For a defendant to be entitled to declaration, he must file a counter-claim and prove same. See: Anwoyi v. Shodeke (2006) 13 NWLR (Pt.996) 34.
The law is trite that for a defendant to get title, he must prove it where the action of a plaintiff seeking declaration of title is dismissed. Such dismissal in the absence of a successful counter-claim by the defendant, does not amount to a declaration of any right to the defendant. Therefore, where a plaintiff claims title to land and the Court dismisses his claim for failing to prove title, the defendant who has not counter-claimed for declaration of title to the same land, does not automatically become entitled to the land. See Anwoyi v Shodeke (2000) 13 NWLR (Pt. 916) 34 SC; Ikem v. Efame (2000) 10 NWLR (Pt. 709) 321
As rightly submitted by learned counsel for the 1st respondent, a counter claim, though filed within an existing suit, is an independent action. The counter claimant becomes the plaintiff while the original plaintiff becomes the defendant. The counter claimant has the onus of establishing his case just as he would if he were the original plaintiff. A counterclaim is subject to the same rules of pleading and standard of proof as the main action. See: Ogbonna vs. A.G Imo State & Ors (1992) LPELR-2287 (SC) @ 33 B G; Gowon vs. Ikeokongwu (2003) FWLR (Pt. 147) 1027; Jeric (Nig) Ltd vs. Union Bank (2000) 15 NWLR (Pt. 691) 147; MAOBISON Interlink Assoc. Ltd vs. U.T.C (Nig) Plc (2013) 9 NWLR (Pt. 1359) 197; (2013) LPELR-20335 (SC) @ 12 B D.
To my mind, a counter claim is always considered as an independent, separate and distinct claim which a trial Court must always consider.
A trial Court confronted in a suit with both the main and counterclaims, must give separate judgment on each of the claims as each of such claim is independent of one another in this instant case, the trial Court failed to consider or to determine the defendants' counterclaim.
In effect, the burden of proving a Counter Claim is on the counter claimant as he is the party who would fail is no evidence is adduced to establish it, N.B.N. Ltd v. U.C. Holding Ltd (2004) 13 NWLR (Pt. 891) 436, 454; Umeojiako v. Ezeanamuo (1990) 1 NWLR (Pt 126) 253, 267.
I am ad idem with the lower Court that a Counter-claim is a separate, independent and distinct action, N.B.N. Ltd v. U.C. Holding Ltd (2004) 13 NWLR (Pt. 891) 436; Ogbonna v. AG, Imo State (1992) 1 NWLR (pt.220) 647: Oyagbola v. Esso West Africa Ltd (1966) 1 All NLR 170:
Thus, the counter-claimant, like the plaintiff in the main action, has a duty to prove his Counter-claim if he hoped to obtain judgment, Jeric Nigeria Ltd v. Union Bank of Nigeria Plc (2001) 7 WRN 1, 18; Prime Merchant Bank v Man-Mountain Company (2000) 6 WRN 130, 134; Walter v Skyll Nig. Ltd (2000) 13 WRN 60, 98.
A counterclaim is an independent action where the parties in the main action are in reverse roles. The plaintiff becomes the defendant, while the defendant becomes the plaintiff. See Oyagbola v. Esso West Africa (1996) 1 ALL NLR P.170; Ogbonna v A.G. Imo State (1992) 1 NWLR (Pt. 220) P.647
A counter-claim does not depend on the outcome of the main claim. Once the main claim is concluded in whatever form, be it dismissed or discontinuance, the hearing of the counter-claim must commence. It was a grave error for the learned trial judge not to have made pronouncement on the counter-claim. As it stands now, the counter-claim was left in the realm of speculation and that is bad for the streams of justice. The learned trial judge ought to have made a pronouncement on the counter-claim.
The Court of Appeal was on good ground to have declined such an invitation of the use of its power under Section 16 of the Court of Appeal Act to the right wrong. The reason is that the Court of Appeal if it had imagined such power would be arrogating to itself, powers it did not have, that is to decide on an action which is what the counter claim is when the evidence really was not considered. One would ask if it would not be jumping into the status of the trial Court and make consideration of evidence not before it. Truly the error is not a light one that could be so casually and informally treated by the Court of Appeal or even this one inserting the words "counter-claim dismissed". I agree with the Court below that the trial Court having failed to consider the counter-claim separately, the Court of Appeal was not to speculate on what the judgment and orders of the trial Judge would have been had when he considered the counter claim. See Masade Esene Substituted by A. Masada v. C. Isikhuemen (1978) 2 SC 87.
The appellants seem to wish a persuasion that what is on ground is akin to a matter of a judge's right to his particular style of judgment writing or that what he did in relation to the issues arising from the counter claim were within his discretion so to do. That is not the correct position of the law as it is a matter of substantive and procedural law that is now well settled in a long line of cases. Stated another way, a counter claim is a different action from that which the main claim predicated. Therefore there must be two separate judgments, one for the main claim and the other for the counter claim though they have both been brought together in the same suit. See Kaduna Textile v Umar (1994) 1 NWLR (Pt.319) 143; Emaphil v Odili (1987) 4 NWLR (Pt.67) 915.
This is because a counter claim is a different action from that on which the main claim is predicated which translates to two separate actions for which there must be two distinct judgments which can be in the same process or suit or another date and process. There is no running away from the distinction. See Akinola v Unilorin (2004) NWLR (Pt.885) 616; Obi v Biwater Shellevbear Nig. Ltd (1997) 1 NWLR (Pt.484) 722.
There is a rich case law on the meaning and purport of a counter-claim and I shall have recourse to a few in aid at this point in time. See Effiom v Iron Bar (2000) 1 NWLR (Pt. 678) 341 where it was held thus-
"A counter-claim is an independent action and it needs not relate to or be in anyway connected with the plaintiffs' claim or raise out of the same transaction. It is not even analogous to the plaintiff's claim. It need not be an action of the same nature as the original claim. A counterclaim is to be treated for all purposes for which justice requires it to be treated as an independent action."
See also the case of Okonkwo v. C. C. B. (2003) FWLR (Pt.154) 457 at 508, the nature of a counter-claim had been clearly spelt out as follows:-
"Counter-claim though related to the principal action is a separate and independent action and our adjectival Law requires that it must be filed separately. The separate and independent nature of a counter claim is borne out from the fact that it allows the defendant to maintain an action against the plaintiff as profitably as in a separate suit. It is a weapon of defence which enables the defendant to enforce a claim against the plaintiff as effectually as an independent action. As a matter of law a counter claim is a cross action with its separate pleadings, judgments and costs."
See also Hassan v Regd. Trustees Baptist Convention (1993) 7 NWLR (Pt.308) 679 at 690, wherein it was held that:-
"The fate of a counter claim being an independent action does not depend upon the outcome of the plaintiff's claim. If the plaintiff's case is dismissed, stayed or discontinued, the counter-claim may nevertheless be proceeded with."
A community reading of both provisions shows that the failure of the Appellant to comply with the order of Hon. Justice Ogunmoye to have the Appellants Amended statement of defence and counter-claim filed within time is merely an irregularity and does not vitiate the processes. Though the said Amended statement of defence and counter-claim were filed not within the time allowed, the Court in the interest of Justice has the inherent powers to suo motu extend time within which same ought to be filed with reliance being placed in the case of I.M.N.L V. OGE (1996) 3 NWLR (PT. 437) 422 where the Court held that:
Where a party files his statement of defence out of time, the Court ought not to disregard such statement of defence, rather the Court should suo motu, extend the time within which the amended statement of defence should be filed.
The fact that the appellant filed his Amended statement of defence and counter-claim which the Court granted leave to file, late is not enough reason for the learned trial judge to disregard the appellant's Amended statement of defence and counter claim and for the Court to go ahead and decide the suit without countenance with the processes filed by the appellant.
The law is settled that when a defendant filed his statement of defence outside the time allowed by law, the Court should not disregard the said statement of defence but should suo motu extend the time within which same ought to be filed. See the case ofI.M.N.L. V. OGE (1996) 3 NWLR (Pt. 437) 422 @ 429. See U.B.A. Ltd v. Nwora(1978) 11-12 SC 1.
I join my learned brother to answer that question in the negative. My reason for so doing is that in a plethora of cases including OKAFOR VS. NWEKE (2007) 10 NWLR (PT.1043); EZE VS. OKECHUKWU (2015) 10 NWLR (PT. 1467) 307 AT 320 AND SLB CONSORTIUM LTD VS. NNPC (2011) 9 NWLR (PT.1252) 317 the Apex Court emphasised that the defect created in a originating process which is not signed by a legal practitioner goes to jurisdiction. If it does, then the counter – claim which arose as a result of the Plaintiffs claim cannot stand because as a matter of action, the Counter Claim is dependent on the Plaintiffs claim.
A Counter – Claim on the other hand is said to be a separate and independent claim, not as a matter of action but in relation to proof and distinct treatment in adjudication. A Counter-Claim is a separate and independent Claim in the same action with the Plaintiff's Claim.
Thus the above rule of Law which treats the Counter- Claim as a separate and distinct claim, does not save the Counter Claim when the Court is deprived of jurisdiction to entertain the main claim.
The learned counsel for the appellant to my mind is on the right footing, when he asserted that the factual and legal impossibility of a person purporting to file a defense/counterclaim or any process whatsoever to a claim that is void, cannot have any support in law. This assertion finds support in the case of Alh. Tajudeen Babatunde Hamzat vs. Alh. Ireyemi Sanni (2016) 21 WRN 77 @ 99. Indeed Eko JSC in the case of Kente vs. Ishaku (supra), emphasized that: "it cannot be overemphasized that unless the action or appeal was initiated in accordance with the due process of law, which includes its commencement by or with a valid initiating or originating process, it is incompetent. See Madukolu vs. Nkemdilim (supra). The proceeding in such action or appeal remain a nullity ab initio no matter how well the proceedings were conducted. See Timitimi vs. Amabebe (1953) 14 WACA 374. Courts do not exercise their given jurisdiction in futility." My humble but firm stand is that there being no valid writ or statement of claim to respond to the filing of a statement of defense and counterclaim pursuant to the void processes cannot be maintained, since there were no issues to be joined on. See the cases of Cotecna Int'l Ltd vs. Churchgate (Nig.) Ltd (2010) 18 NWLR (pt. 1225) 346, Broad Bank (Nig) Ltd vs. ZamoGas (Nig) Ltd (2011) LPELR 3892 (CA). This Court in the case of Aina Modupe Jeje vs. Enterprise Bank Ltd and Ors (2015) LPELR 24829 (CA), per Lokulo-Sodipe, stated; "What a counter claim is and its attributes are settled in law. Counterclaim is a claim for relief asserted against an opposing party after an original claim has been made; that is a defendants claim in opposition to or as a set off against the plaintiffs claim. it is not only a claim by the defendant against the plaintiff in the same proceedings, but it is regarded as an independent and separate action in which the defendant and counterclaimant is in opposition of the plaintiff in the same...
There is no argument to the fact that the striking out of a main claim, particularly upon the application of the claimant is akin to a discontinuance of the claim, and a counterclaim being a separate and independent action by a plethora of decisions, can proceed, when the main claim is struck out.
The fact that a counterclaim is a distinct action by the defendants against the plaintiff with its independent and separate life from the main claim, and with a distinct existence, as stated by Tobi JCA in Peterside vs. IMB (Nig) Ltd (supra),alongside so many numerous decisions, is so established in our jurisprudence, and can indeed stand even where the main claim is withdrawn, dismissed or struck out.
The critical question this Court must contend with is, whether the originating process said to be flawed, void and regarded as not to be reckoned with, and which qualifies to be struck out, automatically affects the counter-clam filed, in response to the writ and statement of claim when all we have from the claimants is a null document? I think the appellants have a point there. I have been referred to a decision of this Court in the case of Dimacon Industries Limited vs. Mr. Olayiwola Ajayi-Bembe(unreported) with Appeal No. CA/L/421/2013, delivered on the 19th day of May, 2017, where Georgewill JCA reasoned that: "One would not have to consider a claim to see if a counter claim is valid or meritorious. A counterclaim has its own pleadings too. In like manner one would not need to consider a counterclaim to determine if a claim is competent or meritorious. Both are like the rivers Niger and Benue, which like the principle of law and equity flow in the same stream but their waters will never mix." In agreeing with the position taken in the lead judgment, Ogakwu JCA, stated that: "The pith of the contention in this appeal is whether the hearing of a counterclaim can be proceeded with when the main claim is aborted in the circumstances stipulated in Order 17 Rule 11 of the rules of Court. As has been clearly demonstrated in the leading judgment, even though the words employed in the rules of Court are stayed discontinued or dismissed, the striking out of the main claim, particularly on the application of the claimant is akin to discontinuing the claim." The clear implication of the reasoning of my brothers is invariably in line with the decision in Peterside vs. IMB (Nig) Ltd (supra), which is to the effect that even where the claimants claim is discontinued, the counterclaim subsists, upon the simple reasoning that a counterclaim is an independent action, being a cross action and therefore the fact that the main claim is discontinued or...
Although the counter-claim did not seek declaration of title, it was based on the premise that Appellant had no title to the land. Hence, the same fact used as defence to Appellant’s claim for trespass and injunction as heirs in possession from a deemed grantee of statutory right under the Land Use Act were relied upon to prove the counter-claim of Respondent for possession. In such a situation, title is deemed to have been put in issue by the parties. See (26) AGU v NNADI (2002) 18 NWLR PT. 798, SC, 103 at 119-120 paras- G-A. MARY UKAEGO PETER-ODILI, J.S.C.
It is known that a counter-claim is a separate and independent action. For purposes of convenience however, and to avoid delay, or save cost and waste of judicial time and to fundamentally avoid multiplicity of action, the main claim and the counter-claim are tried together. See JOS ELECTRICITY DISTRIBUTION PLC Vs. MUHAMMED (2015) LPELR – 24461(CA) and OGBONNA Vs AG IMO STATE (1992) 2 SCNJ (Pt. 1) 26 and AG LAGOS STATE Vs. AG FED (2004) 12 SCNJ 1 AT 39. . PER MUSALE, J.C.A THE POSITION OF LAW ON THE MEASURES FOR DETERMINING WHETHER A COURT HAS JURISDICTION OVER A MATTER IN A SUIT BEFORE IT
It is trite law that the measures for determining whether a Court has jurisdiction over a matter in a suit before it, is the statute that established that Court and the subject matter of the litigation which can be determined by the plaintiff averments in the statement of claim. See NNPC Vs. IBRAHIM & ORS (2014) LPELR – 23999 (CA). The determinants of jurisdiction are: 1. The statute that established the Court, in this case, Sections 270 – 274 of the Constitution (as amended) that creates State High Courts. 2.
The subject matter to be litigated upon which is usually determined by the claim of the plaintiff. KOTOYE Vs. SARAKI (1994) 7 NWLR (Pt. 357) 414 and F.G.N. Vs. OSHIOMHOLE (2004) 3 NWLR (Pt. 860) 305 where the Court inter alia held: “It is the claim before the Court, particularly the reliefs being sought by the plaintiff that determine the jurisdiction of the Court.” To get to the root of the issues in this appeal therefore is to review the record of appeal to examine the claim before the lower Court.
For the accordance of doubt, this Court or any Court at all has the right to look at its record and proceedings on any matter before it and to take judicial notice of their contents although they may not be formally brought before the Court by the parties, Per Ba’aba, JCA (of blessed memory) in ADO Vs. MEKARA (2009) 9 NWLR (Pt. 1147) 491. See also FUMUDOH Vs. ABORO (1991) 9 NWLR (Pt. 214) 210 AT 229. PER MUSALE, J.C.A
WHETHER OR NOT IT IS THE CASE OF THE CLAIMANT THAT DETERMINES THE JURISDICTION OF A COURT It is settled law that it is the case of the claimant as endorsed on the writ of summons and elaborated in the statement of claim or as endorsed on a counter-claim and elaborated in the statement of defence that determines the jurisdiction of the Court – Elelu-Habeeb Vs Attorney General, Federation (2012) 13 NWLR (Pt. 1318) 423, Merill Guaranty Savings & Loans Ltd Vs WorldGate Building Society Ltd (2013) 1 NWLR (Pt 1336) 581, Uwazurike Vs Nwachukwu (2013) 3 NWLR (Pt 1342) 503, Ahmed Vs Ahmed (2013) 15 NWLR (Pt 1377) 274.
And in determining the case made by a party, a Court must read all the paragraphs of the pleadings of the party together to get a flowing story of the party and not a few paragraphs in isolation and it is the totality of the pleadings that states the case of the party – Okochi Vs Animkwoi (2003) 18 NWLR (Pt 851) 1, Mobil Oil Plc Vs Drexel Energy and Natural Resources Ltd (2004) 1 NWLR (Pt 853) 142. PER ABIRU, J.C.A.