MRS. ABIOIA OSIBOWALE (NEE TAIWO) V. CARRIBEAN FINANCE LTD. & ORS
(2011)LCN/4639(CA)
In The Court of Appeal of Nigeria
On Monday, the 20th day of June, 2011
CA/I/87/2004
RATIO
STANDARD OF PROOF: WHETHER THE STANDARD OF PROOF IN A CIVIL CASE ,WHERE THERE IS AN ALLEGATION OF CRIME, IS PROOF BEYOND REASONABLE DOUBT
Normally proof in purely civil cases is on a balance of probabilities but if there is the import of crime in such civil proceedings, that allegation of crime must be proved beyond reasonable doubt by the person who asserts it. See NWEKE V. THE STATE (2001) 4 NWLR (PART 704) 588, ARUMA V. STATE (1990) 66 NWLR (PART 153) 125; TANKO V. (2008) 16 NWLR (PART 114) 597 at 636. PER STANLEY- SHENKO ALAGOA J.C.A
DOCUMENTARY EVIDENCE: WHETHER DOCUMENTARY EVIDENCE IS THE MOST RELIABLE FORM OF EVIDENCE
The position of the law is that the most reliable if not the best evidence is documentary evidence. It is certainly more reliable than oral evidence. See AKINBISADE V. THE STATE (2006) 17 NWLR (PART 1007) 184 SC. See also AIKI V. IDOWU (2006) 9 NWLR (PART 984) 47 at 55 where the Court of Appeal held as follows- “Documents when tendered, and admitted in Court “are like words uttered and do speak for themselves. They are even more authentic and reliable than words from the vocal cord of man because they are neither transient nor subject to distortion and misrepresentation but remain permanent and indelible through the ages. The documents bear eloquent testimony of what happened.” PER STANLEY- SHENKO ALAGOA J.C.A
COUNTER CLAIM: MEANING OF A COUNTER CLAIM
A counter claim has to be understood to be appreciated. BLACK’S LAW DICTIONARY 7TH EDITION PAGE 353 defines counter claim as- “A claim for relief asserted against an opposing party after an original claim has been made; especially a defendant’s claim in opposition to or as a set off against the plaintiff’s claim.” JOWITT’S DICTIONARY OF ENGLISH LAW 2ND EDITION page 486 explain in some greater detail what a counter claim is as follows – “If the defendant in an action has a claim against the plaintiff he may raise it in the existing action by adding to his statement of facts which he bases his claim and of the relief which he claims against the plaintiff.” The purport of this is that although a counter claim is a separate action, it can be taken together with the main action where the defendant to an act relies on basically the same set of acts that constitute his defence to prove his claim against the plaintiff. PER STANLEY- SHENKO ALAGOA J.C.A
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
MRS. ABIOIA OSIBOWALE (NEE TAIWO) (SUBSTTTUTED FOR JOSEPH O. TAIWO (DECEASED) Appellant(s)
AND
1. CARRIBEAN FINANCE LTD.
2. DR. E. O. YEWANDE
3. OLUFEMI ALAKA Respondent(s)
STANLEY- SHENKO ALAGOA J.C.A (Delivering the Leading Judgment): In the High Court of Justice Ibadan Oyo State of Nigeria, the Appellant as plaintiff claimed against the Respondents as Defendants) as per paragraph 31 of the Further Amended Statement of Claim amended pursuant to an order of Court made on the 4th May 1999 and fired on the 5th May 1999 as follows:-
(i) An order setting aside the purported sale of the Plaintiff’s house situate at SW8/616B NTC Road, Oke Ado Ibadan by the 1st and 2nd Defendants to the 3rd Defendant on the grounds of ,fraud, irregularity and lack of good faith.
(ii) An order setting aside the Deed of Assignment registered as No. 56 at page 56 in volume 3247 of the Lands Registry in the office at Ibadan which was executed by the 1st and 2nd Defendant in favour of the 3rd respect of Plaintiff’s house situate at SW8/616B NTC Road Oke Ado Ibadan.
(iii) Declaration that the plaintiff had liquidated the only loan of N35, 000.00 advanced to him by the 1st Defendant and in respect of which plaintiff mortgaged to the 1st Defendant the Plaintiff’s property covered by deed of conveyance registered as No. 15 at page 15 in volume 208 of the Lands Registry in the office at Ibadan.
(iv) A declaration that the purported sale of the Plaintiff’s house situate at SW8/616B NTC Road Oke Ado Ibadan by the 1st and 2nd Defendants is wrongful, illegal, null and void.
(v) Injunction restraining the Defendants, their agents, privies or persons claiming, through them from interfering with Plaintiffs possession of the said house.
(vi) N10, 000.00, damages against the Defendants for the purported sale of the’ said house by the 1st and 2nd Defendants to the 3rd Defendant.
(vii) Declaration that the title, documents registered as. No. 15 at page 15 in Volume 208 of the Lands Registry in the office of Ibadan in respect of the plaintiff property situates at SW8/616B NTC Road Oke-Ado Ibadan is wrongfully detained by the Defendants and should be returned to the Plaintiff.
(viii) 15, 000.00 being general damages for the said Deed in spite of plaintiffs repeated demands.
What can be gleaned from the further amended statement of claim at pages 5-7, of the Record of Appeal is briefly set out below as follows –
The then Plaintiff (now Appellant) maintained an account No. 0100151 with the 1st Defendant a registered financial institution at its place of business at No. 8 Lagos Bye Pass Oke-Ado Ibadan. Sometime in June 1990, he applied for a loan of N45, 000.00 for which he was paid only N35, 000.00 by cheque on the 21st August 1991. The 1st Defendant went on to prepare a deed of legal mortgage in respect of the sum of N35, 000.00 loan which the Plaintiff collected and signed but the said Deed was not registered and a copy was not given to the Plaintiff despite repeated demands; The plaintiff then gave as security for the said loan on his account No. 0100151 the original title deed of his property situate at SW8/6168 NTC Road Ibadan registered as No. 15 at page 15 in volume 208 at the Lands Registry Ibadan to the 1st Defendant and fully Paid fully all the amount outstanding on his said account No. 0100151 on the 28th September 1992 and did not open any other account.
The position as now stated notwithstanding the 1st Defendant withheld Plaintiff’s original title deeds, refusing to release same despite repeated demands. The 2nd Defendant who was then Executive President to the 1st Defendant informed him to the Plaintiff’s surprise that he had not liquidated his loan and was in the habit of visiting plaintiff in his house to threaten and embarrass him that he would sell Plaintiff’s house. Plaintiff therefore instituted legal action in suit No. I/422/96 through his former counsel Mr. Jide Alao when it became clear the Defendants would not release his original title deeds to him, in which action plaintiff claimed damages for the unlawful detention of his original title documents of his property by the Defendants. The Suit was however struck out for absence of both litigating parties from Court.
From a search conducted at the Lands Registry Ibadan, the Plaintiff discovered that the 1st Defendant registered a deed of legal mortgage dated the 27th July 1992 and registered same as No. 2 at page12.in volume 3074 of the Lands Registry office Ibadan with the Plaintiffs’ signature fraudulently fixed on the said, document either, by the 1st Defendant or her agents or servants. Plaintiff at no time applied for any additional loan from the 1st Defendant neither did he receive any loan beside the, loan obtained on the 21st August 1991 which loan he had since liquidated.
Sometime, in September 1997 Plaintiff received a letter from Dapo Adeoye & Co. (Solicitors) informing him that the 3rd Defendant had bought his house and that he should vacate same. No auction notice was pasted on his house to inform him that his house was being put up for sale neither did an auction take place, before, the purported sale of plaintiff’s house Notice of the purported sale was not made at the office of the commissioner for Lands and the commissioner for Lands did not endorse any such notice before purported sale. A search at the Lands Registry Ibadan conducted by the plaintiff disclosed that the 1st & 2nd Defendants assigned the premises upon which the Plaintiff built his house to the 3rd Defendant for N200, 000.00. The value of the plaintiff’s house was N1.2 million. The selling of the house was done mala fide by the 1st & 2nd Defendants in collusion with the 3rd Defendant and the sale of the Plaintiffs property was grossly undervalued.
In response the 1st & 2nd Defendants filed an amended statement of defence pursuant to an order of court dated the 1st June 1999 which is contained at pages 8-11 of the Record of Appeal, while the 3rd Defendant filed an amended statement of defence and counter claim dated the 12th April 1999 contained at pages 12-15, of the Record of Appeal. The Counter claim of, the 3rd Defendant is for –
‘(i) A declaration that under and by virtue of the Deed of Assignment registered as No. 56 at Page 56 in volume 3247 of the Lands Registry in the office at Ibadan the 3rd Defendant is the legal and beneficial owner of the house described and known as SW8/616B NTC Road Ibadan.
(ii) A declaration that upon the registration of the Deed of Assignment registered as No. 56 at Page 56 in volume 3247 of the Lands Registry in the office at Ibadan the Plaintiff became a statutory tenant of the 3td Defendant.
(iii) An order directing the Plaintiff to pay to the 3’d Defendant the monthly rent of the 16 rooms at the rate of N300 per month per room from 1st September 1997 till plaintiff yields up possession to the 3rd Defendant.
In consequence thereof the Plaintiff filed an Amended reply to the Amended Statement of Defence of the 1st & 2nd Defendants as well as a reply to the Amended Statement of Defence of the 3rd Defendant and defence to the counter claim of the 3rd Defendant. These are contained at pages 15A-15E of the Record of Appeal. The case proceeded to be heard with the Plaintiff calling four witnesses. The defence also called four witnesses. A total of twenty exhibits were tendered during the course of hearing. By consent of Counsel written addresses were submitted to court and in a considered judgment delivered on the 13th November 200f the learned trial Judge K. A. Jimoh J. dismissed the Plaintiff claim and upheld the counter claim of the 3rd Defendant. It is this judgment that is on appeal to this Court by a Notice of Appeal dated the 11th December 2001 and filed same day. This Notice of Appeal was by an order of this Court made on the 29th November 2005 amended. The Amended Notice of Appeal consists of the following grounds shorn of particulars –
1. The Learned trial Judge erred in law in holding that the plaintiff has not discharged his obligation to the 1st Defendant before his mortgage property was sold.
2. The Learned trial Judge erred in law when he held that the counter claim of the 3rd Defendant’ should in the circumstance succeed.
3. The Learned trial Judge erred in raw when he held at page 98 and 99 of the record as follows:
“In this case, the plaintiff applied for and; obtained loan from the 1st Defendant (sic) former company and secured his property for the loan. Both parties set out their obligation and delivered. The plaintiff defaulted in repaying the loan but now sets up a defence discharged his obligation, which he has discharged his obligation, which he has not, and that the mortgaged property should not be sold. Surely the law will not allow him to have his cake and eat it and get yet retain the mortgaged property. It is my considered finding that the Plaintiff was and still owing the 1st Defendant the balance of his indebtedness.”
4. The judgment is against the weight of evidence.
From the grounds in the Amended Notice of Appeal the Appellant has distilled the following issues for determination in the Appellant’s Brief of Argument dated the 7th November, 2005 and filed on the 14th November, 2005 but deemed properly filed by an order of Court granted on the 29th November, 2005-
(i) Whether the Appellant discharged his obligation to the 1st Respondent before he mortgaged
(ii) Whether the counter claim of the 3d Respondent, should have succeeded when there was no consideration of the issues contained in the’ Counter Claim by the trial Judge,
iii) Whether or not the Appellant having paid the loan, of N35, 000.00 with interest has any balance to pay.
(iv) Whether the Judgment was against the weight of evidence.
The Respondents for their part have formulated the following two issues for the determination of this Court. These issues which are contained in paragraph 1.04 of the Respondents’ unpagenated Brief of Argument dated the 31st August, 2006 and filed on the 6th September, 2006 but deemed properly filed on the 6th March, 2007 by an Order of Court made on that day are as follows –
(i) Whether from the pleadings and evidence on record the case of the plaintiff was properly or justifiably dismissed by the learned trial Judge; and
(ii) Whether the learned trial judge considered the counter claim of the 3rd Defendant and justifiably granted it.
The Appeal came up to be heard on the 23rd March, 2011 Appellant was absent and so also was his counsel. This court dug into its records and discovered that on the 3rd November, 2010 when this appeal came up and was adjourned to the 23rd March 2011 for hearing, the Appellants, counsel was in court and no reasons had been advanced for counsels’ absence from court to argue the Appeal. Noting that the Appellant’s Brief of Argument had earlier been filed and served on the Respondent, the court invoked the provisions of order 17 Rule 9(4) of the court of Appeal Rules 2007 which was in operation at the time to hear the appeal., The said order 17 Rule 9(4) of the court of Appeal Rules 2007 provides as follows –
“When an appeal is called and the parties have been duly served the Notice or Hearing, but if .any party or any legal practitioner appearing for him does appear ‘to present oral argument even though briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having been duly argued.”
H. O. Afolabi appeared with S. O. Ajayi and R. Isamotu for the Respondents and after adopting and relying on the
Respondents’ Brief of Argument earlier referred to, urged this Court to dismiss the appeal.
After a careful perusal of the issues formulated parties, I find that Issue IV in the Appellant’s Brief of Argument which reads’ “whether the judgment was against the weight of evidence” is not different from the 1 of the Respondent which is, “whether from the pleadings evidence on record the case of the plaintiff was properly or justifiably dismissed by the learned trial Judge.
“Issues 2 in both Briefs of Argument deal consider these two- issues appropriate enough to effectually dispose of this appeal.
Issue 1 is whether from the pleadings and evidence adduced in court by the parties, the learned trial Judge was right is dismissing the plaintiff’s (now Appellant’s) claim. This issue covers grounds 1, 3 and 4 0f the Notice and Grounds of Appeal. Respondent has referred in its Brief of Argument to allegations of fraud, forgery, irregularity and lack of good faith which are contained in the Appellant’s pleadings and evidence and Brief of argument and has submitted that allegations of a criminal nature must be specifically pleaded and proved beyond reasonable doubt by the Appellant. Reference in this regard has been made to section 138 of the Evidence Act and to the following cases -ABDULAHI MUHAMMED WALI V. ATTAHIRU DALHATU RAFARAWA (2004) 16 NWLR (PART 898) 1 at 39-40; GAMBARI V. BUKOLA (2004) 1 NWLR (PART 853) 122 AT 134; OGBEIDE V. OSUOLA (2004) 12 NWLR (PART 886) 86 at 132.
Particular reference was made by the Respondent to paragraphs 16 and 31(1) of the Appellants Further Amended statement of claim which are said to contain these allegations of a criminal nature. It is constructive at this stage to examine the provisions of section 138(1i of the Evidence Act, Laws of the Federation of Nigeria 2004.It states as follows –
“If the commission of a crime by a party to any proceedings civil or criminal, it must be proved beyond reasonable doubt.”(Underlining mine for Emphasis.)The purport is very simple. Normally proof in purely civil cases is on a balance of probabilities but if there is the import of crime in such civil proceedings, that allegation of crime must be proved beyond reasonable doubt by the person who asserts it. See NWEKE V. THE STATE (2001) 4 NWLR (PART 704) 588, ARUMA V. STATE (1990) 66 NWLR (PART 153) 125; TANKO V. (2008) 16 NWLR (PART 114) 597 at 636.
The paragraphs of the further amended statement of claim in which the allegation of fraud are contained are paragraphs 16 and 31(1) and are reproduced as follows –
16. “The plaintiff says further his signature in the said document was fraudulently fixed thereon either by the 1st defendant or its agents or servants. The, plaintiff says he never affixed his signature to it and will prove same at the trial of this case.”
31(1) “An Order setting aside the purported sale of the plaintiff’s house situate at SW8/616B NTC Road Oke-Ado, ,Ibadan by the 1st and 2nd Defendants to the 3rd Defendant on the grounds of fraud, irregularity and lack of good faith.”
The document referred to by the Appellant in paragraphs 16 and 31(1) is Exhibit 5 – the Deed of Legal Mortgage. How has the Appellant attempted to prove the alleged fraud referred to? Reference must at this stage be made to his evidence at pages 19-12 of the record of Appeal. The Appellant who gave evidence as PW 4 said at pages 20 of the Record with respect to exhibit 5 as follows-
“Exhibit 5 shown to me is not the deed of legal mortgage which I signed…………..
I was not aware of the registration of Exhibit 5 but I went to the Ministry of Land and Housing I discovered Exhibit 5 had been registered against me for N65, 000.00. The signature of (sic) Exhibit 5 was mine.”
Under cross examination on the 20th October, 1999 at page 21 of the Record of Appeal, Appellant said as follows – “My signature is on Exhibits 5”. Still under cross-examination on the 25th October, 1999 at page 22 of the Record, the Appellant said as follows –
“I discovered that Exhibit 5 was registered when I went for a search in the Ministry of Lands. N30, 000.00 + N35, 000.00 is equal to N65, 000.00. Exhibit 5 was stamped to cover N65, 000.00.”
PW 3 Bashiru Adegboyega Yusuf under cross-examination on the 4th May, 1999 at page 18 of the Record of Appeal said that, “The mortgagor in Exhibit 5 is Joseph Olusegun Taiwo” i.e. the Appellant. “These references to exhibit 5 by the Appellant and PW 3 do not by any stretch of the imagination connote fraud. In one breath Appellant has said that the signature is his and one cannot make out what he is alleging in the other breath but he is most certainly not categorically asserting that his signature has been fraudulent affixed to Exhibit 5 by the Respondent or her agents. Appellant should be taken as having admitted that the signature on Exhibit 5 is his.
Under cross-examination on the 20th October 1999, the Appellant had stated at page 21 of the Record of Appeal as follows-
“I finally, paid my debt to the 1st Defendant on 28/9/92. After paying the debt I owed nothing more to the 1st Defendant”But under cross-examination on the 25th October, 1999 at page 22 of the Record of Appeal, Appellant stated as follows-
“The letter dated 25th January, 1994 was written by ‘me. It was written to the Operation Manager of the 1st Defendant. I know smart Noble Nigeria Enterprises engaged by the 1st Defendant, I wrote the letter of 20th January, 1994 through the Smart Noble Enterprises.”
That letter of the 20th January, 1994 which was tendered and admitted in the lower Court as Exhibit 16 reads as follows –
“Dear Sir,
RE: MY LOAN ACCOUNT WITH YOU
Further to our discussion I promise to liquidate the balance by end of March 1994.
Yours faithfully,
(Signed)
If Appellant actually liquidated, his indebtedness with the 1st Defendant on the 28th September, 1992 as stated in his evidence, why was it that as at 20th January, 1994 he was still appealing for time to, settle the balance of his indebtedness to the 1st Defendant?
Again in another plea for more time to settle his debts –
Exhibit 19, Appellant had stated as follows –
“My Respected sir I am greatly sorry to inform you that my daughter Mrs. Funmi Agbana got involved in a motor accident along Owode-Idiroko. The accident was very, very serious which claimed nine lives (sic) instanter. My daughter had fracture on her right leg. She is at Owode New Military Hospital. I am taking this opportunity to beg you. Please give me some time; I will be paying regularly and I will clear, my debt as soon as possible.
Thanks for your usual co-operation.
Yours faithfully,
(signed)
J. O. Taiwo”
This letter – exhibit 19 is dated the 7th February, 1996.
Appellant admitted receiving some demand notices from the 1st Respondent to pay up his debts. For example under cross-examination on the 25th October, 1999 at page 22 of the Record of Appeal the Appellant had stated as follows;
“There are some of the demand notices received from the 1st Defendant. This is demand notice of 30th March, 1994.”
This demand notice which was admitted as Exhibit 14 referred to the Appellant’s letter dated 20th January, 1994 which was admitted as Exhibit 16. It reads as follows,
“Dear Sir,
RE: BALANCE OF YOUR LOAN ACCOUNT
We refer to your letter dated 20th January, 1994 on the above subject and hereby remind you to forward to us your Bank draft or cash for the sum of N1, 641.07 to liquidate your loan account with us as earlier promised on or before the 31st March, 1964.
We are therefore compelled to write you this letter as a reminder of FINAL DEMAND notice for the exposure failure which we nay be compelled to continue action to realize the security.
Yours faithfully,
(Signed)
Boze Amuta
Manager (Operations)
(Signed)
D. O. OMIRIN
CREDIT COUNSELLOR (Ops)”
The position of the law is that the most reliable if not the best evidence is documentary evidence. It is certainly more reliable than oral evidence. See AKINBISADE V. THE STATE (2006) 17 NWLR (PART 1007) 184 SC. See also AIKI V. IDOWU (2006) 9 NWLR (PART 984) 47 at 55 where the Court of Appeal held as follows”‘
“Documents when tendered, and admitted in Court “are like words uttered and do speak for themselves. They are even more authentic and reliable than words from the vocal cord of man because they are neither transient nor subject to distortion and misrepresentation but remain permanent and indelible through the ages. The documents bear eloquent testimony of what happened.”
Exhibits 14, 16 and 19 to mention a few are an admission of what happened and that the Appellant had not liquidated his loan account to the 1st Respondent. Those-exhibits are also an admission against, the interest, of the Appellant see CHIEF ADEOYE ADIO FAGUNWA & ANOR V. CHIEF NATHANIEL ADIBI & ORS (2004) 17 NWLR (PART 903) page 544 at 566; OTIEGBE V. OKWARANYIA (1962) 2 SCNLR 358; SALAMATU V. BIBA (1975) NWLR 176; OKAI V. AYIKAI (1946 12 WACA 31.
what is now clear from the discussion is –
(i) That Appellant has admitted that he has ‘ not fully liquidated his debt to the 1st Respondent.
(ii) Appellant has admitted appending his signature to exhibit 5.
Of Exhibit 5; DW 1 Dr. Emmanuel Oluwote Yewande had stated in his evidence both in chief and under cross-examination at pages 23:26 of the Record of Appeal as follows –
“Exhibit 5 is- the deed of legal mortgage secured in favour of the 1st defendant by the plaintiff. Exhibit’ 5 was duly executed by all the partners concerned. The plaintiff financed the preparation,
Stamping and registration of exhibit 5.
There was no other document apart from Exhibit 5 .evidencing the transaction between the plaintiff and the defendants.
The plaintiff took a loan of N35, 000.00 in Ibadan and N30, 000.00 in Lagos both making q total of N65, 000.00. Exhibit 5 was signed to cover N65, 000.00.”
This is corroborated by the evidence of DW 2 Lawal Tajudeen Adesida at page 28 of the Record of Appeal as follows –
“I know the plaintiff. He is a customer to the Nigerian Finance Ltd both in Lagos and Ibadan, He, took a loan of N30, 000.00 from Lagos and took another sum of N35, 000.00 from the Ibadan Branch.”
The Appellant as we had earlier seen has admitted these pieces of evidence against his own interest by both documentary and oral evidence.
On the issue of counter claim i.e. whether the counter claim of the 3rd Respondent should have succeeded when there was no consideration of the issues contained in the counter claim, the Appellant has submitted that the trial Judge, did not consider: the issue raised in the counter claim before delivering judgment and was therefore .in error to have granted the counter claim to the 3rd Defendant. Reliance was placed on MAUNE V. ABDUL (2001) 4 NWLR (PART 702) at pages 108-109; JEJEDE V. CITICOU NIG. LTD. (2001) 4 NWLR (PART 702) 112.
Respondent have submitted in their Brief of Argument that the success or otherwise of the counter claim depends on the consideration of whether the 1st & 2nd Defendants have the right to sell the mortgaged property to the 3rd Respondent.
This point Respondent’s counsel submitted was dealt with by the learned trial Judge at page 99 of the Record of Appeal where he stated as follows-
“Now the next point to consider is whether the 1st and 2nd Defendants have right to sell the mortgaged property of the plaintiff in the circumstances of this case.”
It is therefore not true as the Appellant has tried to canvass that the learned trial judge did not consider the issue at all.
Counsel went further to submit that if the learned trial Judge considered and determined that the property was properly and validly sold to the 3rd Defendant the court could go ahead and grant the reliefs in counter claim. Counsel further submitted that there is no appeal against the specific finding of the court below. Reference was made to OKOTIE-EBOH V. MANAGER (2004) 18 NWLR (PART 905) 242 at 284.
Respondent’ counsel further submitted that the learned trial judge painstakingly considered the case of both parties in the main case and the counter claim before dismissing the main case and granting the counter claim as the main claim and the counter claim are interwoven when in Paragraph 35 at Page
101 of the Record of Appeal the learned trial Judge had said as follows –
“In view of all the facts placed before me, I hold that the counter claim of the 3rd Defendant should in the circumstances succeed.”
A counter claim has to be understood to be appreciated.
BLACK’S LAW DICTIONARY 7TH EDITION PAGE 353 defines counter claim as-
“A claim for relief asserted against an opposing party after an original claim has been made; especially a defendant’s claim in opposition to or as a set off against the plaintiff’s claim.”
JOWITT’S DICTIONARY OF ENGLISH LAW 2ND EDITION page 486 explain in some greater detail what a counter claim is as follows –
“If the defendant in an action has a claim against the plaintiff he may raise it in the existing action by adding to his statement of facts which he bases his claim and of the relief which he claims against the plaintiff.”
The purport of this is that although a counter claim is a separate action, it can be taken together with the main action where the defendant to an act relies on basically the same set of acts that constitute his defence to prove his claim against the plaintiff. This is the case here where in one and the same process, the 3rd, Defendant to the main, action after filing Amended Statement of Defence, went on to file a counter claim.
A look at paragraphs 1-14 of the counter claim of the 3rd Defendant show that they relate to the same set of facts as are contained in the 3rd Defendant’s Amended Statement of Defence. Paragraphrl5 of the counter claim is as follows –
(i) Declaration that under and by virtue of the Deed of Assignment registered as No. 56 at page 56 in volume 3247 of the Lands Registry in the office at Ibadan, the 3rd Defendant is the legal described and know as SW8/616B NTC Road Ibadan
(ii) Declaration that upon the registration of the Deed of Assignment registered as No.56 at page 56 in volume 3247 tenant of the 3rd Defendant.
(iii) An order, directing the plaintiff to pay to the 3rd,.Defendant the monthly rent of the 16 rooms at the rate of N300 per month per room from 1st September, 1997 till plaintiff yields up possession to the 3rd Defendant.
It will be seen that both the main claim and the counter claim are interrelated and it is the same set of facts and evidence that have been relied upon by the defendant in the main claim to defeat the plaintiff’s claim that have been relied upon by the 3rd defendant in establishing his claim in the counter claim. Following from the main claim, the learned trial Judge held that the property was properly and validly sold to the 3rd Defendant based upon an evaluation of the evidence placed before him in the main case. Without giving separate evidence on the counter claim which would be burdensome and unnecessary the reliefs in the counter claim would have been properly granted. ‘To say the learned trial Judge gave no consideration to tire counter claim is not correct and is not borne out by the Records.
This issue is also resolved in favour of the Respondents against the Appellant. The Appeal fails and is dismissed and the judgment of Jimoh J. delivered on the 13th November, 2011 in suit No. I/789/97 is hereby affirmed. I make no order as to costs.
MODUPE FASANMI, J.C.A: I had the opportunity of reading the lead judgment of my learned brother S. S. ALAGOA J.C.A. just delivered.
The issues in the appeal have been comprehensively dealt with. I agree entirely with the reasoning and conclusion. The appeal lacks merit and it is accordingly dismissed. I also make no order as to costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A: I had the honour of reading in advanced the painstaking judgment prepared by my learned brother, Alagoa, J.C.A., in which I concur, with these words, by way of emphasis.
The 2nd respondent admitted receiving exhibit 12, the demand notice served on the respondents by the appellant for the return of his title deed.
The 2nd respondent in his testimony in the court below in page 27 of the record added inter-alia that:
“The plaintiff (now appellant), applied for his statement of account, it was prepared but the plaintiff did not come back to collect it. The statement of account was not sent to him’ (my emphasis).
The above extract proved the respondents were willing and prepared to give the statement of account to the appellant who neglected to collect it from them. Consequently, section 149 (d) of the Evidence Act on the withholding of a piece of evidence -the statement of account – was not available to the appellant; against the respondents, See Aremu v. The state (1991) 7 NWLR (Pt. 301) t at page 18, as follows:
. “The presumption arises when it is shown that the adverse party has- Suppressed a document which has been proved to be in its possession and which it has refused to produce after service of the notice.”
(my emphasis).
The appellant wrote the letter in Exhibits 16 and 19 to the respondents dated 20.L.94 and 7.2.96, respectively, pleading for time to repay the balance of the money he owed the respondents. Exhibits 16 and 19 were in response to some letters of demand served on appellant by respondents to liquidate the outstanding debt owed them by appellant. In my considered view, Exhibits 16 and 19 constituted the admission of the indebtedness by the appellant – see Unity Party of Nigeria v. Poatson Graphics Arts Trade Ltd (1982) 12 CA. 273 at 279-280 (per Ademola, Nnaemeka-Agu, and Kutigi, JJ. CA)
The admission of the debt or loan by the appellant placed the burden of proof on him to proved clearly that he liquidated the indebtedness – see Michael Phares v. Joseph Abdullah (1941) 7 WACA 15 at 16 as follows:
“These letters admitting liability are equally to the third ground of appeal for they are some ten years subsequent in date to the receipt for f450 which is the basis of the third ground of appeal.
The fourth ground of appeal has to be considered with due regard to the incidence of the onus of proof. The .making of the promissory Note is admitted by the appellant.
In 1936 hg wrote letters quite inconsistent with his contention in this case that he had settled his indebtedness to the plaintiff. Where a defendant pleads, as the appellant in this case pleaded, that the indebtedness represented by the admitted Promissory Note had been settled, the onus of proof of the settlement is upon him.,,
See also Texaco Overseas (Nig) Petroleum Company Unlimited). V. Pedmar Nigeria Limited (2002) 7 SCNJ 358.
I too agree with the court below that the appellant did not discharge the onus of proof that he satisfied the indebtedness. . The appeal has no merit. I dismiss it. No order as to costs.
Appearances
For Appellant
AND
H. O. Afolabi Esq. with S. O. Ajayi Esq. and R. Isamotu Esq.For Respondent
