INTERNATIONAL MARITIME SHIPPING LIMITED & ANOR v. IBAFON OIL LIMITED (2016)

INTERNATIONAL MARITIME SHIPPING LIMITED & ANOR v. IBAFON OIL LIMITED

(2016)LCN/9201(CA)

In The Court of Appeal of Nigeria

On Thursday, the 15th day of December, 2016

CA/L/398/2011

RATIO

APPEAL: WHAT IS THE ESSENCE OF CRAFTING ISSUES FOR DETERMINATION
The purpose of crafting issues for determination is to enable parties in an appeal narrow down the issues in controversy between them, while respecting brevity accuracy and clarity, SHA (JNR) v. KWAN (2000) 8 NWLR (Pt. 670) 685. PER TIJJANI ABUBAKAR, J.C.A.

PROCEDURE: DIFFERENCE BETWEEN NON-PAYMENT OF FILING FEES AND INADEQUTE PAYMENT OF FILING FEES

On the question whether it was proper for the lower Court to decline jurisdiction on the counter-claim of the defendant for reasons of failure by the Defendant to pay filing fees or not, on the ground of non-payment of filing fees. There seems to be some decisions of the Supreme Court and of this Court dealing with the issue. On one hand, failure to pay prescribed filing fees is seen as a mere irregularity which can be corrected by an order of the Court directing the payment of the appropriate prescribed fees while, on the other hand, the view is that failure to pay filing fees gives rise to an issue of jurisdiction, and that failure to pay the prescribed fees robs the Court of jurisdiction. However, there is distinction between the consequence of absolute failure to pay the required filing fees and paying inadequate appropriate fees. The law is clear, where no filing fee is paid at all; the process is just a mere piece of paper which cannot activate the jurisdiction of the Court. See: NIGERIA AGIP OIL COMPANY LTD v. NKWEKE & ANOR (2016) LPELR-26060 (SC) pg. 3536, Paras. F-D.
However, where the filing fees paid is inadequate, it amounts to mere irregularity and the Court can correct the anomaly by directing that the proper fees be paid. This is because it is not the duty of counsel or the party to determine the assessment of fees to be paid but that of the Registry of the Court and the counsel or party should not be shut out or denied access to Court for reasons of failure of the Registry to properly assess a process and determine the appropriate fees payable. This distinction was made in UDOFEL LTD & ANOR v. SKYE BANK PLC (2014) LPELR-22742 (CA) pg. 49-50 Paras. F-G by my Learned Brother GARBA, JCA where my lord held as follows and I quote that:
There is another opinion which views processes in which filing fees have not fully been paid as being a mere irregularity. In Akpaji v. Uchemba (2009) 2-3 SC (Pt. 11) 1, (2009) 6 NWLR (Pt. 1138) 545, the Supreme Court, per Ogbuagu, JSC described the non-payment in full of the prescribed fees as a mere irregularity and that it did not vitiate the proceedings, having nothing to do with the jurisdiction of the trial Court. That all that the trial judge ought to have done in the circumstance was to direct and allow the Appellant time to pay the balance of the appropriate penalty fees, while setting aside the default judgment. In that event, the parties are able to ventilate all issues in controversy and have determination on the merits.
“This approach emphasizes that inadequate filing fees have been paid. The trial Court may in that circumstance direct that the party pays the balance of the fees or the party concerned seeks the indulgence of the Court for time to fully comply. See also: Lawal v. Odejimi (1963) All NLR 569; A.C.B. v. Henshaw (1990) 1 NWLR (Pt. 129) 646 at 659. Per GARBA JCA (Pp. 49-50 Paras. F-G)
This position was endorsed by the Supreme Court per MUHAMMAD, JSC, in the more recent decision in S.P.D.C. & ORS v. AGBARA & ORS (2015) LPELR-25987 (SC) Pg. 56-57, Paras. E-A where the Court held that “the law has for long been settled by authorities that payment of inadequate filing fees can only make a process irregular and not capable of affecting the jurisdiction of the Court” In NIGERIA AGIP OIL COMPANY LTD v. NKWEKE & ANOR (2016) LPELR-26060 (SC) Pg. 3536, Paras. F-D, RHODES-VIVOUR, JSC, held as follows and I quote:
“In SC. 693/2013 an appeal on an identical issue decided by the Court on 11/12/15 in my concurring judgment to the leading delivered by my learned brother I.T. Muhammed, JSC I said that: non-payment of filing fees is different from inadequate payment, the latter being the fault of the Registry I must say that non-payment of filing fees is a serious omission by the Appellant which in effect deprives the Court of jurisdiction to hear the appeal. See: Okolo v. U.B.N. Ltd (2004) 3 NWLR (Pt. 859) p. 87. On the other hand, inadequate payment of filing fees is usually the fault of the Registry who made a mistake when it told the Appellant the amount to be paid. In cases where the fees paid by the Appellant are inadequate, it is the singular duty of the presiding Judge to order the erring Appellant to pay the correct filing fees instead of striking out the appeal
In the instant case, the lower Court found at page 625 of the Record of appeal that: “in the 1st and 2nd Defendant’s amended state [sic] of defence and counter claim dated 20/1/2010 but filed on 22/1/2010 the Defendant’s Counsel paid N250.00 representing N100.00 cost of filing the process and N150.00 for service but there is no assessment and no fee paid on the amount claimed by the Defendants.” From the findings of the lower Court, it is evident that this is not a case of non-payment of filing fees at all; it is a case of under-assessment of filing fees or payment of inadequate filing fees and the law is already settled that there is difference between under payment of filing fees and not paying filing fees at all, the instant case falls under payment of filing fees less than the appropriate fees, both the Supreme Court of Nigeria and this Court held in seemingly endless judicial decisions that ?Under assessment of filing fees must necessarily be the mistake of the registrar and not that of the litigant whose duty or obligation is to pay exactly the assessed fees. It will therefore be unconscionable to punish the litigant for the fault of the Registry.” See: ACCESS BANK PLC v. SIJUWADE (2016) LPELR-40188 (CA) pg. 33, Paras. C-E. PER TIJJANI ABUBAKAR, J.C.A.

COURT: JUSTICE; HOW THE COURT VIEWS TECHNICAL JUSTICE

The decision of the lower Court in the instant case appears to be an attempt to enthrone technicalities over and above substantial justice, and imposition of double jeopardy on the Appellants. This Court and the Supreme Court frown against according priority to technicalities over substantial justice. In IKECHUKWU v. NWOYE & ANOR (2013) LPELR-22018 (SC) 10, the Supreme Court of Nigeria per, OGUNBIYI, JSC, held that: the expected result of adjudication on any matter is, whether justice has been done to the case or not. The quest is for justice; hence technicality which breeds injustice should not be allowed to rear its ugly head and thus beclouding the very reason why the system is put in place. The principle of technicality has long been done away with under our judicial system of adjudication and given in to substantial justice as the prevailing order of the day. The reason justifying this endorsement is not farfetched but well founded; the law is made for man and not the reverse. For further and better emphasis, I again seek to state that the primary purpose of putting the law in place is to ensure that justice is to prevail; any subsequent leaning towards technicality for purpose of circumvention would be self-defeating of the very concept which is set out to achieve. PER TIJJANI ABUBAKAR, J.C.A.

JUSTICES

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

1. INTERNATIONAL MARITIME SHIPPING LTD
2. THE VESSEL ‘MT’ AOG CARIBE Appellant(s)

AND

IBAFON OIL LTD Respondent(s)

TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Federal High Court, sitting in the Lagos Division of the Court delivered on the 23rd day of September 2010 E. O. Abang J., in suit No: FHC/L/CS/797/2009 striking out Appellants counter claim on grounds of non-payment of filing fees on the counter claim.

The facts relevant in this appeal are that the Respondent as Plaintiff commenced action at the lower Court by a writ of summons which is found at page 7 of the Record of appeal. Upon being served Respondents claim, the Appellants as defendants then counter-claimed against the Respondent and the lower Court in its judgment struck out the counter-claim of the Defendants/Appellants on the ground of non-payment of filing fees on the counter-claim by the Defendants.

The Defendants/Appellants became peeved by this decision and therefore being dissatisfied filed a Notice of Appeal on the 9th day of December, 2010. The Appellant’s Notice of appeal which is contained at page 629-634 of the Records of appeal contains the following five grounds of appeal:

1. The learned trial Judge erred in

law in raising and resolving the issue of jurisdiction over the counter-claim on the ground of non-payment of filing fees suo motu without hearing the parties on the issue.
2. The learned trial Judge misdirected himself, which misdirection occasioned miscarriage of justice when he held that the Appellants did not pay the statutory filing fees on the counter-claim.
3. The learned trial Judge erred in law when he declined jurisdiction on the counter-claim for non-payment of filing fees.
4. The learned trial Judge erred in law when he struck the counter-claim on the ground that the Defendants did not pay the statutory filing fees for amount claimed on the counter-claim without inviting Counsel to address it before arriving at decision.
5. The learned trial Judge erred in law when he held that the Court can take judicial notice of non-payment of statutory fees without hearing the parties on the issue.

The Appellant’s Brief of Argument was filed on the 22nd day of November, 2011, while Appellant’s Reply Brief was filed on the 24th day of February, 2014 all by learned Senior Counsel Olu Daramola SAN, A. M. of Afe Babalola & Co. The

Respondents on the other hand filed a Respondents’ Brief of Argument on the 23rd day of December, 2013 but deemed properly filed and served on the 13th day of February, 2014. The Respondents brief of argument was filed by learned Counsel Andrew Ojochogwu Ameh of A. O. Oru & Co.

The Appellants through learned Senior Counsel formulated three issues for determination from the Appellants grounds of appeal, the issues formulated by the Appellant are therefore reproduced as follows:
1. Whether or not it was proper for the learned trial judge to raise the issue of non-payment of filing fee suo moto and determine the issue without allowing counsel to the parties to address him on it?
(Distilled from Grounds 1, 4 and 5)
2. Whether or not it was proper for the Court to decline jurisdiction on the counter-claim on the ground of non-payment of filing fees?
(Distilled from Ground 3)
3. Whether or not the Appellant paid the statutory filing fees on the counter-claim? (Distilled from Ground 2)

The Respondent through learned Counsel also formulated three issues for determination; the issues are also reproduced as follows:

1. Whether or not the learned lower Court was right to take judicial notice of its order, proceedings and all processes before it?
2. If the answer in issue 1 above is in the affirmative, whether the Court ought to have invited the parties to address it?
3. Whether failure of the Appellant to comply with the order of the Court by filing its amended statement of defense and counter claim and making payment thereon renders its counter claims incompetent?

The purpose of crafting issues for determination is to enable parties in an appeal narrow down the issues in controversy between them, while respecting brevity accuracy and clarity, SHA (JNR) v. KWAN (2000) 8 NWLR (Pt. 670) 685. For the purpose of this appeal, the issues submitted by learned counsel on behalf of the Appellants appear to disclose in substantial details the issues in controversy between the parties; I am sure resolving the issues will have the effect of determining the issues in contention in the appeal. I therefore adopt them as the issues to resolve in this appeal. I will therefore proceed to discuss Appellants issues for determination.

ISSUES ONE AND TWO
On issue 1,

learned senior counsel for the Appellants referred to UKEGBU v. NBC (2007) 14 NWLR (Pt. 1055) 551, 581-582, and OSHODI v. EYIFUNMI [2000] 13 NWLR (Pt. 684) 298 at 332, to submit that the law is that a Court should not raise a point suo motu no matter how clear the point might appear to be and proceed to resolve it one way or the other without hearing the parties. He submitted further that the issue of non-payment of filing fees on the counter-claim was not raised by the Court or any of the parties during the proceedings but was raised for the first time by the trial judge in the judgment delivered on the 23rd day of September, 2010, thus, the Appellants were not afforded the opportunity to address the Court on the point in line with the principles of natural justice enshrined in Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria (As Amended).

Learned senior counsel referred to R.T.E.A.N. v. N.U.R.T.W. [1992] 2 NWLR (Pt. 224) 381 at 392, to submit that the Appellants were denied the opportunity of being heard before their counter-claim was struck out by the learned trial judge for non-payment of filing fees and that if the lower

Court had heard the parties, the Appellants would have been able to point to the Court that the said Statutory filing fees of N50,100.00 (Fifty thousand, One hundred naira) had been paid on the counter-claim as evidenced by the endorsement of the Court’s cashier at page 373 of the Record of appeal. He contended that the lower Court is duty bound to invite the parties to address it on the point before a decision is made. Learned senior counsel relied on the decision in BAJOGA v. THE GOVERNMENT OF THE FEDERAL REPUBLIC OF NIGERIA & 3 ORS [2008] 1 NWLR (Pt. 1067) 85 at 119-120, AGBAEZE v. C.C. ITEM DISTRICT (2007) 7 NWLR (Pt. 1032) 196, UGWA v. LEKWAUWA [2010] 17 NWLR (Pt. 1222) 221 at 240, IKOMI v. STATE (1986) 3 NWLR (Pt. 28) 340 and IDAKWO v. EJIGA (2002) 13 NWLR (Pt. 783) 156 to urge this Court to set aside the decision of the lower Court striking out the counter-claim on grounds of breach of fair hearing.

Learned senior counsel further referred to the findings of the lower Court at page 626-627 and contended that the lower Court cannot take judicial notice of the issue of non-payment of filing fees, and that the Court can only take judicial notice

of the rules of Court requiring such fees to be paid. He referred to Section 122 of the Evidence Act to submit that the issue of whether or not filing fees was paid required evidence and the lower Court ought to allow the party who alleged that he paid filing fees to produce evidence. Learned Senior Counsel relied on AKPAJI v. UDEMBA [2009] 6 NWLR (1138) 545 at 561-562; and N.N.P.C. v. AHAMBA (2009) 10 NWLR (1146) 266 at 276-277, to submit that the failure to pay filing fees does not raise the issue of jurisdiction but is a mere irregularity. He urged this Court to hold that the lower Court was wrong to have taken judicial notice of the fact that filing fees was not paid on the counter-claim.

In response, the learned Counsel for the Respondent referred to UZODINMA v. IZUNASO [2011] 17 NWLR (Pt. 1275) 30 at 75 to contend that the lower Court was right to take judicial notice of its orders, proceedings and all the processes before it. Learned counsel for the Respondent argued that the Appellants did not comply with the orders of the lower Court contained in the Ruling delivered on the 18th day of December 2009 and that the Appellants did not file and

serve their amended statement of defense incorporating the counter-claim in compliance with Order 17, Rules 5 & 6 of the Federal High Court (Civil Procedure) Rules, 2009. Learned counsel further referred to Order 55, Rule 2; Appendix 5 and Appendix 2 of the Federal High Court (Civil Procedure) Rules to submit that the fees payable by the Appellants on the amount claimed against the Respondent endorsed on the counter-claim is N50,000.00. He referred to page 72 of the Record to submit that the Appellants only paid a fee of N250.00 on the counter-claim.

Learned counsel referred to SEKONI v. U.T.C. NIG. PLC [2006] All FWLR (Pt. 210) 1620 and MOSHOOD ADELAKUN v. NURUDEEN ORUKU (2007) 17 WRN pg. 89 at 97 to submit that rules of Court are meant to be obeyed. He submitted that the argument by the Appellants’ counsel that the statutory fee of N50,000.00 was paid elsewhere on a document other than the one used in the legal proceeding in which the trial was based is unsustainable. Counsel referred to U.B.A. v. EKPO [2005] All FWLR (Pt. 241) Pg. 376 at 378-379; DADA v. DOSUNMU (2006) 9 SC pg. 1 at 21 and IKENTA v. ATTORNEY-GENERAL RIVERS STATE [2008] All FWLR

(Pt. 417) pg. 5 to submit that the lower Court was right to have held that the counter-claim is incompetent and that the Court needs not invite the parties to address it on the issue of non-payment of filing fees. He urged this Court to hold that the lower Court was right in taking judicial notice of the order, proceedings and concluding that the counterclaim is incompetent on the grounds that the statutory filing fees were not paid on it.

In his reply, learned senior counsel for the Appellants submitted that issues 1 and 2 formulated and argued by the Respondent are incompetent for having no bearing with any of the Grounds of appeal and issues formulated by the Appellant and that while the Respondent is at liberty to formulate issues outside the issues formulated by the Appellants, such issues formulated by the Respondent must be related to the Grounds of Appeal filed by the Appellants. He referred to NWAGU v. FADIPE (2012) 13 NWLR (Pt. 1318) Pg. 547 at 561, Paras. F-G; OSSAI v. WAKWAH [2006] 4 NWLR (Pt. 968) 208; SANUSI v. AYOOLA [1992] 9 NWLR (Pt. 265) 275; UGO v. OBIEKWE [1989] 1 NWLR (Pt. 99) 56; OKONKWO v. OKOLO [1988] 2 NWLR (Pt. 97) 632

and

ONYEKWELU v. ELF PETROLEUM NIGERIA LIMITED [2009] 5 NWLR (Pt. 1133) pg. 181 at 195, Paras. D-G.

Learned Senior Counsel argued that the Appellants’ appeal centered on the propriety of the lower Court raising the issue of non-payment of filing fees suo motu without calling on the parties to address it on the issue while the Respondent’s submissions were on the propriety of taking judicial notice of contents of a case file. He contended that even though the two issues are from the same paragraph of the judgment, they are not related. Learned Senior Counsel therefore urged this Court to strike out the Respondent’s issues 1 & 2 and hold that they are incompetent.

Learned Senior Counsel further submitted that the conclusion reached by the learned trial Judge is outside the statutorily listed facts which the lower Court shall compulsorily take judicial notice of under Sections 73 and 74 of the Evidence Act of 1945 which was applicable at the time of trial. He referred to Section 122(4) of the Evidence Act; M.W.T. (NIG.) v. P.T.F. [2007] 15 NWLR (Pt. 1058) 456 and OMIDIORA v. F.C.S.C. [2007] 14 NWLR (Pt. 1053) 17 at 34 F-G to submit that taking of

judicial notice is kick-started by a party calling upon the Court to take judicial notice of a particular fact and not by the judge suo motu in a final judgment.

Learned Senior Counsel contended that the cases of SEKONI v. U.T.C. NIG. PLC (supra); MOSHOOD ADELAKUN v. NURUDEEN ORUKU (supra); U.B.A. EKPO (supra); and DADA v. DOSUNMU (supra) relied upon by the Respondent are not applicable to the Appellants’ case. He urged this Court to discountenance the said authorities and resolve issues 1 and 2 in favor of the Appellants against the Respondent.

RESOLUTION OF ISSUES ONE AND TWO
On the first question of whether or not, it was proper for the learned trial judge to raise the issue of non-payment of filing fee suo motu and determine the issue without hearing counsel for the parties in address on the issue, let me quickly state that the law is well settled beyond any controversy that though a Court may raise an issue which has not been submitted by either of the parties before it suo motu, when that happens, the Court must call on the parties to address it on the issue so raised before reaching a decision thereon. The Supreme Court of Nigeria

per OKORO, JSC, stated this position in JEV & ANOR v. IYORTYOM & ORS (2014) LPELR-23000 (SC) 31-32, where the learned Jurist held as follows and I quote:
it is trite that our system of appeals in our adversary system does not allow or permit a Court to dig into the records and fetch issues no matter how patently obvious, and, without hearing the parties, use it to decided an issue in controversy between the parties to the appeal. It runs counter to the impartial status and stance expected of a judge in the system. It is better that the parties raise and argue it by themselves. But if it is so fundamental that it goes to the jurisdiction or vires of the Court, then it must be brought to the notice of the parties to the appeal and argument received on it before it is decided. See Ojo Ogbemudia Ebolor v. Felicia Osayande (1992) NWLR (Pt. 249) 524 or (1992) 7 SCNJ 217, Ndiwe v. Okocha (1992) 7 SCNJ 355 Kuti v. Balogun (1978) 1 SC, 53 at 60, Iriri v. Erhurhobara (1991) 2 NWLR (Pt. 173) 252 at 265. By raising an issue suo motu by a Court and basing a decision on it without arguments from both parties, the party affected is denied the

opportunity of being heard and this is a breach of his right to fair hearing entrenched in Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Where a Court fails to bring an issue raised suo motu to the attention of the parties and argument taken on it before deciding on it, such a decision is liable to be set aside. See Ibori v. Agbi (2004) All FWLR (Pt. 202) 1799 at 1835. Pan African Int. Inc. v. Shoreline Lifeboats Ltd (2010) All FWLR (Pt. 524) 56 at 55. That is the position of the law as regards raising issue suo motu.?
?The above position has been restated by the Supreme Court in the recent decision of the Court in ODEDO v. P.D.P. & ORS (2015) LPELR-24738 (SC) 40-41, my Lord, OGUNBIYI, JSC, held as follows and I quote:
“The law is well settled that it is within the competence and province of a Court to raise a point suo motu for purpose of serving the interest or course of justice. However, and that notwithstanding, it is also incumbent on the Court to invite parties, particularly the party that may be adversely affected as a result of the point raised suo motu, to address it on such a point before

basing its decision thereupon. This is a matter of duty and a fulfillment of the constitutional requirement of fair hearing the breach of which is very fundamental. No point raised in this circumstance i.e. suo motu can ever be trivialized. See Prov. Liquidator, Tapp Ind. v. TAPP Ind. (1995) 5 NWLR (Pt. 393) 9; See also Olusanya v. Olusanya (1983) 1 SCNLR 134, (1983) 14 NSCC 97 at P2, wherein this Court per Ejiwunmi, JSC, (of blessed memory) stated the governing principles that should guide a Court in such circumstances as follows:-
this Court has said on a number of occasions that although an appeal Court is entitled, in its discretion, to take points suo motu if it sees fit to do so, yet that discretion must be exercised sparingly and in exceptional circumstances only. Where the points are so taken, the parties must be given the opportunity to address the appeal Court before decision on the points is made by the appeal Court
Having said this much, it is my view that it was erroneous on the part of the learned trial judge to have raised an issue suo motu and predicate his decision on it without calling on the parties

to address on the issue. The step taken by the lower Court amounts to a denial of the Constitutional right to fair hearing of the parties, particularly the party that is adversely affected by the omission. See: NOBIS-ELENDU v. INEC & ORS (2015) LPELR-25127 (SC) 76-77, OLAOLU v. F.R.N. (2015) LPELR-24778 (SC) 24, I.N.E.C. v. OGBADIBO LOCAL GOVERNMENT & ORS (2015) LPELR-24839 (SC) 40, EGBUCHU v. CONTINENTAL MERCHANT BANK PLC & ORS (2016) LPELR-40053 (SC) 19-20, MABAMIJE v. OTTO (2016) LPELR-26058 (SC) 23.
The Supreme Court of Nigeria in CHITRA KNITTING & WEAVING MANUFACTURING CO. LTD v. AKINGBADE (2016) LPELR-40497 (SC) 30, per KEKERE-EKUN, (JSC) also postulated as follows and I quote:
“The law is settled that where a Court raises an issues suo motu and proceeds to decide that issue without first inviting the parties to address it, the proceedings are a nullity, no matter how well conducted for constituting a violation of the ‘parties’ right to fair hearing guaranteed by Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), See: Kuti v. Balogun (1978) 1 SC 53 @ 60: Stirling Eng. (Nig) Ltd v. Yahaya

(2005) II NWLR (Pt. 935) 181, Omokuwajo v. F.R.N. (2013) II NWLR (Pt. 1359) 300; Omoniyi v. Alabi (2015) 6 NWLR (Pt. 1456) 572.?
?In view of all, I have said above, I am bound to find that the lower Court was in grave error, having raised and determined an issue suo motu without requesting the parties before it to address in the issue. Issue No. 1 is therefore resolved in favor of the Appellants against the Respondent.

between the consequence of absolute failure to pay the required filing fees and paying inadequate appropriate fees. The law is clear, where no filing fee is paid at all; the process is just a mere piece of paper which cannot activate the jurisdiction of the Court. See: NIGERIA AGIP OIL COMPANY LTD v. NKWEKE & ANOR (2016) LPELR-26060 (SC) pg. 3536, Paras. F-D.
However, where the filing fees paid is inadequate, it amounts to mere irregularity and the Court can correct the anomaly by directing that the proper fees be paid. This is because it is not the duty of counsel or the party to determine the assessment of fees to be paid but that of the Registry of the Court and the counsel or party should not be shut out or denied access to Court for reasons of failure of the Registry to properly assess a process and determine the appropriate fees payable. This distinction was made in UDOFEL LTD & ANOR v. SKYE BANK PLC (2014) LPELR-22742 (CA) pg. 49-50 Paras. F-G by my Learned Brother GARBA, JCA where my lord held as follows and I quote that:
There is another opinion which views processes in which filing fees have not fully been paid as being a mere

irregularity. In Akpaji v. Uchemba (2009) 2-3 SC (Pt. 11) 1, (2009) 6 NWLR (Pt. 1138) 545, the Supreme Court, per Ogbuagu, JSC described the non-payment in full of the prescribed fees as a mere irregularity and that it did not vitiate the proceedings, having nothing to do with the jurisdiction of the trial Court. That all that the trial judge ought to have done in the circumstance was to direct and allow the Appellant time to pay the balance of the appropriate penalty fees, while setting aside the default judgment. In that event, the parties are able to ventilate all issues in controversy and have determination on the merits.
?This approach emphasizes that inadequate filing fees have been paid. The trial Court may in that circumstance direct that the party pays the balance of the fees or the party concerned seeks the indulgence of the Court for time to fully comply. See also: Lawal v. Odejimi (1963) All NLR 569; A.C.B. v. Henshaw (1990) 1 NWLR (Pt. 129) 646 at 659. Per GARBA JCA (Pp. 49-50 Paras. F-G)
This position was endorsed by the Supreme Court per MUHAMMAD, JSC, in the more recent decision in S.P.D.C. & ORS v. AGBARA & ORS (2015)

LPELR-25987 (SC) Pg. 56-57, Paras. E-A where the Court held that ” ?the law has for long been settled by authorities that payment of inadequate filing fees can only make a process irregular and not capable of affecting the jurisdiction of the Court?” In NIGERIA AGIP OIL COMPANY LTD v. NKWEKE & ANOR (2016) LPELR-26060 (SC) Pg. 3536, Paras. F-D, RHODES-VIVOUR, JSC, held as follows and I quote:
?In SC. 693/2013 an appeal on an identical issue decided by the Court on 11/12/15 in my concurring judgment to the leading delivered by my learned brother I.T. Muhammed, JSC I said that: non-payment of filing fees is different from inadequate payment, the latter being the fault of the Registry I must say that non-payment of filing fees is a serious omission by the Appellant which in effect deprives the Court of jurisdiction to hear the appeal. See: Okolo v. U.B.N. Ltd (2004) 3 NWLR (Pt. 859) p. 87. On the other hand, inadequate payment of filing fees is usually the fault of the Registry who made a mistake when it told the Appellant the amount to be paid. In cases where the fees paid by the Appellant are inadequate, it

is the singular duty of the presiding Judge to order the erring Appellant to pay the correct filing fees instead of striking out the appeal
In the instant case, the lower Court found at page 625 of the Record of appeal that: “in the 1st and 2nd Defendant’s amended state [sic] of defence and counter claim dated 20/1/2010 but filed on 22/1/2010 the Defendant’s Counsel paid N250.00 representing N100.00 cost of filing the process and N150.00 for service but there is no assessment and no fee paid on the amount claimed by the Defendants.” From the findings of the lower Court, it is evident that this is not a case of non-payment of filing fees at all; it is a case of under-assessment of filing fees or payment of inadequate filing fees and the law is already settled that there is difference between under payment of filing fees and not paying filing fees at all, the instant case falls under payment of filing fees less than the appropriate fees, both the Supreme Court of Nigeria and this Court held in seemingly endless judicial decisions that ?Under assessment of filing fees must necessarily be the mistake of the registrar and not that of

the litigant whose duty or obligation is to pay exactly the assessed fees. It will therefore be unconscionable to punish the litigant for the fault of the Registry?. See: ACCESS BANK PLC v. SIJUWADE (2016) LPELR-40188 (CA) pg. 33, Paras. C-E. The case of the Appellant is not that filing fees were not paid, NO, it was just that the appropriate fees were not paid as found from the records of the lower Court, for this reason therefore this issue too must be and is hereby resolved in favor of the Appellants against the Respondent.

ISSUE THREE
Appellants issue No. 3 is “Whether or not the Appellant paid the statutory filing fees on the counter-claim learned senior counsel for the Appellants referred to page 373 of the Record of appeal to submit that payment of N50,000.00 was made as shown by the endorsement of the cashier of the lower Court. He further referred to the proceedings of 15th December, 2009 where the Appellants withdrew the motion dated 10th December, 2009 which was not assessed, and filed the motion dated 11th December, 2009 where the proposed counter-claim was assessed in the sum of N50,000.00. Learned Senior Counsel urged this

Court to hold that it is not correct that the Appellants did not pay the firing fees on the counter-claim.

Learned counsel for the Respondent submitted that the failure of the Appellants to comply with the order of Court by filing its amended statement of defense and counter-claim and making payment thereon renders its counter-claim incompetent. Learned counsel referred to SEVEN-UP BOTTLING COMPANY LTD v. YAMANJI [2011] 4 NWLR (Pt. 702) 47 at 55; OKOLO v. U.B.N. OF NIG. LTD [2004] 3 NWLR (Pt. 859) to argue that the N50,100.00 referred to at page 373 of the Record of appeal is a mere assessment on a motion filed on 11th December, 2009 and that pursuant to the order of the lower Court made on 18th December, 2009, the counter-claim relied upon at the trial is dated 22nd December, 2009 and filed on the 22nd day of January, 2010. He contended and urged this Court to hold that the purported payment was not on the counter-claim filed on 22nd January, 2010 and that the said counter-claim having failed to comply with Order 55, Rule 2; Appendix 5 and Appendix 2 of the Federal High Court (Civil Procedure) Rules 2009 is therefore incompetent.

?Learned counsel

submitted that payment of filing fees is a condition precedent to the Court’s assumption of jurisdiction and that where the filing fees is not paid, a Court of law will have no jurisdiction to entertain the matter before it. He relied on OKOLO v. U.B.N. LTD (supra); ALHAJI GOMBE v. PW NIG. [1995] 6 NWLR (Pt. 402) 400 and UDO v. CROSS RIVERS STATE NEWS PAPER CORPORATION [2001] 14 NWLR (Pt. 732) 116 to further submit that where a Court finds that it lacked jurisdiction, the appropriate order to make is to strike out the process. Learned counsel urged this Court to hold that the lower Court was right to have struck out the Appellant’s counter-claim for reasons of failure to pay filing fees.

Reacting to the Respondent’s issue 3, learned senior counsel for the Appellants contended that the Respondent’s argument is that the Appellants did not comply with the order of the lower Court made on 18th December, 2009. He submitted that the final judgment which the Appellants have appealed against is different from the Ruling dated 18th December, 2009 and that the Appellants have not appealed against the said Ruling and therefore should not have been the basis for

the Respondent’s issue 3. He further submitted that the issue of non-compliance with the Ruling and Order of the Court on filing an Amended Defence and Counter-claim is not related to the Grounds of appeal and the issues formulated by the Appellants.

Learned Senior Counsel further submitted that the Appellants complied with the Order of the lower Court directing the Appellants to file their Amended processes within 4 days and to endorse the processes as stipulated by Order 17 Rule 5 & 6. He contended that the Ruling did not direct the Appellants to pay the already paid fees again. Learned Senior Counsel further argued that a party only pays assessment fees once on a process and when a party seeks to amend the already assessed process, only nominal filing fees will be paid. He further submitted that where the Court was in doubt as to whether the filing fees were paid on the sum claimed, the Court ought to allow the parties address it on the issue before taking a decision that payment was not made.

Learned senior counsel further submitted that assuming without conceding that the filing fees on the counter-claim was not paid, it does not go to

the issue of jurisdiction but a mere irregularity. He referred to AKPAJI v. UDEMBA [2009] 6 NWLR (Pt. 1138) and N.N.P.C. v. AHAMBA [2009] 10 NWLR (Pt. 1149) and argued that these are the most recent decisions on the issue and not the case of OKOLO v. U.B.N. OF NIG LTD (Supra) relied upon by the Respondent. Learned Senior Counsel relied on MOHAMMED v. M.E. CO. LTD (2010) 2 NWLR (Pt. 1179) 473 at 506, to submit that where there are two conflicting decisions of the Supreme Court, this Court will follow the latest decision. He urged this Court to allow the appeal by entering judgment in favor of the Appellants on the counterclaim.

RESOLUTION OF ISSUE THREE
The issue for determination here is whether or not the Appellant paid the statutory filing fees on the counter-claim. The Appellants referred to page 373 of the Record of appeal to submit that payment of N50,000.00 was made and he further referred to the proceedings of 15th December, 2009 where the Appellants withdrew the motion dated 10th December, 2009 which was not assessed, and filed the motion dated 11th December, 2009 where the proposed counter-claim was assessed in the sum of N50,000.00. The

Respondent on the other hand argued that the N50,100.00 referred to at page 373 of the Record of appeal is mere assessment on a motion filed on 11th December, 2009 and that pursuant to the order of the lower Court made on 18th December, 2009, the counter-claim relied upon at the trial is dated 22nd December, 2009 and filed on the 22nd day of January, 2010. Respondent further argued that the purported payment was not on the counter-claim filed on 22nd January, 2010 and that the said counter-claim having failed to comply with Order 55, Rule 2; Appendix 5 and Appendix 2 of the Federal High Court (Civil Procedure) Rules 2009 is therefore incompetent.

What is evident from the Records is that the Appellants filed a “Proposed/Amended Statement of Defence” contained at pages 369-373 of the Record of appeal. The Appellant’s “Proposed/Amended Statement of Defence” dated 11th December, 2009 no doubt contains a Counter-claim at page 373 of the records and was clearly assessed at N50,100.00 with the cashier’s stamp indicating that the fees were actually paid.

Further, in the proceedings of the lower Court on 18th December, 2009 contained at pages 542-545 of the

Records, the Appellant’s moved its motion dated 11th December, 2009 and exhibited the “proposed/Amended Statement of Defence”. The Respondent opposed the motion and the trial Court delivered its Ruling. Pursuant to the order of the lower Court, the Appellant filed an Amended Statement of defence which is dated 22nd December, 2009 and contained at pages 68-72 of the Record of appeal. The Amended statement of defense is headed as follows:
?AMENDED STATEMENT OF DEFENCE AMENDED THE 18TH DAY OF DECEMBER, 2009 PURSUANT TO ORDER OF ABANG J. DATED 18TH DAY OF DECEMBER, 2009.”

From the foregoing, and as agreed by the Respondents, the ?Proposed/Amended Statement of Defence” of 11th December, 2009 was duly assessed and the assessed fees paid. The contention of the Respondent and the position of the lower Court seem to be that The Amended Statement of Defence and the counter-claim relied upon at the trial dated 22nd December, 2009 and filed on the 22nd January, 2010 is different and independent of the ?Proposed/Amended Statement of Defence? of 11th December, 2009. Contrary to this view however is the obvious fact that the Amended

Statement of defence and the counter-claim were brought pursuant to the order of the lower Court made on the 18th day of December 2009 and the said order was premised on the “Proposed/Amended Statement of Defence” of 11th December, 2009.

I have no doubt in coming to the conclusion that the Appellants paid the prescribed assessed fees on the counter-claim. It is my view that to hold as the learned trial Judge held would be to demand of the Appellants to pay again the fee of N50,000.00 on the Counter-claim which had already been paid. The decision of the lower Court in the instant case appears to be an attempt to enthrone technicalities over and above substantial justice, and imposition of double jeopardy on the Appellants. This Court and the Supreme Court frown against according priority to technicalities over substantial justice. In IKECHUKWU v. NWOYE & ANOR (2013) LPELR-22018 (SC) 10, the Supreme Court of Nigeria per, OGUNBIYI, JSC, held that: the expected result of adjudication on any matter is, whether justice has been done to the case or not. The quest is for justice; hence technicality which breeds injustice should not be

allowed to rear its ugly head and thus beclouding the very reason why the system is put in place. The principle of technicality has long been done away with under our judicial system of adjudication and given in to substantial justice as the prevailing order of the day. The reason justifying this endorsement is not farfetched but well founded; the law is made for man and not the reverse. For further and better emphasis, I again seek to state that the primary purpose of putting the law in place is to ensure that justice is to prevail; any subsequent leaning towards technicality for purpose of circumvention would be self-defeating of the very concept which is set out to achieve.?

?On the whole therefore, this Appeal is meritorious and succeeds. The Judgment of the Federal High Court per E. O. Abang J. delivered on the 23rd day of September, 2010 in suit No: FHC/L/CS/797/2009 declining Jurisdiction to hear the Appellants’ (Defendants/Counter-claimants) Counter-claim on the ground of incompetence of the Counter-claim for reasons of non-payment of filing fees is hereby set aside. Consequently, I order that the suit be remitted to the Chief Judge of the

Federal High Court for hearing and determination of the Counter-claim of the Defendants by a Judge other than E. O. Abang J.

Cost of N50,000.00 is awarded in favor of the Appellants against the Respondent.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I was privilege to read before now the judgment delivered by my learned brother, ABUBARKAR, JCA, and I agree with him that this appeal is meritorious. I have nothing more, which I can usefully add. To this extent, I join my lord in allowing the appeal and setting aside the decision of the lower Court. I abide by the consequential order(s) made in the leading judgment.

JAMILU YAMMAMA TUKUR, J.C.A.: I read before today the lead judgment just delivered by my learned brother, Tijjani Abubakar, JCA. I agree with the judgment and I adopt it as mine with noting to add.

Appearances

Olu Daramola, SAN with him, Segun Olaniyi, Olafaro and I. C. UwaFor Appellant

AND

Michael NgidiFor Respondent

You Might Also Like

GOV OF OYO STATE & ORS v. REGD TRUSTEES OF BOYS SCOUT OF NIGERIA (2020)

WEMA BANK PLC. & ORS v. PRINCE (DR.) B.A. ONAFOWOKAN & ORS(2004)

AMBER RESOURCE NIGERIA LIMITED v. CENTURY ENERGY SERVICES LIMITED (2018)