Abia State Transport Corporation V. Quorum Consortium (2009)
LAWGLOBAL HUB Lead Judgment Report
S. N. ONNOGHEN, J.S.C.
This is an appeal against the judgment of the Court of Appeal holden at Jos in appeal NO.CA/J/322/98 delivered on the 7th day of November, 2002 dismissing the appeal of the appellant against the decision of the High Court of Plateau State in Suit N0.PLD/J153/95 holden at Jos delivered on the 29th day of May, 1995 under the undefended list procedure.
From the records, the respondent was a business consultant based in Jos whose services was engaged by the 2nd appellant in July, 1992 for the procurement of foreign aid from the Japanese Government to enable the 2nd appellant import some vehicles and spare-parts for use by the 1st appellant as evidenced in exhibit A attached to the affidavit in support of the application for the issue of a writ under the undefended list, It is the case of the respondent that it rendered the service in Jos and by delivery note dated 18th September, 1992, the 2nd appellant through its agent collected the original copy of the Japanese Aid approval totaling Two Million US Dollars ($2,000,000,00) by the Japanese Government from the respondent in Jos, as evidenced in exhibit B.
The appellants were to pay to the respondent the agreed fee of Two Hundred Thousand US Dollars ($200,000.00) but when they failed to do so, the respondent instituted the action resulting in the instant appeal, claiming the following reliefs:-
“The plaintiffs claim is for:-
(1) The sum of 200,000 US Dollars (N4,400,000.00) four million, four hundred thousand being charges for consultancy and sundry services rendered to the 1st defendant by the plaintiff.
(2) Interest at 21% on the said sum of 200,000US Dollars from the 1st day of October, 1992 until date of judgment and interest at the rate of 10% from the date of judgment until final liquidation of the debt.
(3) Cost of this suit”.
The writ of summons was issued and served on the appellants out of jurisdiction upon leave granted on the 29th day of March, 1995 which was duly carried out on the 27th day of April, 1995. On the 16th day of May, 1995 the appellants filed their Notice of Intention to defend the suit together with an accompanying affidavit at the High Court Registry, Umuahia, Abia State which were later transmitted to the High Court of Plateau State Registry, Jos on the 22nd day of May, 1995. When the matter came up for hearing on the 29th day of May, 1995 being the return date, the appellants and counsel were absent while the respondent and their counsel were present in court as a result of which the learned counsel for the plaintiff/respondent Dr. Ameh, SAN requested the court to enter judgment in favour of the respondent which the trial court obliged. The appellants were dissatisfied with the said judgment and appealed to the Court of Appeal, Jos which dismissed the appeal resulting in the instant further appeal to this court.
The issues for determination as identified by learned counsel for the appellants, Chief Okoroafor C. Uche in the appellants’ brief of argument filed on the 25th day of July, 2003 and adopted in argument of the appeal on the 19th day of January, 2009 are as follows;-
“1. Whether the Court of Appeal was right in its view that non-payment of filing fees by the defendant/appellants nullified the notice of intention to defend the suit filed by the appellants which is a government not ordinarily expected to pay fees upon filing such process.
- Was the Court of Appeal right when it held that the appellants did not enter appearance and did not file any notice of intention to defend the respondent’s suit when the same was before the court timerously.
- Whether the Court of Appeal was right when it held that the trial court had the jurisdiction to entertain the suit of the respondent”.
In arguing issue 1 learned counsel for the appellants submitted that the appellants are government of a state and state government official and agency who are not supposed to pay fees for filing of processes in court, referring to Order 2 (13) (2) of the Rules of the Supreme Court and Nwadialo on Civil Procedure in Nigeria page 956; that by the provisions of Order 54 of the High Court of Plateau State, it is the duty of the Court Registry to demand and collect fees from litigants and on account of that initial on the process before him as received; that the Registrar failed to demand fees for the filing which failure ought not to be visited on the appellants, relying on First Bank us May Clinics (2001) 4 SCNJ5; that the registrar by not demanding payment is deemed to have waived the right to the payment; that by stamping the document “received” the registry confirmed the document as duly filed and therefore regular. Learned counsel urged the court to resolve the issue in favour of the appellants.
On his part, learned counsel for the respondent, G. S. Pwul, Esq submitted that the Court of Appeal is right in holding that a process is not properly filed in the High Court of Plateau State except it is duly assessed and paid for; that Order 54(1)(i) of the High Court of Plateau State Civil
Procedure Rules makes payment of fees set out in the first, second, third, fourth and fifth schedules mandatory and condition precedent to the filing of processes before the court; that since no payment was made for the filing of the document in issue, it means the process or documents are not properly before the court and can therefore not be looked into by the court. That there is no provision in the relevant rules of court exempting the appellants from payment of filing fees; that the assessment in this case was not done by the registrar of the High Court of Plateau State but that of the High Court of Abia State who also stamped same with ”Fee Official” which amounts to filing the process in the High Court of Abia State sitting in Umuahia; that no officer of the High Court ofAbia State has the power to waive fees payable in Plateau State High Court; that the appellants merely transmitted the processes after filing in Abia State to the High Court of Plateau State, Jos registry where the registrar duly acknowledged receiving same; that the mere receipt of the documents by the registrar in Jos does not amount to filing of same without payment of filing fees. Learned counsel urged the court to resolve the issue against the appellants.
It is not disputed that the assessment for filing and the filing of the notice of intention to defend the action filed in Jos, Plateau State was done by the appellants at the High Court of Abia State, Umuahia and only transmitted to the registry of the High Court of Plateau State, Jos where it was received and stamped accordingly. The documents were therefore not assessed and filed at the High Court of Plateau State. The argument of the learned counsel for the appellants is that by receiving and stamping the documents assessed and filed at the High Court of Abia State, Umuahia but transmitted to the Registry of the High Court of Plateau State, Jos, where they were received and stamped, the documents were, by the rules of court filed at the High Court of Plateau State, Jos particularly as the registrar of that court did not reassess them or demand filing fees for same and the documents were from the government or government agencies that normally do not pay filing fees for processes.
From the facts of this case relevant to the determination of the issue under consideration which have not been disputed, the real issue remains: whether a court process assessed, filed and stamped at the High Court registry, Umuahia, Abia State and transmitted to the High Court registry, Jos, Plateau State where it was stamped received, was properly filed at the High Court of Plateau State. The lower court answered the question in the negative.
It should be noted that by the provisions of section 3(1) of the Civil Procedure Edict of Plateau State 1987, the High Court of Plateau State is empowered to follow only the provisions of the High Court Civil Procedure Rules of Plateau State by enacting as follows:-
“3 (1) The provisions contained in the rules set out in the schedule to this Edict and hereinafter called the Rules shall be the rules of civil procedure to be followed in the High Court of Plateau State.”
It follows therefore that to determine the issue as to what amounts to filing of processes in the High Court of Plateau State one has to be guided only by the provisions of the High Court of Plateau State Civil Procedure Rules and nothing else.. Definitely not the High Court Civil Procedure Rules of Abia State. Having agreed that what the High Court of Plateau State registry did upon the transmission of the. documents was to stamp same received, the question is whether that singular act amounts to filing of the processes. That takes us to a consideration of the provisions of Order 54(1) and (2) of the High Court of Plateau State Civil Procedure Rules. Order 54(1) makes it mandatory that fees set out in the first, second, third, fourth and fifth schedules thereunder shall be payable by any person commencing the respective proceedings or desiring the various services specified in the respective schedules.
Order 54(2)however states that:-
“The regulations set out in the sixth schedule shall be observed by all officers of court concerned with the rendering of services, and or’ collection of fees payable, under the provisions of the foregoing order.”
However, the sixth schedule referred to in Order 54(2) states as follows:-
“No summons, warrant, writ or subpoena shall except by special order of the court be issued until:-
(a) All fees payable thereon as contained in the appropriate schedule of fees shall have been paid; and
(b) An account thereof, initialed as received, shall have been set forth by the officer issuing the process both in the margin and in the counterfoil thereof’.
During oral arguments the learned Attorney-General of Abia State, Chief Okey Amaechi submitted that since there is no mention of notice of intention to defend in the sixth schedule no filing fee is chargeable for the filing of same. That submission is very beautiful but erroneous because if accepted, it means that every other processes of court not specifically mentioned therein can be filed in the court free of any charge, such as statement of claim, defence, motions and affidavits etc. In any event, by the provisions of the sixth schedule supra, only a special order of court can do away with the payment of filing fees in the High Court of Plateau State. I therefore agree with the lower court when it held at page 71 of these records, as follows:-
“From the combined provisions of section 3(1) of the Civil Procedure Edict, 1987 and Order 54 Rule 2 of the High Court of Plateau State (Civil Procedure) Rules and schedule six made thereunder, it seems a court process cannot be said to have been properly filed in the High Court of Plateau State unless the process is duly assessed and the fees payable are duly paid. Order 54 of the Rules does not exempt anybody from paying fees payable under the sixth schedule on court processes”.
It follows therefore that the processes having not been presented to the registry of the High Court of Plataeu State for assessment and filing but assessed and filed at the High Court of Abia State, Umuahia and transmitted to the High Court of Plateau State, Jos where it was received and stamped accordingly, the notice of intention to defend was never filed before that court in accordance with the provisions of the Plateau State High Court (Civil Procedure) Rules 1987and that the lower court is right in so holding.
On issue 2, learned counsel for the appellants referred to Order 23 Rule 3(1) and submitted that the only thing required of a defendant who intends to defend an action commenced under the undefended list is to “deliver” to the registrar a notice in writing that he intends to defend the suit together with an affidavit disclosing a defence on the merit not that the said notice of intention must be filed in the registry of the court; that Rule 4 of Order 23 cannot be invoked except the defendant failed to “deliver” the notice of intention to defend together with an affidavit disclosing the defence on the merit; that in the instant case, the appellants did deliver to the registrar the required processes which were duly received and stamped accordingly and as such the processes were valid and ought to have been taken into consideration before entering judgment for the respondent; that even if the processes were irregularly filed the court ought not to have dosed its eyes to them, relying on F.S.B vs IMANO LTD (2000) 7 SCNJ 65 at 69, and urged the court to resolve the issue in favour of the appellants.
On his part, learned counsel for the respondent submitted that by the combined effect of Order 23 Rule 3(1) and Order 54 Rules 1 and 2, processes to be used in a proceeding before the High Court of Plateau State must be assessed and filed at the Plateau State Registry and nowhere else and that a mere delivery of a document at the High Court of Plateau State Registry without assessment and
filing of same by payment of the necessary fees cannot be said to be a compliance with Order 23 Rule 3(1) and urged the court to resolve the issue against the appellants.
Actually, issue 2 has been resolved substantially during the consideration of issue 1 supra. I have already found and held that for a notice of intention to defend an action under the undefended list procedure of the High Court of Plateau State to be valid, the said notice of intention together with the affidavit disclosing a defence on the merit must be duly assessed and filed at the registry of the court. This clearly confirms what the lower court held on the issue. It therefore follows that a mere delivery of the two processes to and receipt thereof by the registrar of the court without assessment and filing of same is not enough to validate the processes. It follows therefore that the delivery talked about in Order 23 Rule 3(1) supra does not simply mean handing over of the processes to the registrar of the court but filing same at the registry of the court after due assessment and payment of the assessed filing fees by the defendant. Anything short of that will not satisfy Order 23 Rule 3(1) supra, and I so hold.
In the circumstance, I resolve Issue 2 against the appellants.
On issue 3, learned counsel for the appellants submitted that an issue of jurisdiction is fundamental to adjudication; that the appellants contend that the High Court of Plateau State, Jos has no jurisdiction to entertain the matter since the contract was entered at Umuahia, Abia State and ought to have been performed in Lagos and not in Jos; that the Court of Appeal did not satisfactorily resolve the issue of jurisdiction as raised in this suit; that it is the claim of the plaintiff that vests jurisdiction on a court to entertain a matter, relying on Abu us Odugbo (2001) 7 SCNJ 262 at 267; that the lower court was in error when it resolved the issue of jurisdiction on the affidavit of the respondent alone and urged the court to resolve the issue against the respondent and allow the appeal.
On his part, learned counsel for the respondent submitted that the lower courts, without evidence to the contrary were right in relying on the facts deposed to in paragraph 5 of the respondent’s affidavit in support of the claim to hold that the trial court has the jurisdiction to entertain the matter as it is the claim of the plaintiff that determines the jurisdiction of the court, relying on Adeyemi vs Opeyori (1976) 9-10 S.C. 31 at 49 and urged the court to resolve the issue in favour of the respondent and dismiss the appeal.
I have already affirmed the decision of the lower court in respect of issues 1 and 2 supra, as it is a fact that the appellants failed to file their notice of intention to defend the suit together with an affidavit disclosing a defence on the merit in accordance with the provisions of the Plateau State High Court (Civil Procedure) Rules 1987,as a result of which the trial court had no alternative, under Order 23 Rule 4 of the Rules of that court, than to enter judgment on the claim in favour of the respondent.
The present issue is whether the trial court had the jurisdiction to entertain the matter as the same is said by the appellants to be based on contract allegedly entered in Abia State to be executed or carried out in Lagos. It should, however, be noted that in view of the failure of the appellants to file the necessary processes disclosing their defence on the merit, it becomes obvious that the necessary facts to support their defence as to the jurisdiction of the trial court are not before the courts. It is settled law that jurisdiction is determined by the nature of the plaintiffs claim before the court.In the instant case the plaintiffs claim is for a liquidated money demand under the undefended list procedure which demands the filing of an affidavit in support of the claim, which was done in the instant case.
In paragraph 5 of the supporting affidavit, the respondent deposed as follows:-
“5. The said job was carried out in Jos and by Delivery Note dated the 15th September, 1992, the 2nd defendant through its agent collected the original copy of the Japanese Aid Approval totaling $2,000,000US Dollars by the Japanese Government from the plaintiffs in Jos. A copy of the Delivery Note is hereto attached and marked Exhibit “B”.”
From the above paragraph and in the absence of anything to the contrary, it is clear that the trial court has the jurisdiction to hear and determine the suit as constituted and, I hold the further view that the lower court is right in holding at page 62 of the record inter alia as follows:-
“Since it is not obvious on the face of the claim and since the claim was brought under the undefended list procedure and supported by affidavit and exhibits it appears to me on the authorities of Adeyemi vs Opeyori (1976) 9-10 S.C 31 at 51-51 and Anthony vs The Secretary of Assemblies of God Mission, Ewu Ishan (952) 14 NACA 185 at 186, that the learned trial judge would be right to rely on the affidavit evidence in support of the claim for the purpose….
As indicated earlier in this judgment, it seems to me from a close study of the affidavit in support of the claim and Exhibits “A”, “B”, “C1” and “C2″ attached thereto, the contract between the parties was entered into by the parties in Jos and that the respondent also performed its own part of the contract in Jos, Plateau State”.
I am of the considered view that the above holding ‘cannot be faulted and is consequently affirmed by me. I therefore resolve the issue also against the appellants. All the issues haven been resolved against the appellants, it is obvious that the appeal is without merit and is accordingly dismissed by me with costs assessed and fixed at N50,000.00 Fifty Thousand Naira) against the appellants, in favour of the respondent.
Appeal dismissed.
SC.121/2003