SNIG NIGERIA LIMITED v. WEMA BANK PLC
(2016)LCN/8377(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of March, 2016
CA/L/114/2011
RATIO
APPEAL: WHETHER THE COURT CAN PRONOUNCE ON AN ISSUE OR FINDINGS UPON WHICH THE PARTIES HAVE NOT APPEALED AGAINST
It is pertinent to state from the onset of the resolution of this issue that there is no appeal against the finding of the learned trial judge that the claims of the respective parties, that is, the Appellant and the Respondent are “unrelated.” The law is settled that once a finding is made by a Court and it has not been appealed against, the finding is deemed accepted as correct. It is also settled law that this Court cannot pronounce on an issue or finding upon which the parties have not appealed against. See DABUP v. KOLO [1993] 12 SCNJ 1; ADEYEMI v . OLAKUNRI [1999] 12 SC (PT 11) 92. In N.B.C.I v. INTEGRATED GAS (NIG) LTD (2005) 4 NWLR (PT 916) 617; (2005) LPELR – 2016 (SC) 14, paras F – G, the Apex Court, per EDOZIE, JSC held inter alia where a party has not appealed against a finding of the Court, he cannot question that finding on appeal. The grouse of the Appellant’s appeal only relates to the finding and conclusion of the trial Court in relying on the decision of this Court in EFFIOM v. IRON BAR (supra) to hold that the claims of the parties can be tried together. Therefore, the finding of the lower Court that the claim of the Appellant and the Respondent is unrelated is correct having not been challenged in this appeal for the purpose of the resolution of this appeal. PER. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
PRACTICE AND PROCEDURE: COUNTER-CLAIM; THE NATURE OF A COUNTER-CLAIM IN RELATION TO THE PALINTIFF’S ACTION
Now, a counter-claim is a cross-action raised in the statement of defence by a defendant who has a cause of action against the plaintiff. It is an independent action brought by the defendant against the plaintiff and not merely a defence. It may not arise from the same transaction as the plaintiff’s action and it is not necessarily predicated on the statement of claim. For this reason, if the plaintiffs action terminates, it does not affect the counter-claim. Rather, the defendant is still entitled to proceed to establish his counterclaim and obtain judgment because it is a separate action from the plaintiffs action. However, the defendant’s counterclaim ought to be such that it can be conveniently tried by the same Court together with the plaintiffs claim. see Stanley-Idum & Agaba, Civil Litigation in Nigeria, Lagos: Nelag & Company Limited, 2015, 366 ; Afolayan & Okorie, Modern civil Procedure Law, Lagos: Dee-sage Nigeria Limited, 2007, 155 – 156 ; DABUP v. KOLO [1993] 12 SCNJ 1; O.O.M.F LTD v N.A.C.B. LTD [2008] 12 NWLR (PT1098) 412. PER. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
COURT: JUDICIAL DISCRETION; THE NATURE OF JUDICIAL DISCRETION AND WHETHER THERE HAS BEEN A WRONGFUL EXERCISE OF THE DICRETION OF THE LOWER COURT
Having said all these, the question in this appeal that remains unanswered is whether the learned trial judge whose discretion it is under Order 15 Rule 1 (3) to exercise, did same rightly – that is judicially and judiciously – having regard to the circumstances of the instant case? I must say that there is no definite answer to this question because the nature of judicial discretion is such that it ceases to be discretion if it is found that it can only be exercised in a particular form. In UBN PLC v. ASTRA BUILDERS W/A LTD [2010] 5 NWLR (PT 1186) 1 SC; (2010) LPELR – 3383 (SC) at 21, Paras D – G, ADEKEYE, JSC stated thus:
“An exercise of discretion is an act or deed, based, on ones person Judgment in accordance with one’s conscience, free and, unfettered, by any external influence or suggestions. A Judicial discretion means the power exercised in an official capacity in a manner which appears to be just and proper under a given situation. It must not flow from or be bound by a previous decision of another Court in which a discretion was exercised. It is in short an antithesis to the doctrine of stare decisis. There is no hard and fast rule as to the exercise to a judicial discretion by a Court for if that happens, a discretion becomes fettered.”
My Lords, in the same breadth it has always been the attitude of Appellate Court not to interfere with the exercise of the discretion of the lower Court simply because it did not favour one of the parties in the appeal before it. This Court will not readily interfere with such exercise of discretion unless same was wrongly exercised by the lower Court. In ODUTOLA v. KAYODE [1994] 2 NWLR (PT.324) 1; (1994) LPELR – 2262 (SC) 11- 12, Paras F – B, the Supreme Court, per UWAIS JSC (later CJN) held:
“… Therefore, for an appeal against the exercise of the discretion, … to succeed it must be shown by the appellant that there has been a wrongful exercise of the discretion in that the Court had acted under a mistake of law, or in disregard of principle, or under a misapprehension of the facts, or has taken into account irrelevant matters, or the ground that injustice could arise or that no weight or no sufficient weight has been given to relevant consideration, or when, as is usually said, the discretion was not exercised judicially.”
See: also, ALHASSAN v F.G.N (2010) LPELR – 3707 (CA); ADOLE & ANOR v P.P.M.C LTD & ANOR (2009) LPELR – 8688 (CA). PER. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
SNIG (NIGERIA) LIMITED Appellant(s)
AND
WEMA BANK PLC Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the High Court of Lagos State delivered by Hon. Justice RIB Adebiyi on the 28th November, 2006 dismissing the Appellant’s motion and holding that the Respondent’s counter-claim, ‘though unrelated to the original claim, can be tried together.’
The relevant facts that led to this appeal are that the Appellant vide a writ of summons and statement of claim both dated 13th December, 2005 claimed at the lower Court that the Respondent breached its banking mandate agreement with it by permitting unauthorized, withdrawal of money to be made from the Appellant’s bank account with the respondent. The Respondent in response filed a Statement of Defence and a counter-claim both dated 26th June, 2006 wherein the Respondent refuted and denied the claims of the Appellant stating that it did not breach the banking mandate agreement because according to the Respondent, the agreement was revised by the Board of Directors of the Appellant and subsequently ratified by conduct by the Appellant. Meanwhile, the respondent in its
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Counter-Claim, claimed the sum of N110,997,155.06 (one hundred and ten million, Nine Hundred and Ninety seven thousand, one Hundred and Fifty Naira, Six Kobo) being a sum the Appellant allegedly owed the Respondent on a project finance loan facility and which the respondent stated became due on the 21st July, 2004. The Appellant afterwards filed a motion dated 19th January, 2010 wherein it prayed for following:
1. “An order of this Honourable Court entering final Judgment for the Claimant against the Defendant in the grounds that the defendant has no defence to this suit as their averments in the Statement of Defence are admissions.
2. An order of this Honourable striking out the Counter-Claim in this suit on the ground that the cross-action set up by the way of counter-claim is not related to the principal claim in the statement of claim.
AND FOR SUCH FURTHER orders or further orders as this Court may deem fit to make to the circumstance.”
In its ruling dated 28th October, 2010 the trial Court dismissed the Appellant’s application. In holding that the Respondent did not admit to the averments the statement of claim the lower Court held that
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and admission must be clear and unequivocal. The Court also held that the Claimant’s and Defendant’s claims though unrelated can be tried together since the parties are the same.
Dissatisfied with the ruling of the lower Court, the Appellant filed a Notice of Appeal dated 8th November, 2010 containing two (2) Grounds of Appeal.
The Appellant’s brief which settled by Elvis E. Asia Esq of Chief Rotimi Williams Chambers is dated 9th June, 2015 and filed on 11th June, 2015 and the Reply Brief is dated and filed on the 26th June, 2015.
The Appellant formulated a sole issue as follows:
“1. Whether the Respondent’s Counter-Claim is one which can be properly tried with the Appellant’s original claim or one which ought to be struck out as the Counter-claim is not related, to the original claim.”
On the other hand, the Respondent’s Brief settled by Morenike George – Taylor (Miss) of Wemimo Ogunde & Co is dated 12th June, 2015 and filed on 15th June, 2015. The Respondent also raised a sole issue for determination which is as follows:
“1. Whether the learned, trial Judge was right when she held that the Defendant’s counter-claim could
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be tried with the Claimant’s main claim.”
Meanwhile the Respondent, in its Brief incorporated a notice of preliminary objection challenging the competence of the appeal, urging this Honourable Court to strike out the appeal. The grounds upon which the preliminary objection is predicated are as follows:
“1. The only issue for determination framed by the Appellant is not distilled from any grounds of appeal and makes no difference to the decision being appealed against. Instead the issue is framed as if the matte is arising for the first time at the High Court.
2. The said issue for determination is hypothetical and academic as it has not been framed from any grounds of appeal.
3. No issue for determination has been distilled from ground 2 of the grounds of appeal and as such, that ground of appeal is deemed abandoned.”
Having regard to the foregoing, the preliminary objection shall be addressed first as it touches on the competence of the appeal.
Arguing the Preliminary objection, Respondent’s counsel submitted that the sole issue raised by the Appellant for determination does not relate to the issue canvassed at the trial Court
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and does not flow from the grounds of appeal. Counsel submitted that issues raised at the appellate Court must be linked to the finding of the lower Court and must be tied to at least one of the grounds of appeal. He cited the cases of NTEOGWUILE v. OTUO (2001) 16 NWLR (PT. 738) 58 at 84; IBATOR & ORS v. BARAKURO & ORS (2007) 9 NWLR (PT.1040) 475 at 503; AJA v. OKORO (1991) 7 NWLR (PT. 203) 260 at 272 – 273 to submit that the Appellant’s sole issue having not captured the substance of the grounds of appeal is hypothetical and/or academic. The Respondent counsel also submitted that the Appellant’s issue should be struck out since it is merely academic. He referred the Court to the cases of H.N.B. LTD v. GIFTS UNIQUE (NIG) LTD (2004)15 NWLR (PT. 896) 408 at 431; EPEROKUN v. UNIVERSITY OF LAGOS (1986) 4 NWLR (PT.34) 162 at 179.
Respondent further submitted that the Appellant has abandoned ground 2 of the Notice of Appeal since the Appellant failed to distill any issue from the ground. Placing reliance on OGUNLADE v. ADELEYE (1992) 8 NWLR (PT.260) 409 counsel urged this Court to declare ground 2 abandoned.
Responding to the above argument,
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Appellant’s counsel submitted that the Respondent did not make reference to any authority on the point that the Appellant must not raise issue different from the one at the trial Court. He rather contended that the issue raised flowed directly from the decision of the trial Court and that meanwhile the Appellant was not under legal compulsion to adopt the same issues canvassed at the trial Court in prosecution of its appeal. Furthermore, the Appellant submitted that though, the Appellant did not specifically mention the ground of appeal that his sole issue was distilled from, but that it is clear from and on the face of the issue that it was formulated from ground 1 of the Notice of Appeal. Appellant counsel reproduced the cases cited by the Respondent, NTEOGWUILE v. OTUO (2001) 16 NWLR (PT 738) 58 at 84; IBATOR & ORS v. BARAKURO & ORS (2007) 9 NWLR (PT 1040) 475 at 503 to submit that the Court is no longer Court of technicality but of justice. That interest of justice takes precedence over technicality. Appellant further contended that the issue raised have direct bearing on the ground of appeal and therefore not hypothetical or academic.
On abandonment
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of ground 2, Appellant counsel submitted that the Appellant is not bound to formulate issues from all grounds of appeal. He cited the case of A.I.B LIMITED v I.D.S LIMITED (2012) 17 NLWR (PT. 1328) 1 at 27 – 28. Counsel further submitted that while it is good to couch issue from more than one ground of appeal, a valid notice of appeal with one ground of appeal and a single issue is sufficient to sustain an appeal. Appellant thus, contended that the issue formulated by it is sufficient to sustain the appeal.
It is apparent from the argument of the Respondent that its grouse against the competence of the appeal is that the sole issue formulated by the Appellant in its brief does not relate to the issue which was determined by the lower Court neither is it distilled from any of the ground of appeal as contained in the Notice of Appeal. Authorities are settled on the position of the law that not only must the issue nominated for the determination of an appeal be precise, cogent and concise, same must more importantly relate to the ground(s) of appeal filed in any appeal. See: EGBE v. ALHAJI (1990) 3 SC (PT.1) 60; DADA v. DOSUNMU [2006] 18 NWLR
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(PT.1010) 134; FIRST BANK OF NIGERIA PLC v. T.S.A INDUSTRIES LTD [2010] 15 NWLR (PT. 1216) 247 SC; UKIRI v. GEO – PRAKLA (NIG) LTD [2010] 16 NWLR (PT.1220) 544 SC.
Permit me my Lords, to set out herein below, seriatim, the grounds of appeal as evident on the Notice of Appeal filed by the Appellant, thus:
“Ground One
1. The Learned Trial Judge erred in law when she held that the Defendant/Respondent’s counter-claim though unrelated to the Claimant/Appellant’s Principal Claim could still be tried together with it.
Particulars
(a) The learned trial Judge found for a fact that the defendant’s counter-claim was unrelated to the claimant’s Principal Claim.
(b) The learned trial Judge as a natural consequence of such a finding should have excluded the defendant’s claim from the hearing of the claimant’s principal claim.
(c) The learned trial Judge erred in law when she failed to strike out the defendant’s counter-claim having found that the counter-claim set up by way of counter-claim was not related to the principal claim in the statement of claim.
(d) The learned trial Judge erred in law when she applied a case-law which
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interpreted the Civil Procedure Rules of another High Court which are very different from those of the High Court of Lagos (Civil) Procedure) Rules 2004.
Ground Two
2. The learned trial Judge erred in law when she struck out Paragraph 2 of the Claimant/Appellant’s Affidavit in support of the motion dated 19th January, 2010.
Particulars
(a) The learned trial Judge struck out Paragraph 2 of the claimant/Appellant’s Affidavit in support of the motion dated 19th January, 2010 on the ground that it contained legal arguments.
(b) The learned trial Judge erred in law when she struck out the said Paragraph 2 of the claimant/Appellant’s Affidavit which contained only facts and not legal arguments.”
Meanwhile, the sole issue formulated by the Appellant is:
“Whether the Respondent’s Counter-Claim is one which can be properly tried with Appellant’s original claim or one which ought to be struck out as the counter-claim is not related to the original claim?”
It is apparent from a careful scrutiny of the sole issue that, contrary to the contention of the Respondent’s counsel, the sole issue as formulated by the Appellant, ipso facto
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relates to ground one as contained in the Notice of Appeal reproduced above and also relate to the one of the issues determined by the trial Court. It is beyond controversy that the grouse of the Appellant evident as per ground one as well as the sole issue formulated thereon is with respect to the holding of the learned trial judge that the Respondent’s counter-claim can be tried with the Appellant’s principal claim and thus not liable to be struck out. I am inclined to agree with the Appellant’s counsel that the learned counsel of the Respondent ‘missed the point’ when she argued that the issue formulated does not relate to any of the grounds of appeal nor does it arise from the decision of the trial Court. Clearly, as the learned counsel for the Appellant rightly noted, the sole issue cum ground of appeal flows from the decision of the learned trial judge where the lower Court held at page 234 of the record, that the “Claimant and Defendant claims though unrelated can be tried together being in respect of the same parties.” To this extent, this ground of the preliminary objection fails and hereby struck out.
?
As to the second ground, there is no
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doubt from the sole issue formulated that the Appellant’s counsel only canvassed his argument in this appeal on grounds one alone and that no issue was raised or arguments offered in respect of ground 2 of the appeal. I take it therefore that ground 2 of the appeal is abandoned and therefore liable to be struck out as it is now elementary law which requires no citation of authority, that where no issue is formulated or argument offered in support of a ground of appeal, same is deemed abandoned and liable to be struck out. I accordingly strike out ground 2 as contained in the Notice of Appeal.
On the whole, the preliminary objection of the Respondent is partly upheld.
On the sole issue for determination, Counsel for the Appellant submitted that the Respondent’s counter-claim cannot be properly tried with the Appellant’s original claim due to the fact that both claims are not related; that the trial Court misapplied the case of EFFIOM v. IRON BAR (2000) 11 NLWR (PT 678) 344, when it held that both claims could be tried together. Counsel seriously contended that in Effiom’s case, the Court of Appeal interpreted Cross River state High Court
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(Civil Procedure) Rules 1987 specifically Order 4 Rules 2 (1), 2 (2) and 2 (3). He submitted that the applicable law is the Lagos State High Court (Civil Procedure) Rules 2004 which does not even have a similar provision with Order 4 Rule 2 of the Cross River State High Court Rules; that the lower Court erred in applying another state’s law in a Lagos state matter. He further submitted that the applicable laws are Section 24 (3) of the Judicature Act 1873 and Order 15 Rule 1 (3) of the High Court of Lagos State (Civil Procedure) Rules 2004. Counsel submitted that on the authority of Section 24 (3) and Order 15 1 (3) a judge has the power to grant a defendant any claimed relief in a counter-claim only if the relief is related to the original cause of action. Relying on the case of BARBER v. BIAGBERG (1882) 19 CND 473 Appellant submitted that the trial Court ought to have excluded the counter-claim and not to try them together since they are not related. It is also the submission of Appellant’s counsel that a counter-claim must as a matter of legal principle arise from or be connected with or relate to the original action of the Claimant. He cited the cases of ATTORNEY
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GENEERAL OF THE FEDERATION v. ATTORNEY GENERAL OF LAGOS STATE (2005) ALL FWLR 805 at 860 SC; OYEGBOLA v. ESSO WEST AFRICA (1961) 1 ANCR 170; ANDREW NWEKE OKONKWO v. COOPERATION & COMMERCIAL BANK (NIGERIA) PLC & ORS (1997) 6 NWLR (PT 507) 48 at 73. In concluding his submission, Appellant’s counsel referred to GENERAL YAKUBU GOWON v. MRS EDITH I. IKE-KONGWU & ORS (2003) NWLR (PT 147) 1027 to contend that where in a suit original claim and counter-claim are not the same and where even the parties are not the same, the proper thing to do is to exclude the counter-claim and not to try together as decided by the lower Court.
In response, the Respondent’s submitted that it is not correct that the Judicature Act 1873 is a statute of General Application in force in Lagos state. Counsel in his submission pointed out that the Section 2 (1) of the Law (Miscellaneous Provisions) Law, Lagos State Laws 1973, Cap. 65 before now, made the Judicature Act 1873 a statute of General Application in Lagos but that this law has been repealed so that the Judicature Act is no longer a statute of general application in force in Lagos state. Counsel further submitted that
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even though the law was not repealed, it would not have still be applicable since a statue of general application is only had recourse to if there is no local law in place. In this case, counsel submitted, the High Court of Lagos state (civil Procedure) Rules have made provision on claims and counter-claim obviating the need for other foreign law. Respondent’s counsel submitted on Order 15 Rule 1 (3) of the High Court of Lagos state (Civil Procedure) Rules 2004 that the law is not concerned with whether the original claim and a counter-claim are related or unrelated but whether the claim ought to or ought not to be disposed by way of counter-claim. Counsel further submitted that the Appellant is not entitled as a matter of fact, to have a counter-claim struck out because it is unrelated to the main claim without showing why the counter-claim ought to or ought not to be taken. Counsel also submitted that the Court reserves discretion to determine whether or not a matter ought to or ought not to be disposed by way of counter-claim. Respondent counsel still submitted that a counter-claim and a main claim need not necessarily arise from the same subject matter of
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action or transaction. He cited EFFIOM v. IRON BAR (SUPRA); EMAPHIL LTD v. ODILI (1987) 4 NWLR (PT.67) 915. Counsel further submitted on the authority of RICHARD v. NICHOLSON (1993) W.N. 90 that parties can be sued in different capacities. He contended that the Court will take into consideration convenience of the claim being disposed as a counterclaim and not the need to avoid cost duplication on the counter claimant. On that, OGBONNA v. A.G. IMO STATE (1992) 1 NWLR (PT 220) 647 was cited. Counsel therefore submitted that the Appellant was wrong when he argued that the counter-claim should be struck out on the reason sole that it was allegedly unrelated to the main claim.
Responding to the Appellant’s argument on the finding of the trial Court, Respondent counsel submitted that the trial Court never made finding of fact that the claim and counter-claim were totally unrelated. That if the trial Court wanted to do so her Lordship would have compared averments in the Statement of claim and Statement of Defence. That she just simply applied the case of EFFIOM (supra). Counsel for the Respondent again submitted that the lower Court did not wrongly
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apply the case of EFFIOM because it was not only the old Cross River State High Court (Civil Procedure) Rules that was interpreted but other authorities which confirmed the position that the claims need not be related were applied. Counsel reacting to the authority of ATTORNEY GENERAL OF THE FEDERATION v. ATTORNEY GENERAL OF LAGOS STATE (2005) ALL PAIR 805 AT 860M- SC submitted that the principle as quoted by the Appellant that a counter-claim must be related to the principal claim was an obiter dictum not the meat of the judgment. He urged this Court on the authority of R. BENKAY (NIG) v. CADBURY (NIG.) PLC (2009) 6 NWLR (PT.976) 338 to discountenance an obiter dictum. Further reacting to the case NIGERIAN PORTS AUTHORITY v. CONSTUZIONI GENERALI FARSURA COGEFAR SPA & ANOR (1974) 12 SC 81 counsel submitted that the Supreme Court held that in the ‘circumstance’ of the case, the counter-claim must be related to the counter-claim. It was never the intendment of the Court to create a general rule that a counterclaim must be related to the main claim in order for it to gain acceptance of being tried together.
Again, responding to the case of ANDREW NWEKE
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OKONKWO v. COOPERATION & COMMERCIAL BANK (NIGERIA) PLC & ORS (1997) 6 NWLR (PT.507) 48 AT 73 counsel for Respondent submitted that the basis for the decision in that case was the judgment in OYEGBOLA v. ESSO WEST AFRICA (1961) 1 ANCR 170. Counsel submitted on Oyegbola’s case that what determines whether a counter-claim and a main claim can be tried together is not whether they are related but whether the law permits them to be tried together. That Oyegbola’s case does not state that the claims must be related. Thus, that the case of ANDREW NWEKE OKONKWO v. COOPERATION & COMMERCIAL BANK (NIG) PLC & ORS has not rightly stated the position of law. Reacting also to GENERAL YAKUBU GOWON v. MRS EDITH I. IKE-KONGWU & ORS (2003) FWLR (147) 1027, counsel submitted that the case is distinguishable from this appeal as subject matters were totally and widely different. Counsel contended that in Gowon’s case, the main claim was paternity while the counter-claim was libel. In this case, he submitted that it is purely breach of contract. He cited the cases of ARIJE v. ARIJE (2011) 13 NWLR (PT 1264) 265 at 291; EMAPHIL LTD. v. ODILI (1987) 4 NWLR (PT 67) 915
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at 937; STOOKE v. TAYLOR (1880) 5 Q.B.D 569; QUIN v . HESSIN (1879) 40 L.T; LEWIS v. UBA PLC (2006) 1 NWLR (PT.962) 546 then submitted that a main claim and a counter-claim need not be directly related. Finally the Respondent relying on Order 15 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2004 submitted that there is a relationship between the main claim and counter-claim. That parties are the same and the money allegedly withdrawn was the same money granted as a project finance facility. Counsel urged the Court to dismiss the Appellant’s appeal and resolve the issue in its favour.
The Appellant’s in his Reply Brief firstly submitted that the Judicature Act of 1873 is still very much applicable in Lagos state by virtue of Section 45 (1) of the Law (Miscellaneous Provisions) Act, Laws of Lagos of the Federation of Nigeria and Lagos 1953, CAP 89 Amended by 1964 No. 1. Counsel also submitted that even though the Judicature Act is no longer applicable, by virtue of Order 15 Rule 1 (3) of the High Court of Lagos state (Civil Procedure) Rules 2004 the respondent is not allowed to raise the counter-claim when same was not related to the principal
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claim. Appellant’s counsel further submitted that the trial Court interpreted no other law except Order 4 Rule 2 (1), 2 (2) and 2 (3) of the Cross River State High Court (Civil Procedure) Rules 1987 which is not the same with Lagos State High Court Rules. Responding to the various arguments of the Respondent in his Brief, Appellant’s counsel simply submitted that the lower Court was in error when it applied cases of EFFIOM v. IRON BAR (supra) and missed the point in EMAPHIL LTD. v. ODILI (supra). Counsel contended that convenience and speed favored a separation of both claims. In responding to the point whether the lower Court made finding of fact, Counsel submitted, quoting the decision of the lower Court, that the Court made use of the ‘find’ to unequivocally and patently show that it made finding of fact. He referred to page 234 of the Record of Appeal. It is also the submission of counsel that even though that is not the position, that the lower Court had opportunity to do so. Finally, Appellant’s counsel in reaction to the cases cited by the Respondent, submitted that the cases were not applicable as they have been wrongly understood and that the Court of
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Appeal is not bound to follow decision of another of
its panel where there is a Supreme Court decision on the same point. Counsel urged the Court to discountenance the attempt to distinguish the cases cited in support of his submissions since the Respondent was not able to successfully show why the cases are not applicable.
In all, that this Honourable Court should hold that the Counter-claim unrelated to the principal claim and as such should be tried separately.
It is pertinent to state from the onset of the resolution of this issue that there is no appeal against the finding of the learned trial judge that the claims of the respective parties, that is, the Appellant and the Respondent are “unrelated.” The law is settled that once a finding is made by a Court and it has not been appealed against, the finding is deemed accepted as correct. It is also settled law that this Court cannot pronounce on an issue or finding upon which the parties have not appealed against. See DABUP v. KOLO [1993] 12 SCNJ 1; ADEYEMI v . OLAKUNRI [1999] 12 SC (PT 11) 92. In N.B.C.I v. INTEGRATED GAS (NIG) LTD (2005) 4 NWLR (PT 916) 617; (2005) LPELR – 2016
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(SC) 14, paras F – G, the Apex Court, per EDOZIE, JSC held inter alia where a party has not appealed against a finding of the Court, he cannot question that finding on appeal. The grouse of the Appellant’s appeal only relates to the finding and conclusion of the trial Court in relying on the decision of this Court in EFFIOM v. IRON BAR (supra) to hold that the claims of the parties can be tried together. Therefore, the finding of the lower Court that the claim of the Appellant and the Respondent is unrelated is correct having not been challenged in this appeal for the purpose of the resolution of this appeal.
Now, a counter-claim is a cross-action raised in the statement of defence by a defendant who has a cause of action against the plaintiff. It is an independent action brought by the defendant against the plaintiff and not merely a defence. It may not arise from the same transaction as the plaintiff’s action and it is not necessarily predicated on the statement of claim. For this reason, if the plaintiffs action terminates, it does not affect the counter-claim. Rather, the defendant is still entitled to proceed to establish his counterclaim and obtain
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judgment because it is a separate action from the plaintiffs action. However, the defendant’s counterclaim ought to be such that it can be conveniently tried by the same Court together with the plaintiffs claim. see Stanley-Idum & Agaba, Civil Litigation in Nigeria, Lagos: Nelag & Company Limited, 2015, 366 ; Afolayan & Okorie, Modern civil Procedure Law, Lagos: Dee-sage Nigeria Limited, 2007, 155 – 156 ; DABUP v. KOLO [1993] 12 SCNJ 1; O.O.M.F LTD v N.A.C.B. LTD [2008] 12 NWLR (PT1098) 412.
Now, both the Appellant’s counsel and the Respondent’s counsel have in their brief failed to reach a consensus as to the applicability or otherwise of the provision of Section 24 (3) of the Judicature Act, 1823 to the instant case. I must say that, as the Appellant’s counsel rightly noted at Paragraph 4.2.4 of the Appellant’s Reply brief, what is in issue herein transcends the applicability of the Judicature Act. There can be no doubt that the resolution of the question raised by the instant issue revolves round the meaning and effect of Order 15 Rule 1 (3) of the High Court of Lagos state (Civil Procedure) Rules, 2004 (as applicable to the instant case)
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which provides:
“A Claimant shall within 14 days of service of the Statement of Defence and Counter-claim, if any, file his reply to such defence or counter-claim.
Provided that where a Defendant sets up a Counter-claim, if a Claimant or any other person named as a party to such Counter-claim contends that the claim thereby raised ought not be disposed by way of Counter-claim, but in an independent proceeding, a Judge may at any time order that such Counter-claim be excluded.”
The question is what is the consequence of the above provision on the suit leading to the instant appeal? The provision of Order 15 Rule 1 (3) reproduced above leaves no one in doubt that the trial judge is imbued with the exclusive discretion of determining whether or not, upon contention by any party therein, a counter-claim be excluded and tried separately and independently of the principal claim. This is evident from the use of the word ‘may’ in that provision which suggests a directory, permissive and facultative tone but not imperative or mandatory one. I must say that this is not one of the provisions wherein the word ‘may’ as used therein can be interpreted in
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the mandatory sense. See EDEWOR v. UWEGBA [1987] 1 NWLR (PT 50) 313; IFEZUE v. MBADUGHA & ORS (1984) 5 SC 79 at 135; ATAYI FARMS LTD v. N.A.I.C & ANOR [2003] 4 NWLR (PT 810) 427; BAKARE v. A-G FEDERATION & ORS [1990] 5 NWLR (PT 152) 516.
The word ‘may’ as per Order 15 Rule 1 (3) no doubt reflects that it is the intention of the framers of the Rules to ensure that the judge possess discretionary power to decide whether or not, in appropriate circumstances, a counter-claim be tried with the main claim.
It is the Appellant’s contention that the case of EFFIOM v. IRON BAR (supra) referred to by the learned trial judge is inapplicable to the instant case. In that case, the 1st to 7th Appellants at the High Court of Cross River State sued the Respondents claiming inter alia declarations that they are entitled to collect compensation due and payable by the 2nd to 5th Respondents for community land compulsorily acquired for Eburutu Army Barracks and the Barrack’s Extension, Calabar. By a motion on notice, the 1st, 6th and 7th Respondents prayed for the leave of Court to counter-claim against the 7th Appellants and to join in the counter-claim the
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counsel to the Appellants who are the 8th and 9th Appellants. In the counter-claim, the 1st, 6th and 7th Respondents claimed, inter alia. N17,000,000.00 for malicious prosecution and an injunction to restrain the Appellants and there from further malicious prosecution. At the hearing of the motion. counsel for the Appellants did not oppose the counter-claim but opposed the joinder of the counsel to the Appellants as parties in the suit as they had no personal interest in the case and are not necessary parties. The trial Court overruled the objection to the joinder and granted the prayers in the motion. Dissatisfied, the Appellants appealed to this Court, which in determining the appeal had to construe the peculiar provision of Order 4 Rules 2 (1), 2 (2) and 2 (3) of the Cross Rivers High Court (Civil Procedure) Rules, 1987.
EKPE, JCA delivering the leading judgment of this Court held at page 356 – 357. Paras F – B held thus:
“Order 4 Rule 2 (1) of the Cross River State High Court (Civil Procedure) Rules 1987 provides for counter-claim by a defendant against a plaintiff in the same action in respect of any matter and however arising…
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Undoubtedly, the import of the above provisions of order 4 Rule 2 (1), 2 (2) and 2 (3) is that a counter-claim is an independent action and it need not relate to or be in any way connected with the plaintiff’s claim or arise out of the same transaction. It is not even analogous to the plaintiff’s claim…
In law as I have earlier stated, a counter-claim need not only be confined or connected with the plaintiff’s action.”
The learned Justice however, made a general pronouncement of law when he held that “a counter claim need not only be confined or connected with the plaintiff’s action.” See page 357, paras D – E.
It is therefore beyond dispute that the decision of this Court in EFFIOM (supra) ought to have been applied with caution by the learned trial judge having regard to the peculiar fact that the decision of this Court in that case was predicated principally on the construction of the provision of the Civil Procedure Rules of the High Court of Cross Rivers State.
Appellant’s counsel had argued that the parties in the original claim are distinct from those in the counter-claim. See also page 203 of the record. I believe however that
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the only differing party is the 2nd Defendant to the counter-claim, who to mind cannot be said to be a third party to the suit as he is a major director and category A signatory to the account in respect of which the loan transaction was obtained and who is joined as a party to the counter-claim having regard to the fact that he personally guaranteed the loan transaction upon which the counter-claim is predicated. In MUSA v. YUSUF [2006] 6 NWLR (PT. 977) 454; [2006] LPELR – 7586, this Court, per TSAMIYA, JCA held at page 27, Paras A – C thus:
“It has been said times without number that a counter-claim is a cross action, a fresh action completely distinct from the one commenced by the original plaintiff. The counter-claimant is thus a plaintiff in his own right while the original plaintiff suit and any other necessary party joined in the defence of the counter-claim becomes defendant. See J.D. Anoliefo Enterprises (Nig) Ltd v. Universal Trust Bank (Nig.) Ltd (2001) (supra)…”
Even earlier in EFFIOM v. IRON BAR (supra), OPENE, JCA, at page 361, Paras E-F, noted:
“It is settled that a defendant can counter-claim against a plaintiff and any other
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person who is not already a party to the suit if it is necessary to make such a person a party to the action so that he should not be bound by the result of the action and the question in the action cannot be effectively and completely determined unless he is a party”
Apparently, it is possible in a counterclaim for a defendant/counterclaimant to include some other persons who not parties in the substantive action by the original claimant. To this extent, the provision of Order 17 Rule 7, 8 & 9 of the High Court of Lagos State (Civil Procedure) Rule, 2004 is clear, wherein it was stated thus:
“7. Where a defendant by his defence sets up any counter claim which raises question between himself and the claimant along with any other persons, he shall add to the title of his defence a further title similar to the title in a statement of claim, setting forth the names of all persons who, if such counter-claim were to be enforced by cross action, would be defendants to such cross action, and shall deliver his defence to such of them as are parties to the action within the period which he is required to deliver it to the claimant.
8. Where any
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such person as in Rule 7 of this Order is not a party to the action he shall be summoned to appear by being served with a copy of the defence and counter-claim, and such service shall be regulated by the same rules as those governing the service of the originating process, and every defence and counter-claim so served shall be indorsed in Form 12 with such modifications or variations as circumstances may require.
9. Any person not already a party to the action, who is served with a defence and counter-claim as aforesaid, must appear as if he had been served with an originating process to appear in an action”
The foregoing therefore presupposes that contrary to the argument of Appellant’s counsel, it is of no moment that the 2nd defendant to the counterclaim is not a party to the original claim. See also Afolayan & Okorie, supra at page 155.
Meanwhile, the case of GENERAL YAKUBU GOWON v. MRS EDITH I. IKE – OKONGWU (supra) relied upon by the Appellant is inapplicable to the instant appeal. In that case, the plaintiffs in the original action were Mrs. Edith Ike-Okogwu and Musa Gowon, who sued General Yakubu Gowon as defendant,
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claiming inter alia, a declaration that the defendant was the father of the 2nd plaintiff. The defendant denied liability and filed a statement of defence. Subsequently, the defendant by a motion sought to amend his statement of defence by inclusion of a counter-claim. The parties to the counter-claim were General Yakubu Gowon, as plaintiff, Mrs. Edith Ike-Okogwu, True Tales Publication Ltd and Kayode Ajala as defendants, in respect of a libelous publication by True Tales Publication, in their periodicals, the Hints Magazine. The publication was made after the writ had been issued and pleadings exchanged. The crux of the decision of the Supreme Court in the case was that a counter-claim, which cause of action did not arise at the date of issue of the writ cannot be allowed to be tried with the main claim in the suit.
Having said all these, the question in this appeal that remains unanswered is whether the learned trial judge whose discretion it is under Order 15 Rule 1 (3) to exercise, did same rightly – that is judicially and judiciously – having regard to the circumstances of the instant case? I must say that there is no definite answer to this question
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because the nature of judicial discretion is such that it ceases to be discretion if it is found that it can only be exercised in a particular form. In UBN PLC v. ASTRA BUILDERS W/A LTD [2010] 5 NWLR (PT 1186) 1 SC; (2010) LPELR – 3383 (SC) at 21, Paras D – G, ADEKEYE, JSC stated thus:
“An exercise of discretion is an act or deed, based, on ones person Judgment in accordance with one’s conscience, free and, unfettered, by any external influence or suggestions. A Judicial discretion means the power exercised in an official capacity in a manner which appears to be just and proper under a given situation. It must not flow from or be bound by a previous decision of another Court in which a discretion was exercised. It is in short an antithesis to the doctrine of stare decisis. There is no hard and fast rule as to the exercise to a judicial discretion by a Court for if that happens, a discretion becomes fettered.”
My Lords, in the same breadth it has always been the attitude of Appellate Court not to interfere with the exercise of the discretion of the lower Court simply because it did not favour one of the parties in the appeal before it. This Court
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will not readily interfere with such exercise of discretion unless same was wrongly exercised by the lower Court. In ODUTOLA v. KAYODE [1994] 2 NWLR (PT.324) 1; (1994) LPELR – 2262 (SC) 11- 12, Paras F – B, the Supreme Court, per UWAIS JSC (later CJN) held:
“… Therefore, for an appeal against the exercise of the discretion, … to succeed it must be shown by the appellant that there has been a wrongful exercise of the discretion in that the Court had acted under a mistake of law, or in disregard of principle, or under a misapprehension of the facts, or has taken into account irrelevant matters, or the ground that injustice could arise or that no weight or no sufficient weight has been given to relevant consideration, or when, as is usually said, the discretion was not exercised judicially.”
See: also, ALHASSAN v F.G.N (2010) LPELR – 3707 (CA); ADOLE & ANOR v P.P.M.C LTD & ANOR (2009) LPELR – 8688 (CA).
It is pertinent to say that in the instant appeal, the Appellant has not shown in one way or the other how the exercise of the discretion by the learned trial judge was done wrongly. The fulcrum of the argument of the Appellant’s
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counsel in this appeal that merely that because the original claim is on breach of banking mandate and refund of wrongly debited sums, the trial Court erred when it held that it can be tried with the counterclaim which is for default of repayment of the project finance facility. The Appellant failed to show how the trial Court wrongly exercised its discretion, bearing in mind that although a counterclaim is an independent action, it combined with the original claim for convenience of procedure and to forestall multiplicity of suits in Court.
Without prejudice to the earlier finding that the case of EFFIOM v. IRON BAR (supra) ought to be applied to the circumstances of the instant case with caution; the conclusion and holding of the learned trial judge on this issue remains unassailable in the light of Order 15 Rule 1 (3) of the High Court of Lagos State (Civil Procedure) Rules, 2004 (having not appealed against the issue) which guarantees the discretion of the trial Court to decide whether or not to try a counterclaim with the principal claim.
Therefore, I am unable to hold that the learned trial judge wrongly exercised his discretion in law and
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equity, in deciding that the original claim as well as the counterclaim should be tried together.
In the light of the foregoing, this issue is resolved in favour of the Respondent.
On the whole, this appeal is unmeritorious and hereby dismissed. The judgment of the trial Court, Per ADEBIYI J., of the High Court of Lagos State, delivered on the 28th October, 2010 is hereby affirmed.
Costs assessed at N50,000.00 is awarded in favour of the Respondent.
SIDI DAUDA BAGE, J.C.A.: I concur with the reasoning and conclusion reached in the judgment prepared and just delivered by my learned brother, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA, to the effect that the instant appeal is unmeritorious. Hence, the appeal is equally dismissed by me. Consequently, I affirm the judgment of the trial Court, per Adebiyi J., of the High Court of Lagos State, delivered on the 28th October, 2010.
CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, A.O. OBASEKI-ADEJUMO JCA. He has exhaustively dealt with the issues. I agree with
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his reasoning and conclusions.
Given that a counter-claim is an independent action, it follows that it may not necessarily arise from the same transaction as the plaintiff’s action. It must however be such that it can conveniently be tried with the plaintiff’s claim: See Dabup v. Kolo (1993) NWLR (Pt.317) 254; Messrs Dee’s v. Amoke (2010) LPELR-9024 (CA).
Doubtless, Order 15 Rule 1 (3) of the High Court of Lagos State (Civil Procedure) Rules 2004 gives the claimant or any other person named as a party in the counterclaim the right to apply that the counterclaim be dealt with as an independent action, the presiding judge has the discretion to decide whether or not the counter-claim be excluded. I agree with my learned brother that the trial judge having exercised his discretion to hear the counterclaim along with the main claim, this Court cannot interfere with the exercise of discretion in the absence of any evidence that the discretion was wrongly exercised.
I too, dismiss the appeal as lacking in merit. I abide by the consequential orders in the lead judgment including the order as to costs.
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Appearances:
Efe O. Etomi (Mrs.) with, O. F. OjoFor Appellant(s)
M. Okebu (Mrs.)For Respondent(s)
Appearances
Efe O. Etomi (Mrs.) with, O. F. OjoFor Appellant
AND
M. Okebu (Mrs.)For Respondent
