AJEKIGBE v. BOLA
(2022)LCN/16135(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, March 25, 2022
CA/IB/178/2013
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
MR. D. O. AJEKIGBE APPELANT(S)
And
ENGINEER BODE BOLA RESPONDENT(S)
RATIO
THE PRINCIPLE THAT PARTIES ARE BOUND BY THEIR PLEADINGS
The law is settled that parties are bound by their pleadings and a Court should only decide on issues put forward by the parties in their pleadings. See Alhaji Ibrahim Yakassai v. Messrs Incar Motors (Nig.) Ltd (1975) 5 SC 107. Incar (Nig.) Ltd v. Benson Transport Ltd (1975) 3 SC 117; Etowa Enang & Ors v. Fidelis Ikor Adu (1981) 11 – 12 SC 25, Gbaniyi Osafile & Anor v. Paul Odi (1990) 3 NWLR (Pt. 137) 130 and SCOA Nigeria Ltd v. Mr. Olabode Vaughan & Anor (2003) 1 NWLR (Pt. 800) 210. PER ADUMEIN, JC.A
WHETHER OR NOT A COUNTERCLAIM IS AN INDEPENDENT ACTION WITH A LIFE OF ITS OWN
The appellant’s counsel contended strongly that: “Having found that the main claim was incompetent, his Lordship should have held that the appellant’s counter-claim founded on it too was by coincidence, irredeemably affected and cannot stand.” The law is quite settled that a counterclaim is an independent action with a life of its own, notwithstanding that it is an action within an already existing action. A counter-claim has its own identity whereby the counter-claimant is the plaintiff while the original claimant/plaintiff is the defendant. See Emaphil Limited v. Charles N. Odili (1987) 4 NWLR (Pt. 67) 915, Ogli Oko Memorial Farms Ltd. & Anor. v. Nigerian Agricultural and Co-operative Bank Ltd. & Anor. (2008) 3 – 4 SC 95; and Obasi Brothers Merchant Co. Ltd. v. Merchant Bank of Africa Securities Ltd. (2005) 9 NWLR (Pt. 929) 117.
A Court has jurisdiction to hear and determine a counter-claim even where the plaintiff’s claim has been stayed, held to be frivolous or dismissed on the merits. See A. R. Mogaji & Ors v. Madam Rabiatu Odofin & Ors (1978) 4 SC 90 and Emaphil Limited v. Charles N. Odili (supra) at 938 per Nnaemeka-Agu, JSC; where the Supreme Court held as follows:
“If the plaintiff’s claim is for any reason stayed or dismissed after pleading or held to be frivolous, the Court can still proceed to try and grant the relief prayed for in the counter-claim. See Adams v. Adams (1890) 45 Ch. D. 426.” PER ADUMEIN, JC.A
WHETHER OR NOT AN INCOMPETET COUNTER-CLAIM CAN SURVIVE ON ITS OWN
The case of Ifeteto Ventures Limited & Anor v. Enterprise Bank Limited (supra), heavily relied on by the appellant, is grossly inapplicable to this case. In that case, this Court affirmed the decision of the trial Court striking out the counterclaim because the counterclaim itself was incompetent and not solely because the main claim had been struck out. In the judgment of Dongban-Mensem, JCA (as he then was, now PCA), His Lordships elaborately stated as follows:
“The peculiar disabling feature of the counter-claim in consideration is that it was not filed. Thus, being a separate suit from the main claim, it cannot possibly survive on its own because it is itself incompetent, not because the main claim is incompetent.
While a counter-claim stands independent of the main claim, I do not think that the competence of the main claim will cure the incompetence of the counter-claim.
Similarly, the incompetence of the main claim does not render incompetent, an otherwise competently filed counter-claim. The counter-claim can be heard and determined on its own merit.” PER ADUMEIN, JC.A
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The respondent was the claimant in Suit No. I/587/2009 which he instituted in the High Court of Oyo State, holden at Ibadan where in his further amended statement of claim filed on the 5th day of March, 2012 he sought the following relief, against the appellant who was then the defendant:-
“a. An Order of this Honourable Court on the defendant to give vacant possession of Quarter 576 Jericho GRA Ibadan won and paid for by the claimant under competitive building
b. An Order on the defendant to pay monthly rent of One Hundred and Fifty Thousand Naira (N150,000.00) with effect from 16th November, 2008 when vacant possession ought to have been given until he gives vacant possession to the claimant.
c. A sum of Two Million Naira (N2,000,000.00) from the defendant as general damages for his refusal to give vacant possession from 16th November, 2008. Which led to the loss of use by the claimant.”
In the said suit, the appellant counter-claimed against the respondent as follows:
“a. A declaration that the allocation of Quarters 576, Jericho GRA to the claimant and the subsequent Deed of Lease executed in his favour was done in error and in violation of the right of the defendant/counter-claimant to first refusal before such allocation.
b. A declaration that the defendant/counter-claimant is the person entitled to a Statutory Right of Occupancy in respect of the piece or parcel of land and the structure thereon situate lying and being at Quarters 576, Jericho GRA, Ibadan, Oyo State.
c. A declaration that the Deed of Lease dated 09/02/2011 registered as No. 57 at page 57 in Volume 3579 of the land issued in the name and in favour of the defendant is properly so issued.
d. An order setting aside the lease dated 5th January, 2009 and registered as No. 22 at page 22 in Volume 3555 of the Lands Registry in the office at Ibadan in favour of the claimant.
e. An order of injunction restraining the claimant/defendant to counter-claim from harassing, disturbing or interfering in any way with the possession of the defendant over the aforesaid land and the structure thereon.”
After hearing the parties and their witnesses and upon the adoption by the learned counsel for the parties of their respective final written addresses, the trial Court delivered a reserved judgment on the 13th day of July, 2012 whereby it concluded as follows:
“In conclusion, I hereby enter judgment in this case as follows:
(1) The claimant’s claim as contained in his Amended Writ of Summons not having been supported by a competent pleading is hereby struck out.
(2) The defendant’s counter-claim fails in its entirety and it is hereby dismissed.”
This appeal is against the above decision of the trial Court.
Adewale Adegoke, Esq., learned counsel who settled the amended appellant’s brief, formulated three issues for determination as follows:
“1) Whether the learned trial judge was right when after holding that the main suit was competent, and after full trial, he merely struck out the respondent’s claim for the incompetence only of the Statement of Claim (Ground (a).
2. Whether considering the admissible evidence on the record, the learned trial Judge was not in error when he refused and dismissed the appellant’s Counter Claim after full trial, when there was no real offence to the said Counter Claim (Grounds (b) and (d)).
3. Whether having struck out the suit of the respondent on the ground that the Statement of Claim was incompetent, the learned trial Judge was not in error to have considered and dismissed the appellant’s Counter-Claim. (Ground C of the Amended Notice of Appeal).”
On behalf of the respondent, Jide A. Adebowale, Esq., who signed the amended respondent’s brief, also distilled three issues framed as follows:
“i) Whether the learned trial judge properly exercised her discretionary power in striking out the Claimant (respondent) pleadings after the completion of the trial having regards to the Supreme Court decision in Okafor v. Nweke (2007) ALL FWLR Part 368 page 1016 which has been followed in various other discussion
ii) Whether considering the admissive evidence on record the learned trial judge was right in dismissing the appellant’s Counter-Claims in its entirety
iii) Whether having struck out the suit of the respondent on the ground that the statement of claim was incompetent, the learned trial judge was not in error to have considered and dismissed the appellant’s Counter-Claim.”
The issues identified by the parties, although couched differently, are essentially the same. However, since the appellant has properly tied the issues to his grounds of appeal, I adopt the appellant’s issues to determine this appeal. The first and third issues raised, respectively, by the learned counsel for the appellant and respondent, are intertwined and it is only logical that they ought to be, and they shall be, resolved together.
ISSUES 1 AND 3
1. Whether the learned trial judge was right when after holding that the main suit was competent, and after full trial, he merely struck out the respondent’s claim for the incompetence only of the Statement of Claim.
3. Whether having struck out the suit of the respondent on the ground that the Statement of Claim was incompetent, the learned trial Judge was not in error to have considered and dismissed the appellant’s Counter-Claim.
Learned counsel for the appellant referred to the stages and circumstances at which a suit may terminate to include the following:
“a) The common situation where the suit progresses normally from the beginning to the end with both parties filing and exchanging pleadings, settling issues on those pleadings, calling evidence and addressing the Court – in which case the Court delivered its judgment deciding the rights of the parties either by granting or dismissing the claims. Such judgment is said to be on the merits. See Tom v. Ameh (1992) 1 NWLR (Pt. 217) 306 at paras. E-H. When an action is dismissed at this stage, it is so in limine, and unless the rules of Court permit, the action cannot be re-opened. The dismissal is conclusive of the matter or issues decided therein until the judgment is set aside on appeal. See Nigerian Airways Ltd v. Lapite (1990) 7 NWLR (Pt. 163) 392, Reg. Trustees of Ifeloju v. Kuku (1991) 5 NWLR (Pt. 189) 65 at 78-79 paras. G-B and Idoko v. Ogbeikwu (2003) 7 NWLR (Pt. 819) 275 at 292 paras. C-G.
b) A case may also terminate at any stage at all on the ground and holding that the Court for any reason does not have the jurisdiction to entertain it. Such issue of jurisdiction may be raised by the Court itself (with necessary opportunity given to the parties to be heard), or by the Defendant. (See Arewa Textiles Plc. v. Finetex Ltd. (2003) 7 NWLR (Pt. 819) 322 at 356 para. E), or even by the Plaintiff/Claimant himself (See Dalfam (Nig.) Ltd. v. Okaku Int’l (2001) 15 NWLR (Pt. 737) 203 at 249 – 250 paras. H-A). Where the Court, including an appellate Court, declines jurisdiction at any stage of the proceedings, the only order that it can make is one striking out the suit. If a Court has no jurisdiction to entertain a matter, it would have no jurisdiction or competence to dismiss the action or to impose any condition for relitigating of the matter. See Daltan (Nig.) Ltd. v. Okaku Int’l Ltd. (supra) at page 250 paras. G – H.
c) A case may also terminate on the withdrawal of it by the Plaintiff/Claimant himself at any stage before judgment. Such factor that may necessitate the discountenance may include any of the following:
i. Where a plaintiff realizes the weakness of his claim in the light of the defence put up by the defendant; or
ii. Where plaintiff’s vital witnesses are not available at the material time and will not be so at any certain future date; or
iii. Where the plaintiff abandons the prosecution of the case, with a view to substantially reducing the high costs that would have otherwise followed after a full-scale but unsuccessful litigation, and
iv. Where the plaintiff may possibly retain the right to relitigate the claim at a more auspicious time if necessary.
See Babatunde v. P.A.S. & T.A. Ltd. (2007) 13 NWLR (Pt. 1050) 113 at 138 paras. E – G.”
Relying on the case ofHi-Flow Ind. v. Unibadan (1993) 3 NWLR (Pt. 290) 719 at 732 – 733, learned counsel for the appellant submitted that a Court is competent when:
“a) it is properly constituted as regards members and qualifications of the members of the bench, and no member is disqualified for one reason or another;
b) the subject matter of the case is within the jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
c) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence, we submit, is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication.”
Counsel contended that the respondent’s suit ought to be dismissed and not merely struck, as the trial Court did because:
“It is on this premise that the action leading to this appeal progressed at the trial Court and passed through all the stages of full litigation. At the time of trial therefore, the respondent is no longer dominis litis; the point of litis contestation had been reached.”
In support of the above submission, learned counsel relied on, and referred to the Court the cases of Idoko v. Ogeikwu (2003) 7 NWLR (Pt. 819) 273 at 292 – 293 and Y.S.G. Motors Ltd v. Okonkwo (2010) 15 NWLR (Pt. 1217) 524 at 543.
Mr. Adegoke argued that since the trial Court struck out the respondent’s suit, for the reason that the writ of summons was incompetent, it was in “grave error” to have gone “ahead and considered the appellant’s counter-claim on its merit and then dismissed same”. He cited the case of Ifeteto Ventures Limited & Anor v. Enterprise Bank Limited (Appeal No. CA/I/179/2013), unreported judgment of this Court, Ibadan Division, delivered on Thursday, the 22nd day of May, 2014 where this Court held that a counter-claim was rightly struck out because “it could not stand without the support of the main claim”.
In his response, the learned counsel for the respondent submitted that the trial Court rightly struck out the respondent’s statement of claim for being incompetent on the authorities of Okafor v. Nweke (2007) ALL FWLR (Pt. 368) 1016 and First Bank of Nigeria Plc. v. Maiwada (2013) ALL FWLR (Pt. 661) 1433 at 1469.
He contended that:
“By virtue of Order 25 Rule 1 Oyo State Civil Procedure Rules 1988, it is not mandatory that the writ of summons and the statement of claims should be filed and served simultaneously. Also a process is started in the Court by filing and serving the writ of summons. It will also be observed that all processes filed in Court by the Claimant (now respondent) were competent except the statement of claims first filed and served.”
Mr. Adebowale, learned counsel for the respondent, argued that since the writ of summons in this case, was competent, the trial Court was right to have proceeded to consider the appellant’s counterclaim on the merits. He submitted that the case of Ifeteto Ventures Limited & Anor v. Enterprise Bank Limited (supra) relied upon by the appellant is not applicable to this case.
The judgment of the trial Court is on pages 310 to 343 of the record of appeal. The trial Court found that “the originating process in this suit which is the Writ of Summons is competent having been signed by Kayode Alli-Balogun, a Legal Practitioner” – pages 324 – 325 of the record of appeal.
The trial Court however held that the statement of claim filed along with the writ of summon was not signed by a legal practitioner known to law and stated that “the statement of claim filed in this suit on 28th April, 2009 is incompetent and it is hereby struck out” – page 325 of the record of appeal.
The trial Court was right to have held that the statement of claim filed on the 28th day of April, 2009 was incompetent as it was signed by a law firm – “Kayode Alli-Balogun and Co.” This is because it has been held in a fairly long line of decisions of the Supreme Court that a law firm is a business name which is not accorded legal personality and is also not a legal practitioner known under the Legal Practitioners Act. See Emmanuel Okafor v. Augustine Nweke (2007) 3 SC (Pt. II) 55, SLB Consortium Limited v. Nigerian National Petroleum Corporation (2011) 9 NWLR (Pt. 1252) 317 and Prof. Vincent Nnamdi Okwuosa v. Prof. N.E. Gomwalk & Ors. (2017) 9 NWLR (Pt. 1570) 259.
The trial Court was also right to have held that although the writ of summons was competent, it was not supported by a statement of claim. It should be noted that a writ of summons is an independent process from the statement of claim.
Writ of summons and statement of claim can be filed by a claimant simultaneously but the writ of summons, being the foundation of a case, is filed first and should be so deemed as having been filed before the statement of claim. A statement of claim can also be separately filed on a date after the writ of summons had been filed.
The law is settled that parties are bound by their pleadings and a Court should only decide on issues put forward by the parties in their pleadings. See Alhaji Ibrahim Yakassai v. Messrs Incar Motors (Nig.) Ltd (1975) 5 SC 107. Incar (Nig.) Ltd v. Benson Transport Ltd (1975) 3 SC 117; Etowa Enang & Ors v. Fidelis Ikor Adu (1981) 11 – 12 SC 25, Gbaniyi Osafile & Anor v. Paul Odi (1990) 3 NWLR (Pt. 137) 130 and SCOA Nigeria Ltd v. Mr. Olabode Vaughan & Anor (2003) 1 NWLR (Pt. 800) 210.
In this case, therefore, since the respondent’s statement of claim and the amendments thereto were declared invalid, for being incompetent, there was no evidence upon which the trial Court could have determined the respondent’s action on the merits. The trial Court could not have properly dismissed the case. The Court was right to have struck it out.
The appellant’s counsel contended strongly that: “Having found that the main claim was incompetent, his Lordship should have held that the appellant’s counter-claim founded on it too was by coincidence, irredeemably affected and cannot stand.” The law is quite settled that a counterclaim is an independent action with a life of its own, notwithstanding that it is an action within an already existing action. A counter-claim has its own identity whereby the counter-claimant is the plaintiff while the original claimant/plaintiff is the defendant. See Emaphil Limited v. Charles N. Odili (1987) 4 NWLR (Pt. 67) 915, Ogli Oko Memorial Farms Ltd. & Anor. v. Nigerian Agricultural and Co-operative Bank Ltd. & Anor. (2008) 3 – 4 SC 95; and Obasi Brothers Merchant Co. Ltd. v. Merchant Bank of Africa Securities Ltd. (2005) 9 NWLR (Pt. 929) 117.
A Court has jurisdiction to hear and determine a counter-claim even where the plaintiff’s claim has been stayed, held to be frivolous or dismissed on the merits. See A. R. Mogaji & Ors v. Madam Rabiatu Odofin & Ors (1978) 4 SC 90 and Emaphil Limited v. Charles N. Odili (supra) at 938 per Nnaemeka-Agu, JSC; where the Supreme Court held as follows:
“If the plaintiff’s claim is for any reason stayed or dismissed after pleading or held to be frivolous, the Court can still proceed to try and grant the relief prayed for in the counter-claim. See Adams v. Adams (1890) 45 Ch. D. 426.”
In this case, the trial Court was right to have considered the appellant’s counter-claim on its merits, notwithstanding the fact that the Court had struck out the respondent’s statement of claim for being incompetent.
The case of Ifeteto Ventures Limited & Anor v. Enterprise Bank Limited (supra), heavily relied on by the appellant, is grossly inapplicable to this case. In that case, this Court affirmed the decision of the trial Court striking out the counterclaim because the counterclaim itself was incompetent and not solely because the main claim had been struck out. In the judgment of Dongban-Mensem, JCA (as he then was, now PCA), His Lordships elaborately stated as follows:
“The peculiar disabling feature of the counter-claim in consideration is that it was not filed. Thus, being a separate suit from the main claim, it cannot possibly survive on its own because it is itself incompetent, not because the main claim is incompetent.
While a counter-claim stands independent of the main claim, I do not think that the competence of the main claim will cure the incompetence of the counter-claim.
Similarly, the incompetence of the main claim does not render incompetent, an otherwise competently filed counter-claim. The counter-claim can be heard and determined on its own merit.”
See page 4 of the contribution of Dongban-Mensem, JCA (now PCA) in the said decision of Ifeteto Ventures Limited & Anor v. Enterprise Bank Limited (Appeal No. CA/I/179/2013) delivered on Thursday, the 22nd day of May, 2014.
To save time, issues 1 and 3 raised by the appellant are hereby resolved against him.
ISSUE NO. 2
Whether considering the admissible evidence on the record, the learned trial Judge was not in error when he refused and dismissed the appellant’s Counter-Claim after full trial, when there was no real offence to the said Counter-Claim.
The relevant arguments of the learned counsel for the appellant on this issue are quite brief and they are hereby fully reproduced as follows:
“We wish to draw the attention of this honourable Court to the terminal pleadings of the respondent at the Court below, namely: the Further Amended Statement of Claim dated 20th February, 2012 and filed 5th March, 2012 (pages 129 -131 of the Record of Appeal) and Reply to the Statement of defence and Defence to the Counter-Claim dated 8th May, 2012 and filed 9th May, 2012 (pages 229 -232).
It would be observed that the Respondent’s Reply to Defence and Defence to Counter-Claim did not indicate where the Defence to Counter-Claim was and where it was located in his pleadings. Be that as it may, we concede that where he makes out a Defence to Counter Claim, even if it has not been so headed, the Court must consider it in his favour.
Our contention however is that the Statement of Claim having been struck out, all evidence led on it goes to no issue. (see Balogun v. Oshunkoya (1992) 3 NWLR (pt. 232) 827 at 834 para. G).
Your Lordships are urged to discountenance the evidence of the respondent’s sole witness founded on the Further Amended Statement of Claim dated 20-12-2012 and filed 5-3-2012.
If that is done, what is left of the respondent’s admissible evidence is hardly able to serve as adequate defence to the Counter Claim of the appellant.”
In his response, learned counsel for the respondent referred to the appellant’s relief in his counter-claim and, after citing the case of H.A.S. Nig. Ltd v. Kenzor (2005) ALL FWLR (Pt. 276) 667 at 683-4, submitted that the appellant must succeed on the strength of his case and not rely on the weakness of the defence.
Learned counsel then contended/submitted as follows:
“The Claimant evidence is found on pages 315-317 of the record. The findings of the trial judge are contained on pages 330-342 of the record which can be summarily stated below:
a) The learned trial judge found that the Counter-Claimant (Appellant) did not bid for Quarter 576 Jericho GRA in 2008 which is a mandatory requirement.
b) His name never appeared on the list of successful bidders even as a sitting tenant
c) That the lease agreement in favour of the Appellant was registered in 2011 (when the matter was already in Court) but that of the Respondent was in 2009.
d) At page 213 of the record is the lease agreement tendered at the trial and which the Appellant relied upon in his counter-claims. In that lease agreement, it is specifically stated as follows: there is a previous registration of this quarter as No. 22 at page 22 in Volume 3555. This lease is the lease agreement already stamped and registered as No.22/22/3555 in the name of the Respondent, Engineer Bode Bola dated 5th January, 2009. See pages 143 to 148 of the record.
It is therefore clear that the lease agreement dated 5th January, 2009 was the 1st in time. The judgment of the trial Court on this is at pages 310-343.
Furthermore, we respectively refer my Lords to the findings of the trial Judge on pages 339 to 342 of the record where the trial judge categorically stated that the res of this case belongs to the Respondent (Engineer Bode Bola). The trial Court finally held at page 340 of the record thus: At the time Oyo State Government gave to the Appellant the deed dated 9th February, 2011 and registered as No. 37/57/3579, the Oyo State Government had nothing to allocate to the Appellant having divested of title to the property, on the principle of Nemo dat quod Non Habet.
It is therefore clear that at the time of the suit in the lower Court (trial Court), the Appellant has no title to the said property. It is also submitted that because it is the principle of law that the Appellant is bound to have a legal claim on the property subject of the litigation and has none at all his claims should be dismissed. Furthermore, Appellant’s counter-claims are declaratory which cannot be granted without valid evidence to prove same. We comment the findings and conclusions of the trial judge to my Lords consideration.
Having regard to the admissible evidence adduced in the course of the trial, documents tendered and the findings of the trial judge, we urge on my Lords to hold that the Counter-Claimant had failed to adduce credible evidence to grant the Reliefs sought. The learned trial judge was therefore correct in dismissing the Counter-claims in its entirety.”
As stated under the preceding two issues, a counter-claim is a live action of its own. And a counter-claimant, just like a plaintiff, in an action for declaration of title to land, has the burden of proving his counter-claim. See Nigerian Ports Authority v. Construzioni Generali Farsura Cogefar SPA & Anor (1974) 12 SC 81 and Chief Eyo Edem Nsefik & Ors v. Rosemary Muna & Ors. (2007) 10 NWLR (Pt. 1043) 502.
In its judgment, the trial Court held, inter alia, as follows:
“I have considered the entire evidence led in this case, it is my view that the facts which are germane to the consideration of the claimant’s claim are not in dispute.
These are:
(1) On 27th July, 2007, 10th October, 2007, 7th February, 2008 and 16th April, 2008, Oyo State Government published advertisements for the lease of its quarters including quarter 576 Jericho, GRA, Ibadan. (see paragraph 7 of the Statement of the claimant’s witness sworn to on 9th May, 2012 and paragraph 10 of the defendant’s statement).
(2) On 14th July, 2008, the claimant’s name was published in the Nigerian Tribune as the winner of the bid for the quarters (see paragraph 15 of the defendant’s statement and Exhibit ‘A1’ tendered by the claimant’s witness).
(3) The list of successful bidders who are legal sitting tenants was published in the Nigerian Tribune Newspaper of 15th July, 2008 the defendant’s name was not there (see Exhibit ‘A2’ and paragraph 17 of the defendant’s statement).
(4) The defendant protested but his protest was ignored.
(5) After payment of the required fees, (see Exhibits B’10’ and ‘B10A) a deed of lease dated 5th January, 2009 registered as 22/22/3555 (Exhibit ‘A4’) was executed in favour of the claimant.
(6) The defendant continued to appeal to the government to allocate the same quarter 576 to him (see exhibits ‘B2’ and ‘B3’).
(7) By a letter dated 18th October, 2010, the same quarter 576 which had already been leased to the claimant and all documents relating thereto executed and registered and all documents was again leased to the defendant and another deed of lease dated 9th February, 2011 registered as No. 57/57/3579 was executed in his favour.”
The trial Court then held the areas or points of dispute to be that:
(a) “the defendant (appellant) claimed that plaintiff (respondent) did not pay the required purchase price or fees within the stipulated time.
(b) the defendant (appellant) also complained that he being a sitting tenant had “a first right of refusal.”
The trial Court proceeded to resolve the two areas of complaint by the appellant against him.
I am of the view that the trial Court was right in its decision that the owner of the property has the right to sell his property to whosoever he wishes and on whatever terms or conditions agreeable to the parties. The owner of the property also has the right to waive any or some of the terms or conditions of the agreement between him and the buyer of his property.
From the findings of facts, reproduced earlier in this judgment, which the appellant has not appealed against, the Oyo State Government to execute a deed of lease – Exhibit “A4” on the 5th day of January, 2009 in favour of the respondent but the same Oyo State Government executed another deed of lease on the 9th day of February, 2011 in favour of the appellant.
It is clear that both the respondent and the appellant derived their entitlement to the disputed property – Quarters 576, Jericho GRA, Ibadan from the same grantor – Oyo State Government. The law is that where competing parties claim their right or title from the same grantor, the right of the first person in time prevails and this is as expressed in the ancient maxim: “qui prior est tempore potior est jure” which means: “he who is earlier in time is stronger in law.” See Alhaji Uban Kari v. Alhaji Isa Abba Ganaram (1997) 2 NWLR (Pt. 488) 380, Mogaji Lasisi Atanda & Ors v. Salami Ajani & Ors (1989) 3 NWLR (Pt. 111) 511, Emy J. Bila Auta v. Chief Willy Ibe (2003) 13 NWLR (Pt. 837) 247 and Col. A.C. Ugwunze v. Chief Adeboyega Adeleke (2008) 2 NWLR (Pt. 1070) 148.
On page 334 of the record of appeal, the trial Court specifically found and held as follows:
“There is no doubt that the claimant’s lease is earlier in point of time. The defendant’s deed of lease was executed two years after the claimant’s lease.”
It should be noted that the above finding by the trial Court has not been appealed against. The law is settled that findings not appealed against are deemed to be correct. See Kariwo Obasi & Anor v. Eke Onwuka & Ors. (1987) 3 NWLR (Pt. 61) 364; Michael A. Ndiwe v. Anthony Chuma Okocha (1992) 7 NWLR (Pt. 252) 129; Madam Adunola Adejumo & Ors. v. Mr. Oludayo Olawaiye (2014) 12 NWLR (Pt. 1421) 252; Wike E. Nyesom v. Dakuku A. Peterside & Ors (2016) 1 NWLR (Pt. 1492) 71 and Col. Mohammed Sambo Dasuki v. Federal Republic of Nigeria & Ors. (2018) 10 NWLR (Pt. 1627) 320.
The trial Court was right, having regard to the evidence on record, to have concluded that:
“In the instant case, the claimant’s lease being first in point of time takes priority over that of the defendant.”
It is for all the foregoing reasons that I hereby resolve this issue against the appellant and in favour of the respondent.
CONCLUSION
The conclusion of the matter is that, having resolved all the three issues against the appellant, the appeal lacks merit. Accordingly, this appeal is hereby dismissed.
The judgment of the trial Court, per Hon. Justice M.O. Bolaji– Yusuff, (J; as he then was, now JCA) delivered on the 13th day of July, 2012 in Suit No: I/587/2009 between ENGINEER BODE BOLA v. MR. D. O. AJEKIGBE is hereby affirmed.
The sum of N100.000.00 (one hundred thousand naira only) is hereby awarded as costs against the appellant and in favour of the respondent.
YARGATA BYENCHIT NIMPAR, J.C.A.: I have read before now the draft judgment just delivered by my learned brother, MOORE ASEIMO ABRAHAM ADUMEIN, JCA. I am in agreement with the reasons advanced therein and the conclusion he arrived at that this appeal is devoid of merit and must not be allowed.
I am in agreement with the lead judgment that a counter-claim is a separate, independent and distinct action, N.B.N. LTD V. U.C. HOLDING LTD (2004) 13 NWLR (PT. 891) 436, OGBONNA V. AG. IMO STATE (1992) 1 NWLR (PT.220) 647 and OYEGBOLA V. ESSO WEST AFRICA LTD (1966) 1 ALL NLR 170. Thus, the counter-claimant has a duty to prove his counter-claim if he hoped to obtain judgment and a counter-claim does not depend on the outcome of the main claim. Once the main claim is concluded in whatever form, be it dismissed or discontinuance, the hearing of the counter-claim must commence. See the case of OROJA & ORS V. ADENIYI & ORS (2017) LPELR-41985(SC), JERIC NIGERIA LTD V. UNION BANK OF NIGERIA PLC (2001) 7 WRN 1, 18, PRIME MERCHANT BANK V MAN-MOUNTAIN COMPANY (2000) 6 WRN 130, 134 and WALTER V SKYLL NIG. LTD (2000) 13 WRN 60, 98.
After considering the evidence adduced by the parties in the suit on merit and the Court is of the opinion that the counter-claim is incompetent, the Court is at liberty to strike out the case. Consequently, I also see no merit in this appeal and I accordingly dismissed it. I abide by the consequential orders made in the lead judgment.
FOLASADE AYODEJI OJO, J.C.A.: I read before now, the draft of the judgment just delivered by my learned brother, MOORE ASEIMO ABRAHAM ADUMEIN, JCA.
His Lordship has admirably considered and resolved the issues in this appeal. I completely agree that the lower Court was right when it proceeded to consider the Appellant’s Counter-Claim after striking out the Respondent’s Statement of Claim which was signed in the name of a law firm. The procedure adopted by the lower Court cannot be faulted. The law is well settled that a counter-claim is a cross-action with separate pleadings, judgment and costs. It is not just a defence to the Claimant’s claim. It is an independent action that is not part of the original action, but tried together for convenience. Neither of the two claims depend on the other for its success as each must be separately proved by credible evidence. See UMAR VS. GEIDAM (2019) 1 NWLR (PT. 1652)29, OKORO vs. OKORO (2018) 16 NWLR (PT. 1646)506, MAOBISON INTER-LINK ASSOCIATED LIMITED vs. U.T.C NIGERIA PLC (2013) 9 NWLR (PT. 1359) 197.
It is for the above reason and the more detailed ones ably adumbrated in the lead judgment that I also dismiss this appeal. I abide by the consequential orders including the order as to costs.
Appearances:
M. O. Adebayo, Esq. with him, Muhammad Ali, Esq. For Appellant(s)
Jide Adebowale, Esq. For Respondent(s)