ALHAJI YUSUF ADISA v. ALHAJI MALOMO MOHAMMED (2013)

ALHAJI YUSUF ADISA v. ALHAJI MALOMO MOHAMMED

(2013)LCN/6630(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 10th day of December, 2013

CA/IL/68/2012

RATIO

WHETHER PAYMENT OF FILING FEES IS A PRECONDITION TO A COURT’S ASSUMPTION OF JURISDICTION

JUSTICES:

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

Between

ALHAJI YUSUF ADISA – Appellant(s)

AND

ALHAJI MALOMO MOHAMMED – Respondent(s)

RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Leading Judgment): The appellant was the claimant at the High Court of Kwara State in suit No. KWS/32/2009. He originally proceeded against four defendants. The Respondent by an application filed on 10th March 2010 sought an order of the trial Court to be joined as a defendant in the suit to defend the suit for himself and on behalf of all the members of the Masudo family in a representative capacity. Annexed to the affidavit were Exhibits A, B, C, D and E. Exhibit ‘C’ purported to be the statement of defence and counter-claim. This motion was granted on 14th April 2010. Thus the Respondent joined as the 5th defendant to the suit on 14th April 2010. The Respondent thereafter filed no other pleadings relating to the suit. The appellant as claimant thereafter withdrew against the 1st to 4th defendants. On 10th April 2012 the appellant filed an application brought pursuant to Order 31 Rules 1 and 6 praying the trial Court for leave to withdraw and discontinue the suit against the Respondent and an order of the Court striking out the suit against the Respondent. The Respondent joined issues with the appellant and sought a dismissal of the suit. In its ruling of 3rd May, 2012 the trial Court adjudged as follows:-
“In the final result the claimant/Applicant’s application to withdraw suit is granted and the suit is hereby dismissed as against the defendant Alhaji Malomo Mohammed for himself and on behalf of Masudo family.”

Dissatisfied with this ruling the appellant on 21-5-12 filed this appeal setting out four grounds of appeal to wit-
“1. The trial Court erred in law when it dismissed the appellant’s suit fixed for mention on an application to withdraw the suit.
2. The trial court erred in law when it dismissed the Appellant suit for want of diligent prosecution.
3. The trial Court erred in law when it dismissed the Appellant’s suit on the ground that ORDER 31 of the Kwara State High Court (Civil Procedure) Rules 2005 will not avail the Appellant.
4. The trial Court misdirected itself when it held that the filing of Form 23 and 24 of the Kwara State High Court Civil Procedure Rules presuppose that the respondent has filed the statement of defence.”

The appellant filed his brief of argument on 7-12-12. In the said brief at page 4 he distilled two issues for determination to wit-
“1. Whether in the circumstances and fact of this case the trial Court ought not to have struck out the appellant’s case after granting leave to withdraw the suit instead of dismissing it.
2. Whether the filing of Forms 23 and 24 pursuant to Order 33 of the Kwara State High Court Civil Procedure Rules 2005 signified the filing of Statement of Defence in the circumstance of this case.”

The Respondent filed no brief of argument. Strangely enough, when the appellant applied to this Court to argue his appeal on appellant’s brief alone, the Respondent filed a notice of intention not to contest pursuant to Order 7 Rule 8 of the Rules of this Court.

For full appreciation of the issues involved, it is necessary to set out Order 31 of the Kwara State High Court (Civil Procedure) Rules 2005.

Order 31:
1. (1) The claimant may at any time before receipt of the defence or after the receipt thereof, before taking any other proceedings in the action, by notice in writing duly filed and served, wholly discontinue his claim against all or any of the defendants or withdraw any part or parts of his claim. He shall thereupon pay such defendant’s costs of the action, or if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn.
(2) A defendant may:
(a) withdraw his defence or any part of it any time;
(b) discontinue a counter-claim as against any or all of the parties against whom it is made, at any time not later than 14 days after service on him of a defence to the counter-claim or, if the counter-claim is made against two or more parties, of the defence to the counter-claim last served by serving a notice to that effect on the claimant or other party concerned.
2. When a cause is ready for trial, it may be withdrawn by either claimant or defendant upon producing to the Registrar a consent in writing signed by the parties and thereupon the Court shall strike out the matter without the necessity of attendance of the parties or their Legal Practitioner.
3. (1) A party may with leave of the Court discontinue an action or counter-claim, or withdraw any particular claim therein, and the court may order the action or counter-claim to be discontinued or any particular claim therein to be struck out as against any or all of the parties on such terms as to costs.
(2) An application for the grant of leave under sub-rule (1) shall be by motion on notice.
4. A withdrawal or discontinuance by a party of an action or counter-claim or a particular claim made by him in an action shall not be a defence to a subsequent action for the same or substantially the same cause of action.
5. When proceedings have been stayed or struck out upon a claimant’s withdrawal or discontinuance under this Order no subsequent claim shall be filed by him on the same or substantially the same facts until the costs or such other terms imposed on him by the court have been fully complied with.
6. A party who has taken out a summons or filed a motion in a pending cause or matter may not withdraw it without leave of the Court.”
It is to be noted that nowhere in Order 31 is there a provision for dismissal upon withdrawal of the claim. A superior Court of record has inherent powers under S. 6(6) (a) of the Constitution of the Federal Republic of Nigeria 1999 to dismiss a case for want of prosecution. But such dismissal where evidence has not been led cannot constitute res judicata and equates only to a striking out.
Under Order 31 Rule 1(i) of the Kwara State High Court Civil Procedure Rules 2005 a claimant may at any time before the receipt of the defendant’s statement of defence or after the receipt of the defendant’s pleadings before taking any other proceedings in the action discontinue the action by notice in writing filed and served on the other party. Where however the claimant has taken out a summons or filed a motion in a pending cause, he cannot withdraw without the leave of Court. In the instant case, because the appellant as claimant had filed several motions in the proceedings, it was proper for him to seek leave of Court pursuant to Order 31 Rule 6 of the Kwara State High Court (Civil Procedure) Rules 2005 to discontinue the action. In such a situation it was open to the High Court to grant leave to withdraw or to refuse leave. In the instant case leave to withdraw was granted.

On the first issue formulated by the appellant i.e. whether in the circumstances and facts of this case the trial Court ought not to have struck out the appellant’s case after granting leave to withdraw the suit instead of dismissing it, a careful reading of the record of appeal and the ruling of the trial Court will show that the purported filing of the statement of defence was effected with the filing of the motion for joinder by the Respondent was joined as defendant on 14th April 2010. He did not file the defendant’s statement of defence thereafter. The process filed before he was joined as a defendant cannot by any stretch of imagination constitute the statement of defence in the case. It follows that as at the time the appellant applied to withdraw his case, the Respondent had not filed any pleadings. At that point in time when issues had not been joined, there can be no justification for the dismissal of the suit. Issue I is resolved in favour of the appellant.

Issue II is whether the filing of Forms 23 and 24 pursuant to Order 33 of the Kwara State High Court Civil Procedure Rules 2005 signified the filing of the statement of defence in the circumstance of this case. For the full appreciation of this issue it is necessary to set out in full Order 33 Rule 2 of the Kwara State High Court (Civil Procedure) Rules 2005.
“Order 33 rule 2:
1. Within 14 days after close of pleadings, the claimant shall apply for the issuance of pre-trial conference notice in Form 23.
2. Upon application by a claimant under sub-rule (1), the Court shall cause to be issued to the parties and their Legal Practitioners (if any) a pre-trial conference notice as in Forms 23 accompanied by pre-trial information sheet as in Form 24 for the purposes set out hereunder:
(a) disposal of non-contentious matters which must or can be dealt with on interlocutory application;
(b) giving such directions as to the future course of the action as appear best adapted to secure its just and expeditious disposal;
(c) promoting amicable settlement of the case or adoption of alternative dispute resolution.
3. If the claimant does not make the application in accordance with sub-rule (1), the defendant or defendants may do so or apply for an order to dismiss the action.”
Order 33 Rule 2(1) requires that a claimant within 14 days after the close of pleadings apply for the issuance of pre-trial conference notice in Form 23. The Ruling of the trial Court suggests that once the claimant has applied for Form 23 to issue, he is precluded from challenging the Respondent on the basis of non-filing of the statement of defence. I agree that applying for the issuance of Form 23 by a claimant raises a presumption that the defendant has filed a statement of defence. But that can only be a rebuttable presumption. In the instant case appellant’s former counsel Mr. Bamidele, labouring under the belief that the purported statement of defence filed before the Respondent was made a defendant was regular and proper proceeded to file a reply to the counter-claim contained therein and to apply for Form 23 to issue. The non-filing was discovered only after appellant changed Counsel. The filing of these processes by the appellant do not in any way transform the process filed before the respondent became a defendant to the defendant’s pleadings in the suit. Issues having therefore not been joined in the suit, when there has been no litis contestatio as in this case, the trial Court does not have the option of dismissing the suit on application. It can only strike out the case. See Babatunde v. P.A.S. & T.A. Ltd. (2007) 13 NWLR (Pt. 1050) 113. Issue II is also resolved in favour of the appellant.

This appeal succeeds. The trial Court’s Order of dismissal is avoided. In its place is substituted an order of striking out. There shall be no order as to costs.

ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, RAPHAEL CHIKWE AGBO, JCA gave me the privilege of reading in advance the judgment just delivered. Based on the reasons well advanced therein, I agree that the appeal is meritorious. I allow the appeal and abide by the consequential order. No order as to costs.

UCHECHUKWU ONYEMENAM, J.C.A.: The history of the proceedings at the trial court greatly influenced the decision reached by the learned trial judge.

With the grant of the motion for joinder brought by the Respondent on 14th April, 2010, the Appellant filed a reply to the Statement of Defence and defence to the Counter Claim of the 5th Defendant dated 9th July, 2010 and signed by Rufus M. Bamidele Esq. Also filed was a written statement on oath of the claimant reply to 5th Defendant’s Statement of Defence and Counter Claim.
See: pages 12-26, 48-51 and 206-207 of the record respectively.

On 11th July, 2010, Mr. Bamidele sought for an order inter alia:
“Thirdly, we seek for an order of court deeming the said amended statement of claim and other court processes in this case as duly filed and served.
Fourthly, we pray for an order of the court deeming the statement of defence to the 5th Defendant’s counter-claim as properly filed and served”.
See: page 209 of record.

In the court’s ruling, the trial judge said:
“The application by the claimant Applicant is to enable him obtain the leave of this court for extension of time to file his amended writ of summons and other court processes and also to file the defence to the claim of the 5th Defendant”

The court went ahead to grant the order and deeming the defence to the Respondent’s claim as duly filed and served on the Respondent. See pages 209-210 of the record.

On 12th October, 2010, Mr. Bamidele in court said:
“The case is for mention. We have an application dated 8th October, 2010. We are asking for judgment against 1st, 2nd, 3rd and 4th defendants for default of proceedings”

Thereafter, case was adjourned to 9th November, 2010 for settlement of issues of facts in dispute and for pre trial conference. On 16th December, 2010, case was further adjourned for same reason. On 24th May, 2011, the Appellant applied and was granted leave of court to change his counsel to Ahmed Tafa of Ahmed Tafa & Co. With the new counsel, the matter was adjourned for mention to enable him sort out things in view of the several pending applications.

On 30th June, 2011, Mr. Adeyi for the Appellant applied and had the names of the 1st-4th Respondents struck out having discontinued the action against them. Case was adjourned for further mention. On 13th July, 2011, the Respondent brought a motion seeking to join 4 others as co-defendants. The motion was moved on 14th November, 2011 and by a considered ruling delivered on 15th December, 2011 the application was dismissed for lacking in merit.

On 2nd April, 2012, Mr. A. B. Abdulrahaman brought yet another application for joinder. Leave was granted the applicant Kamal Ishola Audu to apply to be joined as a defendant. Case was adjourned for mention to enable parties make consequential amendments on their processes. On 30th April, 2012, the Appellant brought an application to discontinue the suit against the Respondent.

It is the ruling of the application that is the subject of this appeal.

The history of the suit at the lower court has been traced because everything on record prima facie points to the fact that pleadings had closed and issues joined in the matter. This was the position of the Respondent which position was adopted by the learned trial Judge when he concluded that the right order to make was an order dismissing the suit for want of diligent prosecution.

In view of this order, the following issues will readily agitate the mind. Did the trial court really follow the provision of Order 31 of the High Court Rules? Had pleadings closed and issues joined and many more questions.

Order 31 Rules 1 (1); 3 (1) & (2); and 4 of Kwara State High Court (Civil Procedure) Rules – 2005 provides:
Rule 1(1): “The Claimant may at any time before receipt of the defence or after the receipt, before taking any other proceedings in the action, by notice in writing duly filed and served, wholly discontinue his claim against all or any of the Defendants or withdraw any part or parts of his claim. He shall thereupon pay such Defendant’s cost of the action, or if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn

Rule 3(1) “A party may with leave of Court discontinue an action or counter-claim, or withdraw any particular claim therein, and the Court may order the action or counter-claim to be discontinued or any particular claim therein to be struck out as against any or all of the parties on such terms as to costs.

Rule 3(2): “An application for the grant of leave under sub-rule (1) shall be by motion on notice.

Rule 4: “A withdrawal or discontinuance by a party of an action or counter-claim or a particular claim made by him in an action shall not be a defence to a subsequent action for the same or substantially the same cause of action.

The whole of Order 31 does not prescribe the Order a court shall make in the event that a party discontinues or withdraws a suit. It only regulates the circumstances and methods of withdrawal or discontinuation of a matter by a party. Order 31(1) allows a plaintiff to discontinue or withdraw his claim wholly or in part against any or all the defendants at any time before the claimant has been served with the defendants defence or having been served with the defence before taking any further proceedings in the matter.

There is no gainsaying that the learned trial Judge was of the view that the Appellant had received the Respondent’s defence, taken further actions inimical to the hearing of the appeal before his application. This was what informed the court to hold that the Appellant was not diligent in the prosecution of his matter. The learned trial Judge was not far from the right position owing to the record particularly the proceedings of 11th July, 2010 where the court granted the Appellant extension of time to file his reply to the Respondent’s defence and counter claim. The Appellant’s reply to the Respondent’s defence and counter claim are found at pages 48-49. The Appellant’s written statement on oath on his reply to the Respondent’s statement of defence and counter claim is at pages 50-51.

With this, the out of breath conclusion would be that the Appellant had received the Respondent’s defence and went ahead to file his reply thereby joining issues with him. Again the proceedings of 12th October, 2010 is instructive. Mr. Bamidele for the Appellant applied for judgment against the 1st-4th Defendants for default to file their defence and thereafter applied for settlement of issues and pretrial conference with the 5th Respondent. This again rings the bell that the Appellant had received the Respondent’s defence.

When after the Appellant had changed his counsel, on 30th, June, 2011, Mr. Adeyi for the Appellant by a motion discontinued the Appellant’s action against the 1st-4th Defendants and thereafter applied for at date for hearing the matter against the Respondent.
This no doubt was in the spirit that pleadings had closed issues having been joined after the Appellant received the Respondent’s defence and counter-claim which in turn he replied to.

From these facts, it appears strange on the face of it for the Appellant to contend that he had not been served with the Respondent’s defence. The learned counsel for the Appellant argued that there was no affidavit of service in proof of the fact that the Appellant was served with the Respondent’s defence.

It is clear from the record that no affidavit of service was filed to show that the Appellant was served with the Respondent’s defence and counter claim. It is equally an elementary principle of law that the purpose of affidavit of service is to convince the court that the person on whom a process is meant to be served was duly served. Generally therefore, an affidavit of service is produced before a court as an evidence of service. See: Societe Generale Bank (Nig.) Ltd. v. Adewumi (2003) 4 SCNJ 146.

With the pursuit of the courts to do substantial justice as opposed to slaughtering justice on the altar of technicality, once a party who is to be served with a process appears in court there will not be need to still insist on affidavit of service to prove the service except where personal service is mandatory. See: Okesuji v. Fatai Alabi Lawal (1991) 2 SCNJ 1. In the instant case the Appellant who is complaining that he was not served with the Respondent’s defence had filed his reply to statement of defence and counter claim of the Respondents. He also went ahead to file his written statement on oath in reply to Respondent’s statement of defence and counter claim. These acts of the Appellant are sure proof that he was served with the Respondent’s defence. To insist on affidavit of service in the circumstance of this case is to magnify technicality and exalt same far above substantial justice. This is no longer the position of the law. So as far as service of the Respondent’s defence is concerned, there can be no better proof of service than his presence in court and the replies and statement on oath filed by the Appellant in response to Respondent’s defence and counter claim. One might to this extent be tempted to conclude that the trial court was right.

This however does not settle the dispute. Apart from the issue of service the learned counsel for the Appellant stated that the Respondent’s statement of defence and counter claim was an exhibit annexed to the Respondent’s application. He contended that the process was not filed before the court neither was there a deeming order for the document to be taken as properly filed and served on the Appellant.

It is the law that payment of filing fees is a precondition to the court’s assumption of jurisdiction. Accordingly, where filing fees are not paid, the court will have no jurisdiction to entertain the matter before it. See: Okolo v. UBN Ltd. (2004) ALL FWLR (Pt. 197) 981.
For a process to be said to be filed before a court, the litigant must pay the appropriate filing fees as assessed by the designated registrar of the court concerned. Once a process is not duly filed before a court, it does not exist in the eyes of the law – and as such the jurisdiction of the court cannot be invoked. It is not a matter of procedural jurisdiction but a substantive jurisdiction see: Ogli Oko Memorial Farms Ltd & Anor. v. Nigerian Agricultural and Co-operative Bank Limited. & Anor. (2008) 34 NSCQR (Pt. 11) 157.

In the Respondent’s application to be joined as a defendant in the action at the trial court, the Respondent filed along with the motion paper his memorandum of appearance, Statement of Defence and Counter Claim, and his Statement on Oath. The Statement of Defence and Counter Claim of the Respondent was marked Exhibit C. See pages 18-21 of the record. The Respondent’s Statement on Oath marked exhibit D is at pages 22-24 of the record. Examination of Exhibits C and D shows that no assessment was made on them and no filing fees paid on them except as exhibits: To this extent the duo in the eyes of the law were documents which could not be seen as more than exhibits attached to the affidavit in support of the motion for joinder. The trial court had no jurisdiction to view or act on the documents other than as said exhibits. The two exhibits were not such that the court could rely on to say the Respondent had in law filed a Statement of Defence and Statement on Oath which the Appellant would have to reply. In essence, to the extent that Exhibits C and D were not paid for by the Respondent as Statement of Defence and Counter Claim; and Statement on Oath based on appropriate filing fees assessed by the designated registrar of the Kwara State High Court of Justice. I hold that the said two documents were not duly filed. And if not duly filed, could not have been duly served. The trial court lacked the competence to look at them as any document other than exhibits attached to an affidavit. Since the two exhibits in law do not amount to Statement of Defence and Statement on Oath, no valid reply on them can exist or be made in law. Furthermore, since there was no duly filed Statement of Defence, the Appellant could not have received or be said to have been served any. Accordingly, the learned trial Judge was in error when he held that the Appellant had been served with the Respondent’s Statement of Defence.

Suffice it to say that the holding of the learned trial Judge that the Appellant was not diligent in the prosecution of the suit at the lower court is not borne out of the record. This conclusion no doubt caused a miscarriage of justice.

It is for this and the other reasons in the lead judgment delivered by my learned brother RAPHAEL C. AGBO, JCA that I agree that this appeal has merit.
I also allow the same. I abide by the consequential orders.

Appearances

Ahmed Tafa with him
A. B. Adeyi,
M. G. Alaya and
I. A. Raleiu For Appellant

AND

For Respondent