision, such as fraud, lack of jurisdiction or deceit, the Court lacks jurisdiction to determine an issue when it is functus officio in respect of the issue or where the proceedings relating to the issue constitute an abuse of Court process. “
In the above pericope, the lower Court made reference to the instances where a Court can set aside its decision. Quite apart from the fact that the said instances are not present in this matter, the Appellant did not urge the lower Court in his final address to set aside the decision it reached on the preliminary objection. The Appellant raising the issue of abuse of process which had been decided in the preliminary objection, rather than be an invitation for the lower Court to set aside its decision on the issue, is in actual sense an invitation for the invocation of the doctrine of issue estoppel against the Appellant. The lower Court properly applied the decision in FIRST BANK vs. T.S.A. IND LTD (supra).
Now, was the lower Court correct in holding that it was functus officio? The Latinism functus officio, literally means “having performed his or her office”. In the context of a Judge, it means that the duty or function that the Judge was legally performed or charged to perform, has been wholly accomplished and that the Judge has no further authority or legal competence to revisit the matter. See ALOR vs. NGENE (2007) 17 NWLR (PT 1062) 163 at 170-180, OGOLO vs. OGOLO (2006) 5 NWLR (PT. 972) 173 at 187 and UGO vs. UGO (2017) LPELR (44809) 1 at 25-26. In the instant case, the lower Court, having decided in the preliminary objection that the doctrine of estoppel per rem judicatam was not applicable, could not revisit the same when the Appellant raised the issue again in his final address. The lower Court, having performed the duty or function it was legally empowered or charged to perform in its decision on the matter in the preliminary objection, had no further authority or legal competence to revisit the matter. Indeed, it was functus officio; the recourse open to the Appellant was to appeal against the Ruling of the lower Court on the preliminary objection which he failed to do.

The principle of issue estoppel is an estoppel inter partes which is applicable where an issue had previously been decided upon by a Court of competent jurisdiction and the issue comes up again in the same or subsequent proceeding between the same parties (or their privies), a party is precluded from contending the contrary or opposite of the issue that had been so decided. In the circumstance of this matter, the lower Court having decided the Appellant’s preliminary objection in the manner in which it did, the Appellant cannot be had to again contend in his final address that the Respondent’s action was caught by the doctrine of estoppel per rem judicatam. The lower Court was therefore correct when it held that the issue as raised by the Appellant again, was a “non issue” and “dead issue” which “can only be resuscitated by appeal”. See generally FADIORA vs. GBADEBO (1978) LPELR (1224) 1 at 12-14, ODJEVWEDJE vs. ECHANOKPE (1987) LPELR (8049) 1 at 42, ORIOYE vs. ABINA (2019) LPELR (47864) 1 at 30-38 and PROJECT VISION ACTUALIZERS LTD vs. ILUSHIN ESTATES LTD (2021) LPELR (55629) 1 at 37.

I have not lost sight of the Appellant’s submissions on why the decision of the lower Court on the preliminary objection is not correct. Unfortunately, the Appellant did not appeal against the Ruling of the lower Court on the preliminary objection. This appeal is not against the ruling on the preliminary objection which was delivered on 17th March, 2016. The Notice of Appeal at page 331 of the records clearly records that the Appellant’s dissatisfaction and appeal is against the judgment/decision of the lower Court delivered on 10th November, 2017. That is the decision in which the Notice of Appeal has activated the jurisdiction of this Court to adjudicate upon. Any defects in the decision arrived at in the ruling of 17th March, 2016 would await when, and if, there is a competent appeal in that regard. In a coda, this issue number one is resolved against the Appellant.

ISSUE NUMBER TWO
Whether the fault of a Registrar of Court in assessing inadequate filing fees or his omission to assess the various heads of claim is that of an innocent litigant or counsel.

SUBMISSION OF THE APPELLANT’S COUNSEL
The Appellant submits that the lower Court was wrong to strike out the Appellant’s counter-claim on the ground that fees were not assessed and paid for the counter-claim. It was stated that it is the duty of the Court officials to assess processes for filing and that any document required to be filed is deemed duly and properly filed when it is deposited in the Court with the proper official with responsibility to receive it vide RE: COMMERCIAL UNION ASSURANCE CO. LTD (1899) 18 NLR 585, MOHAMMED vs. MUSAWA (1985) 3 NWLR (PT. 11) 89 and AKPAJI vs. UDEMBA (2009) 6 NWLR (PT 1138) 545 at 549 ratio 2.

It was maintained that the failure of the Court officials to make the endorsement on the counter-claim is not to be visited on the Appellant and that it also does not affect the jurisdiction of the Court to entertain the counter-claim since the remedy will be for the fees to be assessed and paid. The cases of G. E. INT’L OPERATIONS (NIG) LTD vs. Q-OIL & GAS SERVICES LTD (2016) 10 NWLR (PT 1520) 304 at 330 and AKPAJI vs. UDEMBA (supra) at 561-562 were referred to. It was opined that the Courts now do substantial justice as opposed to reliance on technicalities. The cases of OGWE vs. IGP (2015) 7 NWLR (PT 1459) 505 at 512 ratio 5, DUKE vs. AKPABUYO (2005) 19 NWLR (PT 959) 130, S. I. E. C. EKITI STATE vs. N.C.P. (2008) 12 NWLR (PT 1102) 720 at 472-473 [sic] and Order 5 Rule 2 of the Niger State High Court (Civil Procedure) Rules, 2012 were relied upon. It was conclusively submitted that the assessment and endorsement of Court processes were the internal matters/affairs of the registry and a party is not to be penalised for any error arising therefrom. The case of R. M. A. F. C. vs. ONWUEKWEIKPE (2009) 15 NWLR (PT 1165) 592 at 608 was cited in support.

RESOLUTION OF ISSUE NUMBER TWO
The facts thrust up by this issue are simple and straight forward. The Appellant, upon being served with the Court processes filed a memorandum of conditional appearance. He thereafter prepared his Statement of Defence and accompanying processes on which was endorsed a counter-claim. Upon presentation of the processes for filing, the Court official did not assess filing fees for the counter-claim; so no filing fees was paid on the counter-claim. Put differently, the filing fees was under-assessed. The Respondent made an issue of this, contending that filing fees not having been paid on the counter-claim, made the same incompetent and robbed the Court of the jurisdiction to entertain the counter-claim. The lower Court upheld this contention and consequently struck out the counter-claim

Now, a lot of judicial ink has been spilt on the consequences of the failure to pay filing fees on a process. Hitherto, the attitude of the Courts has been that where the filing fees had not been paid, that the process is incompetent and the Court was bereft of jurisdiction in respect of the process. However, there seems to be a change of heart by the Courts on the consequences of non-payment of filing fees.

It is these issues that would next captivate our attention in resolution of whether on the preponderance of evidence and balance of probability the Appellant ought to have succeeded in his defence and counter-claim.

ISSUE NUMBERS THREE, FOUR AND FIVE
Whether having regard to the totality of evidence placed before the trial Court, the trial Judge was right in holding that the respondent was in possession of the land in dispute.
Whether having regard to the totality of evidence before Court, the trial judge was justified in law in awarding general damages of One Million Naira (N1,000,000.00k) only against the appellant.
Whether or not from the totality of evidence before Court, it can be said that the respondent’s case preponderates against that of the appellant as to warrant the declaration of title in his favour.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that the decision of the lower Court that the Respondent is in possession of the disputed land is perverse and runs counter to the evidence, since the pleaded facts and evidence clearly show that the Appellant had been in possession and let out the land to people to farm on for a fee. The Court was urged to set aside the perverse decision of the lower Court for taking into account what it ought to have discountenanced and for discountenancing what it ought to have taken into account. The cases of MINI LODGE vs. NGEI (supra) ratio 13, AGBOMEJI vs. ADEGBOLA (1998) 10 NWLR (PT 571) 662 and IKENTA BEST vs. A-G RIVERS (supra) were called in aid.

The Appellant’s submission on his issue number four is that the lower Court never held that the Appellant was a trespasser in order for damages for trespass to lie against the Appellant. It was further stated that there was nothing in the evidence to justify the quantum of damages awarded in respect of the disputed land, which is a farmland. While conceding that the award of general damages is discretionary, it was posited that the discretion is exercised judicially and judiciously and that the lower Court proceeded on wrong principles in making the award of general damages as there was no proof of trespass or any other liability whatsoever. The Court was urged to interfere with the award since the lower Court acted on wrong principle of law, the amount it awarded was too high and an erroneous and unreasonable estimate vide UBN PLC vs. AJABULE (2011) 18 NWLR (PT 1278) 152 at 181 and AKINKUGBE vs. E. H. N. LTD (2008) 12 NWLR (PT 1098) 375 at 381-382 ratio 7.

The quiddity of the Appellant’s submission on issue number five is that the lower Court did not properly evaluate the evidence before it with a view to deciding the crucial issues for determination, especially the jurisdictional issue of res judicatam and abuse of process. It was opined that on the state of the pleadings, the Respondent never pleaded any decision of the Sharia Court of Appeal which set aside the decision of the Upper Sharia Court, Exhibit B1, and that the lower Court failed to properly evaluate this aspect of the case and rule on the same. The lower Court, it was opined, merely restated the submissions of learned counsel at page 310 of the Records. It was asserted that restatement of submissions made is not evaluation of evidence which is aimed at ascertaining whether the evidence is credible. The cases of MOGAJI vs. ODOFIN (1978) 4 SC 91, AKAD IND LTD vs. OLUBODE (2004) 4 NWLR (PT 862) 1 and LAMURDE LOCAL GOVT vs. KARKA (2010) 10 NWLR (PT 1203) 574 at 578 ratio 2 were relied upon.

Referring to Exhibits A, A1, B and B1 tendered by the Appellant, it was submitted that documentary evidence is the best evidence and that when, as in this case, the trial Court fails to evaluate the documentary evidence, that the appellate Court is in as good a position to evaluate the same as it does not involve the credibility of witnesses. The cases of OMIYALE vs. MACAULAY (2009) 7 NWLR (PT 1141) 597 at 629 and ENANG vs. ADU (1981) 11-12 SC 25 were cited in support.

RESOLUTION OF ISSUE NUMBERS THREE, FOUR AND FIVE
The primary duty of the Judge at nisi prius is perception of evidence, evaluation of evidence and ascription of probative value thereto by making the requisite findings of facts which entails both perception and evaluation: GUARDIAN NEWSPAPER LTD vs. AJEH (2011) 10 NWLR (PT 1255) 574 at 592, WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50-51 and ONI vs. JOHNSON (2015) LPELR (24545) 1 at 26-27.

It is rudimentary law that where a trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of an appellate Court to substitute its own views for the views of the trial Court, however, an appellate Court can intervene where there is insufficient evidence to sustain the judgment or where the trial Court fails to make proper use of the opportunity of seeing, hearing, and observing the witnesses or where the findings of facts by the trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or not supported by the evidence before the Court. See EDJEKPO vs. OSIA (2007) 8 NWLR (PT 1037) 635 or (2007) LPELR (1014) 1 at 46-47, ARE vs. IPAYE (1990) LPELR (541) 1 at 22, WOLUCHEM vs. GUDI (1981) 5 SC 291 at 320 and FASIKUN II vs. OLURONKE II (1999) 2 NWLR (PT 589) 1 or (1999) LPELR (1248) 1 at 47-48.

The law is that the conclusion of the trial Court on the facts is presumed to be correct, so that presumption must be displaced by the person seeking to upset the judgment on the facts. See WILLIAMS vs. JOHNSON (1937) 2 WACA 253, BALOGUN vs. AGBOOLA (1974) 1 ALL NLR (PT. 2) 66 and EHOLOR vs. OSAYANDE (1992) LPELR (8053) 1 at 43.

Now, a trial Judge is a peculiar adjudicator. Of all Judges, the heaviest burden and responsibility of deciding a case rests with him. He normally hears a case by receiving evidence both oral and documentary from witnesses who appear before him in Court, are asked questions and cross-examined. In the process, he engages himself to see, listen to and watch them testify. Not only that, his feelings and impressions are tested from time to time upon one issue or another when, apart from listening, he watches, he takes mental note of the performance of witnesses, their demeanour in the witness box, in particular how they react to questioning and the manner they give answers. Quite often, it is this that helps the trial Judge as to who and what to believe. The witnesses are telling him what he was not aware of before, the circumstances in which it happened and in respect of which both sides claim that their evidence represents the truth and the trial Judge will have to take a decision. So if the trial Judge is up to the demands of his duty, he will continue to size up the witnesses in their oral testimonies. Is a particular witness lying or prevaricating or just slow in nature, or has he a peculiar idiosyncrasy? That is for the trial Judge to determine. When there are relevant documents, they serve as the touchstone against which the oral testimony can be tested, and so much of the demeanour of a witness may not quite matter: OLUJINLE vs ADEAGBO (1988) 2 NWLR (PT 75) 238 at 254 and RAB OIL NIGERIA LTD vs. OBILEYE (2021) LPELR (53467) 1 at 36-38.
In ENANG vs. ADU (1981) LPELR (1139) 1 at 15-16, Nnamani, JSC (of blessed memory) asseverated:
“It has been established by several authorities that a Court of appeal must approach the findings of fact of a trial Judge with extreme caution. The principles under which a Court of appeal can interfere have been well settled. A Court of appeal which has not had the same advantage which the trial Judge has enjoyed of seeing the witnesses and watching their demeanour would only disturb the findings of fact of such a Court where it is satisfied that the trial Judge has made no use of such an advantage. If the trial Court has unquestionably evaluated the evidence before him, it is not for the Court of appeal to re-evaluate the same evidence and come to its own decision. See A. M. Akinloye v. Bello Eyiyola & Ors. (1968) NMLR 92 at page 95; Steamship Houtestroom (Owners) v. Steamship Cagaporack (Owners) (1927) AC 37; Fatoyinbo and Ors. v. Williams (1956) 1 FSC 87; Lawal v. Dawodu & Ors. (1972) 1 All NLR 270, 271, Agbedegudu v. Ajenifuja & Ors. (1963) 1 All NLR 109 114. This Court has in the recent case of Chief Victor Woluchem and Ors v. Chief Simon Gudi & Ors. (supra) at pages 326-330 and pages 295 and 296 reiterated these principles. I would for purposes of emphasis set down the principles formulated by the House of Lords in Watt (or Thomas) v. Thomas (1947) 1 All ER 582: These are as follows: ‘Where a question of fact has been tried by a Judge without a jury and there is no question of mis-direction of himself by the judge, an appellate Court which is disposed to come to a different conclusion on the evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the judge’s conclusions. The appellate Court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence. The appellate Court either because the reason given by the trial judge are not satisfactory or because it unmistakably so appears from the evidence may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate Court.”

I will be guided by these settled principles of law on evaluation of evidence and ascription of probative value thereto in resolving these issues.

I have already stated that the parties relied on traditional history as the basis of their root of title. In consideration of issue number one, I dealt with the question of estoppel per rem judicatam and upheld the decision of the lower Court that premised on its ruling on the preliminary objection that it had become functus officio on the res judicata question. Accordingly, the Appellant’s complaint that the lower Court did not properly evaluate the evidence on the jurisdictional issue of res judicata and abuse of process is inutile and moot.

In evaluation of the Respondent’s evidence, the lower Court found and held as follows at pages 326-327 of the Records:
“I(n) paragraphs 2 and 3 of the statement of claim the plaintiff averred that Sarkin Pawa, his father, was the first person who cultivated the land in dispute a long time ago when it was a thick forest and settled there with his family farming. The plaintiff and his brother were born and brought up on the land where they learnt how to farm. The evidence in chief of P.W. 1 and P.W. 2 clearly shows how the plaintiff’s father founded the land. This evidence was not contradicted by the defendant. In paragraphs 5 and 6 of the statement of claim, it is averred that while the plaintiff’s father was alive his ownership of the land was not challenged by the defendant’s father. The challenge began after the death of the plaintiff’s father by the defendant after the plaintiff’s father had farmed on the land for over fifty years before he died. From plaintiff’s pleadings, it is clear that he inherited the land from his father after his death. In other words, the chain of devolution is from the founder to his son, the plaintiff. These averments are supported by the evidence of PW1 and PW2. In paragraphs 3 and 5 of the statement of claim reference is made to the reliefs, evidence of possession and habitation on the land by the plaintiff’s father. These include grave of members of the family of Sarkin Wuta, trees and houses of the extended family. It is also the case of the plaintiff that members of his father’s family farmed the land, including his father. This is supported by the statement on oath of PW1 and PW2. In particular, paragraph 4 of the statement of claim contains averments relating to the identity of the land in dispute. The land is said to share boundary to the West with the Plaintiff’s houses. This is not disputed by the defendant. In short, it is not in dispute that the family of Sarkin Wuta has been in possession of the land in dispute for a long time without any challenge from the defendant. PW2 in paragraph 4 of his evidence gave details of the features on the land in dispute which come [sic] into being by the initiative of the Plaintiff’s family, including 10 graves, orange trees, locus [sic] bean trees, sheanut trees, moringa tress [sic], mango trees, kuka trees, Bagaruwa and Rimi trees. Both witnesses maintained that the Defendant’s father came from Lukuma and did not have any land at Tsohon Kabula. The plaintiff therefore also relies on possession and ownership of adjacent land to the West of the disputed land which is one of the ways of proving title to land.”

Evaluating the Appellant’s evidence, the lower Court found and held as follows at pages 327-329 of the Records:
“The evidence adduced by the Defendant as already summarized above shows that Zarumai founded the land in dispute which devolved on Kamtoma and then the defendant in support of the defendant’s case is that the land was lent to the plaintiff’s father. Paragraphs 10 and 11 of the statement on Oath of DW1 are to the effect that plaintiff’s father was given a piece of land outside Sheina to farm. But, in paragraphs 12 he said:
‘That the plaintiff’s father lived with the defendant’s father Until the death of defendant’s grandfather bearing [sic] in behind his biological son Kantoma and plaintiff’s father (Magaci Wuta within the disputed land.’ This evidence is contradictory to the one given in paragraphs 10 and 11. This contradiction is so material that it will be difficult to believe the evidence of D.W.1 on the lending of the land to the Plaintiff’s father. Paragraph 11 is to the effect that the land loaned to Defendant’s father is outside Sheina. The Defendant (D.W.2) was not present when the land was said to have been lent to Plaintiff’s father. But his father told him about it, which is derived [sic] by the plaintiff. D.W.2 too said the land lent to Defendant’s [sic] father is outside Sheina. See paragraphs 10 and 11 of his statement on oath. D.W.2’s evidence at paragraph 15 contradicts paragraphs 10 and 11 of the statement on oath. The position of the law is that material contradiction (as in this case) robs the testimony of any probative value and accordingly there is no adversary to offer an explanation. See Hon. RALF OKEKE & ORS. V. CHIEF (MRS) EDITH MIKE EJEZIE & ORS (2010) LPELR – 4263 (CA).
Where the evidence does not bring out the facts in the statement of claim or where there is maternal [sic] contradiction, the Court is entitled to and disregard the evidence of such party.”

Having so evaluated the evidence, the lower Court then conclusively held as follows at page 329 of the records:
“Since the claim of ownership of the land in dispute by the defendant cannot be dissociated from the allegations of lending the land to the plaintiff’s father, placing the credible testimonies of both parties on an imaginary scale and weighing them together, I find the evidence of the plaintiff in support of his claim more credible as it preponderates. Apart from the evidence of founding of the land, possession of the land in the sense of actual possession and presence on the land by farming and residing thereon, there is also the uncontradictory evidence of ownership of the adjacent land to the West of the disputed land, whereas there is no evidence that the defendant or his father or grandfather ever farmed on the land before the plaintiff’s father went there to settle and started farming on it.”

It is instructive that the Appellant has not challenged the finding of the lower Court that there were material contradictions in the testimony of his witnesses, such that their testimony cannot be accorded any probative value. It is settled law that where a party fails to appeal against a finding of a Court, the party is deemed to have conceded the point and such a finding remains binding and conclusive between the parties: ALAKIJA vs. ABDULAI (1998) 6 NWLR (PT. 552) 1 at 4, OPARA vs. DOWEL SCHLUMBERGER (NIG) LTD (2006) LPELR (2746) 1 at 19 and DABO vs. ABDULLAHI (2005) LPELR (903) 1 at 24.

Therefore, the finding that the Appellant’s evidence is contradictory remains unassailable. The Appellant’s defence and his counter-claim could neither have been sustained nor established by such contradictory evidence which as the lower Court rightly held, is not to be ascribed any probative value. See EDOSA vs. OGIEMWANRE (2019) 8 NWLR (PT 1673) 1 at 19, ETIM vs. AKPAN (2019) 1 NWLR (PT 1654) 451 at 470, C. D. C. (NIG) LTD vs. SCOA (NIG) LTD (2007) 6 NWLR (PT 1030) 300 and AUDU vs. GUTA (2004) 4 NWLR (PT 864) 463.

I deliberately went to some length in setting out the product of the evaluation of the evidence by the lower Court. This is in order to clearly, show that the evaluation of the evidence and decision of the lower Court is not perverse as contended by the Appellant. I have insightfully considered the evidence on record. The findings of facts made by the lower Court flow from the evidence on record and the findings are not perverse. It is hornbook law that for the determination of an appeal on issues of facts, it is not the business of an appellate Court to embark on a fresh appraisal of the evidence where the trial Court has unquestionably evaluated and appraised it, unless the findings arrived at are perverse. See AYANWALE vs. ATANDA (1988) 1 NWLR (PT 68) 22 or (1988) LPELR (671) 1 at 21 and AWOYALE vs. OGUNBIYI (1986) 4 SC 98. In the words of Idigbe, JSC in BOARD OF CUSTOMS & EXCISE vs. BARAU (1982) LPELR (786) 1 at 47:
“It is now settled that if there has been a proper appraisal of evidence by a trial Court, a Court of appeal ought not to embark on a fresh appraisal of the same evidence in order merely to arrive at a different conclusion from that reached by the trial Court. Furthermore, if a Court of trial unquestionably evaluates the evidence then it is not the business of a Court of appeal to substitute its own views for the views of the trial Court.”
At the risk of being prolix, I restate that an appellate Court will not substitute its own views with those of the trial Court, when as in the instant appeal, the trial Court has unquestionably evaluated the evidence and justifiably appraised the facts. See NGILLARI vs. NICON (1998) 8 NWLR (PT 560) 1 and AGBABIAKA vs. SAIBU (1998) 10 NWLR (PT 571) 534 or (1998) LPELR (222) 1 at 19-20. The evaluation of evidence and the findings made by the lower Court were definitely not perverse. Therefore there is absolutely no basis on which an appellate Court can intervene. From all I have said thus far, the inevitable summation is that the Appellant has failed to displace the presumption that the conclusion of the lower Court on the facts are correct in order to upset the judgment on the facts. See EHOLOR vs. OSAYANDE (supra) at 43 and ONI vs. JOHNSON (supra) at 11-13.

The antithesis and corollary of the success of the Respondent’s claim and the finding of the lower Court that the evidence preponderates in favour of the Respondent is that the Appellant who it held does not own the land is a trespasser. It is abecedarian law that for the acts of possession relied on by the Appellant to be acts of ownership of the disputed land, the Appellant must establish his root of title to the land, such that the acts of possession will be seen as flowing from the root of title in order to properly qualify as acts of ownership over the disputed land. This is so because where a person exercising acts of ownership, possession and enjoyment of land does not have any right or title to the land, such possessory acts remain acts of trespass. See EZEKWESILI vs. AGBAPUONWU (2003) 4 SC (PT. I) 33 at 49, ALLI vs. ALESINLOYE (2000) 4 SC (PT I) 111, OWHONDA vs. EKPECHI (2003) 9 SCNJ 1, CARRENA vs. AKINLASE (2008) LPELR (833) 1 at 18-19 and OLIGIE vs. ADUN (2014) LPELR (24480) 1 at 43-44. The lower Court held that the Appellant’s evidence did not have probative value and therefore the Appellant’s root of title was not proved. The concomitance of the Respondent’s success in his relief for title to the land is that the Appellant’s counter-claim must perforce fail. The decision of the lower Court is therefore the correct decision. Indubitably, the third and fifth issues for determination are resolved against the Appellant.

The Appellant further complained in his issue number four that the general damages of N1million awarded by the lower Court as damages for trespass in respect of the farmland is excessive. The assessment of the quantum of general damages is at the discretion of the Court.

Judicial discretion is a vital tool in the administration of justice. Judicial discretion is a sacred power which inures to a Judge. It is an armour which the judge employs judicially and judiciously in order to arrive at a just decision. In matters of judicial discretion, since the facts of two cases are not always the same, Courts do not make it a practice to lay down rules and principles that would fetter the exercise of its discretion or the discretion of the lower Courts. In matters of discretion, no one case is an authority for the other. Also, the fact that the appellate Court would have exercised its discretion differently from that of the lower Court is not sufficient reason to interfere with the exercise of discretion by the lower Court. A Court cannot be bound by a previous decision to exercise its discretion in a regimented way because that would be putting an end to discretion. The Court will not interfere with the exercise of discretion in the absence of proof that it was wrongly exercised. No hard and fast rules can be laid down as to the exercise of judicial discretion by a Court, for the moment that is done, the discretion is fettered. See ANYAH vs. AFRICAN NEWSPAPERS (NIG) LTD (1992) LPELR (511) 1 at 20 -21, AJUWA vs. SPDC (2011) 12 SCNJ 596, ADISA vs. OYINWOLA (2000) 10 NWLR (PT 746) 116, NWADIOGBU vs. ANAMBRA IMO RIVER BASIN DEVT AUTHORITY (2010) 12 SCNJ 212, NNPC vs. CLIFCO NIG LTD (2011) 4 SCNJ 107 at 127-128 and VANDIGHI vs. HALE (2014) LPELR (24196) 1 at 52-53.

Howbeit, the fact that the quantum of damages is at the discretion of the Court does not mean that there are no circumstances when an appellate Court would interfere with the award of damages. An appellate Court will interfere with the award of damages by a trial Court in situations which include:
a) Where the Court acted under wrong principles of law.
b) Where the Court acted in disregard of applicable principles of law.
c) Where the Court acted in misapprehension of facts
d) Where the Court took into consideration irrelevant matters and disregarded relevant matters while considering its award
e) Where injustice will result if the appellate Court does not act
f) Where the amount awarded is ridiculously low or ridiculously high that it must have been an erroneous estimate of the damages
See ACB LTD vs. APUGO (2001) 5 NWLR (PT. 707) 653, UBN LTD vs. ODUSOTE BOOK STORES LTD (1995) 9 NWLR (PT. 421) 558, B. B. APUGO & SONS LTD vs. OHMB (2016) LPELR (40598) 1 at 61-62, SPDC LTD vs. TIEBO (2005) LPELR (3203) 1 at 25 and ODUWOLE vs. WEST (2010) LPELR (2263) 1 at 15.

In awarding general damages, the lower Court merely stated:
“N1,000,000.00 is awarded as general damages against the Defendant in favour of the Plaintiff.”

From the evidence on record, it is not confuted that the disputed land is a farmland. There is also no evidence of any damage to any crops or other economic trees on the disputed land. In such circumstances, the Respondent is only entitled to nominal or minimal damages. See UMUNNA vs. OKWURAIWE (1978) 6-7 SC 1, OSUJI vs. ISIOCHA (1989) 3 NWLR (PT 111) 623, CHUKWUMA vs. IFELOYE (2008) 18 NWLR (PT. 1118) 204 and ANYANWU vs. UZOWUAKA (2009) 13 NWLR (PT 1159) 445. The sum of N1million awarded by the lower Court is neither nominal nor minimal in the diacritical circumstances of this case. The amount is ridiculously high that it is evidently an erroneous estimate of the damages. See AKINKUGBE vs. E.H.N. LTD (supra). Since the amount awarded by the lower Court as general damages for mere trespass is too high, the award is hereby set aside and substituted with the sum of N100,000.00. The Appellant therefore succeeds on issue number four.

It is now the proper time to berth this judgment at the quays. The Appellant has succeeded in issue numbers two and four. Issue numbers one, three and five have been resolved against him. The appeal therefore succeeds in part. Apart from the manner in which issue numbers two and four were resolved in favour of the Appellant, the judgment of High Court of Niger State, Coram Judice: Mayaki, J., delivered on 10th November, 2017 in SUIT NO. NSHC/MN/139/2014: SAMARI SARKIN MAGACI WUTA (For himself and on behalf of Sarkin Wuta Family) vs. ALI KANTOMA is hereby affirmed. There shall be no order as to costs.

HARUNA SIMON TSAMMANI, J.C.A.: I had the privilege of reading in advance, the draft of the judgment delivered by my learned brother, Ugochukwu Anthony Ogakwu, JCA.

My learned brother has comprehensively considered and resolved the pertinent issues presented to this Court for determination by the parties. I agree that the trial Court having determined the issue of estoppel per rem judicatam vide the preliminary at the inception of the suit, had no jurisdiction to reopen same at the judgment stage. The issue having been canvassed by the parties and a ruling delivered thereon, the trial Court had become functus officio to reconsider same at a later stage of the proceedings. See Dingyadi v. INEC (No.2) (2011) 18 NWLR (Pt. 1224) LPELR – 4322 (CA) and First Bank of Nig. Plc. V. TSA Industries Ltd. (2010) 15 NWLR (Pt. 1216) 247. The same Court can only revisit the matter merely in order to correct minor corrections under the slip rule or to set aside the decision on the ground that it was obtained by fraud deceit or that the judgment is a nullity. See also Jeo- Deb Ventures v. NDIC (2015) All FWLR (Pt. 780) 1322 at 1338. In the instant case, the Appellant had not appealed against the ruling of the trial Court on the issue of res judicata and the trial Court was functus officio on the issue.

The trial Court was obviously in error when it struck out the Appellant’s counter-claim on the ground that filing fees had not been paid. The current position of the law is that, such a defect is a mere irregularity which may be cured by the Court directing the defaulting party to pay such fees. The reasoning behind that position is that, persons’ constitutional rights of access to Court should not be hamstrung by such issues that can easily be cured by the party being ordered to remedy the situation. The defect therefore does not constitute a defect on the jurisdiction of the Court. See Ogwe & Anor v. IGP & Ors (2015) 7 NWLR (Pt. 1459) 505 and Onwugbufor & 2 Ors V. Okoye & 3 Ors (1996) 1 NWLR (Pt. 424) 252. Thus, in ACB Ltd. v. Henshaw (1990) 1 NWLR (Pt. 129) 646 at 651. This Court per Oguntade, JCA (as he then was) said:
“Even if the Defendant/Respondent had not paid the requisite Court fees, this has 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 the jurisdiction of the lower Court to entertain the suit.”

On that note, I agree with my learned brother that, the trial Court erred by striking out the Appellant’s counter-claim on the ground of non-payment of filing fees on the counter-claim.

It is for the above reasons and the detailed reasons carefully espoused in the lead judgment that I agreed that the appeal be allowed in part. However, the appeal having failed on issues 1, 3 and 5 having been resolved against the Appellant, the judgment of the Court below, is hereby affirmed. I abide by the order on costs.

HAMMA AKAWU BARKA, J.C.A.: My learned brother, U.A Ogakwu JCA made available to me the lead judgment just delivered in draft.

Having carefully studied the grounds of appeal, and perused the record of proceedings as well as the submissions of both learned counsel, I am satisfied with the reasoning and resolution of the issues as well as the conclusions arrived at.

I agree that the appeal partly succeeds, but since the determinant issues are issues 1, 3 and 5, the appeal stands dismissed and the judgment of Maiyaki J. of the Niger State High Court in suit no. NHSC/MN/139/2014 hereby affirmed.