M.A. ADEOTI V. OSENI AKANNI
(2013)LCN/5960(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of February, 2013
CA/I/92/2005
RATIO
“Jurisdiction is the right conferred on the court to hear and determine a matter between the parties, the parties would have to be the proper parties, before the court could make orders or take decisions concerning matters before it. Any defect, as in the present case where the proper party was not claimed against in the counter claim, would rob the court of its jurisdiction. Where as in this case the matter has been decided with the improper parties in the counter-claim the proceedings are a nullity no matter how well presented and decided, see, the popular good old case of MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR (PT.1) 585 at 587.” PER UWA, J.C.A.
“It is trite that a Plaintiff should be a party to a counter-claim, the reason is that a counter-claim is a cross action where the Plaintiff becomes a Defendant to the counter claim,, whereas in this case where, the Plaintiff is not made a Defendant the action instituted as such is incompetent and ought not to be determined on its supposed merits. A claim against a Co-Defendant therefore as the Respondent counter-claimed against the 1st Defendant alone cannot stand or serve as a counter-claim, see, OBALA V. ADESINA (supra). By way of emphasis in U.B.A. PLC. V. SAMBA PETROLEUM CO. LTD. (2002) 16 NWLR (PT.793) 361 at 390, cited and relied upon by both learned counsel it was held that: “A Defendant cannot counter-claim solely against another Defendant but he can make a counter-claim against an additional party on condition that the Plaintiff is also a party to the counter-claim, then there is no cross-action and consequently no valid counter-claim.” PER UWA, J.C.A.
“It is the claim that determines whether the proper parties are before the court, see, OGEBO V. INEC (2005) 15 NWLR (PT.948) 376 at 400; DANTATA V. MOHAMMED (2000) 7 NWLR (PT.664) 176; ADEKOYE V. F.H.A. (2000) 4 NWLR (652) 215 and AYORINDE V. ONI (2000) 3 NWLR (PT. 649) 346 at 361.” PER UWA, J.C.A.
JUSTICES:
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
M.A. ADEOTI – Appellant(s)
AND
OSENI AKANNI – Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the Oyo State High Court presided over by T. O. Adeniran, J sitting at Ibadan delivered on the 26th day of July, 1999.
In the trial court the Plaintiffs for themselves and on behalf of Oladipupo family commenced an action against the then sole Defendant now Appellant in which the following reliefs were sought:
“(1) Recovery of that large piece or parcel of land lying, situate and being at Oladipupo village, Odo Osun near Christ High School, Oleyo via Odo Ona Elewe in Oluyole Local Government Area of Ibadan. Survey Site Plan to be attached to Statement of Claim.
(2) Declaration that the Plaintiffs are entitled to Statutory Right of Occupancy over the said piece or parcel of land in I above.
(3) Damages of N5,000.00 (Five thousand Naira) for trespass between 1984 to date and which trespass still continues.
(4) Damages of N3,000.00 (Three Thousand Naira) for destroying 3,600 fully grown cassava plants.
(5) An order of perpetual injunction restraining the Defendant, his agents, servants, privies, workers or anybody claiming from or under him from any further act of trespass on the said land.”
In course of hearing at the trial court the Respondent herein applied to be joined as a Co-Defendant in defence of the action, the Appellant as 1st Defendant did not oppose the application for joinder of the 2nd defendant/Respondent as co-Defendant.
The plaintiffs opposed the joinder of the 2nd Defendant, all the same the court joined him as 2nd Defendant against he Plaintiffs’ wish. The Ruling is at pages 156-157 of the records. Thereafter, he filed a Statement of Defence and Counter-Claim.
The plaintiffs were dissatisfied with the joinder of the 2nd Defendant/Respondent against whom they had no claim and who had no interest to defend jointly with the 1st Defendant/Appellant filed a Notice of Appeal against the order joining the 2nd Defendant. The plaintiffs subsequently brought an application for stay of proceeding pending the determination of the appeal against the joinder of the 2nd Defendant with the 1st Defendant as co-Defendant to the action. The application was struck out on application for the absence of the Applicant and his counsel.
At the close of the substantive matter on 10th May, 1999 the trial court dismissed the case of the Plaintiff and granted the counter-claim of the 2nd Defendant against the 1st Defendant. Dissatisfied with the judgment of the lower court granting the counter-claim of the 2nd Defendant, the 1st Defendant filed an initial Notice of Appeal containing seven (7) Grounds of Appeal which was subsequently amended to include two additional grounds. From the nine (9) grounds of appeal the Appellant identified nine (9) issues as arising for the determination of this appeal. They are as follows:
“(1) Whether under the rules of court and the law, it was competent for the 2nd Defendant to set up a counter-claim against the 2nd Defendant, a Co-Defendant when he did not counter-claim against the Plaintiff’ (Ground 1).
(2) Whether it was proper for the court to join the 2nd Defendant in the action, when there was no allegation in the pleading of the existing parties against him to make him a proper Defendant to the action. (Ground 3).
(3) Whether the proper parties necessary for the determination of the Plaintiffs claim and the Defendant’s counter-claim were before the court to clothe it with jurisdiction to entertain the action and the counter-claim. (Ground 8).
(4) Whether from the circumstances of the case in the lower court, it was proper to try the Plaintiffs action with the 2nd Defendants counter-claim and whether it was not a case in which separate trial of the original action and the counter claim should have been struck out for non-disclosure of any cause of action against him in the Plaintiff’s statement of claim. (Ground 2),
(5) Whether it was proper for the court to give judgment in favour of the 2nd Defendant on his counter-claim when he did not plead any facts in support of his counter-claim, (Ground 5).
(6) Whether there was any evidence offered by the 2nd Defendant in support of his counter-claim to entitle him to the judgment of the court. (Ground 6).
(7) Whether having upheld the defence of laches and acquiescence raised by 1st Defendant against the Plaintiff on the grounds of his having been in possession of the land and farmed on it and used it as poultry for several years, the trial judge should not have held that the 2nd Defendant was equally guilty of the defences of laches and acquiescence raised by the 1st Defendant’ (Ground 4)
(8) Whether on the pleadings and evidence before the court the trial counter claim (sic) of the 2nd Defendant was not statute-barred and whether the trial judge did not have a duty to raise and apply the statute of limitation suo motu since it went to the jurisdiction of the court to entertain the action. (Ground 9),
(9) Whether on a proper evaluation of the evidence of the parties, the 2nd Defendant/Counter-Claimant deserved the judgment entered in his favour on his counter-claim. (Ground 7).”
On the Respondent’s part, two (2) issues were distilled for determination of this appeal as follows:-
(i) Whether the trial court had jurisdiction to entertain and grant the respondent’s counter-claim against the 1st Defendant who is a Co-Defendant at the suit of the Plaintiff. Covers grounds 1, 2, 5, 6, and 8 of the Amended Notice of Appeal.
(ii) Whether the court can consider the Acquiescence (sic) and Statute of Limitation as a Defence to the counter-claim of the 2nd Defendant, (Respondent herein). Covers 4 and 9 of the Notice of Appeal.”
In arguing the appeal, the learned counsel to the Appellant A. Esan Esq. appearing with o. Akenova adopted and relied on his brief of argument date d 20/4/08, filed on 26/4/06 and deemed as properly filed and served on 19/4/07 in urging us to allow the appeal. On the Appellant’s first issue it was submitted that a counter-claim could only be set up against a plaintiff. It was submitted that for a Defendant to be entitled to set up a counter-claim, it must be because he has a relief or remedy against the Plaintiff in the action. The essence of a counter-claim was given as a weapon for the Defendant to maintain an action against the Plaintiff, see HALSBURY’S LAWS OF ENGLAND (3RD EDITION) VOL. 34, Paragraph 671 at page 315, adopted in GBADAMOSI V. DAIRO (2001) 11 WRN 129 at 161, BLACKS LAW DICTIONARY, SIXTH EDITION adopted in AIRVIA LTD. V. ORIENTAL AIRLINES LTD. (2005) 5 WRN 1 at 25 – 26 (2004) 9 NWLR (PT.878) 298 and ORIANWO V. OKENE (2002) 19 NWLR (PT.786) 156 amongst a plethora of cases cited and relied upon by the learned counsel giving the definition and the purpose of a counter-claim. It was submitted that unless a claim by a Defendant is against a Plaintiff alone or with an additional party, it cannot qualify as a counter-claim and the court cannot competently assume jurisdiction to entertain same, see, ATTORNEY-GENERAL FOR THE FEDERATION V. A.N.P.P. (2003) 15 NWLR (PT.844) 600 at 544, U.B.A. PLC. V. SAMBA PETROLEUM CO. LTD. (2002) 16 NWLR (PT.793) 361 at 390 amongst others. It was argued that the claim against the 1st Defendant does not qualify to be termed a counter-claim. We were urged to resolve this issue against the 2nd Respondent in favour of the Appellant.
The Appellants second issue distilled from ground three of the Notice of Appeal was conceded by the learned counsel to the Appellant, same was struck out.
On his third issue, it was submitted that from the Plaintiffs ‘pleadings and from the evidence adduced by the Plaintiffs it was clear that the party that initiated the action is not the party entitled to sue to claim ownership of the land in dispute.
It was argued that the plaintiffs relied on customary title in a family with several branches as co-owners who were not joined as Co-Plaintiffs, the action was said to be improperly constituted, see, OLORIODE V. OYEBI (1984) S.C. 1 at 16/17. We were urged to hold that the plaintiffs’ action and the counter-claim of the 2nd Defendant were improperly constituted as the plaintiffs lacked the locus standi to sue in respect of the property while the 2nd Defendant also lacked the locus standi to counter-claim against the 1st Defendant in respect of property that does not belong to him exclusively. We were urged to strike out the Plaintiffs, claim and the 2nd Defendant’s counter-claim.
On the Appellant’s fourth issue, the complaint is that both the claim in the original action and that which is the subject of the counter-claim constituted separate and distinct causes of action which ought not to have been tried together. It was submitted that no justifiable action had been disclosed against the 2nd defendant in the case, therefore there was no reason to set up a counter-claim, see, ANGYU V. MALAMI (2992) 9 NWLR (PT.264) 242 at 253, ANSA V. ISHIE (2005) 16 NWLR (PT.948) 210. It was argued that whatever case the 2nd Defendant had against the Plaintiffs on the one hand, and against the 1st Defendant on the other should have been pursued separate actions, see, ANSA’S case (supra). It is the claim that determines whether the proper parties are before the court, see, OGEBO V. INEC (2005) 15 NWLR (PT.948) 376 at 400; DANTATA V. MOHAMMED (2000) 7 NWLR (PT.664) 176; ADEKOYE V. F.H.A. (2000) 4 NWLR (652) 215 and AYORINDE V. ONI (2000) 3 NWLR (PT. 649) 346 at 361. In the present case the Plaintiffs should have been the only competent Defendant to the 2nd Defendant’s counter-claim, it was submitted that the counter-claim was not properly constituted and should be struck out.
The Appellant’s fifth issue re-emphasised that there was no counter-claim before the trial court for various forms of fundamental incompetence but assuming the counter-claim was proper against the 1st Defendant/Appellant, judgment ought not to have been entered in favour of the counter-claimant who was said not to have pleaded any facts upon evidence which was read in support of his counter-claim. The learned counsel redefined what a counter-claim is and the essence of it, what should be pleaded and the proof of same’ see OKONKWO V. C.C.R. (NIG.) PLC. (2003) 8 NWLR (PT.822) 347 at 402-403, OPADERE V. ODEBUNMI (2003) 16 NWLR (PT.845) 46 at 58, PRIME MERCHANT BANK LTD. V. MAN-MOUNTAIN CO. (2000) 6 NWLR (PT.661) 524 at 529, FALOMO V. ONAKANMI (2005) 11 NWLR (PT.935) 126 at 150-151 and EKEKI V. OKO (1995) 5 NWLR (PT.393) 100 at 111 amongst others.
On the Appellant’s sixth issue as in the fifth, it was submitted that the Respondent did not plead facts upon which evidence could be led in proof of his counter claim. The following cases were relied upon as well as a whole lot of others, see ADEOSUN V. JIBESIN (2001) 11 NWLR (PT.724) 290 at 306, YAHAYA V. CHUKWURA (2002) 3 NWLR (PT.753) 20 at 43, BELLO V. EWEKA (1981) 1 SC 101 at 102, OBAWOLE V. WILLIAMS (1996) 10 NWLR (PT.477) 146 at 170-171. It was argued that the counter-claim was not proved and cannot be inferred by a dismissal of the plaintiff’s case’ more so the counter-claim in this case was not against the plaintiff, see OBI V. BIWATER SHELLABEAR NIG. LTD. (1993) 1 NWLR (PT.484) 722.
On the Appellant’s seventh issue it was the contention of the learned counsel to the Appellant that, in considering the counter-claim of the 2nd Defendant against the 1st Defendant, the learned trial judge relied solely on the pleadings, and evidence relied upon in ruling against the plaintiffs in favour of the two Defendants to also give judgment in favour of the 2nd Defendant in his counter-claim against the Plaintiff. It was alleged that the trial court did not consider the defence of laches and acquiescence put up by the 1st Defendant to decide if it was also available against the 2nd Defendant. We were urged to hold that the counter-claim of the 2nd Defendant is caught by the doctrine of laches and acquiescence and to dismiss the counter-claim.
The Appellant’s eighth issue is basically that the right of the counter-claimant to claim recovery of the land in dispute had been extinguished by the provisions in Section 6(2) of the Limitation Law of Oyo State. In arguing this issue in the Appellant’s brief, at page 45, the learned counsel to the Appellant indicated that he would seek the leave of this Court to amend his Notice of Appeal by the inclusion of an additional ground covering this issue of the action being statute barred. To this I would say this is a novel procedure where learned counsel would seek leave in course of arguing his appeal to amend his Notice of appeal to include an additional ground, fully argued in his brief which was regularized on 19/4/07 with the amended Notice of appeal including ground 9 from which the issue was formulated.
The Appellant’ ninth and last issue is on the evaluation of evidence. In a nutshell, it was submitted that even if neither party gave evidence on the counter-claim, the 2nd Defendant/Counter-Claimant who had the onus to prove his case failed to do so and that the trial court ought to have dismissed the counter-claim.
In response, the learned counsel to the Respondent Kazeem A. Gbadamosi Esq. appearing with Rasheed Adewobi Esq. adopted and relied on the Respondent’s brief of argument dated and filed on 22/2/10, deemed as properly filed on23/2/10.
I had earlier in this judgment reproduced the two issues formulated for determination by the Respondent.
The learned counsel to the Respondent when the appeal was argued conceded the appeal in respect of the counter claim’ that is, in respect of the Plaintiff not being ionized as a party. The counter-claim being against the 1st Defendant alone, It was urged that the counter-claim be struck out as opposed to the order of dismissal sought by the Appellant since the claim was not properly put before the trial court and the merit or demerit ought not to have been entertained by the trial court or this Court.
Briefly under his first issue, the learned counsel to the Respondent submitted that jurisdiction is the authority with which a court can take cognizance of cases or matter presented before it, see, THE MISCELLANEOUS OFFENCES TRIBUNAL AND ANOTHER V. OKOROAFOR (2001) FWLR (Pt. 70) 1507 at 1516 – 1517. The learned counsel agree with the submissions of the learned counsel to the appellant that a plaintiff should be a party to a counter-claim for the reason that a counter-claim is a cross action in which the Plaintiff becomes a Defendant to the counter-claim action in which the Plaintiff becomes a Defendant to the counter-claim, see OBALA V. ADESINA (1999) 2 SCNJ 1 at 18.
On his second issue, the learned counsel to the Respondent submitted that since the counter claim was not properly commenced, the court lacked jurisdiction to entertain it and it ought to have been struck out. We were urged not to consider grounds 4 and 9 of the Notice of Appeal and issues 8 and 9 formulated therefrom in the Appellant’s brief as they would be fit for consideration if the suit has been properly initiated.
It was submitted that in view of the Respondent’s concession to the Appellant’s issue one, we were urged to dismiss the Appellant’s issues 7 and 8. We were also urged to strike out the counter-claim as it is incompetent.
The issue of joinder raised in ground three (3) of the Notice of Appeal and the Appellant’s second issue formulated therefrom are not competent in that the issue of joinder was not part of the decision now on appeal, it was in respect of an earlier Ruling not appealed against. This issue having been conceded by the Appellant in course of arguing the appeal, same is hereby struck out.
I would commend the learned counsel for the Respondent for conceding the appeal but for the final order to be made by this Court. Learned counsel not only conceded the appeal when the appeal was argued but had filed a brief of argument in support of his concession and in agreement with the argument and the submissions of the learned counsel to the Appellant.
Before addressing the issue of the order to make in the present circumstances, I would say a word or two on jurisdiction. Both learned counsel adequately treated the issue of jurisdiction and the definition of a counter-claim, the essence and against whom it could be brought, I commend both.
Jurisdiction is the right conferred on the court to hear and determine a matter between the parties, the parties would have to be the proper parties, before the court could make orders or take decisions concerning matters before it. Any defect, as in the present case where the proper party was not claimed against in the counter claim, would rob the court of its jurisdiction. Where as in this case the matter has been decided with the improper parties in the counter-claim the proceedings are a nullity no matter how well presented and decided, see, the popular good old case of MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR (PT.1) 585 at 587.
It is trite that a Plaintiff should be a party to a counter-claim, the reason is that a counter-claim is a cross action where the Plaintiff becomes a Defendant to the counter claim,, whereas in this case where, the Plaintiff is not made a Defendant the action instituted as such is incompetent and ought not to be determined on its supposed merits. A claim against a Co-Defendant therefore as the Respondent counter-claimed against the 1st Defendant alone cannot stand or serve as a counter-claim, see, OBALA V. ADESINA (supra). By way of emphasis in U.B.A. PLC. V. SAMBA PETROLEUM CO. LTD. (2002) 16 NWLR (PT.793) 361 at 390, cited and relied upon by both learned counsel it was held that:
“A Defendant cannot counter-claim solely against another Defendant but he can make a counter-claim against an additional party on condition that the Plaintiff is also a party to the counter-claim, then there is no cross-action and consequently no valid counter-claim. “The parties are agreed that the counter-claim was not properly commenced against the proper party, therefore the trial court lacked the jurisdiction to entertain same.
The learned counsel to the Respondent had urged us to dismiss the Appellant’s issues 7 and 8 in view of the Respondent’s concession to issue one, having held and the parties having agreed in respect of the Appellant’s first issue that the counter-claim brought by the then 2nd Defendant against the then 1st Defendant without counter-claiming against the Plaintiff is incompetent the rest of the issues cannot be resolved on the merits including the defences as raised in issues 7 and 8, they are also incompetent.
As to the proper order to make in the present circumstances, in U.B.A. V. SAMBA PETROLEUM CO. LTD. (supra) at 389-390 it was held in this respect thus:
“If the Plaintiff cannot be a proper party to the counter-claim, the proper step for the court is to strike it out.”
In addition, the learned counsel all through his argument in respect of his issues urged us to strike out the counter-claim except under issue nine that we were urged to dismiss the counter-claim. The counter-claim is incompetent and cannot be resolved on its merits therefore, I am in total agreement with the learned counsel to the Respondent that the proper order this court ought to make, is an order striking out the counter-claim.
The appeal which was conceded is allowed. The judgment of the Oyo State High Court in respect of the counter-claim in Suit No. 1/874/88, delivered on 26th day of July, 1999 by T.O. Adeniran, J sitting at Ibadan is hereby set aside. The counter-claim is hereby struck out.
No order as to costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A: I agree with the judgment pronounced by my learned brother, Chidi Nwaoma Uwa, J.C.A., which I adopt as mine.
The stance of the respondent’s learned counsel, Mr. K.A. Gbadamosi in conceding the appeal is commendable and honourable. That is how it should be. I join the lead judgment that a counter-claim without the plaintiff in the main action as a co-defendant is like an automobile without tyres. lt cannot move. It is bad ab initio. For, a counter-claim is a claim for relief asserted against an opposing party after an original claim has been made, especially in opposition to or against the plaintiff’s claim see Black’s Law Dictionary (Eighth Edition 376, and Olubodun v. Lawal (2008) 6 SCNJ 269. The plaintiff at the court below was therefore a necessary and indispensable party to a counter-claim.
The counter-claim at the court below did not have the plaintiff at the court below as a party to it. Therefore the court below should have struck it out on ground of incompetence arising from incomplete composition of parties thereto. I would allow the appeal and set aside the judgment of the court below in respect of the counter-claim which is hereby struck out without costs.
OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered.
I agree.
Appearances
A. Esan Esq. with O. Akenova and A. Kolawole Esq. For Appellant
AND
Kazeem A. Gbadamosi Esq., with Rasheed Adewobi Esq. For Respondent
