Hon. Stephen Bassey & Ors V. Sat Guru Maharaji & Anor (2016)
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IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
The present appeal is against the ruling of the High Court of Cross River State, delivered on April 24, 2014 in suit No. HC/490/1998. By the said ruling, the Court below struck out the Appellants’ (Defendants’) counter-claim on the ground that it was “incompetent and incurably defective by reason of the non-existence of a valid writ of summons in support thereof?.
BACKGROUND FACTS
By the Amended Statement of Claim thereof filed in the Court below on June 3, 2002, the Respondents (Plaintiff’s) claimed against the Appellants (Defendants) the following reliefs:
i. N500,000 for trespass,
ii. N50,000.00 for lease of the land from 1996 till Judgment or valuation.
iii. An Order of perpetual injunction restraining the defendants by themselves, Agents or any Privies from entering into the said place or Parcel of land perpetually.
See pages 1 – 4 of the Record.
Pleadings were filed and served by the respective parties. The case proceeded to trial. However, on April 10, 2013, the Court below ordered for a trial de novo, consequent upon the re-assignment of the
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case to another judge.
Prior to the commencement of hearing de novo, the Appellants raised a preliminary objection to the competence of the Amended Writ of Summons of May 18, 2011, which made the Appellants parties to the suit.
The objection in question was argued on February 11, 2014. The Court below delivered the ruling the following day, to the conclusive effect thus:
In the final analysis, I shall hold this objection of the 3rd and 4th defendants on the validity of the amended writ of summons of the claimants of 18th May, 2011, to be valid and properly taken and so valid in law and would make the following orders to wit:
ORDERS
1. Amended writ of summons issued by the claimants of the 18th day of May, 2011 hereby declared incompetent as the same is not signed by either the claimants or their legal practitioners.
2. I make no order as to costs.
See pages 86 – 92 of the record.
The two sets of Defendants then asked the Court to set down their respective counter-claims for hearing. Where upon, the Court below ordered the parties to address it on the competence of the counter-claims, in view of the ruling striking out the
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writ of summons.
On April 29, 2014, the Court below delivered the vexed ruling, to conclusive effect, thus:
In the circumstance, I am unable to agree with the defendants in this case that their counter-claims can even with the writ of summons of the claimants having been declared incompetent. Therefore and in the circumstance, I will make the following declarations in this case on the point, to wit:
1. I hereby declare that the counter claim filed by the defendants in this case is invalid and unsustainable in law the writ of summons having been declared incompetent.
2. The same is accordingly hereby struck out as it is incompetent and incurably defective by reason of the non-existence of a valid writ of summons in support thereof.
3. I make no order as to costs.
See pages 95 – 101 of the Record.
?The Appellants’ notice of appeal was dated December 9, 2014, but filed on December 23, 2014. The record of appeal was transmitted on 04/2/2015, but deemed properly transmitted on 20/4/2016. The Appellants’ brief was filed on 12/02/2015, but deemed properly filed on 21/4/2016. It spans a total of 8 pages. At page 2 of the said brief, a
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sole issue is canvassed, viz:
WHETHER THE TRIAL COURT WAS IN THE CIRCUMSTANCES HEREIN JUSTIFIED TO STRIKE OUT THE COUNTER CLAIMS OF THE DEFENDANTS/APPELLANTS AND THEREBY DENY THEM OF HEARING ON MERIT.
The sole issue is canvassed on pages 5 – 7 of the brief, to the effect that the Court below made a grave mistake, for what it struck out was the amended writ of summons. That, the writs of summons filed since 1998 is different from the Amended writ of summons filed on 18/5/2011.
Further submitted, that after striking out the amended writ of summons, the Court was under an obligation to call upon the Appellants to prove their claims. This is because if amendment fails, the original process subsists. See Order 26 Rule 1 of the High Court (Civil Procedure) Rules, 2008.
It was contended, that the order striking out the amended writ of summons did not affect the earlier processes filed and proceedings of Court. Some of the earlier processes filed are the Appellants’ counter claims, which in law, are separate and distinct from the Respondents’ claims and cross-actions. See Order 17 Rules 20(1) and 21(2) of the High Court (Civil Procedure) Rules;
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LADUNNI VS. WEMA BANK LTD. (2011) 4 NWLR (Pt. 1236) 44 @ 66 ? 67; BALOGUN VS. YUSUF (2010) 9 NWLR (Pt. 1200) 515; OGBONNA VS. A-G, IMO STATE (1992) 1 NWLR (Pt. 220) 647 @ 675; AGBAHOMO VS. EDIMEGBE (1999) 2 SCNJ 94.
Allegedly, the Court below was not grounded by the authority of AGBAREH vs. MIMRA (2008) 2 NWLR (pt.1071) 378, which allows it to refer to its own file and ruling of 12/12/2014, as to what it struck out.
Therefore, the Appellants have been denied fair hearing enshrined in Section 36 of the 1999 of the Constitution. And that the delay of hearing of the case filed since 1998 up to 2014, when Respondents withdrew same, was itself an abuse of Court process. See NEWS WATCH COMMUNICATIONS LTD. VS. ATTA (2006) 12 NWLR (Pt. 993) 144; ARUBO VS. AIYELERU (1993) 2 KLR 23; OBASI BROTHERS MERCHANT CO. LTD. VS. MERCHANT BANK OF AFRICA SECURITIES LTD. (2005) 9 NWLR (pt. 929) 117 @ 129 D – E.
The Court is urged upon to resolve the sole issue in favour of the Appellants, and accordingly allow the appeal, set aside the ruling of the Court below of 29/4/2014, and substitute an order setting the counter claims down for trial, while dismissing the
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claim.
Contrariwise, the Respondents’ brief, filed on March 3, 2015, spans a total of 10 pages. At pages 3 – 5 a preliminary has been argued, to the effect that the ruling now on appeal was delivered on 29/4/2014, and not on 24/4/2014 as stated in the notice of appeal.
It was submitted, that the ruling was a final decision because it terminated the Appellants’ counter claims. By Section 24 (2)(a) of the Court of Appeal Act, the Appellants had 3 months to appeal against that final decision. The 3 months expired on 28th July, 2014. The Appellants’ notice of appeal was on 23rd December, 2014. Almost 5 months out of time. They did not seek extension of time before filing the notice of appeal out of time. That extension of time is a condition precedent to the filing of any notice of appeal out of time. Thus, the said notice of appeal must be struck out as its incurably bad. See UDOETTE vs. HEIL (2003) FWLR (Pt. 143) 362 @ 378 A-B; ALADE vs. OGUGUO (2007) ALL FWLR (Pt. 349) 1188 @ 1194; G. EJIOGU vs. IRONA (2008) ALL FWLR (Pt. 442) 1066 @ 1106, Conclusively, the Court is urged to strike out the appeal.
?At pages 5 – 8 of the brief thereof, the
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Respondents have adopted the Appellants’ sole issue for determination. Submitted, in the main that, the Appellants’ submission that the Court below ought to have heard the case based on the old writ of summons is untenable. That, it is elementary that an amended process dates back to when the original process was filed. In this case, the amended writ in effect became the originating process. See OGUJUA vs IBWA (1988) 1 NWLR (Pt. 73) 658 @ 673 E – D; SPDC VS. (NIG.) LTD. VS. EAMUKUE (2009) ALL FWLR (Pt. 489) 407 @ 428 A-B; BRAITHWAITE VS. SKYE BANK PLC. (2013) ALL FWLR (Pt. 664) 39 @ 48 B – D.
It was contended, that the foundation for a counter claim is invalid writ of summons. That the Appellants’ counter claims were filed on 01/7/11 and 28/9/11 pursuant to the Amended writ of summons, and Statement of claim filed on 18/5/11. Consequently, when the Amended writ of summons was labeled incompetent, the counter claim forwarded on it became incompetent as well. See INTEGRATED MERCHANTS LTD. vs. OSUN STATE GOVT. (2011) LPELR- 8803 CA @ 9.
?The Appellants’ submission that the Respondents’ claims should have been dismissed and not struck out, is allegedly
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incompetent as it does not flow from either the ground of appeal or the ruling of the Court below. See NYA VS. EDEM (2005) ALL FWLR (Pt. 242) 576 @ 590 G-H; UNITY BANK VS. ZANGO, ALL FWLR (Pt. 658) 912 @ 938 – 939 G-C; et al.
DETERMINATION OF THE RESPONDENTS’ PRELIMINARY OBJECTION
As alluded to above, pursuant to the notice of the preliminary objection thereof, dated and filed on March 3, 2015, the Respondents deemed it expedient to incorporate the argument regarding the objection in the brief thereof. The ground upon which the preliminary objection is predicated is that-
The Appellants appeal is (sic) filed out of time and without an extension of time being first sought and obtained to file the appeal.
However, in view of the Appellants’ learned counsel’s response in the reply brief thereof in question, it is obvious that the Respondents’ objection challenging the competence of the appeal has effectively become nugatory.
I have taken judicial notice of the fact that the Appellants’ application, filed on 16/10/15, prayed for five reliefs.
Indeed, all the five reliefs sought in the application were duly granted by this Court on
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21/4/16. Thus, the preliminary objection no longer has any basis, and same is hereby dismissed.
DETERMINATION OF THE APPEAL ON MERITS
Having taken in to an account of the sole issue formulated by the Appellants, in the brief thereof, which were duly adopted by the Respondents, I too hereby adopt same for the determination of the appeal, anon.
THE SOLE ISSUE:
The sole issue raises the very vexed question of whether or not the Court below was justified in the ruling thereof when it struck out the counter claims of the Appellants (Defendants), thereby denying them hearing on the merits. The sole issue is distilled from the three grounds of the notice of appeal.
Regrettably, the instant case has had a very protracted historical back ground. The suit was filed in the Court below in 1998. In the ruling thereof, delivered on 12/02/14, the Court upheld the objection of the 3rd and 4th Defendants to the competence of the Respondents’ amended writ of summons, thus:
In the final analysis, I shall hold this objection of the 3rd and 4th defendants on the validity of the amended writ of summons of the claimants of 18th May, 2011, to be
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valid and properly taken and so valid in law and would make the following orders to writ:”
ORDERS:
1. Amended writ of summons issued by the claimants of the 18th day of May, 2011 hereby declared incompetent as the same is not signed by either the claimants or their legal practitioner.
2. I make no order as to cost
Elias O. Abug
Judge
12th February, 2014.
See pages 86 – 92 of the record.
On 17/3/14, the respective learned counsel adopted their written addresses regarding the 1st and 2nd Defendants’ (Appellants’) motion, seeking to set down the counter claims thereof for hearing. The ruling was delivered by the Court below on 29/4/14, to the following conclusive effect:
In the circumstance, I am unable to agree with the defendants in this case that their counter claims can stand even with the writ of summons of the claimants having been declared incompetent.
Therefore and in the circumstance, I will make the following declarations in this case on the point to:
1. I hereby declare that the counter claim filed by the defendant in this case is invalid and unsustainable in
law the writ of summons having
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been declared incompetent.
2. The same is accordingly hereby ordered struck out as it is incompetent and incurably defective by reason of the non-existence of a valid writ of summons in support thereof.
3. I make no order as to costs
Elias O. Abua
Judge
29th April, 2014.
See pages 95 – 101 of the record
With possible deference, the above decision of the Court below cannot be right, for some obvious reasons. It’s a trite fundamental principle, that a counter claim is essentially a distinct and independent action. Indeed, a counter claim does not even have to relate to the plaintiffs’ claim, or arise out of the same transaction. See EFFIOM VS IRONBAR (2000) 11 NWLR (PT. 678) 344 @ 347; ANOZIA vs. AG, LAGOS STATE (2010) LPELR – 3778 (CA). As once aptly reiterated by this Court:
Most undoubtedly, a counter claim by the very distinctive nature thereof is not merely a defense to the claim of a plaintiff, but rather its substantially a cross-action. See ORAGBADE VS ONITIJU (1962) 1 ALL NLR 33 AT 36; IGE VS FARINDE (1994) 985 (PT. 284) AT 305; LUMLEY VS BROOKS (1889) 41 C H.D. 323. See TONY ANOZIA VS AG, LAGOS STATE (2010)
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LPELR – 3778 (CA), per SAULAWA JCA @ 37 Paragraphs C – G.
Thus flowing from the foregoing authorities, it’s well settled, that a counter claim is for all intent and purposes, a distinct and separate action, although the defendant may, for the sake of circumstance and expedition, incorporate it in the Statement of claims thereof.
See OGBOMA VS AG IMO STATE (1992), 1 NWLR 647 @ 675; ODUNSI VS BAMGBALA (1995) 3 SCNJ 276 @ 286. DABUP VS. KOLO (1993) 12 SCNJ 1. ANOZIA VS. AG LAGOS STATE. SAULAWA JCA @ 38 PARAGRAPHS B – D.
In the instant case, it’s not at all in doubt, that the rules of the Court below have duly recognized a counter claim to be so considered as an independent action, and shall have the same effect as a cross – action.
Most instructively, the provisions of Order 17, Rules 20 (1) and 21 (2) of the High Court (Civil Procedures) Rules Laws of Cross River State are to the effect:
20(1)
A statement of claim or a counter claim shall state specifically the relief claimed either singly or in the alternative, and it shall not be necessary to ask for general or other relief which may be given as a judge may think just as if it has
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been asked for.
21(2)
A defendant shall file his statement of defense, set off or counter claim, if any not later than 14 days after service on him of the claimants ongoing process and accompanying documents, A counter claim shall have the same effect as a cross action so as to enable the Court pronounce final judgment in the proceedings. A set-off must be specifically pleaded.
Thus, the fact that a counter claim has been recognized by the relevant statutes and authoritative decisions of Superior Courts of records, as a distinct and independent action, is no longer contestable.
See LADUNN VS WEMA BANK LTD (2011) 4 NWLR (PT. 1236) 44 @ 66 – 67; BALOGUN VS YUSUF (2010) 9 NWLR (PT. 1200) 515; OGBONNA VS. AG. IMO STATE (1992) 1 NWLR (PT. 220) 647 @ 675.
As alluded to above, in the instant case, the Court below in its wisdom deemed it expedient (albeit erroneously) to declare that the counter claim filed by the defendants in this case is invalid and unsustainable in law, the writ of summons having been declared in competent. See page 92 of the record.
Yet, the law is trite, that a statement of claim (or statement of defence as the
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case may be) which has been amended with leave of Court does not cease to exist. Indeed, it still forms a vital part of the record of proceedings of the Court. Thus, the Court should not turn a blind eye thereto. See AGBOHAMOVO VS. EDUYEGBE (1999) 2 SCNJ 94; AGBAREH VS. MIMRA (2008) 2 NWLR (PT. 1071) 378.
In the circumstance, the sole issue ought to be, and it’s hereby, resolved in favour of the Appellants, against the Respondent.
Hence, having effectively resolved the sole issue in favour of the Appellants, I hereby unhesitatingly adjudge the appeal to be successful, and it’s here by allowed by me. Consequently, the ruling of the Court below, delivered on April 29, 2014, is accordingly hereby set aside. The Appellants’ counter claims are hereby remitted to the High Court of Cross River State, Calabar Judicial Division, for hearing on the merits.
Parties shall bear their respective costs of litigation.
Other Citations: (2016)LCN/8985(CA)
