Whether A Voided Writ Of Summons On The Grounds Of Failure On The Part Of The Claimant Or His Legal Practitioner To Sign Same Invalidates A Counter Claim Filed Pursuant To The Voided Writ By Ndeori Deeka L. Esq.

1. Braithwaite v. Skye Bank (2013) 5 NWLR Pt 1346
2. Alfa v. Zakari (2010) ALL FWLR (Pt 515) 283
3. Ezenwa v. KSHMB (2011) 9 NWLR (Pt 1251)69

However, what has been in contention is the fate of other processes filed pursuant to a void writ of summons or any other originating process. For instance, a counter claim filed by the Defendant. Would the counter claim survive, or will it also go down the drain with the void writ of summons. There are two schools of thought on the fate of a counter claim filed pursuant to a void writ of summons. The first school of thought postulates that once a writ of summons is void, all other processes filed in the suit including a counter claim should equally be declared void, incompetent and consequently struck out. The view of this school of thought is based on the principle of law in the celebrated case of Macfoy v. U.A.C (1962) AC 152 where Lord Denning MR held thus; “Where an act is void then it is in law a nullity and every proceeding which is founded on it is incurably bad because you cannot put something on nothing and expect it to stay.” Also in support of this school of thought is the Court of Appeal decision in the case of Wakili v. Buba (2016) 13 NWLR Pt 1529 where the Court of Appeal held thus; “if an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without much ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there, it will collapse. See also the cases of

1. Fatoki v. Baruwa (2012) 14 NWLR (pt 1319)
2. Okafor v. Nweke (2007) 10 NWLR (Pt 1043)
3. Garuba v. K.I.C Ltd (2005) 5 NWLR (pt. 917) 160

Proponents of this school of thought are of the view that a counter claim is not an independent suit but an appendage to the statement of defence which are processes filed consequent upon the filing of the writ of summons and statement of claim and should suffer the same fate of the incompetent writ. And most importantly, that the cases and judicial authorities that have laid down the principle that a counter claim is an independent action which is maintainable despite striking out the originating process is where the writ of summons is not defective, void or incompetent. That is, where the suit is struck out for reasons other than it was void ab initio. The second school of thought is of the opinion that a counter claim is separate and distinct from the main claim of the claimant which has been found to be incompetent. That being a separate and independent suit, it survives for adjudication where the originating suit is void and incompetent. In Akinbade v. Babatunde (2018) 7 NWLR Pt 1618, the Supreme Court supported the above position when it held thus; “a counter-claim is a cross action and where the plaintiff fails in proving his claim, the Defendant on proving his counter-claim may succeed (Emphasis mine)” See also the cases of;

1. Ladunni v. Wema Bank Ltd (2011) 4 NWLR (Pt 1236)
2. Okolo v. Union Bank of Nigeria Ltd (1998) 2 NWLR (Pt.539) 618 at 645

The arguments generated by both schools of thought generates a very fine line of distinction between the fate of a counter-claim where the claimant’s claim/suit fails or is discontinued for reasons other than its writ of summons is incompetent and where the Claimant’s claim is abruptly brought to an end on the ground of an incompetent writ of summons. While there is no controversy in the first scenario because the counter-claim would be heard on the merit on the age long principle that a counter-claim is separate and independent of the main claim of the Claimant, the later or second scenario is not without controversy in that there appears to be two conflicting decisions of the Court of Appeal on it. In the unreported case of Dimacon Industries Ltd v. Mr. Olayiwola Ajayi-Bembe Appeal No: CA/L/421/2013 delivered on the 19^th May 2017, Biobele Abraham Georgewill J.C.A who delivered the leading judgment had this to say; ““It follows therefore, by the nature of a claim and counter claim being independent of each other there cannot, in my view be any reciprocal incompetency or even merit between a claim and a counter claim. The arguments of the learned Appellant’s counsel would if allowed open a new vista never before contemplated by the law on the relationship between a claim and a counter claim. It would and could be stretched to the point of absurdity and thus become open ended where all and every incompetence affecting a claim would also automatically affect a counter claim as in the instant Appeal where the competent while the clam was improperly signed and thus incompetent”. But in a more recent decision of the Court of Appeal Lagos Division delivered on 12^th January, 2018 in Aberuagba & Anor v. Oyekan & Ors Appeal No CA/L/647/2012, Hamma Akawu Barka JCA held thus: “It has been argued in the instant case where a purported writ and statement of claim was filed, consequent upon which the counter claim was filed and the writ and statement of claim having been conclusively adjudged as incompetent by reason of the wrong signing of the processes, the counter claim which thought came into existence in response to the void writ by its very nature of being a process independent of the writ filed, is said to have a difference existence from the void writ. The other contention is that the writ of summons and the statement of claim being void, the counter claim filed alongside the void originating process is similarly void having been predicated upon a void process”. His Lordship went further to state that: “I believe that Adumein JCA in the case of Integrated Merchants Limited vs Osun State Government & Anor (2011) LPELR 8803 (CA) faced with a similar situation, appreciation, appreciated the situation by saying that: “In ordinary civil suits, a writ of summons is the foundation or substratum of a law suit where it is required to be commenced by a writ of summons. It is on the writ of summons that all other processes: Statement of claim, statement of defence, counter claim, reply, motions are all interlocutory processes are laid.  Where the writ is defective, incurably defective, the foundation of the suit is gone and there is nothing upon which other processes in the suit can stand”. Continuing at page 39, Barka JCA Stressed “The learned counsel for The appellant to my mind is on the right footing when he asserted the factual and  legal impossibility of a person purporting to file defence/counter claim or any process whatsoever to a claim that is void cannot have any support in law.” Mojeed Adekunle Owoade JCA in a concurring judgement at pages 42 – 44 put it better still thus: “I join my learned brother to answer that question in the negative. My reason for doing so is that in the plethora of case including Okafor v. Nweke (2007) 10 NWLR (Pt 1043) Eze vs Okechkwu (2015) 10 NWLR (Pt 1467) 307 at 320 and SLB consortium Ltd vs. NNPC (2011) 9 NWLR (Pt. 1252) 317 the Apex Court emphasized that the defect created in an originating process which is not signed by a legal practitioner goes to jurisdiction. If it does, then the counter claim which arises as a result of the plaintiff’s claim cannot stand because as a matter of action, the counter claim is dependant on the plaintiff’s claim.  A Counter claim on the other hand is said to be a separate and independent claim, not as a matter of action but in relation to proof and distinct treatment in adjudication. A counter claim is a separate and independent claim in the same action with the plaintiff’s claim. Thus the above rule of law which treats the counter claim as a separate and distinct claim does not save the counter claim when the Court is deprived of jurisdiction to entertain the main claim. See also the cases of Ugbomah vs Allanah & Ors (2018) LPELR 44832 (CA) decided on 8^th June, 2018 and united Bank v Kay Plastics (Nig) Ltd & Anor (2018) LPELR – 44977 (CA) decided on 11^th July, 2018. Faced by two sets of decisions of the Court of Appeal, the law allows a Court of first instance or a legal scholar to follow the most recent decision of the appellant Court where the facts of a particular case are on all fours with the two conflicting decisions of the Appellant Court. It is therefore my humble submission that as at today, the 5^th day of April, 2019, the position of the law is that once a writ of summons is adjudged to be void or incurably defective, all other processes including a counter claim filed pursuant to it is accordingly void, incurably defective and of no effect. To be on the safe side, lawyers, most especially defendants with a counter claim are advised to pay a keen attention to any writ of summons served upon them in order to notice any fundamental defect that could render the writ and the entire suit null and void. This will go a long way in preventing unnecessary waste of time and resources.]]>