PASTOR JAMES NDUKA & ORS v. ALH. ABDULMUMUNI SULE (2013)

PASTOR JAMES NDUKA & ORS v. ALH. ABDULMUMUNI SULE

(2013)LCN/6626(CA)

In The Court of Appeal of Nigeria

On Monday, the 9th day of December, 2013

CA/K/96/2010

RATIO

JURISDICTION: IMPLICATION OF THE PAYMENT OF STATUTORY FEES

JUSTICES

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

ITA G. MBABA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

1. PASTOR JAMES NDUKA
2. JAMES AKOR
3. BAWA DAKO
4. MARKUS AUDU
5. PATRICK OKEKE
6. AYUBA IBRAHIM (DAKACI)
7. MOSES LAWRENCE
8. ALI ACHOEGBA
9. LINIS KEVIN
10. INNOCENT NZERIBE Appellant(s)

AND

ALH. ABDULMUMUNI SULE Respondent(s)

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): The Appellant instituted an action against the Respondent claiming thus:

“1. A declaration that the Plaintiffs are the lawful and beneficial owners of the individual plots of land where they partly built individual dwelling houses and occupy same located at New Extension Area near water board pipe line U/Pama area of Kaduna.

2. A declaration that any purported Certificate of Occupancy, copy of judgment of any lower court if any including any title documents purportedly or allegedly being held by the defendant over the disputed plots of land is or are invalid, null and void having been irregularly obtained or issued and an order of this Court setting same aside.

3. An injunction restraining the defendant by himself, his agents, privies or assigns through whosoever, from harassing, tempering with, trespassing into or in any manner whatsoever disturbing the Plaintiffs quite exclusive possession, control and ownership over the Plaintiffs aforesaid plots of land in dispute.

4. An order that the Plaintiffs are entitled to specific and general damages to the tune of Five Million Naira (N5 Million) only as a result of the defendant’s acts of trespass on the Plaintiffs said plots.”

The issues framed by the Appellants in their Brief of Argument are:

“1. Whether the lower Court had jurisdiction, to have entertained the Counter-Claim.
2. Whether the judgment of the lower court is right in law.”

The Respondent, formulated one issue and cited the second issue phrased by the Appellants. They are:

“1. Whether the Counter-Claim was proper and competent before the trial Court.
2. Whether the judgment of the lower Court is right in law.”

In respect of issue No. 1, learned Counsel for the Appellants, P. K. Audu Esq.; submitted that it is settled law that payment of Court fees for any claim before the Court is a condition precedent for adjudication, this he buttressed by the cases of Onuogbujor v. Okoye (2006) 1 NWLR (Pt. 424) page 252 at 292, Fada v. Naomi (2002) 4 NWLR (Pt. 757) page 318 at 334 – 335 and Ajuwa v. S.D.P.C. (Nig) Ltd (2008) 10 NWLR (Pt. 1024) page 64 at 92. He stressed that there is no proof on the face of the processes filed by the Respondent that the Respondent paid the Counter-Claim filed by him. It was contended that since no filing fees were paid by the Respondent for his Counter-Claim, the Counter-Claim was not proper before the Court and as such the Court lacked the jurisdiction to have entertained the Counter-Claim, therefore, the judgment delivered therein is a nullity and the ruling delivered by the lower Court refused to set aside the said judgment is erroneous. He then urged that this issue be answered in the negative and the appeal to be allowed.

On issue No. 2, learned Counsel submitted that the Respondent was unable to prove better title, that the judgment of the lower Court in the Counter-Claim cannot stand vis-‘a-vis the evidence led by the Respondent in respect of the same. He pointed out this since the Appellants have been in occupation of the land for many years, having built houses therein before the commencement of the suit, they are presumed to be the owners of the plots they are occupying and the Respondent has the burden to rebut that presumption as stipulated by section 145 of the Evidence Act, 2004. He submitted that the Respondent was unable to prove better title, and therefore, urged this Court to allow this appeal, set aside the judgment of the lower Court and dismiss the Respondent’s Counter-Claim.

Dealing with issue No. 1, learned Counsel for the Respondent, Oladipo Tolani, Esq.; pointed out that the appellant’s contention with respect to payment of filing fees is misconceived, in that the Respondent paid the necessary filing fees for the Counter-Claim as evidenced by the Kaduna State Revenue Receipt No. 000629554. He argued that the issuance of the said Receipt number which the trial Court found to be regular in the said suit raised a presumption that the Respondent paid the requisite filing fees for the counter-claim. He stated that although the Appellants endeavoured to rebut the presumption by the affidavit deposed to by one Hajiya Halima, but the trial Court found that the said Hajiya Halima is not the only Commissioner for Oaths attached to the lower Court. He invoked the provisions of section 163(1) of the Evidence Act, 2011 and submitted that in the absence of any evidence of fraud or forgery there is a presumption of regularity in favour of the Respondent that having been issued with an official receipt, he has paid the necessary filing fees. He emphasized that by Order 17 Rule 7(2) of Kaduna State High Court (Civil Procedure) Rules, 2007, fraud is cause which ought to be specifically and sufficiently pleaded and established beyond reasonable doubt by virtue of section 135 (1) of the Evidence Act, 2011. He relied on the decisions in Buhari v. Obasanjo (2003) 17 NWLR (Pt. 850) page 423 at 477 – 478 paragraphs H – B and Sande v. Abdullahi (1989) 4 NWLR (Pt. 116) page 387 at 424 paragraphs E – F, per Karibi-White, J.S.C., and contended that even if the payment was not indicated or endorsed on the face of the process, a litigant who coupled with the Rules by paying the filing fees should not be penalized for the mistake or inadvertence of the officials of the Court, and failure to so endorse, is a mere irregularity that does not vitiate the processing. Learned Counsel further stressed that the Appellants participated in the proceedings at the trial Court, they did not raise any objection to the alleged irregularity before judgment was delivered and have not shown any miscarriage of justice suffered by them as a result. He then urged this Court to resolve issue No. 1 in favour of the Respondent.

With regard to issue No. 2, learned counsel, he argued that it is incompetent in that it was purposely distilled from the omnibus ground, because an omnibus or general ground of appeal cannot be used to raise specific issues of law for determination. He relied on Calabar East Co-op v. Ikot (1999) 14 NWLR (Pt. 638) page 225 at 245-246, paragraphs H – C, where it was held that omnibus or general ground of appeal is not at large and cannot be used to raise issues of law. It was also contended that issue No. 2 is vague, sweeping and is not based on any legal argument. Learned Counsel mentioned sections 131, 132 and 133(1) of the Evidence Act, 2011 and the case of Odu’a Investment Co. Ltd v. Talabi (1999) Part 170 page 761 at 779 paragraphs F – G, and submitted that the burden to prove the Appellants’ case is on them, and it is not the duty of the Court to fish for facts to support their assertions. He urged this Court to strike out issue No. 2 and dismiss the appeal.

In the alternative, learned Counsel argued that Exhibit D1 was admitted in evidence since 23/7/2002 and no appeal has been field by the Appellants against the ruling of the lower Court admitting Exhibit D1. He explained that Exhibit D1 is a sale agreement between one Ango and the Respondent which the Respondent pleaded in his Statement of Defence and Counter-Claim as evidence of purchase of the land in dispute. He referred to the case of Lawal v. Ejidike (1997) 2 NWLR (Pt. 487) page 319 and 329 – 330, paragraphs H – A and submitted that that a sale agreement, though unregistered, is admissible in evidence as proof of payment of purchase price. He contended that Exhibit D1 is admissible and the lower Court was right to have admitted it in evidence. Counsel further made reference to section 145 of the Evidence Act, and the cases of Dantata & Sawoe Construction v. Hassan (2001) 5 NWLR (Pt. 705) page 129 at 135 paragraph F; Oshatoba and 7 Ors v. Olujitan & Ors (2000) 5 NWLR (Part 655) page 159 and 172, Ogbonna v. A.G. Imo State (1992) 1 NWLR (Part 220) page 647 at 672 paragraphs D – F, 598 paragraphs D – E, and Kwaraffa v. BON Ltd (1999) 1 NWLR (Part 587) page 423 at 434 paragraphs D – E and submitted that section 145 of the Evidence Act did not create any such presumption of ownership of land, more so, when the Appellants did not plant nor raised the issue of presumption by reason of lay exemption, therefore, they cannot now on appeal introduce it without the leave of the Court. He stated that the join issues with the Respondent on his Counter-Claim. Counsel further stressed that no evidence was adduced by the Appellants on the supposed possession, and in fact their claim was dismissed upon their application on 13/3/2008. He pointed out that the judgment of the lower Court was not based largely on the Counter-Claim of the Respondent on which the Appellant did not issue with the Respondent. Learned Counsel then persuaded this Court to resolve this issue in favour of the Respondent and dismiss this appeal.

The first issue postulated by the Appellant for consideration in this appeal is whether the lower Court had jurisdiction to have entertained the Respondent’s Counter-Claim.

It is of great necessity to note there have been diverse views expressed by the apex Court on the impact of failure by any party to pay a filing fee in respect of any process filed by him.
In answer to issue No. 1, I would resort to my previous pronouncement in the judgment of this Court No. CA/K/186/M/2008 between filing fee connotes the statutorily prescribed fee payable upon the commencement of a case or presentation of any Court process for filing, therefore, it ought to be paid, except a waiver is requested and given. In Akpaji v. Udemba (2009) 6 NWLR (Part 1138) page 545, per Ogbuagu, JSC it was held that failure to pay filing fee 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 irregularly which when not taken timeous or when acquiesced in, becomes incapable of affecting the proceedings in any way. It was stated that the usual remedy is an order by the lower Court that the appropriate fees or any short fall, be paid, it has nothing to do with the jurisdiction of the lower Court to entertain the counter-claim. Several cases including A.C.B. Ltd. v. Henshaw (1990) 1 NWLR (Part 129) page 646 at 650 C.A.; Lawal & Anor v. Odejimi & Anor (1963) WNLR 23; (1963) All NLR 569 at 570, per Charles J; Mohammed v. Musawa (1985) 3 NWLR (Part 11) page 89 and Onwugbufor & 2 ors v. Okoye & 3 Ors (1996) 1 NWLR (Part 424) page 252 at 291 – 292; (1996) 1 SCNJ 1 at 36, per Iguh, J.S.C., were referred to and relied on by the Supreme Court in the aforementioned case. His lordship further expressed thus:
“The appropriate remedial action was the said order by the Court below even without the said Motions of the Respondent, afore-stated. But in any case, not only did the Respondent, apply for leave of the Court below, to pay the appropriate fees, it exhibited, the receipt of the payment. Afterwards, as stated by Charles, J in Lawal v. Odejimi (supra), the object of the provisions of payment of filing fees in the said Rules of the High Court, is to protect the public revenue.”
However, I would not feign ignorance of the immediate decision of the Supreme Court in Abia State Transport Corporation v. Quorum Consortium Ltd (2009) 9 NWLR (Part 1148) page 1, where Aderemi, JSC, in amplifying the position of the law on the effect of failure to pay filing fees on Court process stated:
“Payment of a prescribed filing fee, by all litigants except the government, is a precondition to the validity of any process filed in the court. Unless the pre-condition is satisfied, the Court will lack the jurisdiction to entertain a process the prescribed filing fee of which has not been paid. The High Court of Plateau State Registry, upon the receipt of the processes transmitted to it, only affixed its official stamp on it indicating that same was received. Certainly, the official act did not tantamount to payment of official fees. Indeed, Order 54(1) and (2) of the High Court of Plateau State (Civil Procedure) Rules puts it beyond peradventure that prior payment of filing fees upon assessment confers validity on the said process and gives jurisdiction to entertain same: the provisions of the said Order 54 r. 1 of the said Rules makes it mandatory for parties to litigation in court to pay the fees set out in the first, second, third, fourth and fifth schedule.”

I think I had completely exhausted all I need to express regarding failure to pay filing fee and its effect thereto. Since it is an irregularity that can be cured by the Plaintiff or the party in question to go and pay difference or shortfall or does not therefore stick at the root of the case in any case the Respondents has succinctly shown that it paid the necessary filing fee for his Counter-Claim and was immediately issued with Receipt No. 000629554. There is also an endorsement by the registry of the Lower Court at page 18 of the record indicating that the process was filed on 25/04/07 and a fee N21.00 was paid.

Furthermore, page 159 of the record portrays a document described as Exhibits A and B respectively containing copies of the Government of Kaduna State, Nigeria Revenue Receipts Nos. 000559738 and 000629554 dated 25/4/07 respectively, the date on which the Respondent’s Counter-Claim was filed in KDH/KAD/143/07 establishing that the Respondent paid the sum of N1,270.00 for his Counter-Claim. The trial Court in its ruling delivered on 28/4/09 opined that there is always the presumption of regularity on the part of the Respondent, that he did what was expected of him by the law, and that the Applicants have the duty to show that the Respondent is in breach of the law. That the Applicants must rebut the presumption and establish that which they assert. She referred to the affidavit of one Hajiya Halima proffered by the Applicants and held that there was no indication or proof that Exhibit A1 is fake and/or not genuine. I am of the opinion that the trial Court is correct in law. Since the Respondent had produced evidence of payment of the filing fees for the Counter-Claim the burden rests squarely on the Appellants to disprove the existence of such receipt or that it was forged. The Appellants have not done that and they are still claiming for setting aside the judgment of the lower Court delivered on 24/2/2009.
Presumption of regularity is a principle applied in evidentiary evaluation that transaction made in the normal course of business are assumed to have been conducted in the usual manner unless there is evidence to prove otherwise, where it has been proved that an official act has been done, it will be presumed until the contrary is proved, that the said act complied with any necessary formalities and that the person did it was duly appointed to do so. The fact that Hajiya Halima swore in her affidavit of 23/3/2009 that she made only one assessment in respect of the Respondent’s process on 25/4/07 does not translate to the fact that only one payment of N21.00 was made by the Respondent on that said date. She ought to have annexed a certified true copy of the record of entries in their records for payments of fees kept by the Court on that date. The fact that she personally did not make the assessment did not prove that the Respondent did not pay that in such payment of N1,270 was made in respect of the counter-claim by the Respondent.
This Court may even take judicial notice of the fact that on often time it had come across some processes that have no indication of assessment of the filing fees thereon but there official receipts issued by the Court evidencing payment of those fees without an iota of the assessment made on the processes. I am afraid, this is a proper case in which the presumption of regularity must be upheld. Hajiya Halima was not the judicial staff or officer who issued Exhibits A and B. The issuer of Exhibits A and B did not depose to any affidavit debunking those documents or denying issuing them. It was for the Appellants to rebut the issuance of Exhibit B by the Kaduna State High Court and disprove the signature of the issuing officer thereon, and show that no Receipt No. 000629554 duly signed by the Cashier of the Court was issued on that day. The Appellants failed to rebut the presumptions. In Ogbuinya v. Okudo (1990) 8 NWLR (Pt. 146) page 55, it was pungently expressed by the Supreme Court that there is no doubt that if no evidence were given on either side on the issue whether the suit No. 0/71/58 was or was not commence by a writ of summons signed by a Judge, the appellant who asserts that it was not is bound to fail, since the action was prima facie, already on the facts before the Court properly commenced. The Respondent having shown prima facie that the action was properly commenced, the onus of proof is on the appellant as he asserts that it is not. The Appellants in the instant appeal did not produce any evidence showing that Exhibit B was indeed not issued by the Kaduna State High Court. Accordingly, issue No. 1 is hereby resolved against the Appellants.

The Appellants’ second issue is premised on whether the judgment of the lower Court is right in law.

As rightly observed by the Respondent’s Counsel, grounds two to six of the Appellant’s grounds of appeal dwelt squarely on the issue of the findings of the lower Court on the allegation of non payment of filing fees while ground No. 1 is against the weight of evidence. It is an omnibus ground of appeal. During the Appellants’ Counsel argument, he introduced under the omnibus ground, the issues of long possession, exercise of acts of ownership like building on the land by the Appellants and issue of presumption of ownership under the Evidence Act. This was vigorously attacked by the Respondent’s Counsel on the ground that as an omnibus ground, it cannot be used to raise specific issues of law.

It needs to be remembered that the Appellants, after exchange of pleadings and commencement of hearing in the matter, and calling their first witness, i.e. P.W.1., who was cross-examined on 20/9/2007. After this episode, the Plaintiffs via their Counsel sought for adjournments on about three occasions, and then on 13/3/2008, they applied through their Counsel to withdraw their main case. Because it was a part-heard suit where evidence of the Plaintiffs’ witness had been taken, the suit was dismissed, then leaving only the counter-claim in the trial Court’s docket for adjudication. It should also be reminded that the Appellants did not file any Defence to the Respondent’s counter-claim, and as such the parties did not join any issues with the Respondent on his counter-claim.
The counter-claim went to full trial with the Respondent calling three witnesses who were effectively cross-examined by the Appellants’ Counsel. After evaluation of the evidence proffered by the Respondent, the judgment of the lower Court was entered in his favour.

It is trite as expressed by the Supreme Court, per Ejiwunmi, J.S.C., in Usman v. Garke (2003) 14 NWLR (Part 840) page 261 that where a defendant counter-claims against the plaintiff, the latter is duty bound to file a reply in defence to the counter-claim, otherwise the court is entitled, in fact obliged, to assume that the plaintiff has no defence to the counter-claim and may enter judgment for the defendant accordingly. This is because where a defendant pleads certain facts in his pleading in support of his counter-claim, with all the necessary particulars, but the plaintiff fails to reply to them, no issue is raised on such defendant’s pleading. So the court can proceed to give judgment on it without much ado.

It is crystal clear that the Appellants did not file any Defence to the counter-claim nor did they tender any evidence controverting the facts raised therein. To now file a Notice of Appeal challenging that the judgment of the lower Court is against the weight of evidence presupposes that the judgment of the trial court cannot be supported by the weight of the evidence adduced by the successful party, or the trial judge either wrongly accepted, evidence or the inference he drew, or conclusion he reached based on the accepted evidence cannot be justified. An omnibus ground also implies that there is no evidence which if accepted would support the finding of the trial court, per Musdapher, J.S.C. (as he then was) in Osolu v. Osolu (2003) 11 NWLR (Part 832) page 608. Also, in Ajibona v. Kolawole (1996) 10 NWLR (Part 476) page 22, the Supreme Court further held that an omnibus ground of appeal is therefore designed to allow a complaint on evaluation of evidence and it encompasses complaint of improper evaluation of evidence. It further implies that there is no evidence which if accepted would support the findings of the trial judge, per Ogwuegbu, J.S.C.

I must observe that the mistake usually made by the Appellants in raising their grounds of appeal is that they often feel it is safer to raise an omnibus ground of appeal under which they can, in the course of argument, specifically challenge the issues individually raised by the parties in their addresses and considered by the trial Court. Whereas that could be effectively used to challenge the weight attached to the totality of the evidence adduced by the winning party, it cannot be fashioned as a means of challenging specific issues of law or findings made by the trial Court. In Opara v. Dowel Schlumberger (Nigeria) Limited (2006) 15 NWLR page 342, the Supreme Court, per Onnoghen, J.S.C., at 362-363 expounded the law in this respect by stating thus:
“It is settled law that an appellant challenging a specific finding of court, as in the instant case, must raise a specific ground of appeal thereon, see Otuedon v. Olugho: (1997) 9 NWLR (Part 521) page 355. In the instant case appellant failed to raise a specific ground of appeal on the dismissal of the claim for specific performance by the trial court and I hold that that issue cannot be covered by the omnibus ground of appeal.
It is also settled law that where a party fails to appeal against a finding of the trial court or the Court of Appeal, he cannot be heard to question the finding on appeal to the Supreme Court, the essence of an appeal being to have an opportunity to have one’s suit re-examined before a higher court. In effect the failure of the appellant to appeal against the decision of the trial court refusing an order of specific performance is that that decision remains binding and conclusive between the parties – see Alakija v. Abdullahi (1998) 6 NWLR (Part 552) page 1 at 4. In Ndiwe v. Okocha (1992) 7 NWLR (Pt. 252) 129 at 139-140 it was held by this court that where the trial court makes a finding of fact on a specific issue before it, such an issue should be raised as a substantive ground of appeal by the appellant who is challenging the finding of fact and it cannot be covered under the omnibus ground of appeal.”
There are uncountable decisions of the Supreme Court in this direction which this Court is bound to obey in every sense of the word. In Calabar East Co-operative Thrift & Credit Society Limited v. James Udo Ekong (supra) cited by the Respondent’s Counsel, the Supreme Court, per Achike, J.S.C., remarked that an appeal predicated on the omnibus ground is not at large, thus it cannot be used to raise issues of law.
As I adumbrated earlier, specific issues or defences of long possession, exercise of acts of ownership and presumption under the Evidence Act were introduced by the Appellants’ Counsel in their Brief of Argument, all in their effort to challenge the said judgment of the lower Court. I am afraid, I have not perceived any cogent reason why the arguments of the Appellants should be alluded to in the circumstance of this appeal on why the specific issues raised thereunder should be given a hoot by this Court. The scenario here at is quite clear, there were no specific grounds of appeal raised by the Appellants touching on those specific issues they had proffered arguments for in their Brief. I would not want to sound repetitive, but, I think this will be the appropriate stage to communicate to the Appellants that they are not permitted by the long established principles of our law to raise such specific issues in this appeal without raising specific grounds of appeal in their Notice of Appeal. Accordingly, this issue is hereby resolved in favour of the Respondent.
I find no merit in this appeal, and the same is hereby dismissed. The judgment of the lower Court in the counter-claim filed by the Respondent, i.e. the Defendant therein is hereby affirmed. I make no other as costs.

ITA G. MBABA, J.C.A.: I had the privilege of reading the draft of the lead judgment, just delivered by my Lord ORJI-ABADUA, J.C.A. and I agree with her completely.

One of the points canvassed by the Appellant under issue one whether the Lower Court had jurisdiction to entertain the Counter-claim was that there was proof no the face of the processes filed by the Respondent that he paid for the Counter-claim filed by him. This was, however, countered by the Respondent, who led evidence to show that the process was paid for, when filed, and the Court was satisfied that there was endorsement by the registry of the Lower Court as per page 18 of the Records of Appeal, indicating that the process was filed on 25/4/2007 and fee of N21.00 paid.

There are many authorities on the issue of need to pay statutory fees to file Court processes, where the fees are required, to activate the process to invoke the jurisdiction of the Court. See the case of ABIA STATE TRANSPORT CORPORATION v. QUORUM CONSORTIUM LTD (2009) 9 NWLR (Pt. 1148) 1; MOYOSORE v. GOV. KWARA STATE (2012) 5 NWLR (Pt. 1293) 242 at 270; ONWUGBUFOR v. OKOYE (1996) 1 NWLR (Pt. 424) 252; AYODEJI v. AJIBOLA (2013) ALL FWLR (Pt. 660) 1327.
But, even where it is proved that fees have not been paid to activate a process, the same amounts to irregularity, which can be corrected by ordering for the payment of the same, where the applicants so prays, and has not been foreclosed, and the interest of pursuing substantial justice demands so. ONWUGBUFOR v. OKOYE (supra); AKPAJI v. UDEMBA (2009) 6 NWLR (Pt. 1138) 545.
In a recent case decided by this Court on 26/4/13 – CA/K/293/2005: YUSUF ABDULLAHI BAWA v. HAJIYA AMINA ALIYU, which had similar fact and complaint as this case, and the Appellant had speculated that fees were not paid to activate the process of court, we held on page 16 as follows:
“Both the trial Court and the Lower Court, had ruled, to agree and imply that the original copy of the process in the Court’s file had evidence of payment for the process such that if the Appellant needed the fact, or was sincere, he would have called for the same! That, I believe, was the purport of the holding by the Lower Court as follows:
“If Appellant wanted to succeed on the preliminary objection on lack of payment of filing fees, he would have obtained Court’s copy of the summons.”
There was, therefore, no valid complaint on the competence of the writ of summons relating to payment for the process filed.”

With this and fuller reasons in the lead judgment I too dismiss the appeal and abide by the consequential orders therein.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I agree.

Appearances

S. I. Abdulaziz Esq.For Appellant

AND

Oladipo Tolani Esq. with Nathan Dauda Esq. and A. Ahmed Esq.For Respondent