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WHEN MAIN CLAIM IS WITHDRAWN, THE COUNTERCLAIM BECOMES THE MAIN CLAIM

Dictum

I agree with the Respondent’s argument that having withdrawn his claim, the Respondent only defended the suit and the Appellant being the claimant has the onus to prove his claims before the trial Court to entitle him to the reliefs he sought including perpetual injunction. In fact, in my view, it is a wrong nomenclature used to refer to the Appellant’s claim as a “counter claim” especially as it was filed after the Respondent’s initial claim was withdrawn and struck out, which fact was stated/admitted by the Appellant in paragraphs 5.1 to 5.2 of his brief of argument and in item 3 of his summary of facts in paragraph of the said brief … This proposition/contention is wrong in law because the withdrawal of the suit by the Respondent before leave was granted to the Appellant to “counter claim” means that there was no claim the Respondent was prosecuting. His claim was struck out and therefore only the claim of the Appellant remains and the role of the Appellant in that suit was the claimant while the Respondent became de facto and de jure the defendant of the suit and ought to be addressed as such.

— B.B. Aliyu, JCA. Oboh v. Oboh (2021) – CA/B/372/12

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NATURE OF A COUNTER CLAIM

By our practice, a counter-claim is clearly marked “COUNTER-CLAIM” and the defendant, who in his apparently changed status of plaintiff, avers in numbered paragraphs his claim which finally ends in the relief or reliefs sought. A 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, judgment and costs. It is almost in a world of its own. But a counter-claim cannot be inconsistent with the plaintiff’s claim in the sense that it cannot erect a totally different case from that of the plaintiff.

– Niki Tobi JSC. Okonkwo v. Cooperative Bank (2003)

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FAILURE TO FILE A DEFENCE TO A COUNTER-CLAIM MAY NOT BE DAMAGING

Besides, the lower Court declared the respondent victorious in its main claim. In the sight of the law, failure of a plaintiff to file a defence to a counter-claim may not be damaging or disastrous if he succeeds in his claim. The success may afterall render useless the counter-claim, Maobison Inter-Link Ltd. v. U.T.C. (Nig.) Plc. (supra), at 209, per Ariwoola JSC. This, to all intents and purposes, punctures the appellants seemingly dazzling argument on the issue.

— Impact Solutions v. International Breweries (2018) – CA/AK/122/2016

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FAILURE TO FILE REPLY TO COUNTERCLAIM IS NOT ADMISSION OF THE COUNTERCLAIM

I had in this Judgment, noted as did the court below, that the Appellant, never filed any defence or reply to the counter-claim (even on his admission), it was “irregularly” filed. I am aware however, and this is also settled, that where a plaintiff fails to or neglects to file a defence or a Reply to a counter-claim, it is of no moment and it is not fatal to the claim. This is because, if the Plaintiff succeeds in his claim, the counter-claim is useless. See the case of Dabup v. Kola (1993) 9 NWLR (Pt.317) 254 @ 270, 281; (1993) 12 SCNJ.1. It is not that the plaintiff is deemed to admit the counter-claim as stated at page 166 of the Records by the court below. It is only so, where it relates to the failure of the defendant, to file a Statement of Defence. In that case, all material facts alleged in the Statement of Defence, are put in issue. See the case of Akeredolu v. Akinremi (1989) 3 NWLR (Pt.108) 164@ 172; (1989) 5 SCNJ. 71- per Kawu JSC, referred to in the case of Obot v. Central Bank of Nigeria (1993) 8 NWLR (Pt.310) 140 @ 162; (1993) 9 SCNJ. (Pt. II) 268. See also T. A. Aguda paragraph 109 page 101 – 102 Practice and Procedure in Civil Actions in the High Court of Nigeria.

— F. Ogbuagu, JSC. Akpaji v. Udemba (2009) – SC.247/2002

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NATURE OF COUNTER-CLAIM

A counter-claim connotes a claim for relief asserted against an opposing party after an original claim has been made, that is a defendants claim in opposition to or as a set-off against the plaintiffs claim, see Maobison Inter-Link Ltd. v. U.T.C. (Nig.) Plc. (2013) 9 NWLR (Pt. 1359) 197 at 209, per Ariwoola, JSC. It is settled law, beyond any per adventure of doubt, that a counter-claim is an independent and separate action triable with the main claim for reason of convenience. Like the main claim, it must be proved by the counter-claimant in order to earn the favour of the Court, see Ogbonna v. A.G., Imo State (1992) 1 NWLR (Pt. 220) 647; Nsefik & Ors. V. Muna & Ors. (2013) vol. 12 MJSC (Pt. 1) 116; Anwoyi v. Shodeke (2006) 13 NWLR (Pt. 996) 34; Bilante Intl Ltd v. NDIC (2011) 15 NWLR (Pt. 1270) 407; Kolade v. Ogundokun (2017) 18 NWLR (Pt. 1596) 152.

— O.F. Ogbuinya, JCA. Impact Solutions v. International Breweries (2018) – CA/AK/122/2016

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A COUNTERCLAIM IS A SEPARATE AND DISTINCT ACTION

A counter-claim is a separate, independent and a distinct action. The counter-claimant must prove his claim before he can obtain Judgment. See JERIC NIG. LTD v. UNION LPELR SC 72/1998; (2000) 15 NWLR (Pt. 691) 447; R. Benkay Nig. Ltd. v. Cadbury (Nig) PLC (2006) 6 NWLR (Pt. 576) 338s.

— M.A. Danjuma JCA. Folorunsho Ogboja v. Access Bank Plc (CA/AK/38/2013, 18 MAY 2015)

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COUNTER CLAIM – BE RELATED TO THE PRINCIPAL CLAIM

A counter claim to quote from Bairamien, JSC in Oyegbola v. Esso WA (1966) 1 All NLR 170 is a weapon of offence which enables a defendant to enforce a claim against the plaintiff as effectively as in an independent action. The counter-claim must be directly related to the principal claim but not outside of and independent of the subject matter of the claim. – Niki Tobi JSC. Okonkwo v. Cooperative Bank (2003)

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