J. O. ALOBA v. HERITAGE BANK LIMITED (2019)

J. O. ALOBA v. HERITAGE BANK LIMITED

(2019)LCN/12974(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of March, 2019

CA/B/355/2009

JUSTICES

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria

PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria

Between

J. O. ALOBA Appellant(s)

AND

HERITAGE BANK LTD Respondent(s)

RATIO

WHETHER OR NOT A COUNTERCLAIM IS AN ORIGINATING PROCESS

WHETHER OR NOT THE APPEAL COURT CAN INTERFERE WITH THE FINDINGS OF FACT OF THE TRIAL CORT
Where the findings of facts have not been appealed against, the judgment is conclusive; and the appellate Court will not interfere with the facts so found and conclusions arrived at. PER DANJUMA, J.C.A.

DISTINCTION BETWEEN FILING FEES FOR ORIGINATING PROCESS WHICH GO TO JURISDICTION AND OTHER PROCESSES WHICH GO TO COMPETENCY

The Court has drawn a clear distinction between filing fees for originating process which go to jurisdiction and other processes which go to competency. Judicial opinion appears divided as to whether as to the effect of non-payment or inadequate payment of filing fees. In the case of ABIA STATE TRANSPORT CORP & ORS V QUORUM CONSORTIUM LTD (2009) 9 NWLR, PT 1145, 1 the Supreme Court per Mukhtar, JSC held that failure of the appellants to pay necessary filing fees meant that the processes were not properly before the Court. See also SPDC & ORS V AGBARA & ORS (2015) LPELR – 25987 (SC). In the case of AKPAJI V UDEMBA (2009) LPELR – 371, the same Court per OGBUAGU, JSC held that failure to pay filing fees “is a mere irregularity which when not taken timeously or when acquiesced in becomes incapable of affecting the proceedings in any way” I am therefore on sound footing whichever position I choose to take.
Be that as it may, it is important to emphasize that the whole essence of default fees in our rules of Court is to curtail the delay of matters in Court. PER MAHMOUD, J.C.A.

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Ondo State High Court, sitting in Akure in Suit No. AK/194/2005 delivered on 5 ? 8 ? 2009 by Hon. Justice N. S. Adeyanju, whereat the Plaintiff?s claim was dismissed and the Defendant?s counter claim was granted.

The facts of the case as garnered from the record of appeal and the respective briefs of argument of the parties as filed shows that the Appellant is a customer of the respondent at its Adekunle Ajasin House Branch, Akure, Ondo State and by virtue of this Customer/Banker relationship the Appellant applied for and was granted credit as in the letter of offer tendered at the trial and admitted as Exhibit P3.

Dissatisfied and aggrieved that the Respondent was charging interest rates on the Account beyond what was agreed upon by the terms of Exhibit P3, the Appellant took out a writ of summons and statement of claim, where fore he claimed per the amended statement of claim thus: –
i. A declaration that by the excessive and arbitrary charges and deductions and mismanagement made by

the defendant on the Plaintiff?s Corporate Account No; 030102211373818, the defendant?s dealings thereof are reckless fraudulent, null and void.
ii. N10, 201, 06 as special and general damages for the defendant?s act of mismanagement and or fraudulent dealings with the plaintiffs aforesaid Account and as loss of profit and earnings.

?PARTICULARS OF DAMAGES
1. Damages on earnings = N9, 600, 000. 00.
2. The Amount withheld by the defendant = N601, 109 .00.
3. An order directing the defendant to release all the title documents respecting the plaintiff?s landed property located at No. 4, Aloba Street, Akure and vehicle particulars of Mercedes Benz 911 Tipper Lorries with 11,055 units of blue chip company?s shares all pledged in good faith for the said credit facility granted by the defendant.
4. An injunction restraining the defendant, its agents, officers, representatives and for dealing in any manner prejudicial to the plaintiff?s interest with the landed property at No. 4, Aloba Street, Akure and the aforesaid Mercedes Benz Lorries and 11,055 units of Blue Chip Company?s shares

5. Custody of the defendant.
?——–Exhibit D1.?

At the hearing of the appeal, the learned counsel for the Appellant, Biodun Fasakin Esq. adopted the Appellant?s Brief of Argument dated 7th November, 2016 which had been deemed filed and served on 23 ? 1 ? 2019 upon extension of time granted by this Court to so file same.

In the said Appellant?s Brief of Argument, a sole issue for determination, founded upon the 4 Grounds of the Amended Notice of Appeal, has been formulated thus;
Whether the respondent?s Memorandum of Appearance Statement of Defence and counter claim and Amended processes are null and void and as such, that the Appellant is entitled to judgment on his claims?

?The Appellant?s learned counsel had argued that the Respondent?s processes, to wit statement of Defence, and counter claim dated 20/01/2006 and the Amended Statement of Defence and counter claim dated 20/05/2006 were signed by Ekerete Udofot & Co, see pages 18 ? 28

of the Records and therefore incompetent.

That the said Ekerete Odofot & Co. was not a legal practitioner. He relies on Sections 2(1) and 24 of the Legal Practitioners? Act, Cap 207 Laws of the Federation of Nigeria 1990. He cites Okafor & Ors v. Nweke & Ors (2007) 5 SCM 185 at 186 ? 187; Oketade v. Adewunmi & Ors (2010) 4 SCM 1 at paragraph C?F.

That the claim of the Respondent was one that could not be founded upon its incompetent processes which were void.

The learned counsel finally submitted that there being no legal evidence in defence of his clients suit by the respondent, the Appellant?s case was established on a minimal proof and therefore entitled to judgment. Mobil Production Nig. Unltd. V. Monokpo (No.2) (2001) FWLR (pt. 78) 1210.

It was also contended that the respondent had also claimed for a sum of money owed by the Defendant up to 9 ? 1 ? 2006. That the Evidence of DW1, the void processes stated the indebtedness to cover up to December, 2005 and without demonstrating how. That it was strange that the award covered 9 ? 1 ? 2006.

That the Court had no

jurisdiction in the circumstances. That an agreed interest rate by the parties is all that can be claimed, applied and awarded by a Court as debt as at the time of the institution of the suit; that no party can unilaterally claim a lump sum after the institution of the suit.

That the appeal be allowed and the reliefs sought by the Appellant be granted.

In response, the Respondents had argued per his Respondent?s brief of argument deemed filed on 23 ? 1 ? 2019 and upon the sole issue which he raised thus;
(a) Whether on the available evidence the appellant successfully established his case at the lower Court on preponderance of evidence or balance of probability as required by law, the mode of signing the respondent?s processes notwithstanding.

It should also be noted that the Respondent per paragraph 4 of his Respondent?s Brief of Argument at page 2 thereof raised a point of preliminary objection in lamine, thus:
?This appeal is incompetent and this Court cannot assume jurisdiction to hear it in that the Appellant herein has not paid or failed to pay adequate fee or penalty for late filing of the

Appellant?s Brief of Argument.?

The learned counsel in addressing this objection had argued that the record of appeal was entered in this Court on 15 ? 10 ? 2009, and that by Order 18 Rule 1 of the Court of Appeal Rules 2011, applicable, the Appellant was enjoined to file the Appellant?s Brief of Argument within Forty five (45) days from the receipt of the Record of Appeal. That the Brief ought to have been filed on or before the 29th day of November, 2009.

That the Appellant was in default of not paying the penalty due on the late filing as prescribed by the Third Schedule of the Rules of Court in accordance to Order 12 Rules 1 of the Court of Appeal Rules. That the default fee was part of the filing fees.

It was contended that the failure to pay the penalty fees which had accumulated for four years, nine months and 5 days at N100 per day of default robbed this Court of jurisdiction to hear this appeal as the condition precedent has not been fulfilled. Counsel relies on Okolo v. Union Bank of Nigeria Ltd. (2004) ALL FWLR; Onwugufor v. Okoye (1996) 1 NWLR (pt. 424) 252 to contend that the nonpayment of the

mandatory fees payable on the filing of the Appellant?s Brief rendered the Brief incompetent.

Counsel refers to Onochie v. Odogwu (2006) ALL FWLR (pt. 317) 544, relying on Chief Ifezue v. Mbadugha & Anr. (1984) C 79, (1984) 1 SCN ? for the imperativeness of the Rule of Court relevant by the phrase ?shall? used thereat, and which also relies on Mokelu v. Federal Commission for Works & Housing (1976) 3 SC 35, Madam Alake Aroyewun v. Joseph Adebanji (1976) 11 SC 33, Anuokeodo v. I. G. P. & Ors. (1999) 5 SCNJ 71 at 81 ? 82. In summation, the learned counsel, had contended on this objection that the preliminary objection be upheld, relying on Arebi v. Gbabijo (2010) ALL FWLR (pt. 527) 710 also relying on Jimoh Ojugbele v. Musafin O. Lamidi & Ors. (1999) 10 NWLR (pt. 621) 167 at 171.

?On the issue for determination couched ?whether the Appellant had established its case on the preponderance of evidence the mode of signing the Respondent?s processes notwithstanding?; the Respondent argued that the learned counsel Ekerete Udofot was a legal practitioner who had registered his business name

Ekerete Udofot & Co. and may practice as a firm of legal practitioners as such under the Legal Practitioners Act Cap 207 Laws of the Federation, 1990. That the Appellant has waived the issue of competence of the processes filed at the trial Court and that the said complaint did not also affect the root of the Appellant?s claim. That the purported signature should be treated as an irregularity and discountenanced as strict adherence to technicality would be at the expense of substantial justice.

It was also argued that even if the processes were incompetent, that did not preclude the Appellant from proving his claim on its merit on the preponderance of evidence. Section 133 (1), Section 134 (1), Section 135 (1) and section 136 (1) of the Evidence Act relied upon.

The learned counsel had also argued that the finding of fact by the trial judge that the evidence of PW1 upon which Exhibits relied upon and believed in giving the judgment had not been set aside on appeal and therefore subsisted. MTN (Nig.) Communication Ltd. V. Aluko (2014) ALL FWLR (Pt. 732) 1701 at 1728; Oseni v. Bajulu (2010) ALL FWLR (pt. 511) 813 at 829 referred.<br< p=””

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Counsel had also submitted that the Appellant had the burden of proving his case on the predominance of evidence and that he cannot rely on the weakness of the other side?s case; to upturn the judgment obtained.

The Respondent had raised a point of preliminary objection to this appeal. It is as contained at paragraph 4.01 page 2 of the Respondent?s Brief of Argument. It states thus: –
?The Respondent shall at the hearing of this appeal raised (sic) the following objection?
This appeal is incompetent and this Court cannot assume jurisdiction to hear it in that the appellant herein has not paid or failed to pay adequate fee or penalty for late filing of appellant?s brief of argument.

The Respondent?s counsel had argued and referred to the Appellant?s Brief of Argument as filed outside the 45 days period mandated by Order 18 Rule 1 of the Court of Appeal Rules and the Violation of Order 12 Rule 1 thereof providing for the payment of default fees as penalty in the sum of N100 de die in diem, ie from day to day of default.

The learned counsel for the Appellant has not denied this fact, other than

to contend that it was an irregularity that was waivable and had been so waived by the Respondent.

The filing of the Appellant?s Brief of Argument on 4 ? 3 ? 2014, a default period of 4 years nine months 5 days and without the payment of default fees as penalty and without regularization of same was, clearly, in violation of Orders 18 Rule 1 and Order 12 Rule 1 of the Court of Appeal Rules relating to the filing of Court process within the specified time frame permitted; and indeed the non compliance with the payment of fees schedule and regime of this Court.
As it is, there was, in the eyes of the law, no Appellant?s Brief of Argument filed in the instant Appeal. The Appellant?s Brief of Argument was, de jure, deemed not to have been filed at all. A Court of law will have no jurisdiction to entertain the reliefs sought and argued therein. Okolo v. Union Bank of Nigeria Ltd. (2004) ALL FWLR (pt. 197) 981 at 992 ? 993 SC; Onwugbufor v. Okoye (1996) 1 NWLR (pt. 424) 252.
The Arguments as set out in the Appellant?s Brief will not only be incompetent, but this Court will be incompetent to take cognizance of

and rely on the Appellant?s Brief of Argument. The Respondent?s counsel is right to have argued that the requirement of Order 12 Rule (1) Court of Appeal Rules 2016 provides for a mandatory compliance; that the word ?shall? relating to the charging of fees by and the payment to the Registrar of the Court below or this Court must be complied with. It is an imperative requirement. See Onochie v. Odogwu (2006) ALL FWLR (pt. 317) 544 SC and the host of other cases to the same effect as referred in the Respondent?s Brief of Argument on the preliminary objection.
The objection raised is not academic but goes to the jurisdiction of this Court. As it were, the Appellant?s Notice of Appeal filed on 7 ? 8 ? 2009 cover 9 years now, has only a Record of Appeal deemed transmitted to this Court on 23 ? 1 ? 2019 without a competent Appellant?s Brief of Argument! For the above reason, the Appeal No. CA/B/355/2009 is one that has, in law, not been argued, there being no Brief of Argument. The Appeal therefore could be dismissed for want of diligent prosecution, Pursuant to Order 19 Rule 10 (2) Court of

Appeal Rules 2016 and not for incompetence as sought to be raised in the preliminary objection.

The preliminary objection, therefore, fails on the specific ground raised as the appeal is not incompetent for the reason of late filing or non filing of a competent Brief of Argument. This Court, rather, has no jurisdiction to give judgment upon the incompetent Appellant?s Brief of Argument as filed.

The Respondent?s Notice of Preliminary Objection as raised therefore, fails and accordingly, it is dismissed. However, the Appellant?s objection also fails, the counter claim not being an originating process to a suit. I shall proceed to the Resolution of the merit of the Appeal as argued.

RESOLUTION OF THE APPEAL
The Appeal is at the instance of the Plaintiff who is the Appellant?s herein. I shall, therefore, adopt the Appellants issue and decide the Appeal there upon his sole issue. The issue is that the respondent as defendant was not entitled to judgment upon his processes as filed since they were legally incompetent, having been signed in the name of a law firm Ekerete Udofot & Co., and not in a person?s name

registered in the Roll of Legal Practitioners and licensed to practice as such.
I have seen the processes, perused and note that the Memorandum of Appearance and Statement of Defence as filed by the Defendant/Respondent was in fact not signed by the law firm of Ekerete Udofot & Co. as claimed by the Appellant. Indeed it was signed by an unnamed person, whose Address for Service is expressed as Ekerete Udofot & Co.
In the circumstance, the challenge to the Respondent?s processes on incompetence and in Violation of the Legal Practitioners Act, 1990, now laws of the Federation, 2004 does fly. The contention that the judgment given upon the counter ? claim be assailed for the alleged incompetence of the processes has anchor in law.
There is no doubt that where the processes are signed by a law firm as alleged, they would have been incompetent processes, and as such incapabable of activating the trial Court?s jurisdiction to entertain the counter claim, let alone enter judgment there upon. The Court would have been without jurisdiction. See Okafor & Ors. V. Nweke & Ors (2007) 5 SCM 185 at 186 ? 187; Oketade v.

Adewunmi & Ors. (2010) 4 SC. 1 at par. C ? F rightly relied upon by the Appellant.
However, in the instant case, I am contended to say that the Respondent?s processes were, on the contrary not signed. Unsigned, document being what the processes are, as the person who authored or signed is unknown, the documents remain worthless documents. They cannot be acted upon, therefore to ground any judgment in the counter claim as made and granted.

However, a counter claim is not an originating process and did not originate the suit upon which the judgment appealed was given. The Appellant?s appeal appears academic and speculative as there is no appeal raising any challenge to the ratio of the judgment given against him at the trial Court.
Where the findings of facts have not been appealed against, the judgment is conclusive; and the appellate Court will not interfere with the facts so found and conclusions arrived at.
The learned counsel for the Appellant had argued that the incompetent processes were relied upon to give judgment against the plaintiff, now Appellant who had proved his case at the trial Court; and that the

judgment be reversed and judgment be entered for the Appellant as claimed at the trial Court.
As the Appellant?s counsel had argued on page 9 paragraph 6.18 of the Appellants Brief of Argument, thus ? ?My Lords, the document titled ?full Reconciliation of J. O. Aloba Nigeria Enterprises with Omega Bank Plc. Between January 2004 ? December 2006? (Exhibit P2) which the Appellant predicated his claim on have definitely not been established ? and so his claim of mismanagement of his account was not proved but rather denial of his agreement between the parties.
Reproducing the learned trial judge thus ?The implication of the denial of the terms of the written agreement Exhibit ?P3? by the PW1 is that he did not take all the terms of the agreement between the parties into consideration in preparing Exhibit ?P2?.
I therefore hold Exhibit ?P2? as unreliable and not representing the state of the plaintiff?s account with the defendant. The plaintiff has thus failed to prove that the defendant charged and made arbitrary deductions and mismanaged his account with the

defendant. The plaintiff has thus also failed to prove the special and general damages claimed.? I agree with the Respondent?s counsel that the above findings of facts are unassailable and have not been appealed against by the Appellant. They cannot be disturbed. The subsisting findings of facts as contained on pages 108 ? 109 of the Record of Appeal which the Respondents? counsel referred us to per his clients Brief of Argument paragraphs 6.19 and 6.20, page 9 thereof stand unappealed. Upon what ground, can this Court then set aside the award in the counter claim that was believed? In MTN (Nig.) Communications Ltd. V. Aluko (2014) ALL FWLR (pt. 732) 1701 at 1728, this court (Ekiti Division) held thus: –
?A finding of a lower Court that has not been appealed against and/or grounded as a ground of appeal is deemed to have been accepted by the party against whom it has been made?.

In this wise, I also agree with the learned counsel for the Respondent when he argued that pursuant to Sections 131, 132, 133 of the Evidence Act, 2011, the plaintiff now Appellant had the burden of proof, which burden he had not

established on the preponderance of evidence. See Etim v. Clasen Ventures (2012) ALL FWLR (pt. 646) 596 at 611. However, this Appellant cannot rely on the weakness of the defendant?s case to prove his claim. He must rely on the strength of his case and not on the weakness of his opponent, the defendant?s case to prove his own case. Agboola v. U. B. A. (2011) ALL FWLR (pt. 574) 74 at 97 SC per Tabai, JSC relied upon by the Respondent is good authority and against the Appellant?s stand in this appeal. On the whole, the appeal has no basis/merit. It is speculative and academic.

However, for the reasons earlier indicated by me while considering the preliminary objection raised and dismissed, to the effect that the Appeal No; CA/B/355/2009 is one that had no competent Brief of Argument filed in law, there was therefore no Brief of Argument to consider and to arrive at a decision on the judgment complained against.
This Appeal therefore, is dismissed Pursuant to Order 19 Rule 10 Sub Rule (2) of the Court of Appeal Rules, 2016, for want of diligent prosecution, relating to the non filing of Appellant?s Brief.
Appeal dismissed.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the benefit of reading in draft form the judgment of my learned brother, Mohammed Ambi – Usi Danjuma, JCA, just delivered. My noble lord has stated the law in a clear terms. All the issues adumbrated has been exhaustively and painstakingly dealt with and I have nothing useful to add. I entirely concur with the reasons advanced and the conclusion reached therein that this appeal has no merit and deserves to be dismissed. I adopt the said lead judgment as mine. I also dismissed the appeal. I subscribe to the orders made therein pursuant to Order 19 Rule 10(2) of the Court of Appeal Rules, 2016.

PATRICIA AJUMA MAHMOUD, J.C.A.: I have had the benefit of reading in draft the judgment of my learned brother MOHAMMED A. DNJUMA, JCA just delivered. The issues in contention in this appeal have been exhaustively considered by my learned brother I am in complete agreement with the reasoning and conclusions reached therein. I wish to however offer a few comments in support. I adopt the facts that gave rise to this appeal as adequately captured in the lead judgment.

A major issue in this appeal is the non-compliance with ORDER 12(1) of the RULES OF COURT, 2016. It provides as follows: –
“1. Save as hereinafter provided, the fees prescribed in the third schedule hereto shall be charged in respect of the matters which they are respectively assigned and shall be paid to the Registry of the Court below or of the Court as the case may be.”
The Third Schedule to the Rules is headed: “FEES IN CIVIL AND CRIMINAL MATTERS, ORDER 12.”
Lines 17 and 18 under A provide for the payment of #100 for failure to file a brief within the prescribed period for each additional day thereof per day. The appellant was alleged to have been in default for four years, nine months and five days for which they paid no default fees. This failure renders the brief incompetent and liable to be struck out. The default fees as stated in the Third Schedule to ORDER 12 is distinct and separate from the filing fees. The Court has drawn a clear distinction between filing fees for originating process which go to jurisdiction and other processes which go to competency. Judicial opinion appears divided as to whether as to the effect of

non-payment or inadequate payment of filing fees. In the case of ABIA STATE TRANSPORT CORP & ORS V QUORUM CONSORTIUM LTD (2009) 9 NWLR, PT 1145, 1 the Supreme Court per Mukhtar, JSC held that failure of the appellants to pay necessary filing fees meant that the processes were not properly before the Court. See also SPDC & ORS V AGBARA & ORS (2015) LPELR – 25987 (SC). In the case of AKPAJI V UDEMBA (2009) LPELR – 371, the same Court per OGBUAGU, JSC held that failure to pay filing fees “is a mere irregularity which when not taken timeously or when acquiesced in becomes incapable of affecting the proceedings in any way” I am therefore on sound footing whichever position I choose to take.
Be that as it may, it is important to emphasize that the whole essence of default fees in our rules of Court is to curtail the delay of matters in Court. It was felt that if counsel and litigants know that there is a penalty for every day they delay in filing their process(es), they may be forced to sit up and act with more diligence in the conduct of their matters. In the instant case the delay of the appellant in filing their brief of argument was said

to be four years, nine months and five days. Roughly and at the rate of N100 per day this will come to about N173,500. There is no doubt that any litigant who pays this before being allowed to proceed with his case will think twice before being tardy in any matter he has in Court. If it is his counsel that caused this for him I can bet my last kobo that he would never engage the services of such a lawyer again. The appellant herein was in default of filing his brief for a period of over four years. He went ahead to file a motion for extension of time to file the brief. The motion was granted.
The appellant filed their brief of argument without paying the default fees. Every counsel ought to know that once an application for extension of time is for file a process, the filing of that process would attract the payment of default fees. If the appellant’s counsel did not know this, he is caught up by the maxim that “ignorance of the law is not an excuse”.
?More fundamentally, the appellant was given a huge indulgence when he was allowed leave to revive an appeal he abandoned for almost five years. To concede to the fact that failure or refusal to pay

amounts to a mere irregularity which having being acquiesced in becomes incaple of affecting the proceedings as held in AKPAJI V UDEMBA (SUPRA) will in my view be counter productive and will amount to a dangerous precedent. It will also make nonsense of the rationale for default fees and deny the Court of the much needed revenue. I therefore find that in the unique circumstances of this case the failure or refusal of the appellant to pay the default fees renders their brief of argument incompetent. I agree with my learned brother in the lead judgment for upholding the Preliminary Objection of the respondent and discountenancing the said brief of argument. See the case of ABIA STATE TRANSPORT CORP & ORS V QUORUM CONSORTIUM LTD (SUPRA) and the decision of this Court inHORSFALL V AMAIZU (2013) LPELR – 22874.

It is for these reasons and the fuller reasons given by my learned brother in the lead judgment that I too dismiss this appeal. I consequently affirm the decision of the lower Court in suit NO AK/ 194/2005 delivered by HON. JUSTICE N. S. ADEYANJU on the 05/08/2009.

Appearances:

Biodun Fasakin, Esq.For Appellant(s)

Ekerete Udofot, Esq.
For Respondent(s)

Appearances

Biodun Fasakin, Esq.For Appellant

AND

Ekerete Udofot, Esq.For Respondent