ENTERPRISE BANK LIMITED v. ROLA OIL LIMITED & ORS
(2018)LCN/12448(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 13th day of June, 2018
CA/IB/17/2013
RATIO
COURT AND PROCEDURE:WHERE RELIEF IS NOT DULY PAID
“No special circumstances have been made out in this entire application to justify an intervention by this Court in the manner suggested by the Applicant. It is too late in the day to make the Order. To this end, the reliefs not duly paid for should not be entertained before the Court as the necessary action to sustain such was left undone. The case of MACFOY V. UAC (1962) AC 152 @ 160 “you cannot put something on nothing, it will fall, because there is nothing to hold it”. The implication is that those heads of claim not paid for were adjudicated upon by the trial Court without jurisdiction. If the trial Court had no jurisdiction, neither has this Court. In other words, the process was placed before the Court without a fulfillment of all the conditions requisite for the innovation of the Court’s jurisdiction.” MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.
COURT AND PROCEDURE: PAYMENT OF FILING FEE
“I will in addition cite the case of Abia State Transport Corporation & 2 Ors. vs. Quorum Consortium Ltd. (2009) 3-4 S.C. 187 where it was stated thus:
“Payment of prescribed filing fee, by all litigants except Government, is a pre-condition to the validity of any process filed in Court. Unless the pre-condition is satisfied, the Court will lack jurisdiction to entertain a process, the prescribed filing fee of which has not been paid.”
Payment of filing fee is a condition precedent necessary to the exercise of jurisdiction – Alloysius Akpaji vs. Francis Udemba (2009) 2-3 S.C. 187.” PER NONYEREM OKORONKWO J.C.A
JUSTICES
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
Between
ENTERPRISE BANK LIMITED Appellant(s)
AND
1. ROLA OIL LIMITED
2. ROLA INVESTMENTS LIMITED
3. ALHAJI FOLAYAN O. ALAWEMO Respondent(s)
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.(Delivering the Lead Ruling):
The Applicants/Respondents were the Plaintiffs in the trial Court while the Appellant/Respondent was the Defendant in Suit No: 1/595/99 where Judgment was given in favour of the Plaintiff now Respondent/Applicant. The Defendant now Appellant/Respondent being dissatisfied with the Judgment dated 11/10/2011 filed an appeal to this honourable Court and one among the four issues for determination in this appeal is whether the lower Court was competent to adjudicate on the reliefs sought by Defendants now Respondents/Applicants when it was clear that no filing fees were paid for the said reliefs.
During the course of this appeal, the Respondents/Applicants filed an application dated 07/11/17 seeking leave to pay the appropriate/adequate filing fees at a Registry of the Trial Court (Oyo State High Court, Ibadan Judicial Division) in respect of their 3rd Further Amended Statement of Claim in Suit No: 1/595/99 as it was Statement of Claim amended a number of times and the Original reliefs contained in the Originating Process was expanded in the 3rd Further Amended Statement of Claim by the inclusion of eight (8) new reliefs by virtue of the last amendment.
Being an amendment embedded in the process, it was not obvious on the face of it unless the attention of the cashier or Registrar who assessed the processes was drawn to it which Plaintiff now Respondent/Applicant failed to do, hence no filing fees were paid. The motion is dated 7th day of November, 2017 and filed same day.
At paragraph 3 of the said affidavit in support of the motion, the deponent narrates how, he was instructed to go and pay the appropriate filing fees as stipulated by the Rules. The 3rd Further Amended Statement of Claim was paid for on the 14th day of November, 2006.
At paragraph 8 of the supporting affidavit, the Applicant states how a filing fee of N50.00 was paid and is marked Exhibit A.
At paragraph 9 of the supporting affidavit, the Applicant says the non-payment of the appropriate fees was neither intentional nor a ploy to deprive the Government of Revenue. In reaction, the Appellant filed a counter affidavit dated 5th April, 2018 and filed the same day.
At paragraph 7 of the counter affidavit, the deponent states that it is the responsibility of the 3rd Defendant/Applicant to inform the Registrar of the additional claims consequent upon the amendment of the process.
The issue for determination formulated by the Appellant/Applicant is:
1. Whether it is in the interest of justice to grant the Respondents leave to pay appropriate filing fees in respect of the 3rd Further Amended Statement of Claim at the Registry of the trial Court.
The Respondent formulates a sole issue too which is:
Whether the Respondent/Applicant have made out a case worthy of granting them leave to go back to the Registry of the lower Court to pay the filing fee in respect of all the reliefs contained in paragraph 38(ix)-(xvi) of the 3rd Amended Statement of Claim.
In support of his motion, the Appellant/Applicant relies on the authority of Omoju v. FRN (2008) ALL FWLR (Pt. 415) 1656 @ 1671, to the effect that the Court should ignore technicality and do the needful which is substantial justice. Cites also the case of ANPP v. REC AKWA IBOM STATE (2008) 8 NWLR (Pt. 1090) 453 @ 548-549.
It can be deduced from the motion brought by the Appellant to regularize his position that there is the need to cure the defect of under-payment in respect of the 3rd Further Amended Statement of Claim. The motion and the supporting affidavit of the Appellant ought to disclose what prompted this filing of the instant applications bearing in mind, the date on the affected process which was 14th day of November, 2006 and the instant application which was dated 7th day of November, 2017; over 11 years after.
Assuming without conceding that the defect was not intentional, there is the need for the deponent to state what awakened them or prompted this application. Better still, an application of this nature can be made before the trial Court too. Waiting before this time suggests that the Applicant’s ground of appeal whereby issues of the instant fees have been joined awakened the Applicant from their slumber. The Appellant/Applicant would have waited on the Court of Appeal to take decision on the issues joined before rushing to the Court to file an application to remedy a defect which the Court has not yet ruled upon.
The case of NWOSU V. OKOYE (1996) 1 NWLR PG 282 Per Iguh JSC held that:
“It is the Responsibility of the Plaintiff to pay the requisite fees in respect of each and every relief claimed as prescribed by the Rules to enable the Court?s judicial functions to commence. A Court shall not entertain relief claimed without payment of the prescribed requisite fees unless such fees have been waived or remitted by the Court as such fees are payable by any Government Ministry etc.”
If the default in payment is that of the Plaintiff, the claim in respect of which such prescribed fees have not been paid cannot be said to be properly before the Court and should be struck out in the absence of an appropriate remedial action or application to regularize such anomaly.
“…Payment of the prescribed fees being a condition precedent to the filing of a valid claim before the Court?.
Though the argument of the Applicant on the basis of technicality is compelling, it cannot erode the fact of actual defect which goes to the justice of the case. Another twist to this case is the averment of the Respondent at page 9 of his counter affidavit thus:
“That with reference to the deposition contained in paragraph 9 of the said affidavit, the failure to pay the appropriate fees was an intentional act and a ploy to deprive the Oyo State Government of the necessary revenue. This has been the style of the chamber involved in this case”.
The Respondent cited a similar ploy by the Applicant in Appeal No: CA/IB/179/2013, IFETETO VENTURES LIMITED & ANOR V. ENTERPRISE BANK LIMITED handled by a similar Chamber where in a similar situation, this Honourable Court discountenanced the claims that were not paid for.
The above is a serious allegation and an indictment on the Chambers of the Appellant/Applicant and which the Applicant should deny in a reply or further affidavit, but instead he ignored such and rather focused more on the Justice of their application. The implication is that the assertion is admitted by the Applicant.
The law is very clear that any averment not denied is deemed admitted. Thus, to have admitted a deposition which infers a deliberate act takes the applicant out of the purview of the exercise of a discretionary power of this Court. Equally the purpose of the Rules of Court should not be overlooked. The respondent made reference to Order 44 Rule 12 of the Oyo State High Court (Civil Procedure) Rules 2010 as follows:
“The regulations regarding fees shall govern the payment and disposal of fees and the duty of Court officers in regard thereof:
(1) No process shall, except by special order of Court be issued until; (a) All fees payable therein as provided should have been paid.
(5) No document in respect whereof a fee is payable shall be used in any legal proceeding unless it shall have been initiated as aforesaid by the Registrar or other officer or unless the Court shall at the same time order to be provided the stamp of the receipt given for the fees of such process”.
From the foregoing, it is clear and instructive that evidence of payment of the prescribed fees is sacrosanct before the commencement of any proceedings as enumerated by the Rules of Court. The Rules of Court is not made for the fun of it but to be obeyed and applied. In the case of OBASANJO V. BUHARI (2003) 17 NWLR PG. 555, Kalgo JSC held that:
“Rules of Court are made to be followed and complied with and the Court will not close its eyes to non-compliance with the Rules except in very special circumstance “.
No special circumstances have been made out in this entire application to justify an intervention by this Court in the manner suggested by the Applicant. It is too late in the day to make the Order. To this end, the reliefs not duly paid for should not be entertained before the Court as the necessary action to sustain such was left undone. The case of MACFOY V. UAC (1962) AC 152 @ 160 “you cannot put something on nothing, it will fall, because there is nothing to hold it”. The implication is that those heads of claim not paid for were adjudicated upon by the trial Court without jurisdiction. If the trial Court had no jurisdiction, neither has this Court. In other words, the process was placed before the Court without a fulfillment of all the conditions requisite for the innovation of the Court’s jurisdiction.
This application lacks merit and is hereby dismissed.
CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the ruling just delivered by my learned brother, MONICA B. DONGBAN MENSEM JCA.
In the case of OGWE & ANOR V. IGP& ORS (2015) LPELR-24322 (SC) PP.18-19 G-E MUHAMMAD, J.S.C. observed:
“…where inadequate fees are paid, I agree with learned appellants’ counsel, the usual remedy is an order of Court for the short fall to be paid. Non-payment of adequate fees, it has been held, does not ordinarily rob the Court of its jurisdiction”.
In ACB Ltd v. Henshaw (1990) 1 NWLR (pt 129) 646, a decision this Court cited with approval in reiterating the principle, Oguntade JCA (as he then was) at page 651 of the report puts the position succinctly thus:
“Even if the Defendant/Respondent had not paid the requisite Court fees, this was a matter to be settled before the Lower Court, the usual remedy being an order by the Lower Court that the appropriate fees or any short fall be paid. It certainly has nothing to do with the jurisdiction of the Lower Court to entertain the suit”.
This Court in Onwugbufor & 2 Ors v. Okoye & 3 Ors (1996) 1 NWLR (Pt 424) 252 at 291-292 also states per Iguh JSC thus:-
“If the default in payment is that of the plaintiff, the claim in respect of which such prescribed fees have not been paid cannot be said to be properly before the Court and should be struck out in the absence of an appropriate remedial action or application to regularize such anomaly.”
It is certainly too late in the day for the Applicant to seek an order of this Court after eleven years to remedy the shortfall when the default is already a ground of appeal in this Court. I agree that the application lacks merit, and ought not to be granted. I also dismiss it.
NONYEREM OKORONKWO, J.C.A.: The ruling in this appeal by my lord Monica Bolna’an Dongban-Mensem J.C.A. had earlier been brought to my knowledge in draft. In agreeing with the decision therein, I will in addition cite the case of Abia State Transport Corporation & 2 Ors. vs. Quorum Consortium Ltd. (2009) 3-4 S.C. 187 where it was stated thus:
“Payment of prescribed filing fee, by all litigants except Government, is a pre-condition to the validity of any process filed in Court. Unless the pre-condition is satisfied, the Court will lack jurisdiction to entertain a process, the prescribed filing fee of which has not been paid.”
Payment of filing fee is a condition precedent necessary to the exercise of jurisdiction – Alloysius Akpaji vs. Francis Udemba (2009) 2-3 S.C. 187.
Where the non-payment relates to only a part of the suit, such claim or part thereof would be struck out. Nelson Onwugbufor & Ors. v. Herbert Okoye & Ors. (1996) 1 SCNJ 1.
Appearances:
M.A. OnadiranFor Appellant(s)
Chukwudi Maduka, Esq. with him, Emmanuel Aransiola, Esq. and Oyewale-Freeman, Esq.For Respondent(s)
