Michael Sunday Oroja & Ors V. Ebenezer Ilo Adeniyi & Ors (2017)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C. 

The Appellants as plaintiffs sued the Respondents as Defendants for declaration of title to land at Meiran, Agege. The respondents filed a statement of defence and counter claim in respect of the land of Meiran, Araromi Oke-Meiran and Akitan. The suit was heard by E. F. Longe J. of the Ikeja judicial Division of the Lagos High Court and the Court gave Judgment to the appellants in the main claim and did not evaluate, consider and deliver judgment in respect of the respondent counter-claim. The respondent dissatisfied filed an appeal at the Court of Appeal Lagos Division, Corami I. A. Salami, M. D. Muhammad; C. B. Ogunbiyi JJCA with the lead judgment delivered by C. B. Ogunbiyi JCA (as she then was). The Court of Appeal or Court below allowed the appeal, set aside the judgment of the trial Court and remitted the entire case back to the Chief Judge for hearing de novo before another judge.

FACTS BRIEFLY STATED:

The appellants’ sought before the High Court a declaration to an entitlement to a customary right of occupancy in respect of farmland at Meran Village in

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Agege, Lagos and the total sum of N230,478,50 against the respondents being special and general damages suffered by the appellant as a result of the appellant’s crops destroyed by the respondents. They also asked for an order of perpetual injunction restraining the respondents from further trespassing on the land in dispute.

The claim of the appellants is grounded on their claim that their forefather, A Adeluola, over 200 years before had first settled on a large parcel of land which includes the farmland, the land now in dispute.

By the pleadings and the evidence proffered through 8 witnesses and the 23 exhibits tendered and admitted in evidence, the appellants linked their family to the land in dispute from Abeokuta till the time of the commencement of the action at the High Court. The appellants asserted that they had uninterrupted and exclusive possession of the land with a history of the descendants to the uninterrupted succession as Baale of Meran Village under which the land in dispute is located. They further asserted that respondents were strangers to the land and showed exhibit 13 as report prepared by the colonial district officer in

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1935 which showed that there was no land called Eshilo land as claimed by the respondents.

The case further put up by the appellants is that sometime in 1976, the Federal Government acquired a portion of the said farmland for low cost housing scheme and while negotiations were going on for compensation, the Federal Government, by a letter released a portion of the acquired land to the appellants and a survey was carried out in that respect and this dispute arose on the entering by the respondent into a portion of that land released. This case of the respondent is that their ancestor, Obalanloye Eshilo, who died in 1704 and was the first to settle on the land they called “Orile Eshilo”. From their pleadings and the evidence led by six witnesses and nine exhibits tendered and admitted into evidence before the Court, Odu-Oroja, who was a child of Adeluola, who was their tenant and was only permitted to farm on and also oversee Eshilo land. That they claim have exercised acts of possession on the land in dispute and thus counter-claimed for a declaration to an entitlement to a customary right of occupancy in respect of the land and farmland known as Orile Eshilo

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including Meiran, Araromi, Oke Meran and Akintan. They also claimed forfeiture, injunction and N5,000,00 as damages for trespass

The Court of trial granted the appellants’ claim preferring their traditional history but dismissed respondents’ counter claim without making a formal pronouncement. The Court below allowed the respondents’ appeal and remitted the case for retrial on the ground that the trial judge failed to make a pronouncement on the counter-claim thereby rendering the Judgment incomplete.

The appellants aggrieved by the decision of the Court of Appeal, that propelled them to approach the Supreme Court.

On the 31st October, 2016 date of hearing, learned counsel for the appellants, A. B. Kasunmu Esq. adopted their Brief of Argument filed on 31/10/07 and deemed filed on the 30/1/2008 in which were drafted two issues for determination viz:-

ISSUE ONE:

Whether the Court of Appeal was right in holding that the respondents’ counter claim was not considered and the failure to make a specific/formal pronouncement thereon occasioned a miscarriage of justice thereby resulting in a violation of the respondents’ fundamental human

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right.

ISSUE TWO:

Having regard to Section 16 of the Court of Appeal Act and the evidence already before the Court, was the Court of Appeal right in holding that it could not exercise its powers by making a pronouncement upon the respondents’ counter claim.

Learned counsel for the appellants also adopted their Reply Brief filed on the 14th April, 2016.

M. A. Bashua Esq. of counsel for the respondents adopted their Brief of argument filed on the 21/3/2010 and deemed filed on 14/3/16 and they identified similar issues for determination though crafted differently and they are thus:-

ISSUE ONE:

Whether the lower Court was not right when they found that the respondents’ counter-claim was not considered by the trial judge, and that the failure to consider it occasioned a miscarriage of justice and violation of their fundamental human rights to fair hearing.

ISSUE TWO:

Whether the lower Court was not right when they refused to invoke Section 16 of the Court of Appeal Act

I shall utilise the issues as framed by the appellants for ease of reference.

ISSUES 1& 2:

Whether the Court of Appeal was right in

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holding that the respondents’ counter-claim was not considered and the failure to make a specific/formal pronouncement thereon occasioned a miscarriage of justice thereby resulting in a violation of the respondents’ fundamental human right.

And whether the Court of Appeal could not have invoked its powers under Section 16 Court of Appeal Act to rectify the error

Pushing forward the stand of the appellants, learned counsel, A. B, Kasunmu Esq. contended that the issue as to the existence of a village called Orile Eshiro and founded by the respondents’ ancestor, as canvassed the counter-claim was considered by the trial judge and decided against them. That another issue raised by the respondents which was considered by the trial judge was in relation to the way the action was instituted which was in order in a representative capacity in the names of the three surviving families of Adeluola. That the trial Judge had resolved all vital issues pertaining to the counter-claim and so the Court below was wrong in holding that the respondents’ counter claim was not considered or evaluated at all. That the non formal and separate pronouncement on the counter-claim

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by the trial Court should not have the fatal effect as given it by the Court of Appeal

The case of Nkuma v Odili (2006) 6 NWLR (Pt. 977) 587 was relied upon. Also, the case of Onwuka & Anor v. Omogui (1992) 3 NWLR (Pt. 230) 393

Learned counsel for the respondent, M. A. Bashua Esq. contended that Order 19 Rule 9 of the High Court of Lagos (Civil Procedure) Rules 1994 applicable to the case in hand is explicit on the nature of a counter claim. That is well settled that a main claim is totally different from a counter claim and so a formal pronouncement on the counter claim cannot be dispensed with. He cited Oriawe v. Okere (2002) FWLR (Pt.14) 427; Narinde Trust Ltd v NIMB (2000) 10 NWLR (Pt. 721) 3212; Okonkwo v. C.C.B. (2003) FWLR (Pt. 154) 457 etc.

That the lower Court was right when it found that the learned trial judge did not advert his mind to the counter claim and had not considered the counter claim and what the trial judge had done has left room for speculation and conjecture.

It was submitted that what the Court below did having been done without any arbitrariness or contrary to justice, this Court should not interfere with

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that finding and conclusion.

It was cited the cases of Obi v. Mbionwo (2002) FWLR (Pt.115) 617; Eze v A.G. Rivers State (2002) FWLR (Pt. 89) 1109; University of Lagos v. Aigoro (1985) NWLR (Pt.1) 145.

In summary, the position of the appellants is that this Court should hold that the Court of Appeal was wrong in holding that the respondent’s counter claim was not considered and the failure to make a specific/formal pronouncement thereon occasioned a miscarriage of justice thereby resulting in a violation of their fundamental human right.

The stance of the respondents is that a counter-claim is a separate suit not connected with the main suit and so the failure or success thereof is not dependent on the failure or success of the main suit.

For the appellants, Mr. Kasunmu of counsel submitted that the trial Court considered the counter claim and the failure to pronounce on it by the trial judge was not so grave as to lead to a miscarriage of justice or to imply that the respondent’s right to be heard had been violated. That there was enough before the Court of Appeal for it to have exercised its powers under Section 16 of the Court of Appeal Act and

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done that which the trial Court ought to have done but failed to do so. He relied on Zaccheus Faleye & Ors v Alhaji Lasisi Otapo & Ors (1995) 3 NWLR (Pt.381) 1 at 33; Ordia v Piedmant (Nig.) Ltd (1995) 2 NWLR (Pt.378) 516 at 528.

Mr. Bashua, learned counsel for the respondents stated that the lower Court was right in refusing to invoke Section 16 of the Court of Appeal Act as the appellate Court could not do what the trial Court did not have the power to do. He cited Abbas v Solomon (2001) FWLR (Pt.167) 287.

That the mistake committed by the trial judge was not such that could be corrected on appeal.

I shall now refer to what the Court of Appeal said which is to be seen at pages 360 and 361 of the record per Ogunbiyi JCA (as she then was) thus:-

“A failure to make a pronouncement on an adjudication is a substantial error so grave and fatal thereby vitiating the entire proceedings which can in no wise have the force of law, for being inconclusive. The Court will for instance set aside a judgment where:-

“It is either that the findings are perverse or there has been procedural errors committed by those Courts which have led to

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miscarriage of justice.”

This proposition has been laid down in the case of Agu v Nmadi reference supra, Also in the authority of the case of Osolu v Osolu (2003) FWLR (Pt.172) at 1974, it was held thus:-

“An appellate Court will only interfere with a finding of fact by a trial judge when such findings are perverse or wrong because of violation of some principle of Law or Procedure.”

Relying therefore on the authority of Igwe v Kalu (2002) FWLR (Pt.122) P.1, the consequential effect of the failure is as if the appellants were never heard at all. As rightly submitted by the learned appellants’ counsel, there is no doubt that the trial Court had committed a substantial procedural error by its failure to consider and make a formal pronouncement on the appellants’ case, and thereby rendering the entire judgment incomplete.” See page 360 of the record.

The Lower Court being of the view that the error or mistake on ground is grave, fundamental and touching on the main stream of the judgment, it could not be overlooked. She went on at page 361 or the record thus:-

“Further still, I would also wish to restate that even with the pronouncement

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having been made on the main claim it would not be easy to sever same from the counter claim without one over crossing into the spheres of the other. In other words, the two claims for purpose of clear cut and distinct proof may not easily be put into two separate water tight compartments. Justice of the case therefore would best be served if both the claims are properly determined, with all evidence considered, evaluated and specifically pronounced thereon. It is not the duty of this Court to do that because Section 16 of the Court of Appeal Act is not at large but operative within the con and extent of the provision. It is therefore safer and neater that the entire case at hand be sent back to the lower Court for proper adjudication and determination. A retrial order is therefore made in the circumstance with the said issue No.2 resolved in favour of the Appellants.”

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

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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

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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.”

Having put across the definition of a counter-claim through case law and relating them to the plaintiffs’ claim through their amended statement of claim and reply with the defence to the counter claim, it is to be seen that while the defendants’ counter claimed for a declaration of the right to statutory customary right of occupancy to the large area of land which includes the land in dispute at Meiran and that one Eshilo was first settler of the disputed land.

The plaintiffs’ claim on the other hand is an entitlement to the right on the ground that their forefather Adeluola over 200 years before was the first to settle on a large parcel of land including the farmland which is the land in dispute.

It is evident that there really are two major claims, each independent and could effectively stand alone.

The learned trial judge admitted evidence in relation to the two divergent claims and stated as

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follows –

“As the only crucial point in this case is between Adeluola and Eshilo who was the first to settle in Meran, the land in dispute.”

Therein lay the error of the trial Court as the respondents’ claim was not restricted to the same land as was claimed by the appellants. The sad aspect of the whole process at the trial Court was that the trial judge considered the evidence proffered thereto and failed to make a pronouncement thereon, thereby treating what he found in that respect as part of the main suit. The error is fundamental and not one to be brushed aside or treated lightly. 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.

To further show the differences in the two claims, I shall quote the claims in the statement of claim and the counter claim on the other part.<br< p=””

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“WHEREFORE THE PLAINTIFFS CLAIM:-

(a) DECLARATION that the plaintiffs are entitled to a Customary Right of Occupancy on the farmland lying and being at MERAN in Agege district of Lagos State as described on the Plan attached to this Statement of Claim.

(b) N150,000.00 being special damages for the plaintiffs’ crops on the said farmland wrongful destroyed by the defendants.

(c) N50,000,00 being special damages against the co-defendant for the plaintiffs’ corps destroyed on the farmland,

CROPS DESTROYED BY CO-DEFENDANT

(i) 15,000 Kola Nut trees N25,000.00

(ii) 25,000 Cassava trees N12, 000.00

(iii) 15,000 Rafia Palm tree N15,000.00

(iv) N50,000.00

The survey fees payable for the carving out of the portion of land trespassed upon as per plan No. OY/05/FHA/LA/85 – N26,479.50.

(d) N2,000.00 against the defendant family being general damages for trespass to the said farmland.

(e) N2,000.00 general damages against the Co-defendant for trespass to the farmland.

COUNTER-CLAIM:

(f) Defendants/counter-claimant (1st and 3rd defendants) repeat by way of counterclaim paragraphs PERPETUAL INJUNCTION

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restraining the defendants, their servants, agents and privies from further trespassing on the said farmland.

1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 14A, 15, 16, 17, 18, 19, 20, 21, 21A, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 32A, 33, 34, 35, 35A, 35B, 35C, 35D, 35E, 36, 37, 37A, 38, 39 and 40 and also claims:-

(i) A declaration that they are entitled to the statutory/Customary right of occupancy in respect of the land and farmland known as Orile Eshilo including Meran/Araromi, Oke Meran and Akitun and more particularly described in Plan No. PSE/46/77 and APAT 327 and 32A/90.

(ii) Forfeiture of the customary interest or rights of the plaintiffs/defendants in respect of the claim by them at Meran on the grounds of:

(a) Disputing the right/interest of their overlord (the defendants /Counter-claimant).

(b) By leasing, alienating, selling and otherwise disposing portions of the said land without the consent and approval of Eshilo Family contrary to the terms of their holding.

(ii) Perpetual Injunction restraining the plaintiffs/defendants or their agents from committing further acts of trespass on the said land.

(v)

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N500,000.00 damages for trespass already committed on the Eshilo family land at Moran.

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 ile v Umar (1994) 1 NWLR (Pt.319) 143; Emaphil v Odili (1987) 4 NWLR (Pt.67) 915.

The learned counsel for the appellants had raised the issue that the Court of Appeal ought to have used its powers under Section 16 of the Court of Appeal Act to rectify the anomaly. The Court below did not buy the argument holding as follows at pages 358 and 365:-

“The learned respondents counsel

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argued that the Court of Appeal being vested by the powers of the trial Court under Section 16 to evaluate evidence led at the lower Court. The purpose of the provision in my humble opinion is not to take over the powers of the trial Court as a Court of evidence. For example, it is not within the powers of the Court to hear witnesses in respect of the counter claim before it. There is no indication on the record that the counter claim was either considered or evaluated at all. The powers conferred on the Court of Appeal vide Section 16 cannot be exercise in the circumstances at hand…..

Per Salami page 365:-

“The error is not as light as the learned counsel for respondents has created it by inviting us to invoke the powers of this Court under Section 16 of the Court of Appeal Act, Cap.75 of the Laws of the Federation 1990. It is not a matter that can be treated so casually by merely inserting the words “Counterclaim dismissed” as suggested by learned counsel for respondent. The trial Court having failed to consider the counterclaim separately, the Court of Appeal cannot speculate on what its judgment and orders would have been if he had duly considered

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the said 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.

Again, to be said that the gravity of the error made by the trial judge being such that it cannot be easily rectified but no other

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way out but a retrial. Also, the retrial cannot be just for the counter claim as the justice of the situation is such that a whole hog of the entire matter, main claim and the counter claim must be effectively dealt with in the retrial so that all the issues between the parties are resolved, two judgments as part of the deal, one for the main claim and the other for the counter claim. There cannot be a severance enabling the retrial to be just for the counter-claim.

The findings and conclusion of the Court of Appeal are well founded and I am all for what the Court below did and cannot deviate.

In the end, this appeal is without merit and I hereby dismiss it as I uphold the findings, conclusions and order of retrial before another judge other than E. F. Longe J.

OLABODE RHODES-VIVOUR, J.S.C.: I read in draft the leading judgment delivered by my learned brother Peter-Odili, JSC. I agree with the order that his suit be retried all over again by a Judge of the Lagos State High Court.

The appellants as plaintiffs sued the respondents as defendants on a writ of summons and statement of claim for:

“1.

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Declaration that they are entitled to customary right of occupancy.

2. N150,000,00 as special and general damages for cash crops destroyed.
3. N50,000.00 against co-defendant
4. Survey fees for carrying on the portion of land trespassed upon N26,478.50.
5. N2,000 against defendants family for trespass and the 2nd co-defendant
6. Order of perpetual injunctions.”

The defendants counter-claimed for;

“1. Declaration that they are the one entitled to the customary right of occupancy of the land in dispute.

2. Forfeiture of the customary interests of right of the plaintiff
3. Order of injunction against the plaintiffs
4. N500,000.00 damages for trespass.”

The learned trial judge failed to make any pronouncement on the counter-claim. The Court of Appeal observed that the Justice of this case would best be served if both the claims, i.e. the main claim and the counterclaim are properly determined, with all evidence considered, evaluated and specifically pronounced upon, and proceeded to order a retrial of the case.

I agree with the Court of Appeal. A counterclaim is an independent action where the parties in the

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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.

It is for this reasons that I agree with my learned brother that this case should be sent back to the trial Court for a re-hearing.

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SC.113/2007