Whether a Counter-Claim Can Survive Claim Commenced by Defective Writ
In the Supreme Court of Nigeria
Holden at Abuja
On Friday, the 15th day of December, 2023
Before Their Lordships
John Inyang Okoro
Helen Moronkeji Ogunwumiju
Adamu Jauro
Tijjani Abubakar
Emmanuel Akomaye Agim
Justices, Supreme Court
SC. 146/2018
Between
1. PRINCE MOBADENLE OYEKAN
2. ALABI DOSUMU
3. MUFUTAU TADEYO
4. ADESOJI AJOSE APPELLANTS
(for themselves and as head and
representatives of Asi-Dosunmu family of Lagos)
And
1. ADISA WAHEED ABERUAGBA
2. RASHEED AKANGBE OLUSHESI
(for themselves and as head and representatives
of the Esimikan Family of Ilado-Odo and
Inagbe Islands)
3. CHIEFTAINCY COMMITTEE, OJO LOCAL
GOVERNMENT AREA RESPONDENTS
4. CHIEFTAINCY COMMITTEE, AMUWO
ODOFIN LOCAL GOVERNMENT AREA
5. LAGOS STATE COUNCIL OF OBAS AND CHIEFS
6. MILITARY ADMINISTRATION OF LAGOS STATE
7. ATTORNEY-GENERAL OF LAGOS STATE
(Lead Judgement delivered by Honourable John Inyang Okoro, JSC)
Facts
In 1995, the 1st and 2nd Respondent (as 2nd and 3rd Plaintiff) filed an action at the High Court of Lagos State in a representative capacity against the Appellants and the other Respondents, over the chieftaincy of Onilado of Ilado-Odo in the Badagry Creek Region of Lagos State, as well as the superintendence over all the land known as and comprised in the Ilado-Odo and Inagbe Islands. The 1st and 2nd Respondent sought to be declared the authentic representatives of the Esimikan family of Ilado, which was the undisputed family in which the right to become Onilado of Ilado resided. They sought amongst other reliefs, an injunction restraining the Appellants from parading themselves as members of the Esimikan family of Ilado-Odo and Inagbe and an injunction restraining the 2nd Defendant as constituted in the suit from holding himself out as the Onilado Odo or performing any of the customary functions of that office.
The Appellants filed a defence and a counterclaim against the 1st and 2nd Respondent seeking a declaration that they are the authentic members and accredited representatives of the said Esimikan family, and sought to restrain the 1st and 2nd Respondent from holding themselves out as members of the Esimikan family and from laying claims to ownership of, or dealing with any lands belonging to the Esimikan family.
At the close of trial, the trial court in a judgement delivered on 5th June, 2012 dismissed the 1st and 2nd Respondent’s case and granted the reliefs sought in the Appellants’ counter-claim. Being dissatisfied, the 1st and 2nd Respondent appealed to the Court of Appeal. Their appeal was predicated on the ground that the trial Judge wrongly assumed jurisdiction over the case, by reason of the fact that the writ of summons and statement of claim filed by them at the trial court was not signed by a known legal practitioner, thus, the entire suit together with the Appellants’ counter-claim notwithstanding that it was properly signed by a known legal practitioner, was void ab initio.
The Court of Appeal, in a unanimous decision delivered on 12th January, 2018, allowed the appeal, and struck out the entire proceedings before the trial court including the Appellants’ counter-claim. Aggrieved, the Appellants lodged an appeal at the Supreme Court.
Issue for Determination
The Supreme Court adopted the sole issue formulated by the Appellants, which it re-couched in its own words as follows:
Whether the Appellants’ counter-claim which was properly signed and filed, can survive the Respondents’ defective writ of summons and statement of claim.
Arguments
Counsel for the Appellant contended that, a counter-claim being a wholly independent and distinct action from the claim on the writ can survive, even if the Plaintiff’s claim oblates or is stayed or aborted in whatever form, and that as a matter of law, it is a cross-action notwithstanding that it is combined in one action with the Plaintiff’s case. He commended the case of OROJA & ORS v ADENIYI & ORS (2017) LPELR – 41985 to the court. He submitted that a Defendant’s right to plead counter-claim as a cross-action is specifically donated by section 24(3) of the Judicature Act of 1873, an English Statute of General Application which became enforceable in Nigeria vide the Supreme Court Ordinance of 1914, and argued that the rules of court which provided four methods by which a plaintiff can commence an action, cannot override the statutory provision which creates and recognises a counter-claim as being a mode of initiation of an action.
He argued that the Appellants having proved their counter-claim, the invalidity of the 1st and 2nd Respondents’ writ of summons should not affect their case, as the same was a separate action. He submitted that the Court of Appeal was wrong to have struck out their counter-claim, and set aside the judgement of the High Court on their counter-claim.
Counsel for the 1st and 2nd Respondent on his part opened his argument by submitting that the 1st and 2nd Respondent’s writ of summons filed at the trial court to commence the action was a nullity, having not been signed by a known legal practitioner. Citing ODEDO v OGBUEGBEGO (2015) 13 NWLR (PT. 1476) PAGE 229 AT 267 and MCFOY v UAC (1962) AC 152, he submitted that the entire suit at the trial court comprising their claim was a nullity ipso facto, thus, there was no claim before the court. He submitted extensively that where there has been no claim, it would be impossible to validly make a counter-claim, and that the jurisdiction of the court to entertain the counter-claim was ousted by a defective writ.
Counsel argued further that where there was never a claim before the court, a counter-claim cannot emerge suddenly to breathe life unto itself and under the rules of court, a counter-claim is permitted as a cross-action by the Defendant, only where there is a claim by the Plaintiff, but not as a method of commencing an action. He placed reliance on SKENCONSULT NIG LTD v SEKONDEY UKEY (1981) 1 SC PAGE 6.
In response to the Appellants’ submission that the Judicature Act of 1873 specifically provides for a Defendant’s cross-action by way of counter-claim, Counsel submitted that the Rules of Courts have made provisions for all the situations alluded to in the said Act. He specifically pointed out Order 19 Rules 9, 10 and 11 of Lagos State High Court (Civil Procedure) Rules 1994, to submit that a counter-claim, where necessary, must be contained in a statement of defence; thus, where there was never a claim to which a defence would be required, there cannot be a counter-claim. He urged the Court to dismiss the appeal.
Court’s Judgement and Rationale
The Supreme Court referred to the provisions of Section 2(1) and 24 of the Legal Practitioners Act 2004, and held that it is clear from the said provisions that for a person to engage in the practice of law as a legal practitioner, his name and not the name of his firm, must be on the roll of legal practitioners. The Apex Court also reiterated the settled point that where a court process is issued in the name of a law firm, such process remains incompetent, and hence, it goes without saying that the 1st and 2nd Respondent’s originating processes signed by “Afe Babalola & Co.” were incompetent.
The Apex Court held further that while the Appellants were right that a counterclaim is, to all intent and purposes, a distinct action by itself to which the Plaintiff in the original action may file a reply by way of a defence to the counterclaim if he so desires; it was incorrect that a counterclaim can be used to initiate an action independent of the originating process to wit: the writ of summons commencing the main claim.
The Court held that our jurisprudence recognises four modes of commencing an action in court, namely: Writ of Summons, Originating Summons, Originating Motion and Petition, and these constitute the foundation or substratum upon which all other processes in the suit are laid, be it statement of claim, statement of defence, counterclaim, interlocutory applications, verifying affidavits and the likes. It follows therefore, that for a court to assume jurisdiction over a matter, the case must be commenced by due process of law, that is, by an originating process duly signed by a legal practitioner whose name is on the roll. The Court referred to its decision in APADI v BANUSI (2008) 13 NWLR (PT. 1103) 204.
The Apex Court held that in the instant case, the counter-claim of the Appellant, not being one of the laid down procedures for commencement of action, can only find its root in the 1st and 2nd Respondent’s writ of summons, and the said writ of summons having been signed by Afe Babalola & Co. which is not recognised in law as a legal practitioner is incurably defective, the necessary consequence is that the Appellants’ counter-claim would have no leg to stand.
The Court clarified that the circumstances in the instant appeal present an exception to the general rule that a counter-claim is an independent claim and survives even where the claim is discontinued or struck out, in that the principle that a counterclaim survives irrespective of the terminated status of the main claim is only applicable where the suit was properly commenced; it would not apply where the main claim itself is commenced by a defective writ.
The Court held that the 1st and 2nd Respondent’s suit at the trial court that was not commenced by due process cannot activate the jurisdiction of the Court; is null and void ab initio; and for this reason, the Appellants’ counter-claim erected against the 1st and 2nd Respondent’s defective claim cannot survive.
Appeal Dismissed.
Representation
A. A. Osara with Joseph Oche for the Appellant.
R. A. Aladesanmi, for the 1st and 2nd Respondent.
S. B. Joseph Jnr, for the 3rd Respondent.
Afiz Abdullahi, D. D. Ministry of Justice, Lagos State with E. R. Agu (Mrs.) A. D., Oluwayemi Osunsanya, ACSC for the 5th – 7th Respondent.
Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)
