Grant of unproven counterclaim based on failure of principal claim


To the Supreme Court of Nigeria

Holden in Abuja

Friday, January 7, 2022

Before Their Lordships

Marie Ukaego Peter-Odili

Kudirat Motomori Olatokunbo Kekere-Ekun

Ejembi Eko

Mohamed Lawal Garba

Ibrahim Mohammed Musa Saulawa

Judges, Supreme Court



Mr. Olufemi Ayorinde Appellant


Chief Ayodele Kuforiji Respondent

(Lead Judgment rendered by Honorable Ejembi Eko, JSC)


In 1954, the three Kuforiji brothers, namely: SA Kuforiji, HF Kuforiji and HCO Kuforiji, jointly and as co-owners, signed a lease (“Exhibit B”). After valuable consideration, they ceded the land to the Foreign Mission Board of the Southern Baptist Convention (“The Baptist Mission”). Sometime in 1973, the unexpired terms of said lease were sold to the late Reverend (Dr) JT Ayorinde (“the appellant’s uncle”) by Chief Daniel Johnson Kuforiji and Chief Simeon Olujimi Kuforiji (a son of SA Kuforiji now deceased) for themselves and in the name of the Kuforiji family through a deed of transfer (“Exhibit D”). Following the sale to the appellant’s uncle, the Baptist Mission assigned the unexpired term of the leasehold interest in the land to the appellant’s uncle, in the form of a deed of assignment (Exhibit C). The appellant was at all times relevant to the case, living with his uncle from 1973 on this land. The appellant’s uncle died intestate without issue in 1977, while his wife also died in 1996.

Subsequently, the respondent entered the land one day after the burial of the appellant’s aunt-in-law, which resulted in the initiation of a lawsuit by the appellant against the respondent. This is the case of the appellant who, since the death of his uncle intestate, and the death of his aunt-in-law in 1996, the land has devolved to his extended family under Aboriginal laws and customs. The trial court denied all relief sought by the appellant, which gave rise to an appeal to the Court of Appeal. The Court of Appeal upheld the decision of the court of first instance. Dissatisfied with the decision, the Appellant has now appealed to the Supreme Court.

In the Supreme Court, the respondent filed a preliminary objection on the ground that the appellant’s supplemental amended notice of appeal lacks jurisdiction and should be struck out.

Questions to be determined

The following three questions were considered and decided by the Supreme Court:

1. “In view of the undisputed fact that the Appellant was a nephew of the late Reverend Dr. Ayorinde, the grantee of the land in dispute pursuant to Exhibit ‘D’ and who died intestate without leaving any surviving issue to the appellant’s exception, if the court below was correct in concluding that the appellant, who was in possession of the land, did not have standing to bring an action for trespass on behalf of other nephews and nieces of late Reverend Dr Ayorinde.

2. Did the Court of Appeal rightly hold that the Appellant did not prove a better title to the disputed ground, against the Respondent notwithstanding the probative value of exhibits B, C and D filed by the Appellant with respect to the question? according to the Respondent and his witness to the contrary, and thus dismissed the Appellant’s claim and allowed the Respondents’ counterclaim.

3. Did the Court of Appeal correctly hold that the defenses based on the law of prescription and on cowardice and acquiescence did not preclude the respondent’s counterclaim, given the overwhelming evidence and the combined provisions of section 16 of the Court of Appeal Act? , 1982, Section 222(a) of the Constitution of the Federal Republic of Nigeria 1979 and Section 16 of the Limitation Act Cap 16 of the Laws of Ogun State.


On the first issue, counsel for the Appellant argued that the lower court erred in deciding the issue of locus standi against the Appellant. The lawyer blamed the approach taken by the court and the conclusion it reached. He argued that the Appellant had based his claim on the inheritance and that he had not brought an action solely for himself, but as a representative – Section 49(1)(a)(3) of the Ogun State Estate Law Administration. He postulated that the standing of the Appellant and those he represented was beyond doubt. In response, counsel for the respondent argued that at trial the appellant claimed to have inherited under aboriginal law and custom, without leading evidence of aboriginal law and custom as required the law. Counsel further submitted that it is the Respondent who has standing to bring the counterclaim and has proved it. Counsel further argued that a plaintiff must prevail on the strength of its case and cannot rely on the weakness of the defendant’s case – KODILINYE v ODU (1935) 2 WACA 336.

On questions two and three, the appellant argued that the respondent did not have the locus standi to file the counterclaim on family land when he is not the sole survivor, and that bringing the counterclaim in a personal capacity rather than as a representative of the family, reinforces the point that the respondent did not have the locus standi to start even. The lawyer also argued that the defendant’s counterclaim, which was filed 23 years after the adverse possession, was caught by Sections 9 and 16 of the Ogun State Limitation Act, the provisions of which extinguished the defendant’s right to land. He further argued that the Exhibit D vendors were no strangers to the land in dispute and had the ability to pass ownership as family land under native law and custom. He argued that the Court of Appeal’s decision that the respondent proved better title was in error, relying on the authority o FORESTRY RESEARCH INSTITUTE OF NIGERIA v IA ENAFOGHIE GOLD (2007) 11 NWLR (Pt. 1044) 1.

Responding to the above submissions, counsel for the Respondent submitted that the Respondent has locus standi to pursue its counterclaim, because the legal principle of accrescendi juice The condominium rule is sufficiently banal not to justify any debate. Counsel argued that the Court of Appeal was correct in rejecting the defense of Laches and acquiescence based on ratios in IDUNDUN v OKUMAGBA (1976) 6-10 SC 48, because the Appellant did not properly integrate the defense into the framework of the case and did not specify the defense in his pleadings before the trial court. Counsel further argued that the respondent has clearly proven better title than the appellant who submitted Exhibits B, C and D which turned out not to be a good root of title, as the family counsel Kuforiji was a stranger to the land in dispute. He found that the defendant was able to show that the land in dispute belonged to SA Kuforiji, HFA Kuforiji and HCO Kuforiji, excluding the Kuforiji Family Council. The lawyer argued that the Court of Appeal was clearly correct in concluding that Section 49(1) of the Ogun State Estates Administration Act had no bearing on the case of the appellant, because the appellant specifically based his case on aboriginal law and custom which he failed to prove. He relied on BENDEL STATE v AIDEYAN (1989) 4 NWLR (Pt. 118) 646, in support of his position.

Judgment and justification of the Court

Before addressing the substantive issues, the Supreme Court considered the respondent’s preliminary objection challenging the jurisdiction of the appellant’s supplemental amended notice of appeal. Their Lordships held that the preliminary objection had not been filed in accordance with the due process of the Supreme Court. Therefore, the court dismissed it.

Turning to the substantive issues, the court considered the first issue and the arguments thereon, and concluded that locus standi refers to the ability of the plaintiff to bring an action in court to seek a determination of his civil rights against the defendant. The plaintiff’s locus standi does not depend on the success or merit of the case; all the plaintiff needs to show, either in his subpoena or in the statement of claim to demonstrate his locus standi to proceed with the case, is simply to establish that he has a justiciable dispute or reasonable cause of action. action against the defendant. The two lower courts seemed to have grasped the question of locus standi wrong, and both courts failed to read the statement of claim in its entirety. Plaintiff’s assertions that it was his uncle who put him in possession of the disputed land, built a poultry farm on it, and made physical improvements or improvements thereto which the defendant, in an act of self-determination, assistance and violence destroyed, constitutes a reasonable cause of action in favor of the Appellant, such as to confer on him the locus standi necessary to pursue the action against the Respondent. Neither in the pleadings nor in the evidence adduced was it ever explained how the defendant, Hezekiah’s son Christopher Olajide Kuforiji, became the successor in title to the first three owners of the land in dispute, or with d other children of Hezekiah Christopher Olajide Kuforiji. (deceased) and having the right to take possession of it.

Since the defendant did not prove the usufruct decreed in his favour, the two lower courts committed a serious error in having pronounced the usufruct in his favour, even in the face of material contradictions in this respect. Since the counterclaim is a separate and independent action, the counterclaimant must (likewise) succeed on the strength of its case, not on the weakness of its opponent’s case. The lower court, faced with the respondent’s inability to prove his right to effective enjoyment of the disputed land pronounced in his favour, should have dismissed the counterclaim.

In deciding questions two and three, the Supreme Court held that it is undisputed that the plaintiff was a nephew of the Reverend (Dr.) JT Ayorinde, the sub-tenant of room C. The administration of the Estate Cap 1 of the Laws of Ogun State, 1978 had been in effect since April 23, 1959 and at all material times the appellant’s uncle and his wife died intestate without issue. Table 3 of subsection (1) of Section 49 of the said Act was not considered at all by the lower courts. The parties were ad idem before the Court of First Instance that the Reverend (Dr) JT Ayorinde and his wife died intestate without issue, and also that they celebrated the Christian marriage by which their ab intestate was no longer governed by customary law but general law, including Administration of Estates Cap. 1 of Ogun State, 1978.

A nephew of the intestate deceased without issue, under the said provisions of the Statute, is entitled to the grant of administration where his (deceased) father was a brother of the intestate Page 233 of TRISTRAM & COOTE APPROVAL, 26TH EDITION. The Respondent/Counter-Applicant clearly does not belong to the same gender as the Appellant. He does not claim either through Reverend (Dr.) J.T. Ayorinde, nor as an intestate heir of Ayorinde. Between the Appellant and the Respondent, the former has more of a right to inherit or to obtain an administration concession with respect to the existing and subsisting lease of the disputed land, in particular in view of Exhibits B and C.

Call authorized.


Chief Bankole Falade with JM Nwadibia for the Appellant.

Oluseye Chukwura with FK Oyebamji for the Respondent.

Reported by Optimum Publishers Limited, publishers of the Nigerian Monthly Law Reports (NMLR)(An subsidiary of Babalakin & Co.)


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