Admiral Mike Akhigbe (Rtd.) & Ors V. Paulosa (Nig.) Limited & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

RHODES- VIVOUR, J.C.A.

This is an interlocutory appeal against the ruling of Hon. Justice I. U. Bello of the High Court of the Federal Capital Territory, Abuja; delivered on 14/11/02 in suit No: FCT/HC/CV/380/2002. It arose as follows:

The 1st respondent was the plaintiff in the court below where it claimed against the 2nd respondent and the appellants (the defendants) the sum of N629,000 being the amount due and payable to it for jobs executed for them at Asokoro, Abuja.

For a clearer picture, the defendants in the court below were in the following order:

I. Kost Associates

2. Admiral Mike Akhigbe
3. Anchorage Holdings Ltd.
4. Engineer Jude Bassey
5. Arc. Itoro Umoren

The 1st defendant on being served the originating processes filed its statement of defence on 23/5/02. It also filed a counterclaim on 7/6/02.

The defendants to the counter-claim were the 2nd, 3rd, 4th and 5th defendants. That is to say the 1st defendant in the original action sued his co-defendants, (i.e. the 2nd, 3rd, 4th and 5th) in the counter-claim, claiming:

1. The sum of N3,773,723:31 (three million seven hundred and seventy-three Naira, thirty-one Kobo) as Special Damages for his outstanding amount.
2. The sum of N5m (five million Naira) being general damages for breach of contract.
3. The sum of N3m (three million Naira) for conversion of his rented container, cost of his tools and equipment and for loss of use of the container and its contents.
4. Cost of the suit.

On being served the originating processes and the 1st defendant’s counter-claim, learned counsel for the 2nd, 3rd, 4th and 5th defendants entered conditional appearance on 30/9/02, and on the same day filed a motion on notice invoking the inherent jurisdiction of the court, seeking the following:

1. An order striking out the counter-claim filed by the 1st defendant against the 1st to 4th defendants.
2. An order striking out the names of the 3rd to 5th defendants who were unilaterally joined as parties to the suit herein by the 1st defendant/respondent.

The grounds for the application were that:

(a) the procedure for the filing of a counter-claim by a defendant against another defendant is not recognized under the rules of court, the unilateral joinder of the 3rd to 5th defendants as parties to the suit by the 1st defendant is patently irregular and void.

On 16/10/02, the learned trial Judge heard arguments on the motion, and in a very brief ruling delivered on 14/11/02 dismissed the application. The concluding part of the ruling reads:

“My view is more conclusion with the position of the respondent in their objection against the motion. It is lacking merit and for that reason, it is hereby not granted and accordingly dismissed …. ”

Dissatisfied with the ruling learned counsel for the 2nd, 3rd, 4th and 5th defendants filed a notice of appeal on 26/11/02. It contained a sole ground of appeal. The ground without its particulars reads as follows:

“The learned trial Judge erred in law and thereby wrongly held that the appellant’s application to strike out the counter-claim lacks merit.”