MESSRS DEE’S DYNASY (NIG) LTD. V. MRS. ADE AMOKE OLA
(2010)LCN/3731(CA)
In The Court of Appeal of Nigeria
On Thursday, the 22nd day of April, 2010
CA/L/729/2007
RATIO
ACTION: NATUR OF A COUNTER CLAIM
I do agree with the learned counsel for the Appellant that a counter claim is for all intent and purpose a separate and independent action from the main claim. In Lewis v. U.B.A. Plc (2006) 1 NWLR (Pt. 962) 546 at 566 paragraphs C-E, this Court per M. D. Mohammad, JCA said: –
“There is some sense in appellant’s contention. One agrees with him that a counter-claim is an independent claim which needs not to relate to or be in any way connected with the respondent’s claim. Appellant’s counter-claim needed not to have arisen out of the same transaction with that that gave birth to respondent’s claim or to be a claim of the same nature as the substantive claim. The fact that the original action had succeeded, failed or had been discontinued is not a lawful reason to discontinued the determination of a counter-claim by a defendant. See Ogbonna v. Attorney-General, Imo State (1992) 1 NWLR (Pt. 220) 647 and Effiom v. Ironbar supra. In the instant matter where the trial court had found respondent’s claim established and entered judgment for it under the summary judgment procedure by virtue of order 11 rule 3 of the Lagos State (Civil Procedure) Rules, the application to strike out appellant’s counterclaim had become non-sequiter. Appellant should have been allowed to continue against the respondent and prove his counter claim. That this right of his had been illegally foreclosed is beyond dispute. Courts are duty bound to listen and determine matters presented to them by litigants.”
See Josade (Nig) Ltd v. N.D.I.C. (2005) 9 NWLR (Pt. 929) 167; Obasi Bros Co. Ltd v. M.B.A. Ltd (2005) 9 NWLR (Pt. 292) 177. PER PAUL ADAMU GALINJE, J.C.A.
JUSTICES
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
MESSRS DEE’S DYNASY (NIG) LTD. Appellant(s)
AND
MRS. ADE AMOKE OLA Respondent(s)
PAUL ADAMU GALINJE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Lagos State High Court which was delivered on the 8th day of May, 2007.
By a writ of summons and a statement of claim dated 1st March, 2005 and 28th of February, 2005 respectively which were both filed on the 1st of March 2005, the Appellant herein claimed the following reliefs: –
“1. A Declaration that the notice to quit dated 2nd August, 2004 together with the letter/Notice to Claimant indicating the Defendant’s intention to take possession of the premises dated 10th December, 2004 are defective, irregular, ineffective and inoperative.
2. An Order setting aside the aforesaid Notices.
3. An Order of perpetual injunction restraining the Defendant whether by herself, her servants, agents, representatives, privies, appointees, from evicting, ejecting or taking possession of the leased plot occupied by the claimant at No. 3A Osha Street, Opebi, Lagos State pursuant to the aforesaid notices dated 2nd August, 2004 and 10th December, 2004 respectively.
4. A Declaration that by virtue of the Tenancy Agreement dated 21st day of February, 2000, the claimant’s tenancy is still valid and subsisting for next 2 years commencing from 21st day of February, 2005 to 20th day of February, 2007 at the existing prevailing rent of N250,000.00 (Two Hundred and Fifty Thousand Naira only) as agreed by the parties.
5. Further and other reliefs.
6. Cost of this action as assessed.”
The Respondent’s statement of defence and counterclaim is dated 13th April, 2005 and filed on the 14th April, 2005. This statement of Defence and counter-claim was further amended. The amended statement of defence and counterclaim is dated 18th day of May, 2005 and filed on the 19th May, 2005. At paragraph 35 of the statement of defence, the Respondent set out the following counterclaim:
”(a) Possession of the half of a plot of land situate at No. 3A, Osho Street, Opebi, Ikeja, Lagos.
(b) Mesne profit at the rate of N250,000.00 per month from 21st February, 2005 until possession is given up.
(c) An order compelling the claimant to perform all terminal obligations under the tenancy that is payment of all outstanding utility bills accrued and returns the land to a tenantable condition.
(d) Cost.”
Issues having been joined the case was set down for trial. On the 8th day of May, 2007, Mr. Agbolahan, learned counsel for the Respondent made the following admission at page 90 of the printed record: –
“Indeed this is a simple matter. Based on the writ of summons, we submit to judgment that the claimant’s tenancy expired on 20/02/07, and that he should pay arrears of rent at the rate of N250,000.00 per annum. In addition we pray as per our counterclaim for possession. We pray that the claimant should vacate the premises forthwith since by his our(sic) declaration the tenancy has lapsed.”
At this stage, Mr. Ademuwagun, learned counsel for the Appellant in reply to the question as to when his client will vacate the premises on the face of admission by the Respondent said: –
“I have to consult with my client. I do not know when we can leave. I ask for the cost of this act in the sum of N10,000.00 since the defendant has submitted to judgment.”
At this stage the learned trial Judge proceeded to deliver judgment upon the admission of parties as follows: –
“I therefore do hereby declare as prayed in the statement of claim and the writ that the claimant’s tenancy was valid up till 20/02/07. I also do hereby declare as prayed by the claimant that the rent due for the tenancy is N250, 000.00 per annum. Judgment is entered for the claimant accordingly.
The defendant’s counterclaim for which she seeks judgment is by her amended statement of defence and counter claim dated 18/05/07. Having found for the claimant as prayed,
I do hereby also find the defendant that she is entitle to possession of the premises, subject matter of this suit at No. 3A Osho Street, Opebi Ikeja, lagos, the claimant’s tenancy having expired on 20/02/07. It is hereby ordered that the claimant do hereby give up possession of the premises within 14 days hereof. Also having found that the tenancy was at the rate of N250,000.00 per annum as prayed by the claimant, I enter judgment per the counter-claim that the claimant shall be liable for mesne profit at the rate of N250,000.00 per annum and shall be liable to pay and perform its terminal obligations under the lease agreement.”
It is against this decision that the Appellant has appealed to this Court. Its notice of appeal dated and filed on the 18th day of May, 2007 contain only one ground of appeal which I reproduce hereunder: –
“1. The Learned trial Judge erred in law when she held as follows: –
Having found for the claimant as prayed, I do hereby also find for the defendant that she is entitled to possession of the premises subject matter of this suit at No. 3A Osho Street, Opebi Ikeja, Lagos, the claimant’s tenancy having expired on 20/2/2007.
It is hereby ordered that the claimant do hereby give up possession of the premises within 14 days hereof. Also having found that the said tenancy was at the rate of N250,000.00 per annum as prayed by the claimant, I enter judgment as per the counter claim that the claimant shall be liable for mense(sic mesne) profit at the rate of N250,000.00 per annum and shall be liable to pay and perform its terminal obligations under the lease agreement.
I also order that each party shall bear his own costs.
PARTICULARS OF ERROR
1. The claimant Judgment Debtor/Appellant never admitted the Defendant/Respondent’s claim for possession as contained in the defendant/respondent’s counter claim.
2. The validity of the Defendant/Counter-Claimant/Judgment Creditor’s statutory notices leading to the recovery of possession of the premises were being challenged by the Claimant/Judgment Debtor/Appellant in the Claimant’s reply and Defence to counter claim.
3. The Defendant/Judgment Creditor/Respondent never proved her entitlement to possession and/or mense (sic mesne) profit in a plenary session of the Honourable court.
4. Pleadings per se do not constitute evidence.
5. No form of evidence whatsoever was led by the Defendant/Judgment Creditor in proof of her pleadings and in proof of possession of the premises.”
Parties filed and exchanged briefs of argument. At page 7 of the Appellant’s brief of argument dated 5th of November, 2007 and filed on the 12th November, 2007, the following sole issue is formulated for the determination of this appeal:-
“Whether the learned trial Judge was right in ‘summarily’ entering judgment for the Respondent (in the absence of admission by the Appellant of the Respondent’s counter claim for possession) without first and foremost calling upon and prove her counter-claim in open court,”
The Respondent initially formulated two issues from the sole ground of appeal at paragraph 2.1 of the Respondent’s brief of argument dated and filed on the 24th December, 2007. However, at the hearing of the appeal, Mr. Opara learned counsel for the Respondent withdrew the 1st issue as he was informed by the Court that he cannot formulate multiple issues from one ground of appeal. The Respondent is therefore left with one surviving issue which reads thus: –
“Is the judgment of the learned trial Judge sustainable in light of the materials presented before her at the trial.”
From the notice of appeal and the briefs of argument before this Court, the Appellant’s quarrel is against the judgment in the counter-claim. I will therefore treat the issues formulated by both parties together.
However before I consider the argument of both parties herein, I will like to summarise the fact of the case which I think the Appellant has ably done at pages 3-4 of the Appellant’s brief of argument.
The Appellant, a tenant entered into a lease agreement with the Respondent in respect of a property situate at No. 34 Osho Street, Opebi Ikeja, Lagos State. The Appellant and the Respondent executed a Tenancy Agreement dated 21st of February, 2000 in respect of the aforementioned property and took possession. However by a letter dated 10th December, 2004, the Respondent informed the Appellant of her intention to take possession of the premises on or before 20th of February, 2005 when the tenancy agreement expires. In reaction to the notice, the Appellant instituted an action at the lower Court, where it prayed among other reliefs to declare the aforementioned notice invalid. After the pre-trial conference which could not led to amicable settlement, the case file was remitted to the registry for assignment. The case was assigned to William J. who delivered judgment during the proceedings of 8th May, 2007.
Mr. Victor Opara, learned counsel for the Appellant who settled the Appellant’s brief of argument in his argument submitted that the Appellant resisted the Respondent’s counter claim and filed a reply and defence to the Respondent’s statement of defence and counter claim and that at no time was the counter claim admitted by the Appellant, as such he was therefore surprised that the lower Court went ahead to grant the Respondent’s counter claim. Learned counsel contended that since the counter claim was denied, the Respondent had a duty to establish his case by calling evidence as provided for by Section 137 of the Evidence Act. Learned counsel cited the following cases to buttress his contention, to wit: –
1. Daodu v. NNPC (1998) 2 NWLR (Pt. 538) 355 (SC).
2. Kola v. Patiskum (1998) 2 NWLR (Pt. 540) 1 (SC).
3. Bramah v. Abasi (1998) 13 NWLR (Pt. 581) 167 (SC).
4. Itauma v. Akpe-Ime (2000) 7 SC (Pt. 11) 24.
In a further argument, learned counsel submitted that a counter claim is for all intent and purposes a separate and independent action from the main claim and the fact that the learned trial Judge entered judgment for the Appellant did not dispense with the need for the Respondent to prove her counter-claim since the claim and counterclaim are independent of each other. In aid learned counsel cited a host of cases amongst which are: –
Ogbonna v. A.G. Imo State (1992) 1 NWLR (Pt. 220) 647 (SC); Ogbonda v. Eke (1998) 10 NWLR (Pt. 56873 (CA); Amata v. Omofuma (1997) 2 NWLR (Pt. 485) 94 (CA); Okonkwo v. CCB Nig. Ltd v. ACB Ltd (1997) 6 NWLR (Pt. 507) 48 (CA) ; Obamiami Brank & Stone Nig. Ltd v. ACB Ltd (1992) 3 NWLR (Pt. 229) at 260 (SC); Hassan v. Registered Trustees Baptist Convention (1995) 7 NWLR (Pt. 309) 679; Garba v. Kur (2003) 11 NWLR (Pt. 831) 280
at 301-302.
Learned counsel also made reference to a book, Civil Procedure in Nigeria second Edition, by Fidelis Nwadialo SAN, at pages 392-393 and also another book titled ‘Civil Procedure’ first edition, by Professor Ernest Ojukwu and Chidi N. Ojukwu at page 55 all dealing with a distinct and separate status of a counter-claim.
Still in argument, learned counsel submitted that the failure of the Respondent to call evidence in support of the averments in her pleadings clearly shows that she had abandoned her pleadings and on authority of Dantata v. Dantata (2002) 4 NWLR (Pt. 756) 144, the Court would have so declared. Learned counsel also cited in aid Eyo v. Eyo (1999) 6 NWLR (Pt. 605) 18; F.C.D.A. v. Noibi (1990) 3 NWlR (Pt. 158) 270; Lakun v. Mangu L.G.C. (1996) 4 NWLR (Pt. 441) 270; Oloroafor v. Abaworonimi (1996) 2 NWLR (Pt. 430) 278; Kalgo v. Kalgo (1999) 6 NWLR (Pt. 608) 639.
Learned counsel found fault with the judgment in favour of the Respondent on the ground that the notices to quit and the one for possession having been set aside by the lower Court in its judgment for Appellant, there was therefore no sufficient material upon which the counter-claim could succeed. Finally learned counsel urged this Court to set aside the decision of the lower Court in terms of the Counterclaim.
Mr. A.O. Agbola, learned counsel for the Respondent, who settled the respondent’s brief of argument submitted that both parties to the suit had filed ‘front loaded’ materials including depositions on oath and these deposition are evidence before the Court which have stronger character than an ordinary pleading as such a Judge is entitled to look at the depositions in determining the real matter in controversy between the parties. In aid, learned counsel cited Ali v. Alishinloye (2000) 4 SC (Pt. 1) 111. In a further argument, learned counsel submitted that once Appellant’s counsel agrees in open Court that the tenancy of his client had expired about 3 months before the commencement of trial and merely asked for more time to vacate, it would amount to being slave technically to demand that the Court must call witnesses to establish that fact. Finally, learned counsel urged this Court to hold that the judgment of the lower Court is manifestly supportable and was entered with the concurrence of the parties’ counsel in Court. In aid Learned counsel cited Total Nig. Ltd v. Markah (2002) 9 NWLR (Pt. 773) 492.
I do agree with the learned counsel for the Appellant that a counter claim is for all intent and purpose a separate and independent action from the main claim. In Lewis v. U.B.A. Plc (2006) 1 NWLR (Pt. 962) 546 at 566 paragraphs C-E, this Court per M. D. Mohammad, JCA said: –
“There is some sense in appellant’s contention. One agrees with him that a counter-claim is an independent claim which needs not to relate to or be in any way connected with the respondent’s claim. Appellant’s counter-claim needed not to have arisen out of the same transaction with that that gave birth to respondent’s claim or to be a claim of the same nature as the substantive claim. The fact that the original action had succeeded, failed or had been discontinued is not a lawful reason to discontinued the determination of a counter-claim by a defendant. See Ogbonna v. Attorney-General, Imo State (1992) 1 NWLR (Pt. 220) 647 and Effiom v. Ironbar supra. In the instant matter where the trial court had found respondent’s claim established and entered judgment for it under the summary judgment procedure by virtue of order 11 rule 3 of the Lagos State (Civil Procedure) Rules, the application to strike out appellant’s counterclaim had become non-sequiter. Appellant should have been allowed to continue against the respondent and prove his counter claim. That this right of his had been illegally foreclosed is beyond dispute. Courts are duty bound to listen and determine matters presented to them by litigants.”
See Josade (Nig) Ltd v. N.D.I.C. (2005) 9 NWLR (Pt. 929) 167; Obasi Bros Co. Ltd v. M.B.A. Ltd (2005) 9 NWLR (Pt. 292) 177.
However, by Order 19 rule 3(4) of the High Court of Lagos (Civil Procedure) Rules 2004, a Judge may on application at a pre-trial conference or at any stage of the proceedings, where admissions of facts have been made, either on pleadings or otherwise, make such orders or give such judgment as upon such admissions a party may be entitled to, without waiting for the determination of any other question between the parties. By this provision, the Court does not have to wait for parties to call witnesses, before a decision is taken on claim or counter claim of parties where there is application to do so. In the instant case, the Respondent herein, during the proceedings of 8th May, 2007 made the following application: –
“Indeed, this is a simple matter. Based on the writ of summons, we submit to judgment that the claimant’s tenancy expired on the 20/02/07 and that he should pay arrears of rent at the rate of N250,000.00 per annum. In addition we pray as per our counter-claim for possession. We pray that the claimant should vacate the premises forthwith, since by his our (sic) declaration the tenancy has lapsed. (Underlining is mine).
The Respondent submitted to judgment only in respect of the period within which the tenancy agreement expired and the rent arrears as agreed by the parties and these are embedded in the 4th relief sought by the Appellant. The 1st, 2nd and 3rd claims only sought for the Court’s protection that would have allowed the Appellant to stay in the premises till the 20th of February, 2007 at the rent of N250,000.00 per annum. Since the Respondent submitted to judgment on that claim a grant of the 1st, 2nd and 3rd claims became absolutely unnecessary. The judgment as pronounced on the 4th claim clearly brought the tenancy agreement to an end on the 20th February, 2007. What then is the effect of termination of the tenancy agreement? In my view, once a tenancy agreement between a landlord and a tenant is determined, the property subject matter of the agreement automatically reverts to the landlord. Calling evidence to proof such a reversion will only give rise to unnecessary expenditure and a waste of the precious time of the Court.
I am therefore of the firm view that, the counter-claim before the lower Court is one that could be determined without calling witnesses, regard been had to the judgment on the main claim. The learned trial Judge acted rightly when she relied on Order 19 rule 3(4) of the High Court of Lagos State (Civil Procedure) Rules to expeditiously determine this case. Tenants should not cling to the properties of Landlords under the guise of endless litigation.
The argument canvassed in respect of the authenticity of the record of appeal and whether or not certain facts in the record could be made known through affidavit is inconsequential as such argument was neither raised at the lower Court not does it arise from any of the grounds of appeal.
On the whole therefore, I find no merit in this appeal. Same is hereby dismissed. The Respondent is entitle to the cost of this appeal, which I assess at N30,000.00.
CLARA BATA OGUNBIYI, J.C.A.: I have read in draft the judgment just delivered by my brother Galinje JCA and I also agree that the appeal is grossly lacking in merit and is accordingly dismissed in the same terms as the lead judgment of my brother inclusive of the order made as to costs.
ADAMU JAURO, J.C.A.: I have had the privilege of a preview of the judgment just delivered by my learned brother, Galinje, JCA. I am in agreement with the reasoning and conclusions therein, to the effect that the appeal is devoid of any merit.
I adopt the lead judgment as mine and hereby dismiss the appeal.
I abide by all consequential orders made, including that of costs.
Appearances
Mr. Victor Opara;
Mr. Frank Eke;
Miss Omotayo OviosunFor Appellant
AND
Mr. A.O. Agboola with Messrs;
Tolulope Ola;
S. A. ObafemiFor Respondent
