ADMIRAL MIKE AKHIGBE (RTD.) & ORS V. PAULOSA (NIG.) LIMITED & ANOR.
(2006)LCN/2018(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 23rd day of May, 2006
CA/A/47/2003
RATIO
PRACTICE AND PROCEDURE: CONDITIONAL APPEARANCE AND UNCONDITIONAL APPEARANCE
The entry of conditional appearance is an appearance under protest, where the defendant seeks to: (a) contest the jurisdiction of the court, or (b) to object to any irregularity in the service of originating processes or in its issue. See: Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt. 109) p. 250; Kigo Ltd. v. Holman Bros. (Nig.) Ltd. (1980) 5-7 SC. P. 60; Total Int’l Ltd. Ltd. v. Awogboro (1994) 4 SCNJ (Pt.1) p. 138; (1994) 4 NWLR (Pt. 337) 147. After entering conditional appearance the defendant should promptly raise the objection he has in mind, and if successful would entail the originating process being set aside. Where he fails to so act, the court would treat the appearance as an unconditional appearance. See: Murfin v. Ashbridge & Maritime (1941) 1 All ER p.231. PER RHODES- VIVOUR, J.C.A.
ACTION:COUNTER CLAIM AND THE EFFECT OF COUNTER CLAIM
A counter-claim is a legal procedure which allows the defendant to maintain an action against the plaintiff in the same proceedings. It is thus a cross-action. It is very much like a statement of claim and it is governed by the same rules of pleadings. See: N.P.A. v. C.G.F.C. (1974) 12 SC p. 81; Oyagbola v. Esso W.A. (1966) 1 All NLR p. 170. Once a counter-claim is filed and served, the plaintiff is expected to file his defence in his reply. Where no defence is filed the facts averred to in the counter-claim would be regarded as admitted. See – N.H.D.S. v. Mumuni (1977) 2 SC p. 57. PER RHODES- VIVOUR, J.C.A.
JUSTICES
IBRAHIM TANKO MUHAMMAD Justice of The Court of Appeal of Nigeria
MARY U. PETER ODILI Justice of The Court of Appeal of Nigeria
OLABODE RHODES-VIVOUR Justice of The Court of Appeal of Nigeria
Between
1. ADMIRAL MIKE AKHIGBE (RTD.)
2. ANCHORAGE HOLDINGS LIMITED
3. ENGINEER JUDE BASSEY
4. ARC. ITORO UMOREN Appellant(s)
AND
1. PAULOSA (NIG.) LIMITED
2. KOST ASSOCIATES Respondent(s)
RHODES- VIVOUR, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of Hon. Justice I. U. Bello of the High Court of the Federal Capital Territory, Abuja; delivered on 14/11/02 in suit No: FCT/HC/CV/380/2002. It arose as follows:
The 1st respondent was the plaintiff in the court below where it claimed against the 2nd respondent and the appellants (the defendants) the sum of N629,000 being the amount due and payable to it for jobs executed for them at Asokoro, Abuja.
For a clearer picture, the defendants in the court below were in the following order:
I. Kost Associates
2. Admiral Mike Akhigbe
3. Anchorage Holdings Ltd.
4. Engineer Jude Bassey
5. Arc. Itoro Umoren
The 1st defendant on being served the originating processes filed its statement of defence on 23/5/02. It also filed a counterclaim on 7/6/02.
The defendants to the counter-claim were the 2nd, 3rd, 4th and 5th defendants. That is to say the 1st defendant in the original action sued his co-defendants, (i.e. the 2nd, 3rd, 4th and 5th) in the counter-claim, claiming:
1. The sum of N3,773,723:31 (three million seven hundred and seventy-three Naira, thirty-one Kobo) as Special Damages for his outstanding amount.
2. The sum of N5m (five million Naira) being general damages for breach of contract.
3. The sum of N3m (three million Naira) for conversion of his rented container, cost of his tools and equipment and for loss of use of the container and its contents.
4. Cost of the suit.
On being served the originating processes and the 1st defendant’s counter-claim, learned counsel for the 2nd, 3rd, 4th and 5th defendants entered conditional appearance on 30/9/02, and on the same day filed a motion on notice invoking the inherent jurisdiction of the court, seeking the following:
1. An order striking out the counter-claim filed by the 1st defendant against the 1st to 4th defendants.
2. An order striking out the names of the 3rd to 5th defendants who were unilaterally joined as parties to the suit herein by the 1st defendant/respondent.
The grounds for the application were that:
(a) the procedure for the filing of a counter-claim by a defendant against another defendant is not recognized under the rules of court, the unilateral joinder of the 3rd to 5th defendants as parties to the suit by the 1st defendant is patently irregular and void.
On 16/10/02, the learned trial Judge heard arguments on the motion, and in a very brief ruling delivered on 14/11/02 dismissed the application. The concluding part of the ruling reads:
“My view is more conclusion with the position of the respondent in their objection against the motion. It is lacking merit and for that reason, it is hereby not granted and accordingly dismissed …. ”
Dissatisfied with the ruling learned counsel for the 2nd, 3rd, 4th and 5th defendants filed a notice of appeal on 26/11/02. It contained a sole ground of appeal. The ground without its particulars reads as follows:
“The learned trial Judge erred in law and thereby wrongly held that the appellant’s application to strike out the counter-claim lacks merit.”
In accordance with the Rules of this court, briefs of argument were duly filed and exchanged by the appellants and the 1st respondent. The 2nd respondent (i.e. the 1st defendant in the original action and the plaintiff in the counter-claim) who won at the court below and who this appeal concerns the most surprisingly did not file a brief.
The appellants distilled a single issue from the ground of appeal for the determination of this appeal. It reads:
Issue No.1
“Whether the learned trial Judge was right or wrong in his decision that the 2nd respondent can maintain a counter-claim against the appellants when the 1st respondent (the plaintiff at the court below) is not a party to the counter-claim. ”
At the hearing of the appeal on 24/4/05 learned counsel for the appellants, Mrs. J. O. Adesina adopted her brief and urged this court to allow the appeal.
The respondents were absent and unrepresented but the 1st respondent filed a brief wherein he adopted the sole issue of the appellants and submissions thereon.
Learned counsel for the appellants submitted that a counterclaim can only be instituted by a defendant within the same suit against either the plaintiff alone or against the plaintiff and any other defendant.
Relying on:
Gbadamosi v. Dairo (2001) 6 NWLR (Pt. 708) p. 137; FBN (Nig.) Plc v M. O. Kanu & Sons (1999) 9 NWLR (Pt.619) p. 484, he contended that it was wrong for the counter-claimant (the 1st defendant) in the original suit to sue his co-defendants. He urged this court to allow the appeal.
Learned counsel for the 1st respondent agreed with the submissions of learned counsel for the appellants, contending that the absence of the plaintiff as a defendant in the counter-claim is fatal, and the lower court ought to have struck it out.
He also urged this court to allow the appeal.
The 1st respondent filed a brief wherein he agreed with the submission of learned counsel for the appellant.
On the other hand the 2nd respondent who won in the court below and who this appeal concerns the most failed to file a brief.
By virtue of Order 3 rule 26 of the Court of Appeal Rules this court can proceed to hear the appeal in the absence of 2nd respondent’s brief of argument. See: Igbinigie v. Yusuf (1993) 2 NWLR (Pt. 274) p. 206.
Learned counsel for the appellants entered conditional appearance on 30/9/02 after being served originating processes and the 1st respondents/defendants counter-claim.
The entry of conditional appearance is an appearance under protest, where the defendant seeks to:
(a) contest the jurisdiction of the court, or
(b) to object to any irregularity in the service of originating processes or in its issue.
See: Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt. 109) p. 250; Kigo Ltd. v. Holman Bros. (Nig.) Ltd. (1980) 5-7 SC. P. 60; Total Int’l Ltd. Ltd. v. Awogboro (1994) 4 SCNJ (Pt.1) p. 138; (1994) 4 NWLR (Pt. 337) 147.
After entering conditional appearance the defendant should promptly raise the objection he has in mind, and if successful would entail the originating process being set aside. Where he fails to so act, the court would treat the appearance as an unconditional appearance. See: Murfin v. Ashbridge & Maritime (1941) 1 All ER p.231.
My lords, courts must at all times ensure that conditional appearance is entered for a genuine reason and not merely for delay.
In the court, the entry of conditional appearance was to object to the serious irregularity as regards the parties in the counter-claim where all the parties were the defendants in the original action, instead of the plaintiff in the original action being the defendant in the counterclaim.
The appearance was not abused. It was entered in good faith.
A counter-claim is a legal procedure which allows the defendant to maintain an action against the plaintiff in the same proceedings.
It is thus a cross-action. It is very much like a statement of claim and it is governed by the same rules of pleadings. See: N.P.A. v. C.G.F.C. (1974) 12 SC p. 81; Oyagbola v. Esso W.A. (1966) 1 All NLR p. 170. Once a counter-claim is filed and served, the plaintiff is expected to file his defence in his reply. Where no defence is filed the facts averred to in the counter-claim would be regarded as admitted. See – N.H.D.S. v. Mumuni (1977) 2 SC p. 57.
Trial on the counter-claim would commence notwithstanding the original action being stayed, discontinued or dismissed.
A defendant would not be allowed to bring a counter-claim against co-defendants. The reason is simple. Counter-claim means cross-action against the plaintiff in the same proceedings, and the defendant for the purposes of the counter-claim is the plaintiff while the plaintiff is the defendant to the counter-claim.
Once the plaintiff is not a party to the counter-claim there is no cross-action and so no counter-claim.
My lords, the 1st defendant in the original action sued his co-defendants in the counter-claim leaving out the plaintiff in the original action. The process referred to in the court below as counter-claim is no longer a counter-claim since it is not a cross-action.
The learned trial Judge ought to have struck it out. It is accordingly struck out. The trial Judge is hereby directed to proceed with dispatch with the original action.
Appeal succeeds.
Parties shall bear their own costs.
MUHAMMAD, J.C.A.: My learned brother Rhodes-Vivour, JCA afforded me the opportunity to read in draft the judgment just delivered. I am in full agreement with his reasoning and conclusions.
A counter-claim is for all intents and purposes a cross-action. The plaintiff is a necessary and proper party to the counter-claim and the absence of the plaintiff as a defendant to the counter-claim is fatal to the case of the 2nd respondent in this appeal. See Obala of Otan-Anyebayi v. Adesina (1992) 2 SCNJ 118; Oragbade v. Onitiju (1962) 1 SCNLR 70; UBA Plc v. Samba Petroleum Co. Ltd. (2002) 16 NWLR (Pt. 793) 361. In the latter case, my learned brother Salami, JCA stated, among other things that:
“Defendant cannot counter-claim solely against another defendant.
But a defendant can make a counter-claim against an additional party on condition that the plaintiff is also a party to the counter-claim. If the plaintiff is not a party or defendant but only the person is, then there is no cross-action and consequently no counter-claim as the name suggest. ”
I totally agree with the submission of the learned counsel for the appellants that the non-joinder of the plaintiff as a defendant to the counter-claim is fatal to the case of the 2nd respondent and renders the entire counter-claim incompetent.
Again the Supreme Court per Mohammed, JSC in the case of Obala of Otan-Aiyegbaju & Ors. v. Joseph Adesina & Ors. (1992) 2 SCNJ 118 held thus:-
“A counter-claim is a cross-action, with the plaintiff becoming the defendant to the counter-claim. See Oragbade v. Chief S. J. M. Onitiju (1962) 1 All NLR 32.. Thus if the plaintiff cannot be the proper opposing party to the claim in the counter-claim, the proper thing , is to strike it out. ”
In this case, the 2nd respondents counter-claim does not qualify to be called a counter-claim.
The absence of a claim against the original plaintiff is fatal to the counter-claim as there is no cross-action.
Thus the counter-claim should therefore be struck out. For this and the other reasons given by my learned brother in his leading judgment I too hold that there was strictly speaking no counter-claim before the learned trial Judge. The process filed before him as counter-claim ought to be struck out. I hereby strike it and order the lower court to proceed to hear the original action.
I abide by all other orders made in the leading judgment including order also costs.
ODILI, J.C.A.: I read the draft of the judgment of my learned brother, Olabode Rhodes-Vivour, JCA. I agree with the decision and the reasons therefrom. Indeed the counter-claim so called was hanging in the air and had to crash as has happened in the instant case since the 2nd respondent had not instituted the counter-claim against the plaintiff/appellant as he should have. See NPA v. C.G.F.C. (1974) 12 SC 81.
I abide by the consequential orders of my learned brother, as I also allow the appeal.
Appeal allowed.
Appearances
Mrs. J. O. Adesina (holding brief for Prof. Osipitan, SAN)For Appellant
AND
1st Respondent – Unrepresented
2nd Respondent – UnrepresentedFor Respondent
