AJAGUNGBADE v OSUNBADE

AJAGUNGBADE v OSUNBADE


IN THE COURT OF APPEAL
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN

ON THURSDAY, 2ND MARCH, 2017


Appeal No: CA/I/52/2012
CITATION:

Before Their Lordships:

MONICA BOLNA’AN DONGBAN-MENSEM, J.S.C.

MODUPE FASANMI, J.S.C.

NONYEREM OKORONKWO, J.S.C.


BETWEEN

OBA JIMOH AJAGUNGBADE III (SOUN OF OGBOMOSOLAND)

(APPELLANT)

AND

OBA SAMUEL ADEGBOYEGA OSUNBADE (OLUGBON OF ORILE-IGBON)

(FOR HIMSELF AND ON BEHALF OF ORILE-IGBON CHIEFTAINCY)

(RESPONDENT)


PRONOUNCEMENTS


A. ACTION
1. Counter-Claim – Nature of a counter-claim

“A counter claim is substantially a cross action and not merely a defence to the Plaintiff’s case. See the cases of Total Nigeria Plc. v. Morkah (2002) 9 NWLR (pt. 773) pg. 492 at 512 and Tayo Oyetibo & Co. v. Ajose-Adeogun (1996) 6 NWLR (pt. 452) pg. 29 at 37.” Per FASANMI, J.C.A. (para 23) read in context

B. APPEAL
2. Interference with the Exercise of Discretion – Circumstances under which an Appellate Court will interfere in the exercise of discretion of the Trial Court

“An Appellate Court will not interfere in the exercise of the discretion of the trial Court except where the discretion was not exercised judiciously and judicially. See the case of Jonason Triangles Ltd. v. Charles Moh & Partners Ltd (2002) 9-10 SC page 163 at 164 per Ejiwunmi JSC where he stated thus:

“It must be remembered that it is part of the duty of a Judge to see that everything is done to facilitate the hearing of an action pending before him. In so doing, he has to exercise his discretionary power, which undoubtedly belongs to the trial judge. The exercise of this discretionary power to facilitate the hearing of the action pending before him may however be challenged on appeal. But it is settled principle that a Court of Appeal ought to be very slow indeed to interfere with the discretion of a trial Judge.” Ejiwunmi, JSC in Jonason Triangles Ltd. v. Charles Moh & Partners Ltd. (2002) 9 10 SC 163 at 164. Per FASANMI, J.C.A. (para 16) read in context

C. JUDGMENT
3. Setting a Judgment Aside – Factors that must be present for a Court to set its decisions and orders aside

“It is settled law that Courts of record have inherent jurisdiction to set aside their judgments/decisions/orders in appropriate cases or under certain circumstances which include the following:

(a) The judgment is obtained by fraud or deceit.

(b) The judgment is a nullity.

(c) Where it is obvious that the Court was misled into giving the judgment under a mistaken belief that the parties consented to it.

(d) The proceeding adopted was such as to deprive the decision or the judgment of the character of legitimate adjudication.

(e) The judgment was given in absence of jurisdiction.

(f) Where there is fundamental irregularity. See the cases of Tomfec (Nig) Ltd. v. F.H.A. (2009) 18 NWLR (part 1173) page 358 at 382 paras D-H, Igwe v. Kalu (2002) 14 NWLR (part 787) page 435 at 453-454, Ebe v. Ebe (2004) 3 NWLR (part 860) page 215 at 243 and Odofin v. Olabanji (1996) 3 NWLR (part 435) page 126 at 133.” Per FASANMI, J.C.A. (para 13) read in context

4. Striking Out of a Matter – Whether an order striking out a matter precludes a party from instituting a fresh action

“It is settled law that an order striking out a matter clearly preserves to the parties the right to re-litigate. See the cases of Oronti v. Onigbanjo (2004) 17 NWLR (pt. 903) pg. 601 at paras A – B; Ifeloju v. Kuku (1991) 5 NWLR (pt. 189) pg. 65 at 75 paras E – F and A. M. Soetan v. Total (Nig.) Ltd. (1972) 1 S. pg. 86.” Per FASANMI, J.C.A. (para 24) read in context


LEAD JUDGEMENT DELIVERED BY FASANMI, J.C.A.


1. This is an appeal against the ruling of the Oyo State High Court of Justice in Suit No. 1/784/2001 delivered on the 12th of December 2011.

2. The brief facts of the case are that the Appellant herein as Plaintiff took out a Writ of Summons and Statement of Claim against the Governor of Oyo State in 2001 as per his Writ at pages 3-8 of the record of appeal. The Respondent applied to be joined as Defendant to the suit. By an order of the lower Court, the Respondent was joined as the 3rd Defendant in the suit. On 25th March 2003, the Respondent filed a statement of Defence and Counter-claim against the Appellant alone. The Respondent as 3rd Defendant/Counter- Claimant filed a motion dated 15th February 2009 to amend his Statement of Defence and Counter-Claim. Upon taking the arguments of counsel in the case, the learned trial Judge granted the amendments in part. The Respondent as 3rd Defendant/Counter-Claimant instead of filing the amended processes in line with the order of the Court amended his processes beyond the order of the Court dated 4//2/2011.

3. Appellant by a motion dated 28th March, 2011 challenged the competence of the amended Statement of Defence and Counter-Claim not having been amended in line with the leave of the Court granted the Respondent. The lower Court upheld the objection of the Appellant that there was no basis for the joinder of the Governor of Oyo State and the Attorney-General of Oyo State in the counter-claim. The Court struck out the misjoined parties and ordered the Respondent to file the appropriate Amended Statement of Defence and Counter-Claim within 7 days.

4. Appellant filed another motion on the 5th of July 2011 for an order setting aside the order directing the re-filing of the Amended Statement of Defence and Counter-Claim. The lower Court upon hearing the motion to set aside on the 12th of December 2011 dismissed the application for lacking in merit.

5. Dissatisfied with the ruling, Appellant filed his notice of appeal on 22nd of December 2011. The record of appeal was transmitted to this Court on the 9th of March 2012. Appellant’s Brief of argument was filed on the 24th of April, 2012. Respondent’s brief of argument was filed on 30/10/12 but deemed properly filed and served on the 13/6/2016.

6. At the hearing of the appeal, learned counsel for the parties adopted and relied on their respective briefs of argument. While learned counsel for the Appellant urged the Court to allow the appeal, learned counsel for the Respondent urged the Court to dismiss the appeal.

7. Learned counsel for the Appellant distilled three issues for determination thus:

(i) Whether the lower Court was right in not setting aside the order made in this case on 31st May, 2011 directing the counter claimant to re-file his amended statement of defence and counter claim within 7 days? (Grounds 1, 2 and 5).

(ii) Whether the failure of the lower Court to pronounce on all issues presented to it occasioned a miscarriage of justice in this case and thereby affected the outcome of the Court’s decision. (Grounds 4 and 6).

(iii) Whether a counter claim struck out for being incompetent can be re-filed or resisted. (Ground 3).

8. Learned Counsel for the Respondent distilled two issues for determination thus:

(i) Whether having regard to the facts and circumstances of this case, the Appellant’s motion to set aside the lower Court’s order directing a refile of the Respondent’s Amended Statement of Defence and Counter-Claim was not frivolous and time wasting? (Grounds 1, 2, 4, 5 and 6).

(ii) Whether a striking out order of a process is a bar to subsequent filing of a similar process? (Ground 3).

9. The issues distilled for determination by the parties are virtually the same but couched differently. However, the two issues distilled by the Respondent appear more succinct to the issues in controversy between the parties. The appeal will be determined on the two issues distilled by the Respondent.

Issue One

Whether having regard to the facts and circumstances of this case, the Appellant’s motion to set aside the lower Court’s order directing a re-file of the Respondent’s Amended Statement of Defence was not frivolous and time wasting.

10. Learned Counsel for the Appellant submitted that Appellant did not pray for an order directing the Respondent/Counter-claimant to file Amended Statement of Defence and Counter-Claim. He submitted that the Court has no jurisdiction to grant a relief not prayed for by the parties in the case. He referred to the cases of Ekpenyong v. Myong (1975) 2 SC page 72 and Ndukwe v. Uku (2003) FWLR (part 165) page 509. He contended further that having struck out the counter-claim, the Respondent is at liberty to file a fresh action or he may decide not to file a fresh action. By the Court suo motu directing the Respondent to file an Amended Statement of Defence and Counter-Claim within 7 days of the order amounts to a Court of law making an order that is not prayed for. He submitted further that the facts in the Statement of Defence cannot be relied upon by the Respondent after the Appellant’s claim and the Statement of Defence have been struck out on 10/5/2011. The order of the lower Court was a mistake which can be corrected when alerted. Submitted further that it was a mistake on the part of the lower Court as the lower Court does not have jurisdiction to direct a party to file a process not in existence. He submitted that an order which is a nullity on ground of common mistake, fraudulent misrepresentation, want of jurisdiction can be set aside by the same Court which made the order. He referred to the case of Aliyu v. Chairman Rent Tribunal No. 5 Kaduna (2003) FWLR (part 155) page 636. Learned Counsel for the Appellant submitted further that having withdrawn his claim as Plaintiff on 10/5/11, the statement of defence filed together with the counter-claim goes with it. Learned Counsel for the Appellant urged the Court to resolve issue one in favour of the Appellant.

11. Learned Counsel for the Respondent in reply submitted that Appellant’s contention is a sheer technicality designed to frustrate the hearing of the 2001 case. What happens in this case is an exception to the rule that, a ourt has no jurisdiction to grant a relief not sought for. The facts and circumstances of this case support this having regard to the justice required in the case. He contended further that to allow this appeal is to interfere with the discretion of a trial Judge when the Appellant has failed or not shown how the order of 31/5/2011 has adversely affected him. Appellant has not provided sufficient material facts to show that the trial Court failed to exercise its discretion judicially and judiciously. He referred to the case of Leekay Traders Ltd v. General Motors Co. Ltd. (1992) 2 NWLR (part 222) page 132 at 156 paragraphs A-C.

12. Learned Counsel for the Respondent argued further that the lower Court did not strike out the counter-claim of the Respondent. What the lower Court struck out was the Amended Statement of Defence and Counter-claim filed on 7th February 2011. He submitted further that the facts pleaded in the statement of defence are also required to prove the counter-claim. It was not the case of the Appellant that the lower Court had no jurisdiction to give the order of 31/5/2011 or that the order was borne out of fraud or even a fundamental error. If the application of the Appellant was allowed on the ground that having withdrawn his claim, the Amended Statement of Defence and Counter-claim had become non-existent, it would amount to an unpardonable injustice to the Respondent who has filed his Statement of Defence and Counter-claim before the Appellant’s withdrawal of his case. Learned Counsel for the Respondent urged the Court to resolve issue one against the Appellant.

13. It is settled law that Courts of record have inherent jurisdiction to set aside their judgments/decisions/orders in appropriate cases or under certain circumstances which include the following:

(a) The judgment is obtained by fraud or deceit.

(b) The judgment is a nullity.

(c) Where it is obvious that the Court was misled into giving the judgment under a mistaken belief that the parties consented to it.

(d) The proceeding adopted was such as to deprive the decision or the judgment of the character of legitimate adjudication.

(e) The judgment was given in absence of jurisdiction.

(f) Where there is fundamental irregularity. See the cases of Tomfec (Nig) Ltd. v. F.H.A. (2009) 18 NWLR (part 1173) page 358 at 82 paras D-H, Igwe v. Kalu (2002) 14 NWLR (part 787) page 435 at 453-454, Ebe v. Ebe (2004) 3 NWLR (part 860) page 215 at 243 and Odofin v. Olabanji (1996) 3 NWLR (part 435) page 126 at 133.

14. The grounds of the Appellant’s application to set aside the order of the learned trial Judge made on the 31st of May 2011 are set out at page 102 of the record. It is therefore not in doubt that the grounds of this application do not fit into any of the circumstances stated above. The order was made in the presence of Counsel and as such it is not a default order. If a main claim is struck out, the counter-claim stands. If an amended pleading is struck out for going beyond the order for amendment, it cannot be a bar to filling an appropriate pleading reflecting the amendment.

15. In the instant case, Appellant who is the Defendant to the counter-claim is dissatisfied with the order of the Court made on 31st May 2011. His application to set aside is tantamount to asking the Court for a review of the order it has made. The lower Court has no power to sit on appeal over its own ruling.

16. The order made by the Court directing the Respondent to “file appropriate amended statement of defence and counter-claim within the next 7 days from today” is a consequential order as a result of the exercise of the discretion of the learned trial Judge to see that everything is done to facilitate the hearing of an action pending before the Court since 2001. The lower Court exercised its discretion after weighing all the circumstances of the case in the interest of justice and balancing the interest of the parties involved including the balance of convenience and the disadvantages which might be suffered by any of the parties before it. An Appellate Court will not interfere in the exercise of the discretion of the trial Court except where the discretion was not exercised judiciously and judicially. See the case of Jonason Triangles Ltd. v. Charles Moh & Partners Ltd (2002) 9-10 SC page 163 at 164 per Ejiwunmi JSC where he stated thus:

“It must be remembered that it is part of the duty of a Judge to see that everything is done to facilitate the hearing of an action pending before him. In so doing, he has to exercise his discretionary power, which undoubtedly belongs to the trial judge. The exercise of this discretionary power to facilitate the hearing of the action pending before him may however be challenged on appeal. But it is settled principle that a Court of Appeal ought to be very slow indeed to interfere with the discretion of a trial Judge.” Ejiwunmi, JSC in Jonason Triangles Ltd. v. Charles Moh & Partners Ltd. (2002) 9 10 SC 163 at 164.”

17. The facts pleaded in the Statement of Defence form part of the counterclaim particularly when there is an indication that the facts in the Statement of Defence are repeated as facts in prove of the Counter-Claim. The process in question is at pages 87-100 of the record of appeal titled

“Amended Statement of Defence and Counter-Claim filed on the 3rd of June 2011.” The word “and” here is conjunctive and all the facts must be read conjunctively to properly place the issues joined before the Court. See the case of Pan Asian Ltd v. N.I.C.O.N. Ltd (1982) 9 SC page 1.

18. The learned trial Judge rightly found at page 116 of the record when he stated as follows:

“Whichever one looks at the application of the Defendant to the Counter-Claim, it is an intended ploy to waste the time of this Court which they have successfully done.”

19. The application of the Appellant seeking the lower Court’s order to set aside its ruling was a reckless and frivolous one. Issue one is hereby resolved against the Appellant.

Issue Two

Whether a striking out order of a process is a bar to subsequent filing of a similar process.

20. Learned counsel for the Appellant submitted that a Counter Claim struck out cannot be re-filed or relisted. He contended that the Counter-Claimant cannot re-file the old counter claim which was struck out but can only file a fresh action because a counter claim is a separate and distinct action. He referred to the case of Anoliefo Ent. Ltd v. U.T.B. Ltd (2001) F.W.L.R. (pt. 69) pg. 1335 at 1349, where the Court opined that:

“A counter claim is cross action, a fresh action completely distinct from the one commenced by the original Plaintiff.”

21. Learned counsel for the Appellant urged the Court to strike out the Amended Statement of Defence and Counter-Claim of the Respondent filed on 3/6/2011 for being incompetent. He urged the Court to resolve issue two in favour of the Appellant and allow the appeal.

22. Learned counsel for the Respondent submitted that the striking out order of the Amended Statement of Defence and Counter-Claim is not a bar to the right of the Respondent to re – file the process particularly when the Court ordered a re-filing of the appropriate amended statement of defence within 7 days. He contended that it is a matter that bothers on misjoinder of parties. The fact that the order of striking out preceded the order for refilling gives no right cognizable in law to the Appellant even if the striking out order relates to the suit and not to an amended process as in the instant case. He urged the Court to resolve issue two against the Appellant and dismiss the appeal as lacking in merit.

23. A counter claim is substantially a cross action and not merely a defence to the Plaintiff’s case. See the cases of Total Nigeria Plc. v. Morkah (2002) 9 NWLR (pt. 773) pg. 492 at 512 and Tayo Oyetibo & Co. v. Ajose-Adeogun (1996) 6 NWLR (pt. 452) pg. 29 at 37. The learned trial Judge at pages 110 – 111 of the record of appeal opined thus in his ruling:-

“Secondly, the final order relates to both the statement of defence and counter-claim. Paragraph 1 refers to the statement of defence while Paragraph 2 refers to counter and this Court specifically stated the paragraphs that should be included in the amendment. I do not see the basis for the joinder of the Attorney-General and Governor of Oyo State. The order of Court is not ambiguous in any way. Accordingly, the Amended Statement of Defence and Counter-Claim filed on 7th of January, 2011 is hereby struck out. The 3rd defendant/counter-claimant should file the appropriate Amended Statement of Defence and Counter-claim within seven (7) days from today.”

24. It is settled law that an order striking out a matter clearly preserves to the parties the right to re-litigate. See the cases of Oronti v. Onigbanjo (2004) 17 NWLR (pt. 903) pg. 601 at paras A – B; Ifeloju v. Kuku (1991) 5 NWLR (pt. 189) pg. 65 at 75 paras E – F and A. M. Soetan v. Total (Nig.) Ltd. (1972) 1 S. C. pg. 86.

25. As rightly stated by the Respondent’s counsel, the order of the learned trial Judge rightly preserves the right of the Respondent to re-file the Amended Statement of Defence and Counter-Claim that was struck out on the 31st of May, 2011. The striking out has nothing to do with incompetence but rather it bothered on the misjoinder of the parties. The Amended Statement of Defence and counter-claim re-filed by the Respondent pursuant to the order of the lower Court was proper and valid in law. Issue two is hereby resolved against the Appellant.

26. Finally the appeal is devoid of merit and it is hereby dismissed. The ruling of the lower Court in suit No. 1/784/2001 delivered on the 12th of December, 2011 is hereby affirmed. One hundred thousand naira (N100.000.00) cost is hereby awarded against the Appellant and in favour of the Respondent.

DONGBAN-MENSEM, J.C.A.

I agree with the lead Judgment prepared by my learned brother Modupe Fasanmi JCA. I have nothing useful to add.

OKORONKWO, J.C.A.

I have had the privilege of reading in draft the judgment just delivered by my lord Modupe Fasanmi J.C.A. I agree with the reasoning and conclusion in the judgment. I have nothing more to add.