By Okoene, Chism Augustine

BACKGROUND

A Counterclaim is a claim for relief asserted against an opposing party after an original claim has been made, especially a defendant’s claim in opposition to or as a set off against the plaintiff’s claim.[1] Examples: after a bank had sued a customer for an unpaid debt, the customer sues back (counterclaims) the bank for fraud in procuring the debt.

Two cars collide, after one person sues for damage to her car and personal injuries, the defendant counterclaims for similar property damage and personal injury claims. The court will sort out the different claims in one lawsuit.[2]

NATURE OF COUNTERCLAIM

A counterclaim is by nature, a cross-action raised in the defendant’s statement of defence against the plaintiff.[3] Unlike a Set-off, a Counterclaim need not be a monetary claim. The Rules of various courts make it available for any claim either in law or equity that the defendant has against the plaintiff, whether arising out of the same or series of transactions or not.[4]

THE INDEPENDENCE OF COUNTERCLAIM

A Counterclaim is an independent suit which for convenience of procedure is combined in another action. In General Yakubu Gowon v. Mrs Edith Ike-Okongwu,[5] the Supreme Court observed thus:

‘‘In substance a counterclaim is a cross-action and not merely a defence to the plaintiff’s claim. It is an independent action and not part of the original action though for convenience, the two are tried together’’

A Counterclaim is a sword, not a shield. It is not a defence to the substantive suit, but an action itself. The destiny of a counterclaim does not depend on the substantive claim. A counterclaim may still proceed even if the substantive action has been withdrawn or dismissed.[6]

The guiding principle is that a counterclaim must be an action in which the defendant can sue as plaintiff. The plaintiff in the substantive suit shall be a defendant to the counterclaim.[7] But it is possible to include some other persons who are not parties in the substantive action in the counterclaim.[8]

If the counterclaim is against the plaintiff and some other persons who are not party to or some of whom are not party to the substantive action, the counterclaim shall be served on such persons in Form 12 to the Appendix of the Enugu Rules (Notice of Counterclaim). In such a case, any person not already a party to the action who is served with the counterclaim must appear in court as if he had been served with an originating process.[9]

It should be borne in mind that since a counterclaim is a cross-action raised in the statement of defence in the substantive action, it must be one capable of being tried in the same action by the same court. Hence, in an action at the State High Court, if the counterclaim contains a cause of action like infringement of copyright, same will not be allowed because jurisdiction on copyright is vested in the Federal High Court.[10]

It should also be borne in mind that a defendant to a counterclaim, to wit: plaintiff in the main suit may himself institute a counterclaim to that counterclaim. See R. Benkay (Nig.) Ltd v. Cadbury (Nig.) Ltd.[11]

Furthermore, a counterclaim must be in respect of a cause of action accruing to the defendant at the time of issue of the writ. If it accrues subsequent to the issue of the writ, it will not be allowed. See Gowon v. Ike-Okongwo.[12]

The law is lucid that a counterclaim may be proceeded with even if the main suit is stayed, discontinued or dismissed.[13] This is because a counterclaim is an independent action and therefore the fact that the main claim is discontinued or withdrawn, cannot and does not affect the prosecution of the counterclaim.[14]

However, since each case is decided based on its peculiar facts and circumstances, it is therefore not in all cases that a counterclaim can be proceeded with where the main claim is struck out or dismissed. Thus, a counterclaim will fail where an originating process is void, invalid or a nullity. This was the decision of the court in Aberuagba v. Oyekan & Ors.[15]

In that case, the plaintiff’s writ of summons and statement of claim were found to be void by reason of wrong signing of the processes,[16] the trial court however proceeded with the counterclaim and gave judgement for the counterclaimant. The plaintiff appealed to the Court of Appeal and contended forcefully that the originating processes being void, the defendants/respondents instead of the counterclaim, ought to have filed a fresh suit. The Court of Appeal in resolving the sole issue in favour of the appellant cited with approval the judgement of the Court in Integrated Merchants Ltd v. Osun State Government & Anor, where Adumein JCA facing a similar situation held:

In ordinary civil suits, a writ of summons is the foundation or substratum of a lawsuit where it is required to be commenced by a writ of summons. It is on the writ of summons that all other processes: statement of claim, statement of defence, counterclaim, reply, motions and all interlocutory processes are laid. Where the writ is defective, incurably defective, the foundation of the suit is gone and there is nothing upon which other processes in the suit can stand.[17]

The Court of Appeal also held that “to insist that the counterclaim, 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. The Court concluded with a piece of legal advice to the effect that where there are no valid processes originating an action before the trial court, the counterclaimant should file a distinct action seeking the reliefs enumerated in the ill-fated counterclaim.

In conclusion, though a counterclaim is a distinct action by the defendant against the plaintiff with its independent and separate life from the main claim, and with a distinct existence, where the main claim is incompetent as a result of voidness of the originating process, the defendant/counterclaimant instead of proceeding with the counterclaim which is left hanging on nothing should file a fresh action seeking the reliefs stipulated in the counterclaim.

REFERENCES:
[1] Garner Bryan A, Black’s Law Dictionary (9th ed Thompson Reuters, USA 2009) pg. 402.
[2] https://en.m.Wikipedia.org/wiki/counterclaim
[3] O. 15 r. 1 (2) High Court Rules Enugu, 2006.
[4] Efevwerhan, Principles of Civil Procedure in Nigeria (Snaap Press, 2013) pg.270-271.
[5] (2003) LPELR-SC 64/97. Per KATISINA-ALU JSC.
[6] O. 17 r 11 High Court Rules of Enugu State, 2006
[7]Ibid, D.I. Efevwerhan, pg. 271
[8] Order 17 rules 7 and 8 Enugu State High Court Civil Procedure Rules 2006
[9] Order 17 rule 9 High Court Rules of Enugu State 2006
[10] Nwadialo F, Civil Procedure in Nigeria, 2nd ed. University of Lagos press, 2000, pg. 394
[11] (2006) 6 NWLR (pt. 976) 360 – 362 , per Onnoghen JCA (as he then was)
[12] (Supra)
[13] Order 17 rule 11 Enugu State High Court Rules 2006
[14] Susainah( Trawling Vessel) v. Abogun (2007) 1 NWLR (Pt. 1016) 456
[15] (2018) LPELR-43669(CA)
[16] Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521
[17] (2011) LPELR – 8803 (CA)
WRITTEN BY: Okoene, Chisom Augustine [email protected], 07033201012, Okolo SAN & Co.