International Maritime Shipping Limited & Anor V. Ibafon Oil Limited (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

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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

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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:

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