The Esquire

SCOA (NIG) PLC v. TAAN & ORS
(2018) LPELR-44545(CA)

ISSUE
ACTION - COUNTER-CLAIM
- Whether the plaintiff must be a party to a counter-claim

PRINCIPLE
"Now, in law for a counter claim, being in the nature of a cross action, to be competent, it is a sine qua none that the Claimant must be made a party to the claims by the Defendant. Thus, is it only and only when a Claimant is also a party to a relief counter claim by a Defendant that such a relief would in law be regarded as competent to be determined on the merit, as anything otherwise, in my view, would render it incompetent, being not a cross action in the absence of the Claimant. See also UBA v. Samba & Anor. (Supra) @ p. 390, where this point was made succinctly clear inter alia thus: "A Defendant can not make a counter-claim against another Defendant; but he can make a counter claim against an additional party on condition that the Plaintiff is also a party to the counter-claim. If the plaintiff is not a party to the counter claim, then there is no cross-action and consequently, no counter-claim". Also in Akhigbe v. Paulosa (Nig.) Limited (supra) @ p.385, it was held inter alia thus: "A Defendant cannot counter claim solely against another Defendant. However, a Defendant can make a counter claim against an additional party on condition that the Plaintiff is also a party to the counter claim. If the plaintiff is not a party or Defendant then there is no cross action, consequently no counter claim as the name suggest". See also Tayo Oyetibo & Co. v. Ajose Adeogun (supra) @ p.37. The learned counsel to the 2nd and 3rd Respondents had made spirited efforts at distinguishing these judicial authorities from the facts and circumstances of the case, an attempt which upon a proper understanding of the principles of law ingrained in those judicial decisions pales into insignificance and of no moment and thus does not avail the 2nd and 3rd Respondents. In the instant appeal, it cannot be argued and truly no such arguments were proffered by the learned counsel to the 2nd and 3rd Respondents that the 1st Respondent was a party to the relief (vii) and (viii) counter claimed by the 2nd and 3rd Respondents solely against the Appellant. In my view, it is fallacious to contend, as it seems to be suggested by the 2nd and 3rd Respondents, that merely because the 1st Respondent/Claimant was a party to reliefs (i) - (v), then automatically reliefs (vii) and (viii), which have no link with him, are equally competent as counter claim. If one may ask: where is the cross action in these reliefs against the Appellant who has no claim against the 2nd and 3rd Respondents in his pleadings before the Court below? None I can fathom! I think and I so hold that reliefs (vii) and (viii) are the very antithesis of and a clear illustration of what a 'counter claim' should not and indeed cannot be in law. This I think should be end of the matter. The reliefs (vii) and (viii) claimed by the 2nd and 3rd Respondents by way of counter claim solely against the Appellant, who had no claim against them, without making the 1st Respondent/claimant a party thereto, is bereft of any competency in law and thus null and void and of no effect whatsoever before the Court below, which regrettable had not given to the issue the deeper thought it deserved and had thus arrived at the perverse conclusion that they were competent. In law a decision or finding or conclusion reached is perverse amongst other grounds if it does not flow from the established facts from the evidence before the Court or it takes into consideration matters extraneous to the issues placed before the Court in evidence by the parties. See CSS Book Shop Ltd. v. The Regd. Trustees of Muslim Community in Rivers State (2006) 4 SCM 310, where it was pointed out succinctly thus: "A decision of a Court is perverse when it ignores the facts or evidence adduced and admitted before it and when considered as a whole amount to miscarriage of justice. In such a case, an appellate Court is bound to interfere with such a decision and to set it aside." See Obajimi v. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ p.19. See also C.S.S. Book Shop Ltd. v. The Regd. Trustees of Muslim Community in Rivers State (2006) 4 SCM 310. On the whole therefore, the counter claim of the 2nd and 3rd Respondents as it relates to reliefs (vii) and (viii) against the Appellant is incompetent and thus liable to be struck out." Per BIOBELE ABRAHAM GEORGEWILL, JCA (Pp 21 - 24 Paras B - F)

*M J Eze Esq (LLM)*