Introduction
Originating summons proceedings differ from actions commenced by writ of summons in several important respects. One of the questions that may arise is how a respondent who wishes to assert a claim against the applicant should present that claim within the originating summons procedure.
The Court of Appeal considered this issue in Ituen v. Speaker, Akwa Ibom State House of Assembly & Ors (2021) LPELR-53318(CA). The case addressed whether a respondent may incorporate a counterclaim in a counter-affidavit filed in response to an affidavit supporting an originating summons.
The Issue Before the Court
The appellant challenged the propriety of a counterclaim contained in the 1st respondent’s counter-affidavit. The argument was that embedding the counterclaim in the counter-affidavit amounted to an abuse of court process.
The question before the Court of Appeal was therefore whether a counterclaim could properly be presented through a counter-affidavit in proceedings commenced by originating summons.
The Court of Appeal’s Position
The Court of Appeal rejected the argument that the inclusion of the counterclaim in the counter-affidavit was, by itself, an abuse of court process.
Justice Mojeed Adekunle Owoade, JCA, explained the relationship between affidavits in originating summons proceedings and pleadings in actions commenced by writ of summons:
“The counter-affidavit in the originating summons procedure is synonymous with the statement of defence in pleadings under the writ of summons procedure. It follows logically that in the originating summons procedure, the counterclaim has to be contained in the counter-affidavit as a counterclaim is contained in the statement of defence in the writ of summons procedure.”
The Court’s reasoning was based on the procedural role performed by affidavits in originating summons proceedings. In such proceedings, the affidavit filed by the applicant sets out the facts relied upon in support of the originating summons, while the respondent’s counter-affidavit sets out the facts relied upon in opposition.
Accordingly, where a respondent seeks to assert a counterclaim within the originating summons procedure, the Court recognised that the counter-affidavit may serve as the procedural vehicle through which the factual basis of that counterclaim is presented.
A Counterclaim Is a Separate and Independent Claim
A counterclaim is not merely a defence to the applicant’s claim. It is a claim by the respondent against the applicant and may require the court to determine issues independently of the outcome of the original claim.
This distinction is important because the failure or dismissal of the main claim does not necessarily dispose of a properly constituted counterclaim. Where a counterclaim is before the court, it remains a separate claim requiring determination on its own merits.
The Importance of Clearly Presenting the Counterclaim
Although Ituen v. Speaker, Akwa Ibom State House of Assembly & Ors recognised the procedural use of a counter-affidavit for presenting a counterclaim in originating summons proceedings, the respondent must still make the nature of the counterclaim sufficiently clear.
A party seeking affirmative relief against an applicant should clearly identify:
- the facts relied upon in support of the counterclaim;
- the reliefs being sought; and
- the basis upon which the court is asked to grant those reliefs.
The procedural form adopted should enable both the opposing party and the court to clearly understand that the respondent is not merely defending the originating summons but is also seeking substantive relief.
What the Decision Means for Originating Summons Proceedings
The decision provides guidance on the procedural relationship between originating summons proceedings and actions commenced by writ of summons.
In actions commenced by writ, pleadings ordinarily define the issues between the parties, with a statement of defence serving as the document through which a defendant may also present a counterclaim. In originating summons proceedings, affidavits perform a central role in placing the relevant facts before the court.
The Court of Appeal’s decision recognises this procedural difference and explains why a counterclaim may be incorporated within a counter-affidavit in an appropriate originating summons proceeding.
Practical Considerations for Legal Practitioners
A respondent considering a counterclaim in originating summons proceedings should carefully distinguish between a defence to the applicant’s claim and an independent claim for affirmative relief.
Where a counterclaim is intended, the claim should be clearly formulated and supported by the necessary facts and evidence. The reliefs sought should also be expressly identified so that the applicant has a proper opportunity to respond.
Parties should also bear in mind that procedural questions may depend on the particular court rules applicable to the proceedings and the nature of the issues in dispute.
Conclusion
The Court of Appeal’s decision in Ituen v. Speaker, Akwa Ibom State House of Assembly & Ors (2021) LPELR-53318(CA) provides important guidance on the presentation of counterclaims in originating summons proceedings.
The decision recognises that, because a counter-affidavit performs a procedural role comparable to a statement of defence within the originating summons procedure, a counterclaim may be incorporated within it. However, the counterclaim must still be sufficiently clear and properly formulated as an independent claim for relief.
Understanding this distinction can help parties and legal practitioners properly structure their claims and responses when proceedings are commenced by originating summons.
Disclaimer
This article is for general informational purposes only and does not constitute legal advice. The appropriate procedure may depend on the facts of a particular case and the rules applicable to the court in which the proceedings are pending. For advice relating to a specific matter, consult a qualified legal practitioner.
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