HIGH CHIEF F. A. OBOLO & ORS V. HIGH CHIEF ILUKOYENIKAN & ORS
(2013)LCN/6041(CA)
In The Court of Appeal of Nigeria
On Thursday, the 21st day of March, 2013
CA/AK/18/2012
RATIO
ISSUES: WHAT MUST BE DONE WHEN THE COURT RAISES ISSUES SUO MOTU
It is trite that the moment a court raises an issue suo motu, the parties generally and what is more the party that may be adversely affected as a result of the point raised must be heard. See the decision of this court in Lawal v. Akande (2008) 40 WRN 36 C. A. The thorny issue staring the court in the face at this point is, whether the issue of jurisdiction was actually raised suo motu by the trial court or whether it originated from the written address of the appellants’ counsel as claimed by the respondents.PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
JURISDICTION: WHETHER AN APPELLATE COURT CAN RAISE THE ISSUE OF JURISDICTION SUO MOTU EVEN UP TO THE STAGE OF APPEAL
See the instructive case of Agbanrelo vs. U.B.N. Ltd. (2000) 7 NWLR (Pt.666) 534 at 559 B-E where the Supreme Court observed as follows:
“It is conceded that an issue of jurisdiction could be raised suo motu by the court even on appeal. But the parties would be invited to argue such novel point of law before the court would be entitled to express its views and come to its ruling.”
We are saying in sum that having suo motu raised the issue of jurisdiction as it affects the counter claim of the appellants and thereafter proceeded to strike out the said counter claim without calling on the parties to address it on the point, the fundamental rights of the parties particularly the appellants’ to fair hearing was breached. See amongst others the cases of Kraus Thompson Org. Ltd. v. Unical (2004) 9 NWLR (Pt.879) 631 at 651; Victino Fixed Odds Ltd. vs. Ojo (2010) 8 NWLR (Pt.1197) 486 at 504-505 G-B; and Achiakpa & Anor. v. Nduka & Ors. (2001) 14 NWLR (Pt.734) 623 at 633. Issue number (2) is therefore resolved in favour of the appellants.PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
COURT : APPEAL COURT: INSTANCES WHERE A COURT CAN RE-HEAR A CASE ON APPEAL
The court may re-hear a case on appeal where evidence had been led at the court below which establishes a fact and in circumstances where it would inflict undue hardship on the parties to remit the case back to the trial court for a retrial. See Onyeso v. Nwadike (2011) 18 NWLR (pt. 1279) 954 at 980 A-C; Ado Ibrahim & Co. Ltd. v. Bendel Cement Co. Ltd. (2007) 15 NWLR (pt. 1058) 538; Abaye v. Ofili (1986) 1 NWLR (Pt. 15) 134; Okoya v. Santili (1990) 2 NWLR (Pt. 131) 172; and IBWA v. Pavex International (2000) 7 NWLR (pt. 663) 105 amongst others.PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
PLEADINGS: THE EFFECT OF PLEADINGS NOT BEING CONTROVERTED
It is trite that where pleadings are not controverted the party upon whom the burden of proof lies would succeed on minimal proof. See Owosho v. Dada (1984) 7 S.C. 149. One of the reliefs sought by the appellants is declaratory. They must therefore lead evidence in support of their claims as a declaratory relief cannot be granted upon default of pleadings. See Chanbasaya v. Anwasi (2010) All FWLR (Pt. 528) 839. PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
JUSTICES
KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR B. GUMEL Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
1. HIGH CHIEF F. A. OBOLO
2. H.R.M. IDEDEFO MAJUWA
(The Majuwa of Iludun Moribodo Kingdom)
3. HIGH CHIEF RUFUS AKINNAWONU
4. CHIEF OLATUN OLADAPO
5. CHIEF AIYELABOLA JERRY OGUNNENOJI
(for themselves and on behalf of authentic)
Kugbanre Odofin family of Omotosho, Morubodo Kingdom, Okitipupa Local Government. Appellant(s)
AND
1. HIGH CHIEF ILUKOYENIKAN
2. CHIEF OMOTAYO AKINTELURE
3. CHIEF ADEPOJU OGUNHA
4. MR. OKE OSEYEMI
5. MR. AGBARA OLORUN IGBASAN
(for themselves and on behalf of the Kugbanne Odofin family of Iju-Oke, Ilutitun) Respondent(s)
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Hon. Justice O. Kumuyi, Chief Judge of the High Court of Justice Ondo State sitting at Akure, delivered on the 1st of August, 2011 striking out the counter claim of the appellants on the ground that the court lacked the jurisdiction to entertain the plaintiffs’ claim. The matter commenced at the High Court of Justice, Okitipupa Judicial Division of Ondo State before it was later completed in Akure Judicial Division upon the elevation of the Chief Judge.
The facts leading to this appeal are that the respondents as plaintiffs at the lower court took out a Writ of Summons dated and issued 26th of April, 2005 against the appellants (therein the defendants). In paragraph 30 of their Statement of Claim the respondents sought the following reliefs against the appellants:
(a) A declaration that the 2nd defendant herein is not entitled to appoint unilaterally an Oloja of his own choice for Omotosho a village founded by Kugbanre the ancestor of the plaintiffs without prior appointment and presentation of a candidate to him by the Kugbanre Akoko family of Iju-Oke.
(b) A declaration that the 1st plaintiff having been appointed and presented by the Kugbanre family in a delegation led by the 1st defendant to the 2nd defendant, the plaintiff is the Oloja elect and the person entitle (sic) to perform the final presentation of staff of office by the 2nd defendant.
(c) A declaration that the 2nd defendant being the incumbent Yasere of Akoko family cannot aspire to or be entitled to be appointed as the Oloja of Omotosho.
(d) An order of perpetual injunction restraining the 2nd defendant either by himself/his servants, agents or otherwise whosoever from imposing, appointing or in any manner whatsoever interfering with the historical and customary right of the Kugbanre Akoko descendants of Iju-Oke from their own choice.
(e) An order of perpetual injunction restraining the defendants either by themselves, their servants, agents or otherwise however from parading the 1st defendant to the 2nd defendant or the members of the public or in any manner whatever from carrying out steps to install the 1st defendant as the Oloja of Omotosho.
Upon the receipt of the statement of claim, the appellants filed their statement of defence and also counter claimed against the respondents as contained in their Statement of Defence and Counter Claim dated 21st of April, 2006 and filed 26th April, 2006.
By paragraph 18 of the said Statement of Defence and Counter Claim they sought the following reliefs against the respondents:
(a) A DECLARATION that having been duly presented by his Kugbanre Odofin family of Morubodo Kingdom, approved and appointed by the 2nd defendant/counter claimant as the prescribed authority over all minor chieftaincies in Morubodo Kingdom, the 1st defendant/counter claimant is the valid, duly presented, approved and appointed Olu-Oso of Omotosho, Morubodo Kingdom in the Okitipupa Local Government Area of Ondo State.
(b) AN ORDER OF PERPETUAL INJUNCTION restraining the 1st plaintiff from parading, ascribing and or arrogating to himself the office of the Olu-Oso or headship of Omotosho town, under whatever guise.
(c) AN ORDER OF PERPETUAL INJUNCTION restraining the defendants, their servants, agents, privies from parading, recognizing, pronouncing and treating the 1st plaintiff as the head of Omotosho Town, under whatever guise or description.
The appellants later amended their Statement of Defence and Counter Claim with the leave of the trial court granted 23rd of June, 2008. The reliefs of the counter claim as enumerated above however remained unchanged, likewise the particulars as shown in paragraphs 19-22. The respondents neither filed any Reply to the Statement of Defence nor a Defence to the Counter Claim.
Parties led evidence, called witnesses and tendered exhibits before the lower court. At the close of hearing and upon the order of the lower court for filing and exchange of written addresses, while the appellants’ counsel filed and served his on the respondents the learned counsel for the respondents failed to file any written address.
In his said address the learned counsel for the appellants formulated 3 issues for determination. Nevertheless, the learned trial judge with regard to the facts of the case and the contention of the parties arrived at the following issue as crucial to the determination of the case:
Whether the Plaintiffs have exhausted the remedies provided or followed the procedure under the applicable law before coming to court. (See lines 4-6 of page 257 of the Record of Appeal).
After due consideration of the parties’ pleadings and evidence led before it, the trial court reached the conclusion that it lacked the jurisdiction to entertain the respondents’ claim since they did not exhaust the remedies provided for under the enabling Chiefs Law of Ondo State as amended as related to minor chieftaincy. Consequent upon this finding the trial court struck out the counter claim of the appellants saying inter alia:
‘….. the present counter claim will have no leg upon which to stand’.
Dissatisfied with this decision the appellants filed a notice of appeal dated and fifed 12th August 2011, containing two grounds of appeal.
The parties duly filed and exchanged Briefs of Argument in compliance with the Rules of this court. The Appellants’ Brief of Argument settled by F. Omotosho Esq. and dated 23rd April, 2012 was filed 24th April, 2012. Learned counsel also on 4th December, 2012 filed the Appellants’ Reply Brief dated 29th November, 2012 but deemed properly filed on 17th January, 2013. The Respondents’ Brief dated and fifed 11th September, 2012 was settled by Olugbenga Akinkuotu, Esq. At the hearing of the appeal on 17th January, 2013, F. Omotosho, Esq. for the appellant adopted and relied on both briefs while urging the court to allow the appeal and set aside the judgment of the lower court on their counter claim on which alone they have appealed. On the part of the respondents, Olugbenga Akinkuotu Esq. adopted and relied on their brief of argument. He urged the court to dismiss the appeal with cost and uphold the judgment of the lower court on the counter claim.
For the determination of the appeal the appellants have formulated two issues and they are:
1. Whether the determination of the counter claim of the Appellants depends on the success or failure of the Respondents’ claim before the court.
2. Whether it is right for the trial court to raise suo motu that once a court does not have jurisdiction to entertain a claim, a counter claim on the basis of the claim cannot also be entertained thereby striking out the counter claim without given (sic) an opportunity to the parties to be heard on the issue.
On the part of the respondents they adopted the issues as formulated and argued them together.
ISSUE 1
Whether the determination of the counter claim of the appellants depends on the success or failure of the respondents’ claim before the court.
F. Omotosho Esq. learned counsel for the appellants in his brief of argument on the foregoing issue (1) referred to paragraph 18 of their Further Amended Statement of Defence and Counter Claim as well as to the particulars of the Counter Claim in paragraphs 19-22. He said that evidence in proof of the reliefs sought in the Counter Claim was given both by the DW1 and the DW2. Learned counsel contended that worst still, that the respondents did not file any Reply to the Statement of Defence nor a Defence to the Counter Claim. However, in view of the main declaratory relief sought by the appellants in their Counter Claim, the appellants still by preponderance of evidence discharged the burden of proof in establishing their entitlement to the relief sought. He referred to Chanbasaya v. Anwasi (2010) All FWLR (pt. 528) 839, 957 D-E.
Further in his contention, F. Omotosho of counsel to the appellants submitted that the respondents were bound to file their Defence to the appellants’ Counter Claim and since they failed to do so no issue has been raised, thus the court is bound to enter judgment for the appellants on minimal proof. See Orient Bank (Nig.) PLC v. Bilante International Ltd. (1997) 8 NWLR (Pt. 515) 37, 109 B-C. Furthermore, that since the respondents had failed in their claim and had filed no Defence to the Counter Claim; the appellants’ claims in their Counter Claim have remained uncontroverted. Counsel argued that the appellants have by credible and uncontroverted evidence of both the DW1 and DW2 proved that the 1st appellant was the duly appointed Oloja or Olu-Oso of Omotosho. He relied on the cases of Ogbonna v. A-G Imo State (1992) 1 NWLR (Pt. 220) 647, 698; Unokan Enterprises Ltd. v. Omuvwie (2005) All FWLR (Pt. 262) 501, 520-522 F-R.
According to the learned counsel for the appellants rather than entering judgment for the counter claimants in view of the decision in Ogbonna v. A-G Imo State supra, the learned trial Chief Judge held that the counter claim had no leg to stand on since he had no jurisdiction to determine the main claim. Appellants’ counsel finally urged that being a distinct action the trial or success of the counter claim does not depend on the success or failure of the original action.
While admitting that the determination of the counter claim of the appellants does not depend on the success or failure of the respondents’ claim before the court; it is the argument of Olugbenga Akinkuotu Esq. for the respondents that this principle of law applies only to cases where the court has jurisdiction to entertain the respondents’ claim. He went on to submit that where the court lacks the jurisdiction to entertain the ‘respondents’ claim, it cannot assume jurisdiction to entertain the counter claim of the appellants. That in order for a court of law to decide if it has the jurisdiction to deal with any case according to law or not, it is the plaintiffs claim against the defendant that will be examined particularly the statement of claim. See Amadiume v. Ibok (2006) 6 NWLR (pt. 975) 158, 180 D-E where this court stated thus:
The jurisdiction of a court to adjudicate in a matter is determined by the facts placed before it and more importantly, by the phraseology of the plaintiffs claim.
Again in A.G. Anambra State v. A.G. Federation (1993) 6 NWLR (Pt. 302) 692, 742 the Supreme Court held:
It is a fundamental principle of law that it is the claim of the plaintiff which determines the jurisdiction of a court.
See also Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228, 358 para. G. and the case of Owners of M. V. Arabella v. NAIC (2008) 11 NWLR (Pt.1097) 182 where the apex court declared that:
Where a Court lacks jurisdiction, its proceedings no matter how well conducted, and its judgments or orders are a nullity. In the instant case, the trial court lacked jurisdiction to determine the appellant’s suit. In the circumstance, if it had entered judgment in favour of the appellant, its judgment would have been a nullity. (Emphasis mine).
Premised upon the foregoing authorities, the learned counsel of the respondents concluded that if the learned trial judge had considered the counter claim of the appellants, it would have amounted to a nullity. Thus that the trial court made a proper order by striking out both the claim and the counter claim knowing full well that it lacked the jurisdiction to entertain same. Counsel further referred to: Dangote v. Civil Service (2001) NSCQR 328 SC; WAEC v. Adeyanju (2008) 9 NWLR (Pt. 1092) 270, 296 paras. C-D; Obi v. INEC (2007) 11 NWLR (pt. 1046) 565 at 629; BAMAK PHARMACY & STORES LTD. v. AMAC (unreported case of this court) with Appeal nos: CA/A/256/2007 delivered 18th March 2012 by the Abuja Division per Mary Odili JCA (as she then was) where the learned Justice stated inter alia at page 36 of the judgment thus:
It is therefore in my humble view that I would seek shelter in OBI VS. INEC (2007) 11 NWLR (Pt. 1046) 565 at 629 of the Supreme Court, which decision is current that once there is absence of jurisdiction, the court just cannot do anything except to strike out the matter….
Learned counsel of the respondents finally quipped in that in the instant appeal the appellants’ counter claim does not have a different suit number showing by implication that it is part and parcel of the whole suit which ought to be struck out in the absence of jurisdiction.
It is our humble view on this issue of jurisdiction that cases such as Amadiume v. Ibok (supra); A. G. Anambra State v. A.G. Federation (supra); and Owners of Arabella v. NAIC (supra) amongst others, cited by the learned counsel of the respondents are not quite on all fours with the instant case in that none of them included a counter claim. As rightly pointed out by the learned counsel of the appellants in his Reply Brief, the issue that it is the plaintiffs claim that determines jurisdiction of the court as decided in those cases only re-stated the general principle of law and did not particularly refer to a situation in which there is a counter claim along with the plaintiffs claim in court. It is pertinent to point out that a counter claim is generally regarded as a cross-action which is included in a statement of defence of the defendant. It arises where a defendant has or perceives that he has a cause of action against a plaintiff who has sued him. Rather than file a fresh action the defendant may raise his action by way of a counter claim within the same suit thus retaining the same suit number. This is to say that a counter claim is raised within the same suit as that of the plaintiff where it can be conveniently tried along with it. The status of a counter claim as a matter of law has a separate life and could persist even after the main action is discontinued or dismissed. Recourse is had to the authority of Hassan v. Registered Trustees Baptist Conv. {1993} 7 NWLR {Pt. 308} 629 at 690 paras. H-A.
However and in my considered view, the court may lack jurisdiction to entertain the plaintiffs claim but where it is apparent that it has jurisdiction over the subject matter of the counter claim it can determine the counter claim while striking out the plaintiffs claim. In Abdulkadir v. Musa (1999) 1 NWLR (pt. 587) 348, 356 C-G referred to by the learned counsel of the appellants and which is quite illustrative of this principle, the defendant/appellant therein was sued before the Rent Tribunal for recovery of possession and arrears of rent. The said defendant/appellant within the same suit counter claimed that the house was a gift to him under the Islamic law of wakf/hubs. The Tribunal granted the claim of the plaintiff/respondent and held that it had no jurisdiction to entertain the counter claim. An appeal to the Sharia Court of Appeal was dismissed. On a further appeal to this Court it reasoned that if the appellant was minded to raise the question of gift under Islamic Law that he should have filed a fresh action in the Area Court which court has the requisite jurisdiction rather than filing a counter claim at the Rent Tribunal. The Court reasoned that the Rent Tribunal which is established for the recovery of premises and rent matters cannot have jurisdiction to hear and determine a counter claim based on or bordering on Islamic personal law. The Court held that:
The issue of jurisdiction or competence of a court being a fundamental one has its prerequisites. One of such prerequisites is that the subject matter of the action must be or fall within its jurisdiction and there should be no feature in the case which will prevent the court from exercise of its jurisdiction’.
Given the foregoing finding vis-Ã -vis the instant appeal, the subject matter of the counter claim being a minor chieftaincy issue, falls within the jurisdiction of the lower court and there is no feature in the counter claim preventing the court from exercising its jurisdiction. It will not be entirely true to hold that it is the plaintiffs’ claim that prevails over the defendants’ counter claim when considering the issue of jurisdiction given the peculiar circumstances of the instant case. This is because where there is a counter claim the defendant assumes the position of plaintiff while the plaintiff becomes the defendant, the counter claim being an independent and separate action on its own. We agree with the learned trial judge that the birth of a counter claim is subject to the existence of a claim before the court. However, upon being born the counter claim assumes a life independent of the claim, hence the counter claim may remain valid while the claim is invalidated or vice versa. See also the case of Orient Bank (Nig.) plc. V. Bilante Int’l Ltd. (1997) 8 NWLR (Pt. 515) 37 at 109. Having held that the determination of the appellants’ counter claim does not depend on the success or failure of the respondents’ claim; this issue is answered in the negative and is accordingly resolved in favour of the appellants.
ISSUE 2:
Whether it is right for the trial court to raise suo motu that once a court does not have jurisdiction to entertain a claim, a counter claim on the basis of the claim cannot also be entertained thereby striking out the counter claim without given (sic) an opportunity to the parties to be heard on the issue.
We have already resolved that it was not right for the trial Chief Judge to strike out the appellants’ counter claim purely on the basis that it did not have jurisdiction to entertain the respondents’ claim. We are therefore under issue (2) left with the question of whether it was right of the trial court to suo motu determine to strike out the counter claim without giving the parties the opportunity to address it on the issue.
The learned counsel for the appellants in his Brief of Argument on this issue first of all referred back to the fact that at the trial court he as counsel for the appellants had raised the issue of incompetence of the respondents, action because of non fulfillment of preconditions for instituting the action which robbed the said trial court of the jurisdiction to entertain the respondents’ claim.
He therefore urged the lower court to strike out the respondents’ claim and grant the counter claim of the appellants more so as the respondents did not proffer any defence to the counter claim and which counter claim the appellants had proved by their evidence. The grouse of the appellants in this regard is that a fundamental and crucial issue bordering on jurisdiction of the trial court to entertain the counter claim was raised and decided suo motu by the trial court resulting in the striking out of the appellants’ counter claim without offering them any opportunity to be heard on the issue.
On their part the learned counsel for the respondents contends that since it was the appellants who raised the issue of jurisdiction in their written address that they were adequately heard on the issue and that it was this issue of jurisdiction which the trial court later considered that affected the said appellants’ counter claim. He went further to say that the appellants’ counsel is deemed to know that once the court lacks jurisdiction to entertain the respondents’ claim, any counter claim on that basis is bound to collapse. Therefore, the appellants cannot claim that they were not heard by the trial court before striking out the counter claim because the order striking out the counter claim is a consequential order on the issue of jurisdiction which the appellants’ counsel raised.
It is trite that the moment a court raises an issue suo motu, the parties generally and what is more the party that may be adversely affected as a result of the point raised must be heard. See the decision of this court in Lawal v. Akande (2008) 40 WRN 36 C. A. The thorny issue staring the court in the face at this point is, whether the issue of jurisdiction was actually raised suo motu by the trial court or whether it originated from the written address of the appellants’ counsel as claimed by the respondents.
I am satisfied upon going through the written address of the appellants at the trial court, that the issue of jurisdiction was raised therein though it was confined to the respondents’ claim. Learned appellants’ counsel consistently maintained in his said address that the appellants’ counter claim has a life of its own independent of the respondents’ claim and that where the respondents’ claim was struck out or failed, the appellants’ counter claim would succeed once the said appellants were able to prove their said counter claim. Having thus portrayed the appellants, counter claim to be independent of the respondents’ claim and for the trial court to take such a decisive stance of striking it out, we think in our humble view that the appellants, who were going to be affected adversely by it, ought to have been given an opportunity of being heard on the issue. In line with the submission of the learned counsel for the appellants, we are satisfied that the respondents’ contention to the effect that:
“…..the appellants’ counsel is deemed to know that once the court lacks jurisdiction to entertain the respondents’ claim, any counter claim on that basis is bound to collapse”
Is grossly misconceived. This is because the jurisdiction to entertain the respondents’ claim does not consequentially affect the competency of the counter claim. As we noted earlier on in this judgment, the appellants’ counter claim does not rise and fall with the respondents’ claim. Each is meant to stand on its own legs and merit. There was therefore the need for the trial court to hear the parties on the competence or otherwise of the appellants’ counter claim before striking same out. See the instructive case of Agbanrelo vs. U.B.N. Ltd. (2000) 7 NWLR (Pt.666) 534 at 559 B-E where the Supreme Court observed as follows:
“It is conceded that an issue of jurisdiction could be raised suo motu by the court even on appeal. But the parties would be invited to argue such novel point of law before the court would be entitled to express its views and come to its ruling.”
We are saying in sum that having suo motu raised the issue of jurisdiction as it affects the counter claim of the appellants and thereafter proceeded to strike out the said counter claim without calling on the parties to address it on the point, the fundamental rights of the parties particularly the appellants’ to fair hearing was breached. See amongst others the cases of Kraus Thompson Org. Ltd. v. Unical (2004) 9 NWLR (Pt.879) 631 at 651; Victino Fixed Odds Ltd. vs. Ojo (2010) 8 NWLR (Pt.1197) 486 at 504-505 G-B; and Achiakpa & Anor. v. Nduka & Ors. (2001) 14 NWLR (Pt.734) 623 at 633. Issue number (2) is therefore resolved in favour of the appellants.
Having resolved the two issues for determination in the appellants’ favour this appeal succeeds and is hereby allowed. This brings us to the proper order to make in the circumstances. The appellants in paragraph 4 of their Notice of Appeal (pages 260-262 of the record) have urged the court to invoke its powers under section 15 of the Court of Appeal Act Cap C. 36 Laws of the Federation of Nigeria 2004 and grant the reliefs sought in the counter claim.
Section 15 of the Act provides:
“The Court of Appeal may from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the court below is authorized to make or grant …. and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such rehearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in the case of an appeal from the court below, in that court’s appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction”
Pursuant to the above provision, the Court of Appeal has full jurisdiction over the whole proceedings as if they had been instituted in the Court of Appeal as a court of first instance and is empowered to make any order that the court below is authorized to make. The court may re-hear a case on appeal where evidence had been led at the court below which establishes a fact and in circumstances where it would inflict undue hardship on the parties to remit the case back to the trial court for a retrial. See Onyeso v. Nwadike (2011) 18 NWLR (pt. 1279) 954 at 980 A-C; Ado Ibrahim & Co. Ltd. v. Bendel Cement Co. Ltd. (2007) 15 NWLR (pt. 1058) 538; Abaye v. Ofili (1986) 1 NWLR (Pt. 15) 134; Okoya v. Santili (1990) 2 NWLR (Pt. 131) 172; and IBWA v. Pavex International (2000) 7 NWLR (pt. 663) 105 amongst others.
It is apparent in the instant case that the respondents neither filed a reply to the statement of defence nor a defence to the counter claim. Since they failed to do so it follows that no issue has been raised or joined with the appellants on their counter claim. This in turn translates to the fact that the appellants’ claims in their counter claim have remained uncontroverted. Recalling once more the case of Ogbonna vs. A-G Imo State supra at page 68 the Supreme Court per Akpata JSC (as he then was) had this to say:
“Failure of a plaintiff to file a defence may not be disastrous if he succeeds in his claim:”His success may render useless the counter claim depending on the nature of the counter claim. However, where he fails in his claim, as in this case, and had filed no defence to the counter claim, the defendants’ claim in his counter claim remains uncontroverted. If however, the claim in the counter claim is for a declaratory right the defendant will still have to satisfy the court that he is entitled to the declaration sought regardless of the failure of the plaintiff to file a defence.”
It is trite that where pleadings are not controverted the party upon whom the burden of proof lies would succeed on minimal proof. See Owosho v. Dada (1984) 7 S.C. 149. One of the reliefs sought by the appellants is declaratory. They must therefore lead evidence in support of their claims as a declaratory relief cannot be granted upon default of pleadings. See Chanbasaya v. Anwasi (2010) All FWLR (Pt. 528) 839. It was in proof of the appellants’ counter claim before the lower court that the DW1 who both the appellants and respondents recognized as the appropriate authority testified thus at page 214 of the record:
“…. The 1st plaintiff was not presented to me by anybody and he was not installed by me as the Oloja of Omotosho. The claim of the 1st plaintiff as the Oloja of Olu Akoko is false….. I installed F. A. Obolo as the Oloja of Omotosho on 24th April, 2005 with the recommendation of his family. A certificate was issued to him as the Oloja of Omotosho. Kugbanre and Agbeedun families recommended F. A. Obolo as the Olu-Osho and I approved their recommendation and installed him as the Oloja Oluosho of Omotosho.”
Further in evidence, Exhibits A and B were tendered and admitted as resolution and recommendation respectively for the installation of F. A. Obolo (the 1st appellant) as the Oloja of Omotosho while Exhibit C is the certificate of appointment of the said 1st appellant. This piece of evidence as led was neither controverted nor discredited under cross examination.
In light of the uncontradicted evidence above we are of the view that the appellants discharged the burden of proof in establishing their entitlement to the reliefs sought. Thus in the absence of a defence to the counter claim and having regard to the discharge of the minimal burden of proof placed on the appellants the trial court ought to have entered judgment in their favour in respect of their counter claim.
In conclusion the appeal is allowed and that part of the judgment of the High Court of Ondo State, sitting at Akure in suit No: HOK/26/2005 delivered on 1st August, 2011 striking out the appellants’ counter claim is hereby set aside. The said counter claim is accordingly granted as prayed. Costs are assessed and fixed at N50,000 in favour of the appellants and against the respondents.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the benefit of reading in draft the judgment just delivered by my learned brother, Jombo-Ofo, JCA. I agree with the reasoning and conclusion.
The law is that although filed within an existing action, a counter claim is a substantive claim in its own right. It is a separate and independent action. It maintains its uniqueness and stands or falls on its own. See: Okonkwo V. C.C.B. (2003) 8 NWLR (822) 347 @ 402-403; Ogbonda v. Eke (1998) 10 NWLR (568) 73 @ 79 where this Court held that if for any reason the plaintiff’s claim is stayed, discontinued or dismissed, the court may nevertheless proceed with the counter claim and still grant the defendant the reliefs prayed for by his counter claim. See also; Beloxxi & Co. Ltd. v. South Trust Bank & Ors. (2012) LPELR – 8021 CCA) 1 @ 18 – 19 A – F; Lewis v. Uba Plc (2006) 1 NWLR (962) 546 @ 566.
In the circumstances of the instant case the learned trial Judge erred in failing to consider the counter claim of the appellant notwithstanding the fact that he had held that he lacked jurisdiction to entertain the substantive suit.
Being a separate and independent action the counter claim ought to have been considered on its own merits.
For these and the more detailed reasons advanced in the lead judgment, I also find merit in this appeal and hereby allow it. I abide by the consequential orders as contained in the lead judgment including the order for costs.
ALI ABUBAKAR B. GUMEL J.C.A.: I have had the privilege of reading before now the lead judgment just delivered by my learned brother, Jombo-Ofo, JCA. I agree with all the reasons and conclusions. I have nothing more to add. I too would allow this appeal. I accordingly so do. I also abide by all the consequential orders of my learned brother, including the order for costs.
Appearances
F. OMOTOSHO, ESQ with O. S. OLONIMOYO, A. A. IKUJUNI, Y.
ADEMOGOKE and O. DARAMOLAFor Appellant
AND
OLUGBENGA AKINKUOTU, ESQ.For Respondent
