EHIMIAGHE OHIMAI v. PROF OLUMIDE OLUSANYA (2019)

EHIMIAGHE OHIMAI v. PROF OLUMIDE OLUSANYA

(2019)LCN/13598(CA)

In The Court of Appeal of Nigeria

On Monday, the 3rd day of June, 2019

CA/L/968/2012

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria

Between

EHIMIAGHE OHIMAI Appellant(s)

AND

PROF OLUMIDE OLUSANYA Respondent(s)

RATIO

THE PURPOSE OF PRELIMINARY OBJECTION

It is well settled that the main purpose of a preliminary objection is to arrest and terminate the hearing on merit of an appeal in limine, this is to prevent the situation in which a Court may be dissipating unnecessary judicial energy in considering a probably an unworthy or fruitless matter in the exercise of its adjudicatory powers. See: MOHAMMED V IGP (2019) 4 NWLR (Pt 1663) 381 @ 507. It ought to be stated, perhaps emphasized that preliminary objection is a recognized mode or procedure to be adopted against the hearing of an appeal and not for any other frivolous or interlocutory proceedings that will not likely impact on the merit of the appeal as a whole. See: ADELEKAN V ECU-LINE NV (2006) 12 NWLR (Pt 993) 33. PER KOLAWOLE, J.C.A.

WHETHER OR NOT A PRELIMINARY OBJECTION IS A SUITABLE METHOD TO CHALLENGE THE COMPETENCE OF SOME GROUND SOF APPEAL

The apex Court expressly held that a preliminary objection is not a suitable method to challenge the competence of some grounds of appeal, which upon its being upheld would not have the effect to terminate the entire appeal. This is not the purpose of a preliminary objection and ought not to be encouraged. See: MOHAMMED V IGP (supra), COCA COLA (NIG) LTD V AKINSANYA (2017) 17 NWLR (Pt. 1593) 74 @ 146 SPDCN LTD V AMADI (2011) 14 NWLR (Pt 1266) 157, AUTO IMPORT & EXPORT V ADEBAYO (2002) 18 NWLR (Pt 799) 554 and ADIGUN V AYINDE (1993) 8 NWLR (Pt 313) 516. PER KOLAWOLE, J.C.A.

WHETHER OR NOT A COUNTER-CLAIM MAINTAINS A SEPARATE AND DISTINCT IDENTITY FROM THE SUBSTANTIVE SUIT

It is a settled law that a counter claim maintains a separate and distinct identity from the substantive suit. It is indeed a separate suit as it retains an entirely different life from the primary suit from which a Defendant is counter claiming. Ref. to the Supreme Court?s decision in ANDREW NWEKE OKONKWO V. COOPERATIVE & COMMERCE BANK (NIG) PLC & ORS. (2003) 4 SCM 76. A counter claim is a cross action and not merely a defence to the Claimant?s claim, it is an independent action and not part of the original action, the two however are tied to be heard together for judicial convenience. See: GOWON V. IKE-OKONGWU & ORS (2003) 6 NWLR (pt. 815) pg. 38. PER KOLAWOLE, J.C.A.

GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Leading Judgment): The Respondent in this appeal, then as ?Claimant? filed his Amended Writ of Summons and Statement of Claim all dated 22/09/2010 at the registry of the High Court of Lagos State. The claim of the Respondent before the lower Court was for a sum of N24, 683,255.48 against the Appellant (then as the defendant). At the end of the trial, the learned trial judge, Opesanwo, J, on 9/10/2012, gave judgment of N7,000,000.00 in favour of the Claimant/Respondent.

The Appellant was dissatisfied with the judgment of the lower Court, and also its earlier decision dismissing his counter claim, in furtherance to which the Appellant filed the instant appeal. The appeal was initiated vide the Notice of Appeal dated 23/10/12, containing Six (6) grounds of appeal, as reproduced hereunder:
1. The Learned trial judge erred in law and acted in excess of the jurisdiction of the Court when he dismissed the defendant/appellant?s counter claim on 13th of February, 2012 for failure of the defendant/appellant to adduce evidence in proof of same.
2. ?The learned trial Judge erred in

law when he went outside the pleadings and made a new case for the Claimant/Respondent by giving judgment for the sum of N7million in favour of the Claimant/Respondent thereby acting in excess of jurisdiction of the Court as well as in violation of the appellant?s right to a fair hearing guaranteed under S.36 (1) of the Constitution of the Federal Republic of Nigeria 1999.
3. The learned trial judge erred in law when he relied on and treated defendant/appellant?s pleading in the abandoned statement of defence as well as drew inference from his conduct to find in favour of existence of an enforceable contract between the claimant/Respondent and the appellant with respect to the property at Lekki Tourism Zone, Ikoyi, Lagos State whereupon the sum of N17.5million was based thereby acting in excess of jurisdiction.
4. The learned trial judge erred in law when he failed to consider and pronounce on the point of law that Claimant/Respondent?s eligibility to practice as an architect as required by the Architect Registration Council Act is a sine qua non to his capacity or competence to contract with the appellant and make a claim for

professional fees under the Federal Government Scale of fees for architects.
5. The learned trial judge erred in law when he refused to be guided by judicial authorities of superior Courts on the matter and do justice between the parties according to law based on the facts before the Court as well as the applicable law.
6. The learned trial judge erred in law when he awarded a cost of N50,00.00 against the appellant in favour of the Respondent when the judgment upon which the award was made did not arise from an issue or an event between the claimant/respondent and the defendant/appellant.
?
Likewise, from the Appellant?s Brief of Argument dated and filed on 4/2/13 and settled by Johnson Esezoobo Esq., Six (6) issues for determination were formulated by the Appellant from the grounds of appeal. The issues are as reproduced hereunder:
1. Whether the learned trial judge was right, and did not exceed the jurisdiction of the Court, by dismissing the appellant’s counter claim. This issue is relative to ground one of the grounds of appeal.
2. Whether the learned trial judge did not err in law as well as acted without jurisdiction and in violation

of the appellant’s right to a fair hearing when he went outside the pleading and the relief before the Court to give judgment for the sum of N7million against the appellant to the Respondent. This relates to ground 2 of the grounds of appeal.
3. Whether the learned trial judge was right when he treated the appellant’s abandoned statement of defence as well as drew inference from appellant’s conduct, to find in favour of enforceable contract between the parties with respect to the claim head of N17,5000.00 and then award the sum of N7mllion. This relates to ground three of the grounds of appeal.
4. Whether the learned trial judge was right to ignore or not consider and pronounce on the issue of the Respondent’s eligibility to practice as required by the Architect Registration Council Act as a foundation for or capacity to contract and claim in Court thereon. This is relative to ground 4 of the grounds of appeal.
5. Whether the learned trial judge was right when he refused to follow judicial authorities of superior Courts cited by the Appellant and be guided thereby in coming to his judgment in the case. This is relative to ground 5 of the grounds of

appeal.
6. Whether the learned trial judge was right or exercised his discretion judicially or judiciously when he awarded a cost of N50,000.00 against the appellant to the respondent. This is relative to ground six (6) of the grounds of appeal.

In the like manner, the Respondent, in his Brief of Argument dated 4/4/13, filed on 9/4/13 and settled by Olatunji Omole Esq., the Respondent nominated six (6) issues thus:
1. Whether the trial judge was wrong and exceeded the jurisdiction of the Court by dismissing the Appellant?s counter claim. (ground 1)
2. Whether the learned trial judge erred in law and violated the Appellant?s right to fair hearing and whether he went outside the pleadings and reliefs before the Court in awarding the sum of N7 Million in favour of the Respondent. (ground 2)
3. Whether the learned trial judge was wrong when he considered the Appellant?s abandoned statement of defence and drew inference from Appellant?s conduct to find in favour of an enforceable contract between the parties with respect to the claim head of N17.5Million. (ground 3)
4. Whether the trial judge was wrong in not considering and

making a pronouncement on the issue of the Respondent?s eligibility to practice as a foundation for his capacity to contract and claim in Court. (ground 4)
5. Whether the failure of the learned trial judge to refer to judicial authorities of superior Courts occasioned any miscarriages of justice in circumstance of this case. (ground 5)
6. Whether the learned trial judge wrongly exercised his decision (sic) (discretion) in awarding the cost of N50,000.00 in favour of the Respondent. (ground 6)
The Respondent however raised a preliminary objection to the competence of the appeal. The objection was premised on two (2) legs thus:
That ground one of the Notice and Grounds of Appeal is incompetent.
That ground six of the appeal is equally incompetent.

On the first leg of the preliminary objection, the Respondent contended that ground one is incompetent for failure of the Appellant to seek and obtain leave of Court to file same being an appeal against an interlocutory decision. Reliance was placed on the provision of Section 24 (2)(a) & Section 14 of the Court of Appeal Act, 2004 and the decisions in OGIGIE V OBIYAN (1997) 10 NWLR

(Pt 524) 179 & NEPA V EZE (2001) 3 NWLR (Pt 701) 606 when it was submitted that the offending ground with the issue formulated therefrom ought to be struck out.

On the second leg of the objection, the Respondent canvassed similar argument to the effect that ground six of the appeal is incompetent. The Respondent relied on the provision of Section 241 (2)(c) of the 1999 Constitution (as amended) and the decision in DAKINGARI V WARD & GREEN (2001) 5 NWLR (Pt 707) and submitted that leave of Court is required to appeal against award of cost of N50,000.00 by the lower Court. The Court was urged to strike out the two offending grounds of appeal with their respective issues.

In responding to the Respondent?s objection to the appeal, the Appellant asserted that consolidation of interlocutory appeal with the main appeal is to prevent delay in justice delivery system. Decisions in BAKARE V ACB LTD (1986) 3 NWLR (Pt 26) 27 & OWONIBOYS TECH SERVICES LTD V UBN PLC (2003) FWLR (Pt 180) 1529 were cited to submit that leave to appeal interlocutory decisions can be dispensed with. The court was urged to so hold.
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The Appellant argued that the

decision in DAKINGARI V WARD& GREEN (supra) was given per incuriam. It was further argued that the provision of Section 241 (2)(c) of 1999 Constitution is not applicable in the instant appeal as there are other grounds of appeal, and not ?costs only?, it was submitted that leave was not required. It was argued that the preliminary objection was misconceived, the Court was urged to dismiss same.

RESOLUTION OF THE PRELIMINARY OBJECTION
It is well settled that the main purpose of a preliminary objection is to arrest and terminate the hearing on merit of an appeal in limine, this is to prevent the situation in which a Court may be dissipating unnecessary judicial energy in considering a probably an unworthy or fruitless matter in the exercise of its adjudicatory powers. See: MOHAMMED V IGP (2019) 4 NWLR (Pt 1663) 381 @ 507. It ought to be stated, perhaps emphasized that preliminary objection is a recognized mode or procedure to be adopted against the hearing of an appeal and not for any other frivolous or interlocutory proceedings that will not likely impact on the merit of the appeal as a whole. See: ADELEKAN V ECU-LINE NV (2006) 12 NWLR

(Pt 993) 33. Curiously though, parties are quick to file preliminary objections to the hearing of an appeal, as in the instant appeal, against one or more grounds of appeal when in essence, there may be other valid grounds of appeal on which the appeal can be heard and determined when and if the incompetent grounds are struck out of the Notice of Appeal. This, in my opinion, tends to be an abuse of the process of Court and a probable a ploy to delay the period within which to achieve justice of a case or an appeal. In the instant appeal, the Respondent filed a preliminary objection to grounds one and six of the appeal, with four other grounds of appeal, accepted perhaps as valid in the Respondent?s opinion, and this pre supposes that the appeal could be validly heard and determined on the said grounds. The Supreme Court has held in number of its decisions, which this Court is bound to follow, that where there are other grounds that can sustain an appeal, a preliminary objection is inappropriate to change the appeal. It will serve the purpose of justice to file instead, a motion seeking to strike out the ground(s) alleged to be defective or incompetent in

the Notice of appeal. The apex Court expressly held that a preliminary objection is not a suitable method to challenge the competence of some grounds of appeal, which upon its being upheld would not have the effect to terminate the entire appeal. This is not the purpose of a preliminary objection and ought not to be encouraged. See: MOHAMMED V IGP (supra), COCA COLA (NIG) LTD V AKINSANYA (2017) 17 NWLR (Pt. 1593) 74 @ 146 SPDCN LTD V AMADI (2011) 14 NWLR (Pt 1266) 157, AUTO IMPORT & EXPORT V ADEBAYO (2002) 18 NWLR (Pt 799) 554 and ADIGUN V AYINDE (1993) 8 NWLR (Pt 313) 516. On the strength of the forgoing, I found no merit in the instant preliminary objection. I view the objection as being palpably diversionary and incompetent. It is accordingly struck out.

Having held as above on the preliminary objection against this appeal, it is safe to now proceed to determine the merit or otherwise of the appeal.
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SUBMISSIONS OF THE PARTIES
The Appellant argued that the trial judge erred in law to have dismissed his counter claim. It was the Appellant?s contention that on the day the counter claim was dismissed, it was not part of the business of

the Court for that very day. The Appellant submitted that by his resting his case on the Respondent?s case does not foreclose his right to prove his counter claim. The Appellant relied on the decisions in JOLAYEMI V OLAOYE (2004) 12 NWLR (Pt 887) 322; LADUNNI V WEMA BANK (2011) NWLR (Pt 1236) 44 and DUROSARO V AYORINDE (2005) 8 NWLR (Pt 927) 407 and submitted that the lower Court ought to strike out the counter claim rather than dismissing same. The Appellant further relied on the decision in OGIGIE V OBIYAN (1997) 10 NWLR (Pt 524) 179 and submitted that the dismissal amounts to an interlocutory decision which can be taken together with the main appeal. The Court was urged to resolve issue 1 in favour of the Appellant.
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On issue 2, it was the Appellant?s assertion that the Court is bound by the claim of the parties in their pleadings and evidence placed before the Court. The Appellant relied on the decision in PAULINA AKPAN V ANTHONIA UDOH (2008) 3 NWLR (Pt 1075) 590 and submitted that decisions of Court must represent the Claims of the parties before the Court. The Appellant maintained that the award of the judgment sum of N7Million in favour

of the Respondent when issue was not joined on the claim by the parties had occasioned a miscarriage of justice. The cases of TRADE BANK PLC V KHALED BARAKAT CHAMI (2003) 13 NWLR (Pt 836) 158 and AKPAN V UDOH (supra) were cited in support of the assertion. The Appellant further cited the cases of KASIMU V NNPC (2008) NWLR (Pt 1075) 569, OLAGUNJU & ANOR V PHCN (2011) 4 SC (Pt 1) 152 amongst others, and submitted that a judge is not allowed to go beyond the parties? pleadings or to make case for a party as this may overreach the opposing party. The provision of Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 was also relied on by the Appellant to submit that the lower Court ought not to have awarded what was not in the Respondent?s claim before the lower Court. The Court was urged to resolve issue 2 in favour of the Appellant.
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On issue three, the Appellant challenged the award of the judgment sum of N7Million by the lower Court in favour of the Respondent. The principle as enunciated in the case of OSUJI V EKEOCHA (2009) 16 NWLR (Pt 1160) 81 was relied on by the Appellant and asserted that once the

Appellant?s claim for N17.5Million did not succeed, no sum at all, having not being claimed, ought to be awarded. The Appellant submitted that neither in the pleading nor in the Respondent?s evidence, was the judgment sum claimed. The Appellant, whilst still relying on the decision in OSUJI V EKEOCHA (supra), submitted that, a claim like that of the Respondent, having failed, ought to be dismissed. It was also the Appellant?s contention that a Court is bound to restrict itself to the claim of the Claimant as placed before the Court. The cases of ACB V AJUGWO (2012) 6 NWLR (Pt 1291) 1 @123, DUMEZ V NWAKHOBA (2008) 18 NWLR (Pt 1119) 361 amongst others were relied on to submit that no claim on quantum meruit was made by the Respondent that enabled the lower Court to award the ?reasonable compensation? as was done in this circumstance. Case of VIVA-DAS ENGR. LTD V CRESEADA INT LTD (UNREPORTED) in CA/L/546/06 of 7/12/2011 was referred to in support of the proposition. The Appellant further contended that the Respondent ought to succeed on the strength of its case rather than the weakness of the case of the defence. It was submitted

that, the fact that the defence rested its case on the case of the Claimant portends that the claimant should prove its case in order to earn such judgment entered in his favour. The case of ODUNZE V NWOSU (2007) 13 NWLR (Pt 1050) 1 @ 42, was cited in support. The Appellant averred that the lower court erred to have relied on extraneous materials outside the Respondent?s pleading to award the judgment sum. The court was urged to hold that the lower court exceeded its jurisdiction based on the foregoing.

On issue 4, the Appellant challenged the capacity of the Respondent to contract as in this instance, being ?only as a professor of Architecture?, a status which did not make him eligible or entitle to practice as a registered or licensed architect. The Appellant relied on the decision in OLAGUNJU V PHCN (supra) and submitted that the issue relates to the competence of the Respondent?s claim and the jurisdiction of the Court to hear and determine same. The court is urged to hold the principle in OLAGUNJU V PHCN (supra) applies in the instant case. Reliance was placed on the decision in AKUNNE ONONYE V NNEKA ODITA & ANOR (2008) 10

NWLR (Pt 1096) 483 @ 493, the Appellant submitted that the lower Court ought not to ignore the status of the Respondent as an architect and whether the Respondent?s originating processes disclose any cause of action. It was submitted further that failure of the lower Court to pronounce on the aforesaid issues was an error of law and had occasioned miscarriage of justice. Cases of UTC V PHILIPS (2012) 6 NWLR (Pt 1295) 136 @ 180, OKONKWO V UBA PLC (2011) 16 NWLR (PT 1274) and OYEKANMI V NEPA (2000) 15 NWLR (Pt 690) 414 amongst others were cited in support of the submission.

The Appellant on issue 5, bemoaned the act of discountenancing of the judicial decisions availed the lower Court at the trial. Reliance was placed on the decisions in UAC NIG PLC V AKINYELE (2012) 15 NWLR (Pt 1322) 11 @ 28 and ABUBAKAR V NASAMU (No 1) (2012) 17 NWLR (Pt 1330) 407 @459, and it was submitted that the lower Court erred when it failed to pronounce on all issues submitted by the Appellant. The Court was urged to hold so.
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On issue 6, the Appellant contended that the award of the cost of N50,000.00 in favour of the Respondent against the Appellant was an exercise of

discretion not judiciously or judicially used. It was submitted that cost sought to follow event. The provision of ORDER 49 RULE 1 OF THE HIGH COURT OF LAGOS STATE (CIVIL PROCEDURE) RULES, 2004 and decision in SULU GAMBARI V BUKOLA (2004) 1 NWLR (Pt 853) 122 @ 136 were cited to buttress the submission. The Court was urged to allow the appeal and set aside the judgment sum of N7Million awarded in favour of Respondent.
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In his response to the foregoing, the Respondent, vide his Brief of Argument dated 4/4/13 and filed on 9/4/13 but deemed on 4/11/16 and which was settled by Olatunji Omole, Esq., of Messrs Wole Olufon & Co, nominated 6 issues, and likewise, the said issues, are reproduced hereunder:
1. Whether the trial judge was wrong and exceeded the jurisdiction of the Court by dismissing the Appellant?s counter claim. (ground 1)
2. Whether the learned trial judge erred in law and violated the Appellant?s right to fair hearing and whether he went outside the pleadings and reliefs before the Court in awarding the sum of N7 Million in favour of the Respondent. (ground 2)
3. Whether the learned trial judge was wrong when he considered

the Appellant?s abandoned statement of defence and drew inference from Appellant?s conduct to find in favour of an enforceable contract between the parties with respect to the claim head of N17.5Million. (ground 3)
4. Whether the trial judge was wrong in not considering and making a pronouncement on the issue of the Respondent?s eligibility to practice as a foundation for his capacity to contract and claim in Court. (ground 4)
5. Whether the failure of the learned trial judge to refer to judicial authorities of superior Courts occasioned any miscarriages of justice in circumstance of this case. (ground 5)
6. Whether the learned trial judge wrongly exercised his decision (sic) (discretion) in awarding the cost of N50,000.00 in favour of the Respondent. (ground 6)
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The Respondent argued on issue 1 to the effect that the Court reserves the right to adjourn a case and to dismiss the counter claim in the manner it did. The Respondent placed reliance on the decision in UBN V JIMBA (2001) NWLR (Pt 727) 522 and submitted that the lower Court made the appropriate order in the circumstance having been satisfied that the Appellant was

abandoning the counter claim. The Court was urged to uphold the decision of the lower Court dismissing the counter claim.

On issue 2, the Respondent argued that the award of the judgment sum by the lower Court was borne out of the consideration of the pleadings and evidence of the parties as placed before the lower Court. The case of AMIRA NIG LTD V MAL NIG LTD (2001) 17 NWLR (Pt 742) 469 @ 515 was cited. The Respondent further contended, whilst relying on the decision in IBRO HOTELS V HOTEL SUPPORT SERVICES LTD 2001 8 NWLR (PT 714) Pg 174, that the lower Court was right to have awarded the judgment sum in this regard, having applied the ?net loss? approach to arrive at the sum of N7Million as the judgment sum. The decision in ONYEJEKWE V ONYEJEKWE (1999) 3 NWLR (Pt 596) 482 @ 485 and SONIBARE V SOLEYE (2009) 4-5 S.C (Pt 1) 1 were also referred to in support and the Court was urged to hold that the assessment of the judgment sum was proper.
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On issue 3, it was the Respondent?s argument that the consideration of the abandoned pleadings of the Appellant as well as the Appellant?s conduct which ground the award of the judgment

sum of N7Million and which did not occasion any miscarriage of justice to the Appellant. It was contended that there is no need to disturb the finding of facts made by the trial Court in this instance. The decision in NZE V UNAKALAMBA (1998)7 NWLR (Pt 537) 308 @ 317 was cited in support of the submission. The Court was urged to so hold. Whilst relying on the decision in OJENGBEDE V ESAN (2001) 18 NWLR (Pt 746) 771 @ 777, the Respondent contended that in event that the lower Court?s reference to the abandoned pleadings of the Appellant was held to be wrongful, such cannot be said to have affected the decision of the lower Court. The Court was urged to discountenance the Appellant?s argument on the competence of the documents relied on in the case, as it was said, did not arise from the ground of appeal or the issue generated therefrom.
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On issue 4, the Respondent argued that the parties did not join issue on the eligibility of the Respondent to practice as an architect. Reliance was placed on the decisions in OYEKANMI V NEPA (supra), BUNGE V GOV OF RIVERS STATE (2006) 6 S.C 81 @ 96 and OPARAEKE & ORS V EGBUOM & ORS (1941) 7 WACA 53 @ 55

and submission was made that Respondent needs not lead evidence on the issue which was not raised by the Appellant. The Respondent argued that the admission of the Appellant that the Respondent was a professor of Architecture was an indication that there was no dispute between the parties on the issue, and that the lower Court was right to have refrained from making any pronouncement on same. The Court was urged to hold.
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On issue 5, the Respondent contended that the lower Court was not obligated to refer to the judicial authorities cited by the Appellant, and that it suffices only if the trial judge exhibited a clear understanding of the facts in the case. The Respondent cited the case of OMOKHAFE V MILITARY ADMINISTRATOR EDO STATE (2001) 14 NWLR (Pt 733) 290 @ 295 and submitted that the trial judge rightly applied the law to the facts and evidence before the trial Court in delivering its decision. It was argued that the decision of trial Court will be upheld once it is a correct decision and does not occasion any miscarriage of justice to the parties. The case of DALFAM NIG LTD V OKAKU INT LTD (2001) 15 NWLR (Pt 735) 203 @ 218 was referred to in support

of the proposition. The Respondent then reiterated that the lower Court did a proper evaluation of facts and evidences before it prior to its decision as delivered on 9/10/2012, and also that there was no miscarriage of justice occasioned to the Appellant by the decision of the lower Court by not applying the judicial decisions cited by the Appellant. The Court was urged to so hold.

On issue 6, the Respondent asserted that the cost of N50,000.00 followed the award of the judgment sum of N7Million in favour of the Respondent, and the decisions in the cases of MAYA V OSHUNTOKUN LAYINKA V MAKINDE (2002) 5 S.C (Pt 1) 109 @ 120 were cited with submissions made to the effect that cost awarded by the lower Court was judicially and judiciously made to compensate the successful party in the case. The Court was urged to so hold.

RESOLUTION OF ISSUES
The resolution of the foregoing issues will be better achieved, in my view though, by answering the following questions arrived at by a re-formulation of the issues donated by the parties as it is permitted of this court. See: FRN V BORISADE (2015) LPELR-24301; FABIYI V ADENIYI & ORS (2000) LPELR 1220. The

issue(s) as re-formulated are as follows:
1. Whether the lower Court was right to have dismissed the Appellant?s counter claim.
2. Whether the trial judge was right in his decision to grant an award of the judgment sum of N7Million and a cost of N50,000 whilst relying on the averments on the Appellant?s abandoned Statement of Defence.
3. Whether the trial judge was right in his decision to refrain from pronouncing on the Respondent?s eligibility as an architect and for failure to apply the judicial authorities cited by the Appellant.

?In answering the question of the propriety or otherwise of the decision of the lower Court to dismiss the counter claim filed before it by the Appellant, regards ought to be had to the legal status or position of a typical counter-claim. It is a settled law that a counter claim maintains a separate and distinct identity from the substantive suit. It is indeed a separate suit as it retains an entirely different life from the primary suit from which a Defendant is counter claiming. Ref. to the Supreme Court?s decision in ANDREW NWEKE OKONKWO V. COOPERATIVE & COMMERCE BANK (NIG) PLC & ORS. (2003) 4 SCM 76.

A counter claim is a cross action and not merely a defence to the Claimant?s claim, it is an independent action and not part of the original action, the two however are tied to be heard together for judicial convenience. See: GOWON V. IKE-OKONGWU & ORS (2003) 6 NWLR (pt. 815) pg. 38.

The Appellant?s contention in the instant appeal is the dismissal of the counter claim by the lower Court, it was argued at paragraph 3.02 of the Appellant?s Brief of Argument that ?on the 13th of February, 2012 when it was dismissed, the counter-claim was not before the Court…….?
The Appellant also contended that his decisions to rest his case on that of the Claimant ought not to have affected the success of his counter-claim.

However, the lower Court in its Ruling on the said date dismissed the counter claim, wherein the learned trial Judge held as follows: ?I shall also hold that the appropriate order to make in respect of the counter claim herein which the Defendant has abandoned and failed to lead evidence in support at the trial of this Suit is one of dismissal……..? See: Page 442

Record of Appeal.
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My Lords, the view expressed in the judgment of the learned trial Judge, is well founded because, from the record before the Court, it was not in doubt that the Appellant, as ?Defendant? at the lower Court, abandoned the counter claim he filed before the lower Court as he did not lead evidence to prove the averments therein and he has not shown that the evidence led in respect of the Respondent?s claims, also proved his entitlement to judgment on the counter claim. The learned counsel for the Appellant in essence was canvassing for an order strike out the Counter-claim, rather than its dismissal as was proposed by the Respondents? counsel. I have no doubt in my mind, that the counter-claim in the absence of any evidence led to prove it, is no longer worthy to remain an extant process before the lower Court. My view is premised on the following: The Respondent counsel @ page 441 of the Record of Appeal asserted that, the Respondent has joined issues with the Appellant on the counter claim of N5million as filed by the Appellant, and that his witness has testified as to the same. This assertion was not controverted

by the learned counsel to the Respondent. It is very clear in my view, that at that stage of the proceedings, the merit of the claim has been delved into, and that it is the Appellant?s choice not to adduce evidence to prove the averments made in his counter claims, it is my respectful opinion, that he cannot be heard to complain of his right to be heard being infringed upon, as right to fair hearing is not a preserve of only one of the parties in a suit or an appeal. The logical question is: was he debarred from giving evidence to prove this counter-claim, or has he been able to show from the records, that the evidence led by the Respondent also proved his counter claim? These questions can only be answered in the negative because, both parties have equal right to be heard in any action before the court and on the basis of processes filed by them. See: ORUGBO & ANOR. V. BULARA UNA & ORS (2002) LPELR-2778 (SC). And also in respect of the disposition of the Court to a party?s counter claim, it is settled beyond doubt that the same thread of issue substantially runs through the claim and counter-claim, the trial Court is not expected or

required to consider the said common question or issue separately in its decision. See: ADEROUNMU & ANOR V. OLOWU (2000) 4 NWLR (PT. 652) P. 253.
I agree with the view of the learned trial Judge to dismiss the Appellant?s counter-claim having been abandoned after the Respondent had reacted to the counter claim. I resolve issue one in favour of the Respondent.

On Issue 2, it was the contention of the Appellant that the lower Court made a case different from that of the parties as contained in the Statement of claim of the Respondent to arrive at a decision wherein a sum of N7million was awarded in favour of the Respondent contrary to the claim for N17.5 Million as claimed by the Respondent.

It was also asserted that the lower Court ought not to have considered the Statement of Defence of the Appellant which was obviously abandoned at trial, the award of N50,000.00 cost of the action is also being challenged.
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It is my view, that the decision of the lower Court to consider the abandoned Statement of defence is permissible in law, as it remains extant process before the Court until and unless it is struck out. The Supreme Court asserted

this in the case of ILODIBIA V. NIGERIA CEMENT COMPANY LTD (1997) LPELR-1494 (SC). The Statement of Defence of the Appellant, having been received in evidence, remains an extant process that can be relied on by the Court in determining the rights or obligation, as the case may be, of the parties. This Court, per my Lord, Iyizoba, JCA in the case of SPLINTERS NIG. LTD. & ANOR. V OASIS FINANCE LTD (2013) LPELR-20691 (CA) noted that such Statement of defence remains a vital part of the record of Court and the trial Court has no business striking it out.
It is also important to note in this instance, that in the statement of defence of the Appellant, several admissions of facts were made by the Appellant which really makes those averment to be such that no longer need further proof in order to establish the veracity of such averments. See: the Supreme Court?s decisions in OBMIAMI BRICK & STONE (NIG) LTD. V. A.C.B. LTD. (1992) 3NWLR (pt. 229) S.C. 260 @ 301, and ALAHASSAN & ANOR. V. ISHAKU & ORS. (2016) LPELR 40083 (SC).
The Supreme Court further reiterated the established principle of pleadings that there is no issue between parties

on a matter which has been admitted by parties in their pleadings, pursuant to which any evidence will generally be required on such admitted facts. See: OKEREKE V. STATE (2016) LPELR-26059 (SC) and in ANASON FARMS LTD. V. NAL MERCHANT BANK LTD. (1994) 3 NWLR (PT. 331) 241 @ 251.
Having reflected on foregoing, the concern of the Appellant in this appeal on the lower Court?s reliance on the said abandoned statement of defence, is unfounded and all the arguments canvassed in the circumstance go to no issue which I believe should be discountenanced.
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On the allegation that the lower Court made a case separate from that of the parties, it is well settled in law, that Court and parties are bound by the pleadings, and the parties are restricted to their pleadings with which they will either swim or sink, and the Court on its part, is precluded in the exercise of its adjucatory powers, from making case for any of the parties before it. See: ABEKE V ODUNSI & ANOR (2013) 13 NWLR (Pt. 1370) p.1. A Court is not permitted in law to travel outside the facts of the case before it, so as not to be caught in unedifying allegation of embarking on a speculative or

academic voyage of its own. See: NZOM V JINADU (1987) 1 NWLR (Pt. 51) p. 533. But, when I read through the record of proceedings in the lower Court, I am curious to see if actually the lower Court could legitimately be accused of making a case different from that of the parties, in essence, a new case.
When decision of the Supreme Court in NNADOZIE & ORS V. MBAGWU (2008) 3 NWLR (pt. 1074) p. 363 is applied to the instant case, wherein His Lordship Niki Tobi, JSC (of blessed memory) noted that ?A new case is a case which was not existing before. A new case is a different case, different from the original case. A new case is a fresh case. A new case is a case which the Court is just beginning to know about for the first time in the judicial process.?
The basic question which resonated in my thought is whether the judgment of the lower Court delivered on 9/10/12, in actual sense, put up an entirely different case. My Lords, the case under consideration herein does not appear to me to be a ?new case? when the dictum of the Supreme Court which I had just reproduced, is applied to the pleaded facts in the lower Court.
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The Appellant in paragraph 4:04 of the Appellant Brief of Argument argued as follows:
?in the case in (sic) (at) hand, the respondent did not plead or make any claim for N7Million. The parties did not join issue on that claim. In the circumstances in which he rested his case on the respondent?, the appellant had no opportunity of reacting to the point of N7Million that suddenly came up at the judgment stage?. A careful perusal of the Claimant?s claim before the lower Court may be necessary at this juncture in order to ascertain the case before the lower Court. The Claimant?s claim, as can be gleaned from the Writ of Summons at page 2 of the Record of Appeal is as reproduced hereunder:
The Claimant?s claim is for;-
An ORDER directing the Defendant to pay to the claimant the sum of N4,614,877.73 being amount due and payable for completion or stages one and two of the property at Market Road, Oniru Estate, Victoria Island Lagos.
State one N2,307,498.88
50% stage two N2,307,438.88
N4,614,877.73
AN ORDER directing the Defendant to pay to the claimant the sum of N17.5 million being balance of

fees due and payable for completion of work for stages one end two of the property at Lekki Tourism Zone, LeKki, Lagos.
Stage one N7,500,000
Stage two N15,000.000
N22,500,000
(less amount Paid) 5,000.000
Total N17,500,000
AN ORDER directing the Defendant to pay to the claimant the sum of N2,568,374.75 being total amount to fee due and payable on completion of stage one of the work for the property at Park View Estate, Ikoyi, Lagos.
Total amount claimed N4,614,877.73
17,500,000.00 2,568, 374.75
24,683,251.48
However, in its judgment, and as reproduced on page 546 of the Record of Appeal, the lower Court expressed the following observation:
Paragraph 7 of the Statement of Claim indicate what is entailed in stage 1 and 2 same to wit;
Preliminary design (stage 1)
ii. Working drawings (stage 2)
The Defendant in paragraph 4 of his Statement of Defence averred as follows; ?The Defendant admits paragraphs 5, 6 and 7 of the Statement of Claim…? He tried to admit the extent of his admission but the same in two way affects what was averred and testified to by the Claimant.

Indeed in paragraph 25 of the Statement of Defence and in stating the details of the stages in which the sum of N30rnillion agreed with the Claimant was to be paid, the Defendant averred as follows; the agreed N30million would be paid on a stage by stage as follows:
Briefing N1.5million (already paid)
Submission of full document for approval – N6m
3. Before pegging – N4.5m
4. During construction – N18m.
The details stated by the Defendant was similarly so stated by the Claimant in his letter of February 3, 2009 to the defendant, marked herein as Exhibit c4 and to which the Defendant referred in paragraph 27 (a) of his Statement of Defence.
It was further noted on page 547 Record of Appeal as follows:
?Ironically, stage (1) & (2), even by the Claimant?s own evidence as contained in Exhibit C4 amounts to N12 million and of which it has been established that 1st payment (N1.5m) was made immediately the Claimant was contracted. It is also not in dispute between the parties that N3,500,000 was thereafter paid. The Claimant testified that the N3, 500, 000 was paid as part of the

N6,000,000 averred in paragraph 30 of the Statement of Claim as being due. The said paragraph 30 is herein re-produced as follows: ?the Claimant avers that on the 13th February, 2009 the defendant called the Claimant and paid him the sum of N3, 500,000 instead of the N6, 000,000 that was then due as per the Defendant?s schedule of payment referred to in paragraph 33 above.? it had been averred in the said Paragraph 33 as follows: ?The Claimant avers that further to the agreement of the parties in paragraph 32 above the Claimant agree to the Defendant?s proposal for a scheduled of payment of the said N30million as follows :
6million would be paid at the submission of working drawings
4.5 million at the approval of the drawings by Planning authorities
18m during the supervision of the construction of the project.?

Meanwhile, the Defendant had through his Solicitors in paragraph 10 of Exhibit D3 stated that; ote ?of nis that the project is at the approval of planning documents stage of which the sum due is N4.5m. Our client posted your client the payment of N3.5M on 16th February, 2009…?

suggesting that what was being paid or was the planning document stage which the letter confirmed is the relevant stage of the project. The letter, I will point out, was written by the Defendant?s Solicitors and tendered through CW1 by the Defendant.”

On the strength of the foregoing, the trial judge surmised that the claim, as arising ?from the paragraph 7 of the Statement of Claim is for preliminary design and working drawing design, and that the noted two (2) stages amount to N12Million after the acceptance of the brief is equally considered. This, when represented in tabular form is as reproduced hereunder.
N1,500,000.00 (Acceptance of brief)
N6,000,000.00 (Submission of plan)
N4,500,000.00 (Approval)
Totaling N12Million and out of which N5Million has been paid in 2 tranches of N1.5Million plus N3.5Million and therefore leaving a balance of N7Million unpaid.?
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This forms the fulcrum upon which the trial judge awarded the sum of N7million as the judgment sum, now being appealed against as a new case. I am yet to see how the foregoing finding was the making of a ?new case? by the lower Court.

The law is well established that the case before a Court is as presented by both parties. The Appellant made series of admissions in his Statement of Defence which he later abandoned, and which the lower Court being an extant Court?s process, rightly premised its decision upon. I had earlier adverted your Lordships? attention to the fact that admission is the best form of evidence, further proof is not required to establish a fact already admitted by a party to a suit in its pleadings. (see the provisions of Sections 20 and 123 of the Evidence Act 2011). The Supreme Court, per Obaseki, JSC admonished that, ?A fact admitted by the defendant in his pleading should be taken as established and should form one of the agreed facts of the case.? See: OLUBODE V OYESHINA & ORS (1977) LPELR-2608(SC), OKONKWO V CCB NIG LTD (2003) 8 NWLR (Pt 822) 347 @418 and DANLADI V DANGIRI (2014) LPELR-24020(SC).

I have no doubt in my mind, that the inevitable conclusion drawn by the lower Court, in which a judgment sum of N7Million was awarded in favour of the Respondent, was appropriate as well as deserving and it is upheld. The same reasoning applies to

the issue as to the cost of the action that was assessed by the lower Court at N50,000.00, and I am satisfied, that the said amount is equally sustainable in the exercise of the Court?s judicial discretion because, the Appellant has not shown that the said exercise of the discretion to award costs by the lower Court was perverse as cost follows event. The appellant has not shown or proved by any admissible evidence from the record, that the said award was punitive or made in contravention of the judicial principles for the award of costs. See AFRIBANK (NIG) PLC. V. GENEVA (1999) 12 NWLR (PT. 632) 576. See: NNPC V. CLIFCO NIG LTD (2011) 10 NWLR (Pt 1255) p 209 and GKF INV LTD V NITEL PLC (2009) 15 NWLR (Pt 1164) p 344. The issue herein is resolved in favour of the Respondent.

The third issue for determination in the appeal, was premised on the propriety or otherwise of the lower Court to pronounce on the eligibility of the Respondent to practice as an Architect as it is provided in the Architects? Registration Act.
The Appellant contended strongly that the Respondent was not eligible to practice as an architect based on the requirement for

same in the provisions of the Architect Registration Council Act. It was argued that being merely a professor of Architecture, would not entitle the Respondent to practice as an architect and post a bill in accordance with the Federal Government Scale of fees.
The Respondent submitted, on this point, that issue was not joined by the parties on this allegation, and the lower Court was not required to consider or make any pronouncement on same. It appears to me rather unconscionable and grossly unwholesome, the conduct of the Appellant wherein he took benefits of the Respondent?s professional services from a legitimate transaction, and for the same party to turn around, at the point of fulfilling his own obligations to allege non compliance with the legislation relevant to the business. It is quite appalling and morally despicable for a party to benefit from a transaction, only to turn round to allege its unenforceability. See:SOLANKE V. ABED (1962) 1 SCNLR 371 and the Court of Appeal?s decision in SOSAN V. H.F.P. ENG. (NIG) LTD. See: HALIRU V UNITY BANK PLC (2016) LPELR-41608(CA); AWOJUGBAGBE LIGHT IND LTD V CHINUKWE (1995) 4 NWLR (Pt 390)

409 @ 426. It was on record that the relationship between the parties herein predated the transaction that birthed the instant appeal in a deal that eventually sailed through without any rancor. The instant transaction that involved a series of engagements has been decisively considered by the trial judge, which has the sanction of this Court, to the effect that, the transaction involving the property at Market Road, Oniru Estate, Victoria Island as well as transaction involving the property at Park View Estate could not pass as a valid contract. However, from the averment in the Appellant Statement of Defence admitting the payment regime in the transaction involving the property at the Lekki Tourism Zone, it is established that a valid contract exist between the parties to which Respondent?s position had been altered, thus requiring the Appellant to make good his promise because, both parties as it is often expressed in the timeless maxim: ?pacta sunt servanda are required to honour an agreement they have freely and voluntarily made, in which one of the parties had taken due benefits. See: A.G RIVERS STATE V A.G AKWA IBOM STATE & ORS (2011) 8 NWLR (Pt 1248) p 31 and ADEYEMO V ?ADEWALE (2015) LPELR-24756(CA). ?

I share the view of the Learned counsel to the Respondent, that the question of the eligibility of the Respondent to practice as an architect was not in issue before the lower Court, and the said Court was right to have refrained from pronouncing on what was neither in the parties? pleadings nor the evidence before it.
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On the arguments of the Appellant that the lower Court disregarded the judicial authorities cited before it, it is my respectful view, that one needs not descend into a needless rhetoric on this issue, because I am clear in my view, that a Court is not duty bound to apply any or all of the authorities cited by the parties in proceedings before it. A party who alleges this, must be able to show that the decision arrived at, was in violation or contrary to extant judicial decisions which the Court has failed to follow even when cited to it. There is no legal duty imposed on any Court, to put itself in a confinement as to the judicial authorities cited before it, as every superior Court is at liberty, without contravening the age long judicial doctrine

of stare decisis, to rely on its own sources of judicial decisions outside the cited authorities of the parties. Once the justice of the case is met, the Court has discharged the burden of the duty placed on it in the pristine discharge of its primary duty as adjudicator who is required to decide cases according to the law. No right to fair hearing of the Appellant has been shown to have been breached in such circumstance except the Appellant was able to establish that the decision of the Court was contrary to law, and which thereby occasioned a miscarriage of justice. See: ORUGBO V UNA (2002) 9-10 S. C. 61, MAGIT V UNIVERSITY OF AGRICULTURE, MAKURDI (2006) ALL FWLR (PT 298) 1313 at 1345, and ACCESS BANK PLC V AGEGE LOCAL GOVERNMENT(2016) LPELR (40491) 1 at 27-28. In the light of the foregoing, I resolve issue 3 in favour of the Respondent.

In effect, the foregoing has the implication that the instant appeal utterly lacks merit and ought to fail. The appeal being unmeritorious is dismissed. The decision of the lower Court made on 9th October, 2012 is hereby affirmed. The Respondent?s action in SUIT NO. ID/788/2009 is sustained and the judgment of

the lower Court is upheld. There shall be cost of the appeal assessed at N100,000.00 in favour of the Respondent against the Appellant.
Appeal is dismissed.

MOHAMMED LAWAL GARBA, J.C.A.: I agree

TIJJANI ABUBAKAR, J.C.A.: My learned Brother Gabriel Omoniyi Kolawole JCA, granted me the privilege of reading in draft the leading Judgment prepared and rendered in this appeal. My Lord has fully and sufficiently covered the field, I therefore endorse the entire reasoning and conclusion and adopt the Judgment as my own I have nothing extra to add.

Appearances:

For Appellant(s)

A.O. Olufon with him, I.O. Oyekan (Mrs.)For Respondent(s)

Appearances

For Appellant

AND

A.O. Olufon with him, I.O. Oyekan (Mrs.)For Respondent