SAMBA PETROLEUM COMPANY LIMITED & ANOR v. FIRST CITY MONUMENT BANK
(2013)LCN/6352(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 26th day of June, 2013
CA/K/185/1999
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
1. SAMBA PETROLEUM COMPANY LTD.
2. BALA OCHOLI Appellant(s)
AND
FIRST CITY MONUMENT BANK Respondent(s)
RATIO
PAYMENT OF FILING FEES AS A CONDITION PRECEDENT FOR ORIGINATING A COURT PROCESS
The law is well developed on issue of the need for payment of filing fees to originate a Court process, that is, where payment of fees are stipulated as condition precedent to originating a process. See the case of ONWUGBUFOR v. OKOYE (1996) 1 NWLR (Pt. 424) 259; MOYOSORE v. GOVERNOR OF KWARA STATE (2012) 5 NWLR (Pt. 1293) 242.
In the case of GARBA v. UMMUANI (2013) 12 WRN 7 ratio 2, this Court held.
“Where a process of Court has not been duly filed and the appropriate fees paid, the same ceases to be a valid process of Court.
After all, it is the filing fee that breathes life into a Court process, except where the fees is waived or exempted, as in processes filed by government and government departments…” Even then, failure to pay fees, to file a process, does not render the proceedings a nullity, as such defect only amounts to irregularity, which is curable, by resort to pay the fees, where and when appropriately raised. See the case ONWUGBUFOR V. OKOYE (Supra). See also LAWAL V. ODEYIMI (1963) WNLR 23; See also AKPAJI vs. UDEMBA (2009) 6 NWLR (Pt. 1138) 545, where the Supreme Court held, affirming ACB LTD. V. HENSHAW (1990) 1 NWLR (Pt. 129) 646, as follows:
“… 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 also EZOMO V. OYAKHIRE (1985) 1 NWLR (Pt. 2) 195 at 202 – 203; NOIBI VS. FIKOLATI & ANOR. (1987) 1 NWLR (Pt. 52) 619 at 632. PER MBABA, JCA.
ITA G. MBABA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Kaduna State High Court in suit No. KDH/KAD/314/91, delivered by Hon. Justice H.N. Donli on 30/3/1998.
The Respondent who was the plaintiff at the High Court (by then International Merchant Bank Ltd.), had claimed the sum of N856, 221.47, with 34.5% interest per annum against the Appellants (by then Defendants), from 1st Oct. 1992, until judgment, and thereafter 10%, per annum, until the judgment debt is liquidated. That was suit No. KDH/KAD/301/92.
The Appellants had earlier sued the Respondent for a declaration that the Respondent had breached and frustrated an agreement, frustrated repayment, bloated and misrepresented account. They sought perpetual injunction and over N23 Million as damages for lose of profit and breach of agreement. That was suit no. KDH/KAD/314/91.
The two suits were consolidated on 4/8/93 under KDH/KAD/314/91, on Appellants’ application, filed on 27/7/93. Consequently and surprisingly (as the Appellants should have reminded the plaintiffs) the Respondent became the plaintiff and the Appellants the Defendants in the said suit, KDH/KAD/314/91, during the trial the Respondent applied to amend its statement of claim and its defence to the Counter claim (as per pages 52 – 62 of the Records).
In the judgment, the Court below found that the Respondent did not breach the agreement between it and the Appellants and that it had proved its (Respondent’s) claim. And that Appellant did not prove the counter-claim.
Appellants filed their Notice of Appeal as per pages 307 to 309 of the Records of Appeal, They later filed amended Notice of Appeal on 27/5/13, which was deemed duly filed on 4/6/13 – the day the appeal was heard by this Court. In the Amended Notice of Appeal, Appellants disclosed 5 grounds of appeal, as follows:
“GROUNDS OF APPEAL
1. ERROR OF LAW
The learned trial judge erred in law in entertaining the plaintiff/Respondent’s claims.
PARTICULARS OF ERROR
a. The plaintiff/Respondent did not pay any filing fees before purportedly instituting this case.
b. Payment of filing fees for a writ of summons is a condition precedent to adjudication,
c. Even after amendment of the statement of claim, where the figure originally claimed was increased, the plaintiff/Respondent refused to pay for the enhanced figure.
d. By the High Court of Kaduna State (civil procedure) rules 1987 an amendment is void if not made within 14 days of grant.
e. The record the Honourable Trial Court clearly shows no endorsement of filing fees on both the writ of summons and the amended statement of claim of the Plaintiff/Respondent,
f. Learned Counsel for the plaintiff/Respondent confirmed that the Plaintiff/Respondent had no receipt to show the Court and that there is no endorsement on the writ of summons and the amended statement of claim to evidence any payment of fees,
2. The learned trial Court erred in law when he awarded to the Plaintiff/Respondent 34.5% interest rate.
PARTICULARS OF ERROR
a. The statement of claim asked for the 34.5% interest rate but the witnesses asked for 31% in evidence in Court.
b. No witness canvassed for the 34.5% interest rate.
c. Averment is not evidence.
d. The award of 34.5% interest is contrary to the prevailing lending rate approved by the Central Bank of Nigeria (which is a maximum of 21% per annum).
e. The Court has no jurisdiction to award to a party what he did not pray for in Court.
3. The learned trial judge erred in law in holding that the plaintiff/Respondent proved its case.
PARTICULARS OF ERROR
a. The witnesses of the plaintiff/Respondent contradicted themselves on every material issue before the trial Court.
b. The exhibits tendered by the plaintiff/Respondent contradicted each other particularly on interest rates chargeable vis-a-vis interest rate actually charged.
4. The learned trial Court erred in law in holding that the plaintiff did not breach the agreement between the parties.
PARTICULARS OF ERROR
a. Evidence which was not challenged before the honourable Court is that the plaintiff/Respondent breached the agreement between the parties by:
i. Not completing disbursement within 6 months as pert the agreement between the parties, despite repeated demands for same.
ii. Applying interest charges contrary to the agreement – resulting to over 67% wrong application of interest rates/charges,
iii. Introduction of an unknown account from which the sum of N1, 000.00 was brought into the appellant’s account and upon which interest charges were made continually.
iv. Merging the two accounts when the current agreement between the parties expressly stated that the two accounts be kept separate.
5. The learned trial judge end in law and came to a wrong conclusion when he held that counter-claim of the appellant was not challenged but declined to award same to the appellants.
PARTICULARS OF ERROR
a. The reason the honourable trial Court gave for declining to award the counter-claim to the appellants is that the plaintiff/Respondent did not breach the agreement between the parties.
b. The trial Court found as a fact that the appellants suffered loss as a result of the action of the plaintiff/Respondent
c. All the losses suffered by the appellants were not attached solely to the breach or lack of it but have to do with the actions of the plaintiff/Respondent and its agents outside the agreement.”
Appellants filed Amended Brief of argument on 27/5/13, which was deemed duly filed on 4/6/13. They distilled three (3) issues for determination, namely:
(1) Whether the plaintiff’s failure to pay filing fees for the writ of summons as well as its failure to pay for an enhancement of amount earlier claimed rendered its claim incompetent before the Court – Ground 1.
(2) Whether, assuming that there was a validly filed claim, the plaintiff (Respondent) proved its claims-Grounds 2 and 3.
(3) Whether the learned trial judge was right in holding that the counter-claim failed in its entirety – Grounds 4 and 5.”
The Respondent filed a Further Amended Respondent’s Brief of Argument on 5/12/12, which was deemed duly filed on 17/1/13. It also identified 3 issues for determination, namely:
“(1) Whether the Respondent’s claim in the Court below was incompetent (Ground 1).
(2) Whether the Respondent proved its claim in the Court below (Grounds 2 and 3)
(3) Whether the Court below rightly dismissed Appellants’ counter-claim.
(Grounds 4 and 5).”
The Respondent had also filed a Cross-Appeal in this matter, as per the Further Amended Notice of Cross-Appeal, filed on 17/1/13, and filed with the leave of this Court, wherein the Cross-Appellant (Respondent) formulated 2 grounds of Appeal as follows:
GROUNDS OF APPEAL
“GROUND ONE
The learned trial judge erred in law when after she had delivered her judgment, proceeded to make an order ‘arresting’ same when she had no jurisdiction to do so.
PARTICULARS
a. The Court had heard the evidence of all the witnesses, addresses of Counsel and had delivered its judgment on the claim and the counter-claim before it.
b. The Court had done all that it had power to do in regard to the case up to judgment and thus became functus officio.
c. There was nothing left for the Court below to consider in regard to the judgment it had delivered in the circumstances of the case before it.
GROUND TWO
The learned trial judge erred in law in making an order ‘arresting’ her judgment after delivering same when there is (sic) no law empowering her to arrest the judgment and thus acted in excess of her jurisdiction.
PARTICULARS
a. The matter before the court below was a civil case,
b. The law governing civil procedure before the Court below is the High Court (Civil Procedure) Rules of Kaduna State, 1987.
c. There is no provision in the Civil Procedure Rules of the Court below or any other law in respect of arresting a judgment in a civil case.
d. The Order made by the Court below is unknown to law.”
The Cross-Appellant’s Brief was finally filed as “Further Amended Cross-Appellant’s Brief of Argument” on 17/1/13, with the leave of this Court, and in it the Cross-Appellant distilled a lone issue for determination:
“Whether the Court below had the jurisdiction to arrest its judgment that had been delivered”
The Cross-Respondent filed a Amended Cross-Respondent’s Brief on 27/5/13, which was deemed duly filed on 4/6/13, wherein the lone issue, distilled by the Cross-Appellant was adopted by the Cross-Respondent. The Cross-Respondent also filed a notice of intention to rely on preliminary objection against the Cross-Appeal the same was filed on 27/5/13 and deemed duly filed on 4/6/13. And it, allegedly, necessitated the filing of a Further Amended Cross-Appellant’s Reply Brief, on 17/1/13! (More will be said on the Cross-Appeal and the processes therein, later).
Arguing the Appeal, learned Counsel for the Appellant, A.C. Ameachi Esq., (who settled the brief), on issue 1, submitted that the Respondent’s case was/is incompetent as payment of filing fees for the writ of Summons is a condition precedent to the raising of a valid claim. He relied on the case of ONWUGBUFOR vs. OKOYE (1996) 1 NWLR (Pt. 424) 259 at 292; thus, he said that the Respondent’s amended Statement of claim was void, as no filing fee was paid for the sum claimed or the sum added by way of amendment, within 14 days as per order 25 Rule 4 of the High Court Civil procedure Rules, 987, (which requires such amendment to be effected within 14 days).
On Issue 2, Counsel submitted that the PW2 and PW3 contradicted each other on the material claims of the Respondent which was that Appellants owed it N856, 221.47; that PW2 and PW3 gave contradictory evidence on the issue, that the trial Court was wrong in choosing one version of the conflicting evidence, and did not give any reason for picking and choosing the evidence of one against the other. Counsel relied on the case of OGUNBILI V. OGUNDIPE (1992) 9 NWLR (Pt. 263) 24 at 40.
Counsel submitted that it was beyond dispute that PW3 was given exhibit D1 (the Statement of account), which contained the figure the Respondent claimed to be outstanding, as per the evidence of PW2; that it was therefore unjust for the trial Court to ascribe probatitive value to the evidence of PW2, whom, Counsel said, PW3, in his evidence-in-chief, contradicted. He said that the it is important that the Respondent did not declare the PW3 a hostile witness.
Counsel further submitted that the 34.5% interest rate was not canvassed, and that the 31% interest rate which the Respondent prayed for ran contrary to exhibit D2, which stated that interest was 38.5%, from 1st May 1992; further more, that exhibits D1 showed that more than 38.95% was charged as interest in the month of May 1992, and thereafter. Thus, the oral evidence of PW2, asking for 31% as interest, contradicted exhibit D2 on interest chargeable and exhibit D1 on interest actually charged. He added that exhibit D1, materially, contradicted all the other statements of account admitted and not disputed in the case namely exhibits D20, D21, D22 and D23.
On Issue 3, Appellants contended that the Respondent breached the agreement between the parties by, first, refusing to disburse the loan within the period of 6 months, as clearly stipulated in the agreement, and second, by ignoring the demand for disbursement without any reason and third, by transferring whatever sum left undisbursed, instead of cancelling same as stipulated by the agreement.
He also argued that the Respondent breached the agreement between the parties on interest chargeable, thus that the Appellants’ counter claim was proved; that as it was not challenged, only minimal proof was required. He relied on the case of NEPA V. ALI (1992) 8 NWLR (Pt. 259) 279.
He urged us to resolve the issues in Appellants’ favour and allow the appeal, set aside the decision of the Lower Court and enter judgment for Appellants’ on the counter claim.
The Respondents’ Counsel, Wole Agunbiade Esq., (who settled Respondents’ brief), submitted, on issue 1, that the Respondents’ case was competent before the trial Court, having commenced as suit No. KDH/KAD/301/92 before Hon. Justice H.N. Donli, while the Appellants’ case commenced as suit No. KAH/KAD/314/91 before Hon. Justice Dogara Mallam Counsel said that in compiling Volume 1 of the Record of proceedings, in respect of the Record in suit No. KAH/KAD/301/92, the Registrar of the Court below did not include substantial part of the records in that suit, that that necessitated the compilation and transmission of Volume II of the Record of proceedings, which carried the original documents file in respect of suit No, KAH/KAD/301/92; that the requisite endorsements in respect of payment of filing fees for the Respondent’s claim in the suit No. KAH/KAD/301/92 are disclosed on page 23 of Volume ii of the Record of Appeal, and the receipt can be found on page 20 of the said Volume II of the Records.
Counsel therefore submitted that the Appellants’ issue 1 is a non – starter, He further submitted that, even if the Respondent were not to have paid the filing fees, that by the Kaduna State High Court (Civil Procedure) Rules, 1987, such defect would only amount to irregularity, which could not render the case incompetent. He relied on Order 2 Rule 1(1) of the Kaduna State High Court (Civil Procedure) Rules 1987; The case of KOSSEN NIG. LTD v. SAVANAH BANK OF NIG. LTD (1995) 12 SCNJ 29; ODU’A INVESTMENT CO. LTD V. TALABI (1997) 7 SCNJ 600; EKE vs. ELUWA (2000) 14 NWLR (Pt. 688) 560 at 568.
The Respondent further submitted that, by not raising the issue of non payment of filing fees, timeously, the Appellant had waived the right to complain about the alleged irregularity; that it was too late in the day to complain, especially as Appellants had not suffered any injustice. He relied on the case of AYANWALE & ORS VS. ATANDA & ANOR (1988) ALL NLR 24 and on Order 2 Rule 2(1) of the High Court (Civil Procedure) Rules 1987.
Finally, on that point, Counsel submitted that even the case of ONWUGBUFOR VS. OKOYE Supra), relied upon by the Appellants, acknowledged that remedial action can be made to regularize the defect caused by non-payment of filing fees; that that case is not apposite to this appeal, as the same did not consider: Order 2 of the Kaduna State High Court (Civil Procedure) Rules, 1987, or any similar statute.
On issue 2, Counsel for the Respondent submitted that Respondent had proved its claim; that Exhibits A1 to A4 and D3 contained the terms of the Agreement between the Respondent and the Appellants; that parties are bound by their agreement and the Court has a duty to strictly interpret the terms of agreement.
Counsel submitted that PW2 and PW3 did not contradict each other. He referred us to the evidence of PW2 and PW3 as per the Records. He further submitted that even then, parol evidence (of PW3) cannot add to, vary or contradict a written instrument – Exhibit D1 – on the amount owed by Appellants, He relied on section 128 (1) of the Evidence Act; UNION BANK OF NIGERIA LTD. V. NWAGOKOLO (1995) 6 NWLR (Pt. 400) 127; WILLIAMS V. FLDA (1996) 1 NWLR (Pt. 423) 232.
Counsel referred us to some clauses in Exhibits A2, A3 and A4 as well as the Evidence of DW5, to the effect that the issue of rate of interest was admitted by the Appellant on signing the agreement, and that the rate was not static. Thus, Appellants’ submission on the issue was baseless.
On issue 3, Counsel submitted that the trial Court was right in holding that Appellants’ counter claim failed; that the Respondent did not breach the agreement it had with Appellants, and so there was no basis for the counter claim; that there was communication between the parties on the state of the loan account, and the Appellant had admitted collection of statements of account (which they tendered some) and they also admitted (through DW5) under Cross examination, that the 1st Appellant kept its own account and could tell what it had paid and what was outstanding against the Appellant; that it was therefore clear that the Respondent neither frustrated nor delayed the payment of the debt by the Appellant; that nothing prevented Appellants from knowing the level of their indebtedness to the Respondent, since the DW5 admitted keeping the account.
He urged us to resolve the Issues against the Appellant and dismiss the Appeal.
RESOLUTION OF ISSUES
The three (3) Issues formulated by the Appellants are the same as the three issues by the Respondent, who rather abridged and summarised each of the issues as couched by the Appellants. I shall, however, consider the appeal as per the issues by the Appellants.
The law is well developed on issue of the need for payment of filing fees to originate a Court process, that is, where payment of fees are stipulated as condition precedent to originating a process. See the case of ONWUGBUFOR v. OKOYE (1996) 1 NWLR (Pt. 424) 259; MOYOSORE v. GOVERNOR OF KWARA STATE (2012) 5 NWLR (Pt. 1293) 242.
In the case of GARBA v. UMMUANI (2013) 12 WRN 7 ratio 2, this Court held.
“Where a process of Court has not been duly filed and the appropriate fees paid, the same ceases to be a valid process of Court.
After all, it is the filing fee that breathes life into a Court process, except where the fees is waived or exempted, as in processes filed by government and government departments…”
Even then, failure to pay fees, to file a process, does not render the proceedings a nullity, as such defect only amounts to irregularity, which is curable, by resort to pay the fees, where and when appropriately raised. See the case ONWUGBUFOR V. OKOYE (Supra). See also LAWAL V. ODEYIMI (1963) WNLR 23; See also AKPAJI vs. UDEMBA (2009) 6 NWLR (Pt. 1138) 545, where the Supreme Court held, affirming ACB LTD. V. HENSHAW (1990) 1 NWLR (Pt. 129) 646, as follows:
“… 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 also EZOMO V. OYAKHIRE (1985) 1 NWLR (Pt. 2) 195 at 202 – 203; NOIBI VS. FIKOLATI & ANOR. (1987) 1 NWLR (Pt. 52) 619 at 632.
Appellants in this appeal had merely alleged that the Respondent’s case was incompetent for non payment of filing fees for the writ of Summons and the amended Statement of claim. But the Respondent debunked the claim and referred us to pages 20 and 23 of the Volume II of the Record of Appeal (Additional or Subsequent Record of Appeal), where he said the fees and receipt for the fees were endorsed in the Suit KDH/KAD/301/1992, which originated the Respondent’s case (which was later consolidated with Appellants’ case KDH/KAD/314/1991).
Page 23 of the said Record carries the assessment for filing the writ of Summons in KAH/KAD/301/1992, as follows:-
“Summons – N310.00
Oath – 5.00
Service – 4.00
13 marking – 6.00
325.00
Balance of N300.00 776812
Signed 29/12/1992 paid 15/5/1992
Signed”
Some recordings on the page are however not quite readable, but on page 20 of the same Records, the Revenue Receipt is copied, showing the amount paid (N325.50) the date (15/5/1992) and the Revenue Receipt No. C776812.
Appellant did not file any Reply brief to contest the Claims of the Respondent on pages 20 and 23 of the Volume II of the Records of Appeal, as touching payment for the Suit, filed by the Respondent. That, I think, silences the contention of Appellant on issue 1 and shows that it had no foundation.
Only recently, in the case of YUSUF ABDULIAHI V. HAJIYA AMINA ALIYU AND ANOR. CA/K/293/2006 – an unreported decision of this Court, delivered on 26/4/2013, we held that:-
“…where one alleges that a given process of Court has not been paid for, it behoves on him to prove such non-payment by reference to the original process of Court in the Court’s file, which is expected to carry full and adequate/necessary and valid information/documentation, as such are usually kept in the Court’s file”
Appellants did not establish their allegation, as they failed to make recourse to the Court’s file in Volume II of the Records before going to town with their wild allegation of non-payment of filing fees. The Respondent’s production of the Supplementary Records of Appeal must have therefore exposed the mischief in the Appellants’ issue one!
I resolve the issue against the Appellants.
Appellants’ argument on Issue 2 was rather scanty. They merely alleged that the Respondent did not prove its case, and that PW2 and PW3 contradicted each other in their evidence on the material claims of N856, 221.47, without furnishing the particular of such contradiction. Appellants accused the trial judge of being unjust, in ascribing probative value to the evidence of PW2, whom they said PW3 contradicted on the outstanding debt.
Of Course, the Respondent submitted that there was no contradiction in the evidence of the two witnesses, and that the Respondent had proved its case.
In the absence of particulars of contradictions by the Appellant in the evidence of the two witnesses, and in the absence of any particular area of faulting the findings of the trial Court, or of its decision, holding that the Respondent had proved its case, this court cannot embark on a voyage of discovery or search to find out whether or not the Respondent proved its case at the trial Court, especially as there is no ground/issue calling for general review or appraisal of the evidence led at the trial.
I have however read the evidence of PW2 and PW3 on pages 75 to 80 and 127 to 130, respectively of the Records of Appeal Volume 1, and cannot spot any material contradiction in their evidence on the material claims of N856, 221.47, which is also the debit balance in Exhibit D1 (Statement of Account) which both witnesses referred in their testimonies. As per the documents tendered, Exhibits A1 to A4, parties had agreed on the interest chargeable and, it was obvious, as admitted by DW5, that the rate was not static.
I resolve the Issue 2 against the Appellants.
Appellants were equally scanty in their argument of Issue 3. They merely restated, briefly, their argument at the lower Court, that the Respondent breached the agreement between the parties, by first refusing to disburse the loan within the period of 6 Months as clearly stipulated in the agreement. Secondly, by ignoring demand for disbursements without any reason. Thirdly, by transferring whatever sum left undisbursed instead of canceling same as stipulated by the agreement. Fourth, the Respondent also breached the agreement between the parties on interest chargeable and so on.
Of Course, those were the issues the trial Court considered and reached its conclusion that brought about the appeal; that the Respondent did not breach the agreement, and so the Appellant’s counter-claim was not proved. If the Appellants had cause to fault that decision of the trial Court, they did not state it in this appeal, and did not bring out the same in the above argument. Appellants have therefore not attacked or challenged the said decision of the trial court, dismissing the Counter-claim. There is, therefore, nothing before us to consider for the purpose of reviewing or appraising the said decision of the trial Court, whether it was rightly reached or not. Argument of an appeal (in the Brief) cannot be a rehearse of the argument at the Court below, without stating where the trial judge went wrong.
Appellants, therefore, seem to have abandoned their complaint against the decision of the Court dismissing the Counter-claim, having not advanced or marshalled any argument against the decision, to assail it.
I resolve this issue too against the Appellants, and on the whole, hold that the Appeal is, completely, devoid of merit and should be dismissed. It is accordingly dismissed.
CROSS APPEAL BY RESPONDENT.
I had earlier reproduced the Briefs filed by the parties in the Cross-Appeal, I shall start with the consideration of the Preliminary Objection, filed by the Cross-Respondent on 27/5/2013, against the Cross Appeal.
The grounds of the objection are:-
“(1) As an appeal/Cross-Appeal sought to be filed, after expiration of the Statutory period, leave of this honouable Court, among others, is required.
(2) Being an appeal/Cross-Appeal against the decision of the trial Court, which is based on consent of the parties, leave is also required.
(3) Although extension of 30 days was given to the Cross-Appellant, no appeal was dully filed.”
Arguing the preliminary objection, in paragraphs 4.01 to 4.04 of the Amended Cross-Respondent’s Brief, learned Counsel, A. C. AMAECHI ESQ, submitted that, first, this is a Cross-appeal, after the expiration of the Statutory period; that the Cross-Appellant required leave to Cross-appeal, as well as extension of time within which to seek leave to appeal. He relied on the case of UBN PLC VS ADEBAYO (2001) 2 NWLR (PT. 698) 489; ODOFIN v. AGU (1992) 3 NWLR (Pt. 229) 350 AT 370 – on the need for trinity prayers where one wishes to seek leave on any grounds to appeal, after the expiration of the statutory period to appeal, that is, to seek:
(1) Extension of time to seek leave to appeal;
(2) Leave to appeal, and
(3) Extension of time within which to appeal.
Secondly, Counsel submitted that, as the Cross-respondent had consented to the arrest of the judgment, the decision of the Court to arrest the judgment was a consent decision, for which leave of this honourable Court is required, prior to an appeal against it. He relied on Section 241 (2)(c) of the Constitution of Nigeria, 1999.
Thirdly, Counsel submitted that the decision of the trial court, which the Cross-appeal is about, was an interlocutory decision and the leave of this Court must be obtained; that, in fact, the High Court had 14 days to give decision whether or not to grant the leave (if Respondent had applied to it), He relied on the case of KOROBOTEI V. OBUBO (1999) 9 NWLR (Pt. 620) 655 at 678.
Counsel therefore challenged the jurisdiction of this Court to entertain the Cross-appeal. He added that the grounds of the Cross-appeal are all incompetent. He did not explain further on that. He urged us to strike out the Cross-appeal.
The Cross-Appellants Reply to the objection was the “Further Amended Cross-Appellant’s Reply Brief.” In it, the Cross-Appellant only reacted to the issue of “arrest of judgment” and submitted that the order arresting the judgment of the lower Court cannot, in law, constitute a “Consent decision”; that when it was discovered that no filing fee was endorsed on the file of the Court, the Cross-Respondent’s Counsel submitted before the lower Court as follows:-
“In view of the fact that no filing fees are endorse in the Judge’s files, correspondence file and the file of learned counsel to the plaintiff, they have no claim before the Court for which judgment would have been entered for them… that this Court cannot entertain the claim… Even though judgment had been delivered but upon discovering this fundamental vice, the Court should arrest the judgment. The court can set aside its judgment once it discovers that it is a nullity.” (Underlining theirs)
To the above submission, the Cross-Appellant had replied:
“We concede to the arrest of the judgment until we can produce the receipt showing payment of the claim…” (Underlining theirs)
Counsel submitted that there was no consensus as – idem on what order the Court below should make.
It is necessary to take the preliminary objection first, that being a threshold issue, as a successful determination of the same in favour of the Cross-Respondents, would have spared the waste of judicial time to consider the merits of the Cross-Appeal. See RABUI V. ADEBAYO (2012) ALL FWLR (Pt. 643) 1836 at 1842.
Applicants’ contention were that:
This cross appeal was filed after the expiration of statutory time to do so, and ought to have been filed with the leave of Court, upon obtaining extension of time to do so. And being an appeal against interlocutory decision, the leave of the Lower Court was required.
The Cross-Appellant’s Notice of Appeal, found in the Court’s file, was filed on 19/7/2001, and that was done pursuant to the order of this Court, made on 4/7/2001. See pages 2, 3 and 4 of the RECORD OF PRECEEDINGS (FOR CROSS APPEAL) filed in this Court. The Cross-Appellant later Amended the said Notice of Cross-Appeal on 21/5/2012, as per the Amended NOTICE OF CROSS – APPEAL before us. There is, therefore, no basis for the complaint by the cross-Respondent, in my view, with regards to the need for leave of Court and extension of time to bring this Cross-Appeal, that having been fulfilled by the Cross-Appellant. The 1st and 3rd grounds of the preliminary objection, therefore, fail, as there is evidence that the Cross-Appeal was filed with the leave of this Court, obtained on 4/7/2001, and the same was filed on 19/7/2001.
On the issue of need for the leave of Court to appeal against consent judgment, pursuant to section 241 (2)(c) of the 1999 Constitution, learned Counsel for the Cross-Appellant had argued that there was no consent judgment, as what transpired on the issue of arrest of judgment, to await the finding of the endorsement/receipt for payment of filing fees in respect of suit No. KDH/KAD/301/92 could not be taken as consent judgment!
I do not think the Cross-Appellant would be correct to adopt and maintain that position. It should be honest to admit that the decision of the trial judge to ‘arrest’ the judgment (whatever that meant) was with its consent; that it was stampeded by the Cross-Respondent’s Counsel, after the delivery of the judgment, to go for the option of “arrest” of the judgment, instead of setting it aside, on the submission of the Cross-Respondent’s Counsel that the judgment was not founded on a valid claim, on discovering that there was no endorsement of the payment of the filing fees on the plaintiff’s claim before the Court.
The Cross-Appellant’s Counsel had told the Court it conceded to the arrest of the judgment, until they could produce the receipt of payment for the Plaintiff’s Claim. Certainly, that decision to arrest the judgment was therefore a consent judgment, following the agreement of the Counsel on both sides. See page 1 of the Records of the Cross-Appeal. The Cross-Appellant cannot there go against the agreement which brought about the consent judgment, without seeking and obtaining the leave of Court.
Section 241 (2) (c) of 1999 Constitution, as amended, denies any right of appeal:
“Without the leave of the Federal High Court or a High Court or of the Court of Appeal from a decision of the Federal High Court, or High Court made with the consent of the parties, or as to cost.”
That appears to carry a moral burden, as it is expected that a decision reached by the consent of the parties enjoys acceptance and mutual interests/respect of the agreeing parties, as long as the interest that bonded them together in the decision lasts. To allow room for a party to the agreement to appeal against the decision, as if he was not a party to it, would be immoral and a desecration of the sacred trust/confidence that binds parties to agreement. It would also be an encouragement to flagrantly resile from agreement, mutually reached by parties. See the case of A.G. RIVERS STATE V. A.G. AKWA IBOM STATE (2011) 8 NWLR (Pt. 1248) 31; EGEMOLE v. OGUEKWE (2010) ALL FWLR (Pt. 513) 1424; See also GOV. OGUN STATE V. KELANI (2007) ALL FWLR (Pt. 359) 1380, where it was held:
“A consent judgment is equally as binding as a judgment given after a normal trial. It acts as estoppel as to the matters decided by it and can be enforced by means of all the execution processes provided for enforcement of judgments. IBEZIM V. NDULUE (1992) 1 NWLR (Pt. 216) 153”
The preliminary objection therefore succeeds on this point and is upheld.
What should, however, agitate the mind of this Court in the circumstances, is whether the entire issue touching on the arrest of judgment is a live issue, not just academic, considering how the learned trial Court came about the ‘arrest’ of its judgment within the same minutes the judgment was delivered on 30/3/1998.
It is on record, both of the Record of the main appeal (pages 305 306) and of the Cross-Appeal (pages 1) that, immediately after delivering its considered decision in the consolidated case of KDH/KAD/314/91 on 30/3/98, the learned Counsel for Respondent (plaintiff therein) prayed for cost of N10, 000.00. It was at the point of trying to justify the demand for the cost that the Respondent discovered that the payment for filing the suit (which it claimed) were not, infact, endorsed on the processes in the Court’s file!
The adverse party (Appellant herein) quickly took advantage of the discovery to pray that the judgment be set aside or arrested; that there was no basis for the claim, considering the fact that there was no filing fees for the suit; that, there being no filing fees to originate the claim, there was no claim before the Court for which judgment could be entered for the plaintiff (now Respondent/Cross-Appellant)!
Of course, the Plaintiff’s Counsel, in that state of confusion, conceded to the arrest of the judgment until they could produce the receipt showing payment of the claim (writ of summons and amended statement of claim).
The trial Court simply said:
“No order as to cost. Judgment is hereby arrested until the plaintiffs can produce evidence/receipt of payment of the claim and the enhanced claim.”
See page 306 of the Record of the main Appeal, and page 1 of the Record of cross Appeal.
The Respondent having caused the Volume II of the Record of Appeal to be compiled and transmitted to this Court for the purpose of furnishing this Court with the processes in suit No. KDH/KAD/301/92, before the same was consolidated with KDH/KAD/314/91, and showing in pages 20 and 23 of the said Record the endorsement of the fees paid to originate the case KDH/KAD/301/92, the reason for the arrest of the judgment collapses.
Of course, upon consolidating the two cases, the Respondent on 10/11/93 had filed a motion to amend its pleadings (statement of claim and defence to counter-claim) and to deem the proposed amendments duly done. The case of the plaintiff (Respondent) was heard on the basis of the Amended statement of claim and Amended defence to counter-claim.
I think, with the evidence in the Volume II of the Record of Appeal, that payment had been made to file the processes (and this was not controverted by the Appellants as they filed no Reply Brief to Respondent’s Brief), the “arrested” judgment, automatically, regained liberty, as what was needed to release and set it free (from the ‘arrest’) was evidence of payment for the processes, when filed!
The judge had said:
“Judgment is hereby arrested until the plaintiff can produce the receipt showing payment of the claim”
That, in my humble opinion, meant that enforcement of the judgment was suspended, until the plaintiff could produce the evidence that it paid to originate the suit!
I think, what is of practical relevance is to pronounce the release of the judgment of the trial Court from the arrest, upon the production of the receipt of payment for filing the process, as per pages 20 and 23 of the Records of Appeal, Volume II, filed in this Court, that is, lifting the suspension placed on the implementation of the judgment, which could have been done by the lower Court, on production of the proof. I hereby set aside the order of arrest of the judgment.
That being the case, it becomes completely unnecessary to waste judicial time to consider whether or not the learned trial judge had power to arrest the judgment, he just delivered, or whether he erred by arresting the judgment. Such legal fire works would, in my view, enure no benefit to any of the parties. See the case of ODEDO V. INEC (2008) 17 NWLR (Pt.017) 554; CPC VS. INEC (2011) 18 NWLR (Pt.1279) 493; SHETTIMA v. GONI (2011) 18 NWLR (Pt. 1279) 413; on when an appeal would amount to mere academic exercise.
Having upheld the preliminary objection on the ground that the arrest of the judgment was a consent judgment, and the Cross-Appellant did not obtain leave to appeal against the same, and that the issues raised in the Cross-Appeal are academic, the Cross-appeal is hereby struck out, I have already set aside the arrest of the judgment of the trial Court, upon the production of evidence of payment for the claim, as per pages 20 and 23 of Volume II of the Records of Appeal. On the whole, the Appeal is dismissed, and the judgment of the trial Court is affirmed and is hereby released and restored, the evidence of payment for claims having been produced.
Parties shall bear their respective costs.
ABDU ABOKI, J.C.A.: I had read in advance the judgment of my learned brother, ITA G. MBABA JCA, in the leading judgment just delivered by him. He sufficiently dealt with all the issues raised in this appeal; I have nothing more to add. I dismissed this appeal and affirmed the judgment of the trial court. I make no order as to costs.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I had read before now a copy of the judgment of my learned brother, Ita G. Mbaba, J.C.A., and I agree with his conclusion and abide by the orders made therein.
Appearances
A.C. Amaechi Esq.For Appellant
AND
Wole Agunbiade Esq.For Respondent
