Malcolm Olumolu V. Islamic Trust Of Nigeria (1996)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

By its Writ of Summons dated November 29, 1984 the respondent herein, then as plaintiff, sued the appellant who was the defendant, in the High Court of Kaduna State holden in Kaduna, for possession, damages for mesne profits and injunction. Appellant, among others, counterclaimed against the respondent in his Statement of Defence that:

“It be declare that the defendant’s Certificates of Occupancy No. 004755 of 4/8/78 and No. 003434 of 11/12/78 are still subsisting.”

The trial court (Coram S.U. Mohammed, C.J., as he then was, of blessed memory) after ordering pleadings and hearing the evidence of both parties, delivered its judgment in favour of the respondent to whom it accordingly granted only the reliefs for possession and injunction but not its claim for damages for trespass. For the appellant’s claim in his counterclaim that “the two certificates of occupancy issued by the Zaria Local Government are still valid and subsisting” on the other hand, it dismissed it.

The appellant’s appeal and the respondent’s cross-appeal against the decision of the trial court to the Court of Appeal sitting in Kaduna (hereinafter in the rest of this judgment referred to as the court below) were each allowed and dismissed respectively. In respect of the former, a retrial was accordingly ordered.

Being further dissatisfied with this decision, the appellant has appealed to this court on a Notice of Appeal containing two grounds.

The parties thereafter exchanged briefs of argument in accordance with the rules of court. The two issues formulated for our determination by the appellant, both of which the respondent has respectfully adopted, are:

1. Whether or not there was a valid counterclaim and whether or not the counterclaim was properly dismissed.
2. Whether or not the Court of Appeal rightly ordered a retrial in the circumstances of this case.

At the hearing of the appeal on 6th November, 1995, while the learned counsel for the appellant was present, learned counsel for the respondent was absent. That notwithstanding, since briefs had hitherto been filed and exchanged and there was proof of service of the hearing notice on the respondent, the appeal proceeded there and then to hearing. Learned counsel for the appellant M.O. Oluwole, Esq., after adopting his brief dated 22nd January, 1990 and explaining that he had nothing further to add thereto, asked that appellant’s appeal be allowed.

I shall now proceed to consider the two issues founded upon as appellant’s complaint in their order of sequence as follows:-

Issue 1:

There is no ground of appeal in support of this issue whose purport is whether or not there was a valid counterclaim and whether or not the counterclaim was properly dismissed. This is because, the only ground of appeal out of the two contained in the appellant’s Notice of Appeal dated the 14th day of June, 1988 from which this issue could possibly be distilled, namely ground one, states that –

“1. The learned Justices of the Court of Appeal erred and misdirected themselves in law in not giving judgment in favour of the appellant herein when the respondent herein did not file a defence to the counterclaim.”

Particulars of error and misdirection in law

(i) It is wrong to hold that the plaintiff at the High Court had joined issue with the defendant when the plaintiff did not file a reply to the counterclaim.