Pastor James Nduka & Ors V. Alh. Abdulmumuni Sule (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment)

The Appellant instituted an action against the Respondent claiming thus:

“1. A declaration that the Plaintiffs are the lawful and beneficial owners of the individual plots of land where they partly built individual dwelling houses and occupy same located at New Extension Area near water board pipe line U/Pama area of Kaduna.

2. A declaration that any purported Certificate of Occupancy, copy of judgment of any lower court if any including any title documents purportedly or allegedly being held by the defendant over the disputed plots of land is or are invalid, null and void having been irregularly obtained or issued and an order of this Court setting same aside.
3. An injunction restraining the defendant by himself, his agents, privies or assigns through whosoever, from harassing, tempering with, trespassing into or in any manner whatsoever disturbing the Plaintiffs quite exclusive possession, control and ownership over the Plaintiffs aforesaid plots of land in dispute.
4. An order that the Plaintiffs are entitled to specific and general damages to the tune of Five Million Naira (N5 Million) only as a result of the defendant’s acts of trespass on the Plaintiffs said plots.”

The issues framed by the Appellants in their Brief of Argument are:

“1. Whether the lower Court had jurisdiction, to have entertained the Counter-Claim.

2. Whether the judgment of the lower court is right in law.”

The Respondent, formulated one issue and cited the second issue phrased by the Appellants. They are:

“1. Whether the Counter-Claim was proper and competent before the trial Court.

2. Whether the judgment of the lower Court is right in law.”

In respect of issue No. 1, learned Counsel for the Appellants, P. K. Audu Esq.; submitted that it is settled law that payment of Court fees for any claim before the Court is a condition precedent for adjudication, this he buttressed by the cases of Onuogbujor v. Okoye (2006) 1 NWLR (Pt. 424) page 252 at 292, Fada v. Naomi (2002) 4 NWLR (Pt. 757) page 318 at 334 – 335 and Ajuwa v. S.D.P.C. (Nig) Ltd (2008) 10 NWLR (Pt. 1024) page 64 at 92. He stressed that there is no proof on the face of the processes filed by the Respondent that the Respondent paid the Counter-Claim filed by him. It was contended that since no filing fees were paid by the Respondent for his Counter-Claim, the Counter-Claim was not proper before the Court and as such the Court lacked the jurisdiction to have entertained the Counter-Claim, therefore, the judgment delivered therein is a nullity and the ruling delivered by the lower Court refused to set aside the said judgment is erroneous. He then urged that this issue be answered in the negative and the appeal to be allowed.

On issue No. 2, learned Counsel submitted that the Respondent was unable to prove better title, that the judgment of the lower Court in the Counter-Claim cannot stand vis-‘a-vis the evidence led by the Respondent in respect of the same. He pointed out this since the Appellants have been in occupation of the land for many years, having built houses therein before the commencement of the suit, they are presumed to be the owners of the plots they are occupying and the Respondent has the burden to rebut that presumption as stipulated by section 145 of the Evidence Act, 2004. He submitted that the Respondent was unable to prove better title, and therefore, urged this Court to allow this appeal, set aside the judgment of the lower Court and dismiss the Respondent’s Counter-Claim.

Dealing with issue No. 1, learned Counsel for the Respondent, Oladipo Tolani, Esq.; pointed out that the appellant’s contention with respect to payment of filing fees is misconceived, in that the Respondent paid the necessary filing fees for the Counter-Claim as evidenced by the Kaduna State Revenue Receipt No. 000629554. He argued that the issuance of the said Receipt number which the trial Court found to be regular in the said suit raised a presumption that the Respondent paid the requisite filing fees for the counter-claim.

He stated that although the Appellants endeavoured to rebut the presumption by the affidavit deposed to by one Hajiya Halima, but the trial Court found that the said Hajiya Halima is not the only Commissioner for Oaths attached to the lower Court. He invoked the provisions of section 163(1) of the Evidence Act, 2011 and submitted that in the absence of any evidence of fraud or forgery there is a presumption of regularity in favour of the Respondent that having been issued with an official receipt, he has paid the necessary filing fees. He emphasized that by Order 17 Rule 7(2) of Kaduna State High Court (Civil Procedure) Rules, 2007, fraud is cause which ought to be specifically and sufficiently pleaded and established beyond reasonable doubt by virtue of section 135 (1) of the Evidence Act, 2011.

He relied on the decisions in Buhari v. Obasanjo (2003) 17 NWLR (Pt. 850) page 423 at 477 – 478 paragraphs H – B and Sande v. Abdullahi (1989) 4 NWLR (Pt. 116) page 387 at 424 paragraphs E – F, per Karibi-White, J.S.C., and contended that even if the payment was not indicated or endorsed on the face of the process, a litigant who coupled with the Rules by paying the filing fees should not be penalized for the mistake or inadvertence of the officials of the Court, and failure to so endorse, is a mere irregularity that does not vitiate the processing.

Learned Counsel further stressed that the Appellants participated in the proceedings at the trial Court, they did not raise any objection to the alleged irregularity before judgment was delivered and have not shown any miscarriage of justice suffered by them as a result. He then urged this Court to resolve issue No. 1 in favour of the Respondent.

With regard to issue No. 2, learned counsel, he argued that it is incompetent in that it was purposely distilled from the omnibus ground, because an omnibus or general ground of appeal cannot be used to raise specific issues of law for determination. He relied on Calabar East Co-op v. Ikot (1999) 14 NWLR (Pt. 638) page 225 at 245-246, paragraphs H – C, where it was held that omnibus or general ground of appeal is not at large and cannot be used to raise issues of law.