Aloysius Akpaji V. Francis Udemba (2000)

LawGlobal-Hub Lead Judgment Report

UBAEZONU, J.C.A. 

This is an appeal from the High Court of Abakaliki Judicial Division of Ebonyi State presided over by Ngwuta, J. It may rightly be said that this appeal, indeed the suit, arose from lack of honesty on the part of one of the parties who were erstwhile friends. The transaction which landed the two friends in court arose out of an alleged friendly loan of N1,484,535 made by the plaintiff/appellant to the defendant/respondent. While the case of the appellant is that the sum of N411,730 was still outstanding, the case of the respondent was, and perhaps still is , that he had not only paid the entire loan but that the appellant was owing him the sum of N138,270. The appellant in consequence sued the respondent for N411 ,730. The respondent on the other hand counter-claimed for N138,270. The action was originally filed in the undefended list cause. The defendant/respondent filed a notice of intention to defend. The learned trial Judge very rightly transferred the suit to the general cause list, unlike most Judges these days who would opt for a short-cut procedure and proceed under the undefended list despite the facts contained in the affidavit in support of the notice of intention to defend. Pleadings were accordingly filed. The matter went into full scale trial at the end of which the trial Judge dismissed the claim and found for the counter-claim. Dissatisfied with the said judgment, the plaintiff/appellant has appealed to this court.

The appellant in his brief of argument formulated three issues for trial. They are as follows:-

1. Whether the trial court has 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.
2. Whether the trial Judge having admitted exhibit A the loan agreement without any objection of defence as well (sic) exhibits Band C the receipted payment thereunder, was right to refuse the claim of the plaintiff/appellant especially where there is no other evidence or document evidencing any further payment by the defendant.
3. Whether upon a proper direction on the evidence, the lower court was right to have held that the defendant proved his case and counterclaim (albeit a nullity) and was entitled to judgment.

Arguing his first issue, learned counsel contends that the lower court had no jurisdiction to entertain the counter-claim in view of the fact that the necessary fee for the counter-claim was not paid.

He concedes that the issue was not raised in the trial court but submits that being an issue as to jurisdiction of the court, it can be raised at any time including on the appellate level. He refers to Galadima v. Tambai (2000) 11 NWLR (Pt. 677) 1 at 17-18; A.-G., Oyo State v. Fairlakes Hotels Ltd. (1988) 5 NWLR (Pt. 92) 1. He further submits that the payment of the filing fee is a condition precedent to the exercise of jurisdiction. He relies on Onwugbufor v. Okoye (1996) 1 NWLR (Pt. 424) 252 at 291-292. It is submitted that the issue of non-payment of fee for the counter-claim was first raised in the argument of counsel at the hearing of the motion for stay of execution but was not acceded to by the learned trial Judge.

On issue No. 2 learned counsel argues that once exhibits A, B and C were admitted, the appellant shall be entitled to judgment on the balance of the loan. He submits that in his statement of claim the appellant pleaded payment of the sums of N472,805 and N600,000 as per exhs. Band C leaving a balance of N411,730 which is claimed in the suit. The case of the respondent however is that the appellant tendered a sum of N550,00 but that the respondent asked him to deduct the balance of N411,730 from the said sum and pay him the balance of N138,270.

Issue No.3 deals with proper evaluation of the evidence before the court. Counsel argues that irrelevant matters were introduced by the learned trial Judge into his judgment while obvious contradictions between the evidence of the respondent and his pleadings were glossed over. Furthermore, contradiction in the evidence of the respondent and his witnesses in chief and under cross-examination were not considered. Counsel referred to and relied on Emegokwue v. Okadigbo (1973) 4 SC 113; George v. Dominion Flour Mills Ltd. (1963) 1 All NLR 71 at 77, (1973) 2 SCNLR 117; Mogaji v. Odofin (1978) 4 SC 91 at 93; Ozibe v. Chief Aigbe (1977)7 SC 1; Chief Okpiri v. Chief Jonah (1961) All NLR 112, (1961) I SCNLR 174.

The respondent also filed a brief of argument and therein formulated 3 issues for determination thus:-

1. Whether the anormally in the assessment of court fee inadvertently created by the registrar of court below could apply to the prejudice of the respondent’s case.
2. Whether paragraph 6 (Arbitration Clause) of exhibit “A” is mandatory and condition precedent to institution of proceeding in court, non-compliance to which is fatal.
3. Whether it is safe for court to hold that the respondent employed the appellant to manage his (respondent’s) two motor vehicles, having regard to documentary and oral evidence of parties and witnesses.

Arguing his issue No. 1 learned counsel for respondent submits that the non-assessment of the fee to be paid on the counterclaim is not a default on the part of the respondent. The respondent cannot therefore be penalised for it. There was no injury caused to the other party. He refers to Federation Board of Internal Revenue v. Babaoye (1974) I FRCR 4; Jeric (Nig.) Ltd. v. U.B.N Plc. (2000) 82 LRCN 3259 at 3264, (2000) 15 NWLR (Pt. 691) 447. Counsel submits that Onwugbufor v. Okoye (supra) does not apply and is distinguishable from the present case.

On issue No.2, it is submitted that exhibit A, the loan agreement, contains an arbitration clause. Such a clause is mandatory in any agreement. Non-compliance with it is fatal to the hearing of the case- see Yahaya Rabo v. Leadway Assurance Co. Ltd. (1975) NNLR146.

Arguing the issue No.3, it is submitted that the issue concerns the question of proof of the claim and/or the counter-claim and the proper construction of exhibits A, Band C. counsel submits that the exhibits are ambiguous. He points out what he considers as ambiguities in the exhibits.

It is contended by the respondent that the appellant did not file a reply to the counter-claim. It must therefore be taken that the appellant admits the counter-claim. Counsel relies on Order 11 rules 13 and 14 of High Court Rules of Anambra State 1988; Seepc Nigeria Ltd. v. Pan Bisbilder (Nig) Ltd. (1992) 7 NWLR (Pt. 252) 2; Jeric (Nig.) Ltd. v. U.BN Plc. (supra)

At the hearing of the appeal both counsel adopted their respective briefs and urged the court to allow or dismiss the appeal as the case may be.

Before I go into the merits of this appeal, let me say that the facts of this case are unfortunate. It shows betrayal of the trust between two long standing friends. One of the parties to this appeal must be a shameless liar. Whatever may be the result of this appeal, the pangs of conscience of the liar must continue to prick him. I say no more.