BY LAWRENCE OGUAMA

INTRODUCTION

Litigation is one of the core ways of resolving disputes across the world. It is often referred to as the last resort in the conflict resolution process. The process of litigation involves the parties submitting themselves to a Court with requisite jurisdiction to entertain their disputes upon an action commenced by one of them.

The jurisdiction of a Court is fixed by the statute creating the Court[1] – it is the power the Court has to adjudicate or hear and determine issues presented to it by litigating parties.[2] A party who commences an action before the Court is generally called the Plaintiff[3] whereas the person against whom the action is filed is called the Defendant.

The Civil Procedure Rules of the various State High Courts and the Federal and National Industrial Court provides for the mode of commencing different types of suits before them.[4] Where a suit involves contentious facts, it is required to be commenced by a writ of summons[5] and the parties are expected to file pleadings.[6] The Rules of Courts require a writ of summons to, among other things, be accompanied by a Statement of Claim. The Statement of Claim set outs the facts relied on by the Plaintiff as well as the Claims he is making against the Defendant. In response to the Statement of Claim, a Defendant is expected to file a Statement of Defence.

However, there are circumstances in which the Defendant may also have a claim(s) against the Plaintiff and may want to make his claims against him. Ordinarily, he should file a separate and independent action against the Plaintiff for this purpose; but for convenience, the Rules of Court allows the Defendant to counter-claim against the Plaintiff in the same suit by filing a “Statement of Defence and Counter-claim”. This article considers the question whether a Defendant in counter-claiming against the Plaintiff can rely on facts which emerged during the pendency of the suit.

Nature of a Counter-claim

By nature, a Counter-claim is a cross-action raised in the Defendant’s Statement of Defence. A Counter-claim is a distinct action; it is separate and has a life of its own[7] as it survives even where the substantive action is struck out or dismissed by the Court.[8] In Lewis Faulk Ltd v Jacobwitz[9] the English Court while evaluating the nature and effect of a Counter-claim held that a Plaintiff against whom a Defendant files a Counter-claim may himself counter-claim against the Counter-claim.

The nature of a Counter-claim and its importance has received several judicial pronouncements that the law is now considered settled on its effects and/or implications. Holding to this end, the Court of Appeal in Ogiren v. Olufunmilayo & Ors[10] concluded that “there is no need citing any authority in support of this well known principle of law because there is a rain of authorities on it.”

Unlike a Set-off[11] which is considered as a shield used by a Defendant to limit his “monetary” liability to the Plaintiff, a Counter-claim is not considered only as a shield but also as a sword[12] and the various Rules of Courts makes it available for “any claim” that a Defendant may have against the Plaintiff whether or not the claim arises from the same or series of transactions.[13] For all intent and purposes a Counter-claim is therefore considered by the Courts to be a distinct action on its own. Thus, in Akintola v. Vice Chancellor[14] it was held that a Counter-claim, being a separate action, the Court must have a separate judgment for it.

A prequel to the foregoing principle is that, being a separate action, the Defendant to the Counter-claim (the Plaintiff) has to file a defence to the Counter-claim otherwise the facts contained in it would be deemed admitted. In light of this, in Dike & Ors v Aduba & Anor[15] the Court of Appeal in considering the implication of the Defendant’s Counter-claim where no reply and defence was filed to it, held that all allegations in the Counter-claim were rightly deemed admitted by the trial Court.

However, the foregoing rule does not apply to actions for declaration of title to lands as in such suits a party succeeds based on the strength of his case and not on the weakness of the opponent’s. Therefore, even if no defence is filed to a Counter-claim in a suit for declaration of title to land, except the Counter-claimant proceeds to prove his case, no judgment can be entered for him. The reason for this position is this: by nature, a judgment entered in the absence of a defence (pleadings) is a default judgment and the Courts do not allow or apply default judgments in land matters – as a matter of fact, the Courts avoid them. In this manner, the Court of Appeal, Per Adamu JCA in Inyang v Chukwuogor[16] relying on the Supreme Court decisions in Usikaro v Usekiri Land Trustees[17] and Aborishade v Abolarin[18] held that:
It is trite that in land matters default judgments should be avoided by the Courts. Even if there is a default of appearance or pleadings as in the instant case, it is essential that the plaintiff or applicant must lead evidence in proof of his title or claim so that the court may assess its worth and his entitlement to the declaration of title in his favour.
Thus, in FADA v Jema’a Local Government & Ors[19] the Plaintiff sued the Defendants for a declaration of title to certain pieces of land. The Defendants filed a Statement of Defence and Counter-claim which the Claimant/Appellant saw no need to joins issues with. The trial Court held that by failing to reply to the allegations contained in the Counter-claim, the Plaintiff/Appellant had admitted them. Accordingly, the Court entered Judgment for the Defendant as per the Counter-claim.

Dissatisfied with the trial Court’s Judgment, the Plaintiff appealed to the Court of Appeal. At the Court of Appeal the issue placed before the Court was whether the failure of the Plaintiff/Appellant to had filed a reply and defence to the Defendant/Respondent’s Statement of Defence and Counter-claim justified the trial Court in entering judgment for the Defendant. The Court in disagreeing with the trial Court’s judgment held as follows:

From the authorities, the implication of a failure to file a Reply to such a pleading is only that the Appellant has admitted the pleadings. See A.G. ABIA STATE V. A.G. FEDERATION (2005) 12 NWLR Part 940 p.452. That definitely is not the same thing as the Appellant admitting the claim of ownership of the land. As stated by the Supreme Court in AKPAJI V. UDEMBA (2009) 6 NWLR PART 1138 p. 545 “where a plaintiff fails to or neglects to file a defence or a reply to a counter-claim, it is of no moment and it is not fatal to the claim. (Emphasis supplied)

Going further, the Court of Appeal arrived at a finding that the Appellant had established good traditional history in proving his title to the land before the trial Court. Consequently the Court decided that the trial Court’s judgment ought to have been resolved in his favour. On the basis of this, the Court resolved the appeal in the Appellant’s favour.

Raising Fresh Cause of Action vide a Counter-claim

The use and importance of a Counter-claim can by no means be over-emphasized; however, the scope of its application is limited to the extent of facts existing as at the time the plaintiff filed the writ of summons. Any fact forming the basis of a Counter-claim which arose after the date of filing of the substantive action cannot be allowed by the Court.

In General Yakubu Gowon v Mrs. Edit I. Ike-Okongwu & Ors[20] the Plaintiffs, Mrs. Edit I. Ike-Okongwu and her son, Musa Gowon commenced an action against General Gowon and sought a declaration that the Defendant (Gowon) was the father of Musa Gowon (the second Plaintiff); the sum of N10,000.000.00 (Ten Million Naira) as damages for libel contained in a publication on The Prime People magazine; and the sum of N250, 000.00 (Two Hundred and Fifty Thousand Naira) as educational expenses and upkeep of the second plaintiff. The Defendant in his Statement of Defence denied the allegations and later sought to amend the Statement of Defence and include a Counter-claim.

The subject of the Counter-claim centres around a publication made by the Plaintiffs on the Hint magazine. This publication was made after the Plaintiffs had instituted the suit and pleadings exchanged by the parties. The Defendant’s motion for leave to amend the Statement of Defence and to include the Counter-claim was refused by the trial High Court and the Court of Appeal. Particularly, the Court of Appeal in refusing the Defendant/Appellant’s appeal held that:

It is the law that an amendment relates back to the original pleading and the amendment sought to be filed in this case seeks to incorporate a cause of action which arose after the statement of defence was filed, did not exist. Such an amendment, generally, should not be allowed. (Sic)

Dissatisfied with the judgment of the Court of Appeal, the Defendant (therein Appellant) further appealed to the Supreme Court. At the Supreme Court the issue was “whether the Defendant should be granted leave to amend his Statement of Defence by joining to it a Counter-claim based on an entirely fresh cause of action which arose after the action had been started”. The Supreme Court in relying on the English case of Eshelby v Fed. European Bank[21] held that the Counter-claim cannot be allowed as the cause of action (defamation) did not accrue to the Defendant/Appellant as at the time the Plaintiffs/Respondents’ action was filed but arose subsequent to it. The Court Per Katsina-Alu, JSC held that:

Just as the plaintiff cannot be allowed to bring into his case an entirely fresh cause of action which arose after the action had been started, a defendant will not be allowed to raise by way of an amendment to the Statement of Defence a Counter-claim in respect of a cause of action that arose subsequent to the issue of the writ.

The decision of the Supreme Court in the Gowon’s case has been followed by the Court of Appeal in a number of cases – the Courts considered bringing such fresh facts as beginning a new cause of action. Thus, in Olusi & Anor v Obanobi & Ors[22] the Court of Appeal deprecated the action of the trial High Court in pronouncing on a Counter-claim which consisted of a cause of action which was not before the trial Court and was in fact not in existence at the time the originating processes in the suit were filed. See also the case of Joint Project Development Company & Ors v. Alhaji Lateef Akinlade[23] where the Court of Appeal in arriving at its decision restated the decision of the Supreme Court in the Gowon’s case.

Other Limitations of a Counter-claim

Apart from raising fresh cause of actions, other limitations also exist on the rights to the use of a Counter-claim. One of such limitation bothers on the capacity of the Defendant and the jurisdiction of the trial Court.

According to Nwadialor, for a Defendant to use a Counter-claim in an action, the subject of the Counter-claim must be one in which he must be able to sue as a plaintiff; [24] where this capacity is lacking a Counter-claim will fail. In addition, the trial Court must have the jurisdiction to hear and determine the claim in the Counter-claim[25]. Consequently, where the subject of the Counter-claim falls outside the jurisdiction of the Court, a Defendant cannot rely on a Counter-claim but would rather need to file a separate action before the Court with the requisite jurisdiction to entertain the cause of action.

Another limitation to a Counter-claim, though an independent action on its own, is the fact that where the substantive suit is found to have been incompetent ab initio – say on grounds of an invalid writ-, a Counter-claim filed in response to it can no longer stand. This issue came up for determination before the Court of Appeal in Aberuagba & Anor v Oyekan & Ors.[26] In this case the originating processes (the Plaintiff’s writ of summons) were defective, to wit not signed by a legal practitioner in accordance with the rule in Okafor v Nweke.[27] However, the trial Court proceeded to hear the suit and the Counter-claim which was filed following the suit and at the conclusion of evidence entered Judgment in favour of the Counter-claimant. Being dissatisfied with the Judgment, the Plaintiff appealed to the Court of Appeal on the ground that since the original suit was incompetent and void there was nothing the Defendant’s Counter-claim was standing on. Counsel argued that by the decision in Mcfoy v UAC[28] “if an act is void, then it is in law a nullity. It is not only bad, but incurably bad”. In agreeing with the Appellant’s submissions, the Court of Appeal, Per Barka JCA held thus:

To insist that the Counter-claim in the circumstance can be prosecuted, when there is no writ or statement of claim originating the action, amounted to initiating a claim by way of a counterclaim, as against the four known methods of Commencing an action, to wit, writ of Summons, originating summons, originating motion and petition. Obviously the cases cited by the three set of respondents to the effect that a counter claim is a distinct action from the main claim, and can rightly be proceeded with, even where the main claim is withdrawn, struck out or dismissed, must be understood in the circumstance of the cases in which they were determined, and are inapplicable to the instant case.

CONCLUSION

A Counter-claim though an important pleading which for convenience is allowed to be tried together in the substantive suit, does not carry with it a right to bring along new facts emerging after the originating process was taken out by the plaintiff; the pleading is limited to facts which existed as at the time the action was filed and no more.

Therefore, if a Defendant intends to make a claim based on facts that emerged after the original writ was filed, he must institute a fresh suit embodying this new cause of action. This is because and as the Supreme Court noted in the Gowon’s case above, to bring in such a fresh cause of action only mean one thing: starting a new cause of action, and one which did not accrue, and therefore could not have been sued upon, at the time the action was brought.

*LL.B, BL, Associate at E&P Legal, Lagos, Nigeria; E-mail: [email protected], Tel.: 234(0)8176424361.

[1] See Section 6(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) vis-à-vis Chapter VII of the same Constitution.

[2] The jurisdiction of the Court is determined by the claims as disclosed in thePlaintiff’s Statement of Claim and the Writ of Summons. See Onuorah v. KRPC Ltd (2005) 6 NWLR (Pt. 921) 393

[3] This is the position in actions commenced by writ of summons. The nomenclature “Plaintiff” has however, been changed to “Claimant” in some States of the Federation following the amendment of most High Courts Civil Procedure Rules.

[4][4] See for instance Order 5 of the High Court of Lagos State (Civil Procedure) Rules , 2019

[5] See Doherty v Doherty (1968) NMLR 241; Order 5 Rule 1(1) High Court of Lagos (Civil Procedure) Rules, 2019

[6] Pleadings are written statement of facts filed and served by each party in a case stating the facts relied on for purpose of establishing a case or defence.

[7]Orojo V. Adeniyi (2017) ALL FWLR (Pt. 883) 1433 at 1448, Paras G-C Per Peter-Odili JSC; Onu V. Nwuba (2016) All FWLR (Pt. 864)1805 at 1839-1840, Paras. H-A (C.A).

[8] Duru V. Ladipo (2016) ALL FWLR (Pt.840) 1348 at 1372, Para A (C.A)

[9] (1994)Ch. 64 cited in D.I Efevwerham, Civil Litigation in Nigeria, , 2nd Ed (Snap Press Nig. Limited) page 272

[10](2015) LPELR-24295(CA). See also the cases of Ogbonna v. A – G Imo (1992) 1 NWLR (Pt.229) 647, Dabup v. Kolo (1993) 9 NWLR (Pt.317) 254 and Obmiami Brick & Stone (Nig) Ltd v. A.C.B. Ltd (1992) 3 NWLR (Pt.229) 260

[11] A Set-off is a monetary claim by a Defendant against the Plaintiff which the Defendant pleads in his defence against an equally monetary claim made by the Plaintiff. See Aremu v Chukwu (2011) LPELR – 3862(CA)

[12] See Order 19 Rule 6 High Court of Lagos State (Civil Procedure) Rules, 2019; Rikichi & Ors. V. Gambo (2019) LPELR -47676 (CA), Per Tur JCA

[13] See Amata v. Omofuma(1997) NWLR (Pt. 485)93 at 108 paras F-G

[14] (2004)11 NWLR (PT. 885)616

[15] (2016) LPELR -41035 (CA)

[16] (2007)All FWLR (Pt. 344) 165 at 183-184 Paras H-B (CA)

[17] (1991) 2 NWLR (Pt. 172) 150

[18] (2001)2 NWLR (Pt. 696)63 at 71

[19] (2017) LPELR -43139 (CA)

[20] (2003)6 NWLR (PT. 815) 38 (SC)

[21] (1931) All E.R. Rep. 840

[22] (2014) LPELR – 22089 (CA)

[23] (2014) LPELR–22559(CA)

[24] Nwadialo, F., Civil Procedure in Nigeria, 2nd Edition (University of Lagos Press, 2000) at page 394.

[25] ibid

[26] (2018) LPELR-43669(CA)

[27] (2007) 10 NWLR (Pt.1049) 52. The rule in this case stipulates that a Court process must be signed by a legal practitioner and not a law firm.

[28] (1962) A.C 152 which was also adopted by the Court of Appeal in Fatai Sule Dakan & Ors v. Alhaji Lasisi Asalu & Ors (2015)13 NWLR (Pt. 1475) 47 at 55