Alloysius Akpaji V. Francis Udemba (2009)

LAWGLOBAL HUB Lead Judgment Report

F. OGBUAGU, J.S.C

This is an appeal against the decision of the Court of Appeal, Enugu Division (hereinafter called “the court below”) delivered on 25th April, 2002 affirming the decision of the trial court delivered on 28th June, 1999 – Per Nguta, J. (as he then was) dismissing the Plaintiff/Appellant’s claim and granting the counter-claim of the Defendant/Respondent.

Dissatisfied with the said decision, the Appellant has appealed to this Court on six (6) Grounds of Appeal. Briefs were filed and exchanged. The Appellant formulated four (4) Issues for determination which read as follows:

“1. Whether the Lower Court and the Trial High Court has (sic) Jurisdiction to hear and enter Judgment on a Counterclaim when the condition precedent to the filing of a valid claim being payment of prescribed fees was wanting and whether by section 16 Court of Appeal Act the Court of Appeal is empowered to validate the said Judgment retrospectively or retroactively by an order to pay the said filing fees on the claim 3 years ex post the Trial Court Judgment (sic) thereon.

2. Whether ‘a special order of the Court on a process on which no fee has been paid, virtue (sic) of order 6 Rule 5 of the High Court Rules of Anambra State 1988 Applicable in Ebonyi State and by section 16 Court of Appeal Act, exempted and can avail a party who though made aware of irregularity, defended his steps and where no evidence on record of any mistake on the part of Court officials.
3. Whether upon a proper direction on the evidence and on the evaluation of credible evidence adduced, the Defendant/Respondent was entitled to Judgment on his Counterclaim (albeit a nullity) on the mere failure (or mistake) of filing a Defence to some by the Plaintiff and in spite of controverting evidence in proof of said counterclaim as opposed to plaintiff/Appellant who led credible evidence on his claims”.

On his part, the Respondent formulated two (2) issues for determination, namely,

“3.1 Whether or not it was proper in view of 5.16 Court of Appeal Act for the lower court to retroactively order the Respondent to pay filing fees on his counter-claim in this appeal. This issue arose from grounds 1,2,3,& 4 of the appellant’s grounds of appeal.

3.2 Whether the Court of Appeal was right in affirming the findings of fact made by the trial High Court dismissing the Appellant’s claim and awarding judgment to the Respondent on his counter-claim. This issue arose from grounds 5 & 6 of the appellant’s grounds of appeal.”

In my respectful view, the issues of the Respondent, appear to me, apt for the determination of the appeal. The facts of the case appear to me not necessary to be set out by me having regard to issues 1 and 2 of the Appellant and issue 3.1 of the Respondent. However, having regard to issue 3 of the Appellant and issue 3.2 of the Respondent, I will, even briefly state the facts. The parties were good or bosom friends. Both of them, entered into a written Agreement titled a “LOAN AGREEMENT”. It is Exh. “A” prepared by a lawyer and it is a free loan without interest. For the avoidance of doubt; the terms of the Agreement, are as follows:

“NOW THIS AGREEMENT WITNESS that:

1. The Borrower hereby acknowledges the receipt of the sum of N1,484,535 (One million, four hundred and eighty four thousand, five hundred and thirty five Naira) from the lender.
2. The said sum is to enable the Borrower meet the cost of repairs of the aforementioned vehicles.
3. The Borrower shall repay the loan in monthly installments depending on the proceeds accruing from the Commercial use of the Vehicles.
4. On payment, the lender shall issue a receipt to the Borrower acknowledging receipt of sum and the latter shall be deducted from the outstanding sum.

5 The parties shall meet every three months to review the operation of this agreement.

6. Any dispute arising from this agreement shall be referred to arbitration comprising of four men to be nominated by the parties.

The Respondent, by two instalmental payments which were receipted for by the Appellant, (Exhibit “B” and “C”), made a total refund of N1,074,805 (One million, seventy four thousand eight hundred and five naira) leaving a balance of N411,730.00 (Four hundred and eleven thousand seven hundred and thirty naira). The Appellant was appointed as a Manager at his instance, in respect of two Mercedes Lorries owned by the Respondent who was a businessman. The Appellant, was authorised by the Respondent to employ drivers and conductors for the two vehicles and the service of the vehicles and was to render account to the Respondent. The Appellant was to invest the proceeds from the two vehicles. When in 1996, the Respondent demanded from the Appellant, an account of the proceeds, the Appellant claimed that there was no credit balance and that in fact, he had spent his own money on repairs of the vehicles which he put at N1,484,535.00. It was at the instance of the Appellant, that Exhibit “A”, was made. When the Appellant thereafter rendered an account amounting to N550,000.00, the Respondent told him to deduct the balance of N411,730.00 and to pay over to him, the sum of N138,270.00 and also issue him with a receipt in respect thereof. The Appellant did not comply. When the Respondent, insisted on the said balance of N138,270.00 and the receipt in respect of N411,730.00, the Appellant sued him under the Undefended List. The Respondent filed a Notice of Intention to Defend the suit. The trial court later, transferred the suit, to the general cause list for hearing. Pleadings were filed and exchanged. The Respondent in his Statement of Defence counter-claimed. I note that the Appellant did not file a defence or Reply to the counter-claim.

At the trial, the Appellant testified and did not call a witness. The Respondent testified and called two witnesses. After the addresses of learned counsel for the parties, the learned trial Judge, in a well considered Judgment, dismissed the Appellant’s claim and entered Judgment for the Respondent in respect of the counter-claim. The Appellant appealed to the court below which also dismissed the appeal and affirmed the Judgment of the trial court. It also, pursuant to Section 16 of its Rules, ordered that appropriate fees for the counter-claim, be paid, hence the instant appeal.

When this appeal came up for hearing on 18th November, 2008, the Appellant and his learned counsel were absent although served. The learned counsel for the Respondent – Ugwuanyi, Esqr, adopted their Brief and urged the Court, to dismiss the appeal. Pursuant to Order 6 Rule (6) of the Rules of this Court, the Appellant’s appeal was deemed to have been argued. Judgment was therefore reserved till to-day.

In dealing with the merits of this appeal, I note in respect of Issues 1 and 2 of the Appellant and issue 3.1 of the Respondent, that during the pendency of the appeal in the court below, the Respondent, filed an application dated 26th March, 2001, for an order directing the Respondent to pay the filing fees for the counter-affidavit which according to him, was inadvertently omitted in the correct or appropriate assessment by the Registrar of the trial court. In paragraphs 10, 11, 12 and 13 of the supporting affidavit, he swore that the omission for the proper or correct assessment, was not his but that of the Registry/Registrar. That he only became aware of the incorrect assessment, when the appeal in the court below, came up. I note that what was assessed by the Registry and paid for, is N37:00 (thirty seven naira) and this amount, was for the said Statement of Defence containing the Counter-claims in paragraph 13 thereof. The fault for not adverting his mind to the counter-claims, was surely and certainly, that of the Registrar or Registry and not that of the Respondent. The Appellant filed a counter-affidavit. The court below at page 165 of the Records, found as a fact that, “the record shows that the fees assessed by the Registry were paid fully”.