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ADIATU LADUNNI & ANOR.
WEMA BANK LIMITED & ANOR.
IN THE COURT OF APPEAL OF NIGERIA
ON FRIDAY, THE 7TH DAY OF MAY, 2010
BEFORE THEIR LORDSHIPS
CLARA BATA OGUNBIYI, JCA
ADZIRA GANA MSHELIA, JCA
HUSSEIN MUKHTAR, JCA
Mr. A. A. Adegbonmire with T. Ojo – For Appellant
Mr. O. Sofowora with P. Kurekure and S. Otse (Miss) – For Respondent
Lagos State: High Court
CONNECTED AREAS OF PRACTICE
CLARA BATA OGUNBIYI, J.C.A. (Delivering the Leading Judgment)
By an amended writ of summons dated 30th October, 1986, the appellants, who were the plaintiffs in the lower court, had sued the Respondents herein as Defendants for the following reliefs:
“(i) The plaintiffs claim from the defendants on account of what if anything is due from the Plaintiffs to the 1st defendant under and by virtue of the charges created on, and registered in the charges Register against title No. L07060.
(ii) An order that the plaintiffs may be at liberty to redeem the property comprised in the said title No. L07060.
(iii) A permanent injunction restraining the defendants from selling the properties comprised in the said title No. L07060 unless the plaintiffs fail to pay whatever is found due if any and within the stipulated time.”
The facts forming the basis of the appellants’ claim and the reliefs sought are contained at pages 81 to 82 of the record. The facts are that the 2nd Appellant at the material time was a customer of the 1st Respondent Bank and in consideration of various advances totalling N130,000.00 (One Hundred and Thirty Thousand Naira) made by the 1st Respondent to the 2nd Appellant, the said loans and advances were secured by the property comprised in title No. L07060.
The appellants further allege that despite not having kept proper and up to date accounts nor furnished a comprehensive statement of account to the appellant, who claimed to have paid back various sums borrowed, it was expedient for the 1st Respondent to give the appellants a comprehensive account of all monies paid into and out of 2nd Appellant’s account. The appellants also averred that the 2nd Respondent had advertised the property covered by title No. L07060 for sale and unless restrained by an order of injunction would proceed to effect the sale of the said property.
In their amended statement of defence and counter-claim dated 29th January, 1987 (Records pages 86-88), the 1st Respondent averred that it had always given the appellants comprehensive statements of account of all monies paid into and out of the 2nd Appellant’s account in keeping with normal banking practice and contended that appellants’ action was frivolous, vexatious and is an abuse of the court process and that same should be dismissed.
In their counter-claim, the Respondents alleged that between 1973 and 1980, the appellants took loans and advances amounting to N250,000.00 which were secured by mortgages and charges registered over five different properties belonging to the 1st Appellant.
When the loans fell due for repayment and the Appellants failed and/or neglected to liquidate the outstanding amount, the 1st Respondent sold one of the 1st Appellant’s properties at 3, Folashade Close, Surulere, Lagos and that in spite of the said sale, a sum of N2,444,928.69 was still outstanding as at June 1986. The Respondents thereupon counter-claimed for that amount plus interest.
In their Reply to Statement of Defence and defence to counterclaim dated 19th June, 1986 (Records pages 76-77), the Appellants alleged that each loan taken from the 1st Defendant was a separate transaction and that the property sold was sold at an undervalue. In their defence to counter-claim, they denied being indebted to the 1st Respondent in the amount claimed and asked that the counter-claim be dismissed.
Before the amendment of the parties’ pleadings, the court had in its Ruling delivered on 23rd April, 1986 granted the Appellants’ Motion on Notice for an order of interlocutory injunction restraining the respondents from selling the 1st appellant’s property situate at 8/10 Bridge Street, Idumota, Lagos covered by title No. L07060.
The case was fixed for trial on 17th and 24th September, 1987.
However on, 16th September, 1987, the Appellants filed a motion on notice praying that the respondents’ counter-claim be tried independently or alternatively stayed until after the trial of the Appellant’s claim (Records pages 90-93 is evident.) The same day the Appellants also filed a summons wherein they sought for an order that an account of what, if anything, is due from the 2nd plaintiff to the 1st defendant under and by virtue of the charges created on the registered in the charges Register against title No. L07060 be filed; and also an account and inquiry whether any and what sums ought to be allowed the 2nd plaintiff, and also foe inquiries and necessary directions per the (records pages 94-110). The prayers sought in the summons were granted on 30th November, 1987 (Records pages 117-118), and in complying therewith, the 1st Respondent on 13th June, 1988 filed an affidavit verifying account to which was exhibited a copy of the 2nd appellants’ account (Records pages119-134). After being served with the affidavit verifying account to which was exhibited the account as aforesaid, by another motion on notice dated 25th October, 1988, the appellants sought to strike out the affidavit verifying account and the account filed by the Respondents, but the said motion was itself struck out on 25th May, 1989 after several adjournments.
The case again suffered several adjournments and the Respondents’ counter-claim finally proceeded to trial on 4th June, 1992.
The Respondents called only one witness. After his examination-in-chief, the appellants brought a motion on notice dated 2ih April, 1993 to further amend their statement of claim. The Respondents thereupon opposed the said amendment on the account that it would have allowed the appellants to change the case before the court, and introduced a new claim altogether and brought in matters that are already statute barred.
In a considered Ruling delivered on 22nd April, 1994, the motion was refused. The Respondents’ witness was later cross-examined by the Appellants’ counsel who called no witness. The lower court in its judgment delivered on 15th September, 1995, dismissed the Respondents’ counter-claim on the grounds that they had failed to prove same. The court however went further and held that since the plaintiffs’ case had been struck out, judgment could not be given to the plaintiffs. It is against that latter part of the decision therefore that the appellants have now appealed contending that judgment should have been given to them since the Respondents’ counter-claim was dismissed.
By a notice of appeal filed on the 15th December, 1995 at pages 215-218 of the record of appeal, the appellant raised only one ground of appeal.
Ground Number One
The Court below misdirected itself in law when it adjudged as follows:-
“In my considered Ruling delivered on the 22nd April, 1994, I held inter alia:
As I have earlier held, the plaintiffs by not relisting their application for proper account had by their action satisfied (sic) with the account filed.
What therefore remains for this court is to hear the counter-claim which the court proceeded to hear.
(see page 5 last paragraph ….)
However, since the plaintiffs case has been struck out, I cannot give judgment to the plaintiffs.”
PARTICULARS OF MISDIRECTION OF LAW
(1) Had the Honourable trial Judge properly reappraised his ‘record’ of the antecedents of the several ‘interlocutory proceedings.’ Previously held, he would have been self-advised that all that was ever ‘struck-out’ (by court-order made on the 25th of May, 1989) was these plaintiffs’ counsel’s ‘Motion on Notice’ dated 25th October, 1988) challenging ‘the Account’ filed by the 1st defendant on 13th June, 1988: and not the plaintiffs’ case in its entirety, as the trial-court erroneously concluded.
(2) The court below further misdirected itself by failing to apprehend that its ‘striking out’ order made on 25th May, 1989 was incapable in law of extinguishing the plaintiffs’ totally separate and distinct claims for an ‘order of redemption’ of its property mortgaged unto the 1st defendant, and for a ‘permanent injunction’ restraining the defendants concerned from proceeding with the exercise of a ‘mortgagee’s right of sale’ over same.
(3) Having rightly determined, therefore, that:
“The statement of defence and counterclaim referred to above did (sic) ask for sale of any property. To this end, the court cannot order any sale of property of the Plaintiffs…….
There is no clause in Exhibits ‘B- E3’ that confers power of sale of other property apart from Exhibit ‘A’ on the Bank …….. There is no claim before me seeking entitlement to exercise power of sale arising from any mortgage…….
The counter claimant has failed to prove its claim and it is accordingly dismissed.”
the only orders which the court could justly have made in consequence were orders granting the plaintiffs judgment as prayed for ‘redemption’ and a ‘permanent injunction’ in respect of its several properties ‘mortgaged’ unto the 1st defendant, having regard to this Defendant’s pleaded admissions that the subject mortgages arose from its claim of an alleged indebtedness, which the trial-court however found that it had ‘failed to prove.’
The following reliefs were therefore sought from the court:
“To allow the appeal, reverse that part of the decision of the court below declining to award judgment to the plaintiffs as prayed, and to substitute therefor an order entering final judgment in the plaintiffs’ favour against WEMA BANK LIMITED for all the reliefs prayed in their ‘Amended Statement of Claim’ dated the 27th of April, 1993: (or alternatively, for all the reliefs prayed upon their ‘Amended Writ of Summons’ dated 30th October, 1986, as well as such further consequential relief to which, by the 1st defendant’s ‘pleading’ and ‘viva-voce evidence,’ the plaintiffs ought to have been adjudged entitled.)”
The appeal at hand was entered on the 20th November, 2000. In accordance to the rules of court and the leave of this court sought and obtained on the 15th January, 2007, the appellants brief of arguments dated and filed 12th January, 2007 was deemed properly filed and served. That of the respondent was also by the order of court deemed properly filed on the 17th June, 2009.
On the 23rd February, 2010 when the appeal was called up for hearing, Mr. A. A. Adegbonmire with T. Ojo represented the appellant, while Mr. O. Sofowora with P. Kurekure and S. Otse (Miss) also represented the respondents at the hearing. Both counsel adopted and relied on their respective briefs of arguments. While the appellants submitted that the appeal be allowed, the respondents correspondingly urged for its dismissal. In further expatiation of their brief, the learned respondents’ counsel posited that the appellants having abandoned their case also further choose not to call any witness in proof of the defence to the counter claim at the lower court. Learned counsel for purpose of buttressing their submission proceeded and, cited the cases of Adeleke v Oyo State House of Assembly (2006) 16 NWLR (Pt.l006) p.608 at 703 and Songhai Energy Services Ltd. v Maersa Nig. Ltd. (2001) 17 NWLR (Pt.743) 517 at 540-541 which he argued deal with the respondents’ notice and when it is not necessary. Counsel there upon urged for the dismissal of the appeal.
Learned counsel Mr. Adegbonmire also adopted and relied on the appellants’ reply brief dated 2nd November, 2009 and deemed filed and served on the 23rd February, 2010. Counsel further submitted that the two additional authorities cited by the respondents’ learned counsel have no bearing to the appeal at hand. He therefore referred to page 184 of the record and urged that the appeal be allowed.
The appellants’ learned counsel for the determination of this appeal formulated the following lone issue from the only ground of appeal raised wherein he questioned:
“Whether the lower court was right in refusing to enter judgment in favour of the Appellants who were the Plaintiffs in the lower court as per their writ of summons.”
The same issue was also replicated by the respondents’ in their brief of argument.
In his submission, the learned appellants’ counsel in recapitulating the judgment of the lower court, posed the question whether the case of the appellants was in fact ever struck out from the record of the case, before us. Counsel argued rather, that, what was struck out was the motion filed by the appellants for proper account and which same did take place, during the proceedings of the 25th day of May, 1989. That the result of this is that the lower court clearly misunderstood the state of its own record and also consequently, the state of the parties’ case.
The result, counsel argued is that the judgment itself cannot be allowed to stand by the appellate court. That since the lower court’s assumption was predicated on a wrong premise, counsel urged that this court should reverse the judgment of that court and enter same for the appellants. Counsel to buttress his submission cited the case of Udengwu v. Uzuegbu (2003) 13 NWLR (Pt.836) page 136 at 152.
Learned counsel therefore urged this court to reverse the decision of the lower court which is based on the said erroneous findings, allow the appeal and enter final judgment in the appellants/plaintiffs favour against Wema Bank limited in terms of the reliefs contained in their ‘amended writ of summons’ dated 30th October, 1986, as well as such further consequential relief to which, by the 1st defendant’s pleadings and viva-voce, evidence the plaintiffs ought to have been adjudged entitled.
Responding to the submission on behalf of the appellants, the respondents counsel submitted the propriety of the lower court in refusing to enter judgment in favour of the appellants whom he argued had completely abandoned their claim and merely defended the Respondents’ counter-claim. Learned counsel referred to the record of appeal wherein the lower court refused the appellants’ motion on notice for leave to further amend their statement of claim at pages 168-174 and particularly at pages 170-172. That the reproduction shows clearly that, for a period of three years, before the Respondents’ counter-claim proceeded to trial, the appellants did absolutely nothing about ensuring that their claim as contained in their: amended writ of summons and amended statement of claim was heard before the respondents counter-claim proceeded to trial. That nothing more was heard concerning the issue of accounts after the striking out of their motion seeking to strike out the affidavit verifying the account.
That the appellants by their conduct had completely acquiesced in the proceedings by abandoning their claim in favour of the Respondents’ counter-claim, in a way that could be referred to as a tacit withdrawal of their claim. Counsel in support cited the case of Obmiami Brick & Stone (Nig.) Ltd. v African Continental Bank Ltd. (1992) 3 NWLR (Pt.229) 260 at 299. That based on the foregoing Supreme Court judgment, the learned trial judge’s decision cannot be said to be perverse as wrongly conceived by the appellants’ counsel and hence, that the learned trial judge was not therefore persistent in error. That the appellants having acquiesced all through the proceedings, cannot now be heard to complain. The learned counsel cited a number of judicial authorities relating the relationship between counter-claim and the main claim which he submitted are Independent actions in nature.
That each case must be decided on its own facts with the cases culminating that two judgments must be given, each in respect of the appellants’ claim and the respondents’ counter-claim respectively. It reasonably follows therefore that the dismissal of the respondents’ counter-claim does not mean that the appellants are entitled to judgment. In other words that where a main claim fails, a counterclaim could also fail as well. Counsel finally submitted the total misconception of the appellants’ appeal which he urged should be dismissed.
The bone of contention giving rise to the appellants’ grouse is the failure of the lower court to have given judgment to the appellants after dismissing the respondents’ counter claim. The expectation, the appellants submitted ought to have been a natural phenomena or consequence.
At page 184 of the record of appeal for instance, in its judgment, the learned trial judge held thus and said among others:
“…However, since the plaintiff’s case has been struck out, I cannot give judgment to the plaintiff., The counter claimant has failed to prove its claim and it is accordingly dismissed.”
The issue formulated by both counsel resulting the appellants’ challenge of the said judgment is simple and straight jacketed which relates the propriety or not of the lower court refusing to enter judgment in favour of the appellants who were the plaintiffs as per their writ of summons.
From the totality of the appellants’ arguments, the gravamen of the summary submitted the error alleged to have been fallen into by the lower court in holding that the appellants’ case was struck out. On the one hand, the appellants contended and sternly submitted that it was the motion filed for proper record which was struck out and not the main claim. On the other hand however, the respondents’ stringently also submitted that the abandoning by the appellants of their claim for three years before the respondents’ counter claim proceeded to trial, amounted to a tacit withdrawal of their claim.
As a background History and for purpose of giving a comprehensive understanding of the proceedings at the lower court, reference can be made and setting out in extenso the relevant portion of the learned trial judge’s ruling showing the events as it happened before the respondents’ counter claim proceeded to trial. The reproduction at pages 168-174 of the record of appeal particularly at pages 170-172 wherein the learned trial judge had this background narration to make, is relevant.
“I have carefully considered the submissions of the learned counsel for the applicant and I have also considered the reply of the learned counsel for the respondent. I will however give a short history of the proceedings between the time the court made an order for filing an account to the date when the defendant started leading evidence as regards their counter-claim.
As it was rightly submitted by defence counsel who is for the respondent in this application, this court on the 30th November 1987 made an order that accounts and inquiries as contained in the Writ be taken and made accordingly. On the 11th April ,1988 the defendant complied with the order and filed a verifying affidavit dated 23rd June, 1988. The matter was then adjourned for the plaintiff’s comments to 24th October, 1988. On the 28th October, 1988, the plaintiff filed an application pursuant to Order 24 rule 12b Judgment (Enforcement) Rules Cap. 127 Laws of Lagos State and Order 43 rule 7 of the Supreme Court, 1965 praying for the following reliefs:
(i) An order striking out the defendants’ affidavit verifying Account ……dated 13th June, 1988 …….
(ii) An order directing that the said defendants do file in the Honourable Court a proper Account in the manner provided by the Rules of Court.
(iii) An order staying all further proceedings in this action until the defendant do comply with the interlocutory order dated 30th November, 1987 by the filing of proper Account.
The defendants on the 17th February, 1989 filed a counter affidavit. The application came up for hearing on 24th April, 1989 and the court adjourned till 25th May, 1989 for argument. On 25th May, 1989, the plaintiff’s counsel was not in court to move and the application was struck out. Trial of the counter claim was then fixed for 11th October, 1989.
On the 12th October, 1989 this court ordered hearing notice to be issued and adjourned to 13th November, 1989 for the trial of the counter claim after call over. On 13th November, 1989 one Delana Esq., appeared for the plaintiffs. The defence counsel was absent and the matter was adjourned till 18th December, 1989. On 25th June, 1990 parties were absent but one Nweze Esq., appeared for the plaintiff. The matter was again adjourned till 15th October, 1990 with an order that hearing notice be issued. On the 14th January, 1991 both counsel were in court and the defence counsel applied for an adjournment. The application was granted and the matter adjourned till 29th May, 1991. On the 29th, May, 1991 both counsels (sic) were also in court but the learned counsel for the plaintiff Mr. A. O. Braithwaite informed the court that Chief Williams SAN would be handling the case personally and sought an adjournment. The court reluctantly adjourned the trial of the counter claim for the respect it had for the reason given by learned counsel despite though (sic) opposition from the defence counsel. The trial of the counter claim was to come up on the 11th and 13th June, 1991.
On the day the defence counsel herself sought for an adjournment because she was unable to produce her witnesses. The trial was again adjourned to 15th July and 29th July ,1991 for trial of the counter claim. Parties and counsels (sic) were absent on the 15th July, 1991. Similarly on the 29 July, 1991 the defence counsel only was in court, parties were absent. The matter was again adjourned to 14th October, 1991. On the 14th October, 1991 the defence counsel again applied for an adjournment. The plaintiff counsel did not oppose. The matter was then fixed for 20th November, 1991. The Judge by 31st (sic) November, 1991 was appointed Chairman of the Miscellaneous Officences Tribunal, Eastern Zone and was sitting in Lagos for two weeks in a month.
By 4th June, 1991 (sic) during the sitting in Lagos by the Judge and while both parties and their counsel were present, the defendants opened their counter claim by calling their first witness. Up to the time the trial of the counter claim began, the plaintiffs did not apply to relist their application struck out on 25th May, 1989. Thus they have by their action consented to the affidavit verifying the accounts dated and filed on the 13th June, 1988 in accordance with the Writ of Summons and Amended Statement of Claim…”
In the case of Obmiami Brick & Stone (Nig.) Ltd. v African Continental Bank Ltd. (1992) 3 NWLR (Pt.229) 260 at 299 their Lordships of the apex court held thus and said on an abandonment of a claim or counter claim:
“Where a plaintiff in his case or a defendant who files a counter claim abandons his claim, the proper order to make by the court is to strike out the case or the counter- claim … It is settled that no court should force a party to proceed with his claim or counter-claim he abandoned. In the instant case the Court of Appeal was wrong by its order of putting the counter-claim back when it is clear that the defendant had abandoned it.”
The appellants at hand while submitting a perverse decision arrived at by the lower court cited the authority in the case of Udengwu v Uzuegbu (2003) 13 NWLR (Pt.836) p.136 at page 152, a Supreme Court decision outlining and characterizing consequences of a perverse decision wherein their Lordships held and said:-
“A perverse decision of a court can arise’ in any of the following several ways that is where the court:
(a) Ignored the facts or evidence; or
(b) Misconceived the thrust of the case presented; or
(c) Took irrelevant matters into account which substantially formed the basis of its decision; or
(d) Went outside the issues canvassed by the parties to the extent of jeopardizing the merit of the case; or
(e) Committed various errors that faulted the case beyond redemption.
In all this, the hall mark is invariably, a miscarriage of justice.
Where such occurs, the decision must be set aside on appeal.”
Deducing from the authority by their Lordships supra, the question that comes to mind is, can same be relevant and apply to the situation of the case at hand as sought to believe by the learned appellants’ counsel?
In order to give a rationale answer to this question reference must again be had to the record of appeal wherein at page 279 for instance, after the respondents’ counsel – Mr. Nbanugo had re-examined their only witness, and announced closure of the case of the defendant on the counter-claim, learned counsel, Mr. Aluko, for the appellants said:-
“As regards the counter-claim I do not intend to call any evidence. I will ask for a date for address.”
As rightly submitted and argued by the learned counsel for the respondents, by the appellants refusing to call any evidence, they have therefore completely abandoned proof of their own claim before the counter-claim proceeded to trial. By their very own act, they have also and equally abandoned their defence to the Respondents’ counterclaim before the trial court.
In the case of Jolayemi v Alaoye (2004) 12 NWLR (Pt.887) 322 at p.340 per Kalgo JSC, the apex court held thus and said:-
“Pleadings are the body and soul of any case in a Skeleton form and are built and solidified by the evidence in support thereof. They are never regarded as evidence by itself and if not followed by any supporting evidence, they are deemed abandoned.”
Similarly and again in the case of Chief S. L. Durosaro v T. A. A. Ayorinde (2005) 8 NWLR (Pt.927) 407 at 425 their Lordships of the apex court per Tobi JSC held on the same principle of law and said:-
“It is elementary law that where a defendant fails to give evidence at the trial, his statement of defence is deemed abandoned. This is because pleadings, by their nature and character cannot speak. They speak through witnesses and as long as a party refuses or fails to call witnesses to articulate their content, they remain dormant process in the court’s file. As a matter of law, they are moribund and no court of law is competent to resuscitate or revive them.” The Court of Appeal decision in Marison v Halliburton Energy Services Ltd. (2007) 2 NWLR (Pt.1018) 211 at 233-234 was squarely based on the same line of reasoning and conclusion as arrived at in the earlier Supreme Court decision under reference supra.
It is of relevance to restate the interpretation of what it means to abandon, which was instructively stated in Black’s Law Dictionary, 6th Edition thus:-
“To desert, surrender, forsake or cede. The (sic) relinquish or give up with intent of never again resuming one’s right or interest to give up absolutely, to forsake entirely…”
Deducing from the foregoing references, especially the consequential effects of abandonment as defined by the Black’s Law Dictionary and relating same to the way and manner the appellants handled their claim, it is obvious and goes without more that the appellants had manifestly shown their intention of never returning to prosecute their claim. The conclusion is certainly amounting to a clear case of desertion, and thus subjecting themselves to the trial court’s decision. Contrary to the submission by the learned appellants’ counsel, his contention that the trial court’s decision is perverse cannot therefore hold water. The counsel is only being subjective in his arguments and not objective. The use of the word perverse has been defined by this court in the case of Egba v Appah (2005) 10 NWLR (Pt.934) page 464 at 480-481. The definition was predicated on the decision of the apex court in the cases of Atalagbe v Shorun (1985) 1 NWLR (Pt.2) p.360 and Ademora v Ajufo (1988) 3 NWLR (Pt.80) 1 at 4 wherein the word ‘Perverse’ was defined to mean:
“Persistent in error, different from what is reasonable or required. A decision may be perverse where the judge took into account matters which he ought not to have taken into account or where the judge shuts his eyes to the obvious. Refer to Atolagbe v Shorun (1985) 1 NWLR (Pt.2) 360 at 373.”
The same deduction was also pronounced again in another latter decision of this court in Oju v INEC (2007) 14 NWLR (Pt.1054) p.242 at 273.
As rightly submitted by the learned respondents’ counsel, going by that definition, it cannot be right as put forward by the appellants’ counsel that the learned trial judge was either persistent in error in the proceedings leading to the judgment, or that he took into account what he ought not to have done. The appellants were expected to have been seized of every stage of their case, but instead, they acquiesced on it and went through the entire trial by deliberately refusing to call any evidence in support of either their claim or the defence to the counter-claim. They cannot now be allowed to be heard and complain that the judgment is perverse. In the circumstance of the case, the argument by the appellants’ counsel that judgment ought to have been given them following the dismissal of the respondent’s counter claim, cannot rightly hold but is clearly misconstrued. This is in view of the nature of a counter-claim and its relationship with the main claim. The learned respondents counsel related to a number of judicial authorities which are very relevant and in support of the true and correct position.
In the case of Kaduna Textiles Ltd. v Umar (1994) 1 NWLR (Pt.319) 143 at 160 for instance, this court had the following to say:
“A counter affidavit is substantially a cross-action and as much as possible is treated as an independent action.
Thus, where the plaintiffs’ claim is stayed or dismissed the defendant may still prosecute the counter-claim. It is thus open to the court to enter judgment for the plaintiff on his claim and another judgment for the defendant on the counter-claim.”
Relating the same principle this court again unhesitantly reaffirmed the position of the law in the case of Okolo v Union Bank of Nigeria Ltd. (1998) 2 NWLR (Pt.539) 618 at 645 wherein it said:-
“A counter-claim enjoys an independent existence from the main suit from which it was raised. Therefore, the failure of the plaintiffs’ claim does not affect the defendant’s counterclaim and vice-versa. It is therefore important that the counter-claim must be properly pleaded. Such pleading is governed by the same rules as for those for a statement of claim.” Furthermore and in another case of Ohanaka v Achuwo (1998) 9 NWLR (Pt.564) 37 our brothers of the Port-Harcourt Division held that:
“A counter-claim is a ‘sword’, not a ‘shield’. It is sometimes a mere set off. Sometimes it is in respect of wholly independent transaction.
A claim and a counter-claim are wholly independent suits which for convenience of procedure are combined in one action. They both call for and demand two separate and independent decisions.”
The Lagos Division of the Court of Appeal in the case of Susannah (Trawling Vessel) v Abogun (2007) 1 NWLR (Pt.1016)456 at 488 also in their pronouncement said:
“The separate and independent nature of a counter-claim, notwithstanding that a counter-claim is related to the principal claim, is not symbolic or symbiotic. That is why one can exist independently of the other. A withdrawal or failure of the principal action does not necessarily affect or prejudice the existence of the counter-claim and vice-versa. Also, since the judgment in the principal action is not interdependent on the judgment in the counter-claim, a vice in one cannot destroy the other.”
Their Lordships of the apex court in the case of Jeric (Nigeria) Ltd. v Union Bank of Nigeria Plc (2000) 15 NWLR (Pt.691) 447 at 463 clearly held and said:
“For all intent and purposes, a counter-claim is a separate, independent and distinct action and the counter-claimant, like all other plaintiffs in an action, must prove his claim against the person counter-claimed against before obtaining judgment on the counter-claim. In the instant case, the Court of Appeal was right in holding that the trial court was wrong to have held that since the’ main claim of the appellant at the trial succeeded, the counter-claim of the respondent must fail. It all depended on the evidence produced in support of the counter-claim and not otherwise since the counter-claim was a separate action.”
From the various judicial authorities related to supra, it is clear that a counter claim, while deriving its existence from the main suit, its continued and sustained livelihood is not however dependent on the former. It is akin to a child who is dependent on the mother for its birth but even as a baby, immediately metamorphosis into adulthood and hence gains its independence. In other words, the outcome of the latter, is completely independent of the former and may not necessarily be interrelated as sought to install by the learned appellants’ counsel.
A defect in one should not and would not destroy the decision in the other is rightly submitted by the respondents’ counsel. This is because by the very nature of the two actions, they are adjudged to be separate and independent. Each case must be decided on its own sets of facts and merit and the end result which must give out a decision or judgment by the court. It follows therefore that the dismissal of the respondents’ counter-claim would not mean that the appellants are automatically as a consequence entitled to judgment as wrongly conceived and submitted by their counsel. Consequently, I hold therefore that the issue raised is resolved against the appellant. The appeal in the circumstance is grossly lacking in merit and is accordingly dismissed.
The judgment of the High Court of Lagos State delivered on the 15th day of September, 1995 is hereby affirmed with costs following events the appellants are condemned to same in the sum of N30,000 in favour of the respondents.
ADZIRA GANA MSHELIA, J.C.A:
I had the advantage of reading in advance the judgment just delivered by my learned brother Ogunbiyi J.C.A ,I agree with her reasoning and conclusion that the appeal lacks merit and should be dismissed. My learned brother had meticulously dealt with the lone issue raised by the appellant in this appeal. I have nothing useful to add but to adopt same as mine. I too dismiss the appeal and affirm the judgment of the lower court. I also abide by the order made as to cost.
HUSSEIN MUKHTAR, J.C.A:
I have had the advantage of a preview of the lead judgment of my learned brother Ogunbiyi, J.C.A and agree with his reasoning and conclusions, which I adopt as mine. The issue agitated before us has been meticulously dealt with by my learned brother in the lead judgment. It is for emphasis that, I will make a short comment on the lone issue in the appeal.
It is an elementary principle of law that substantive ‘claim and counter claim are two separate actions fused in the same suit being reversible claims made by parties to the suit against each other. The main claim which is contained in the statement of claim sets out briefly the material facts on which the plaintiff intends to rely to show that he is entitled to the intervention of the court in his favour against the defendant. The counter claim is an independent action that calls for another set of pleadings like the claim. The two are completely independent of one another but are combined in one action to ease the procedure. The facts pleaded by each party must be established by credible evidence at the trial unless they are admitted. The mere dismissal of the respondent’s counter claim does not form the basis upon which judgment could be entered for the appellant on his claim.
The appeal is unmeritorious and deserves no other fate than dismissal. It is accordingly hereby dismissed. I subscribe to all the consequential orders made in the lead judgment including the one as to costs.