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COUNTER CLAIM – BE RELATED TO THE PRINCIPAL CLAIM

Dictum

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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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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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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WHEN MAIN CLAIM IS GRANTED, ALTERNATIVE CLAIM CANNOT BE GRANTED

When a party as in this case, the Plaintiff/1st Respondent made claims the in alternative, she is saying that she wants either of her reliefs. So any of the claims granted suffices for the purpose of satisfying her claim. When a Court grants the main claim, the alternative claim would no longer be considered. When the main claim fails, the alternative claim must be considered, and if found proved the Court should grant it as the Court of Appeal did in this Appeal.

— O. Rhodes-Vivour, JSC. Bakari v. Ogundipe (2020) – SC.514/2015

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A REPLY TO STATEMENT OF DEFENCE MUST NOT CONTAIN ANY NEW CLAIM

Adeniji v. Fetuga (1990) 5 WLR (Pt. 150) 375 this Court per Akanbi J.C.A. (as he then was) held thus:- “A reply is the Plaintiff’s answer or response to any issue raised by the Defendant in his defence and which the Plaintiff seeks to challenge, deny or admit or object to either or ground of law or a mis-statement of the cause of action and it is not permissible in a reply to the defence to raise a new cause of action not set out in the writ of summons, for a Plaintiff must not in his reply make any allegation of fact or raise any new ground of claim different from what is contained in his statement of claim.”

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IT IS FROM THE WRIT AND STATEMENT OF CLAIM THAT THE CLAIMANT’S CASE IS KNOWN

The cause of action is donated by the writ of summons and statement of claim and it is in those originating processes and any such similar process that a court of law will decipher what the complaint of a litigant before it is. See the decision of this court in Nduka v. Ogbonna (2011) 1 NWLR (Pt. 1227) 153 at 175, paragraphs B – C, Ariwoola JCA succinctly stated the position thus: “In the instant case, the cause of action as clearly shown on the statement of claim is for special and general damages for defamation and malicious prosecution.” The apex court has also reaffirmed this position of the law which has become trite: Hassan v. Aliyu (2010) All FWLR (Pt. 539) 1007, (2010) 17 NWLR (Pt. 1223) 547, wherein Adekeye JSC had this to say at 619, paragraphs G – 4 of the report: “… It is sufficient if prima facie the date of taking the cause of action is disclosed in the writ of summons and statement of claim … The trial court has a duty to confine itself to the pleadings filed by the parties.”

— Danjuma, JCA. Tony Anthony Nig. Ltd & Ors. v. NDIC (CA/L/630/2009 • 25 January 2011)

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SETTING UP A COUNTER CLAIM

The procedure for setting up a counter-claim is well established in law. It is the usual practice to commence a counter-claim immediately after the defence. It could be on the same page with the defence or on a fresh or separate page. There is no rule of the thumb. It depends upon the state of the individual pleadings. The important thing is that it should follow immediately after the defence and that is the meaning of the conjunction “and” found in most rules of court.

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

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