IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

4TH DAY OF JUNE, 2026                                         SUIT NO: NICN/CA/40/2022

 

BETWEEN

Professor Frank Nwokedi Morah …………………………………………………claimant

AND

1.         University of Calabar 

2.         Prof. Florence Obi                                        

            (Vice Chancellor, UNICAL)                                                                                 

3.         ESV. Ededem Henshaw                                          

            (Ag; Head of Estate Unit     

            University of Calabar)  …………………………………………………...defendants

JUDGMENT.

  1. Vide a general form of complaint dated 23rd day  of September, 2022 and filed on the 27th day of September, 2022, accompanied by statement of facts, witness statement on oath, list of witnesses, list of documents and photocopies of documents to be tendered as exhibits, the claimant vide paragraph 17, of the statement of facts the claimant claimed against the defendants as follows:-
    1. A DECLARATION that the Claimant by virtue of his employment as a Senior Academic Staff of the 1st Defendant whose relationship is governed by the University of Calabar Act and Senior Staff Condition of Service is entitled to his salaries, wages, accommodation and medical care (himself and family and other fringe benefits until his retirement)
    2. A DECLARATION that the so-called University Housing Policy of 2019 was illegal, null and void as it was contrary to the Senior Staff Conditions of Service (manual) which was not served on the Claimant nor his consent sought as provided for in Section 5 of the Senior Staff manual before it was made or adopted.
    3. A DECLARATION that by virtues of the Conditions of Service appurtenant to the UNICAL Act. The Applicant who was billed to retire peacefully from services of the 1st Defendant was entitled to his terminal benefits, right to vacate his quarters of QB4 UNICAL Staff Quarters was entitled to freedom to do so peaceably without being harassed violently or threatened.
    4. A DECLARATION that it was wrongful, unconstitutional and resort to self-help the attempted use of force to eject the Applicant’s family and properties on the 8/9/2022 from his quarters at Plot QB4 UNICAL Staff Quarters by the 3rd Defendant on the Orders of the 2nd Defendant.
    5. A DECLARATION that the attempted and violent incursion into the premises of the Claimant by the 3rd Defendant and his team on 8/9/22 without any justification or lawful excuse and purported allocation of his quarters whilst he is hospitalized was cruel, inhuman, unlawful and a violation of the rule of law and unwholesome act amounted to trespass to home of the Claimant.
    6. AN ORDER for interlocutory injunction restraining the Defendants on record, their servants, agents and hirelings from further acts of trespass, use of force or men to break in and forcibly take over his home when his family and properties are still intact and he is stranded in the hospital without his salaries, pension or gratuity paid.
    7. AN ORDER of mandatory injunction restraining the 2nd and 3rd Defendant from allocating or assigning his quarters to any other person pending hearing and determination of this suit.
    8. For the wrongful and forceful attempt to seize and takeover Claimant quarters known as QB4 UNICAL quarters on the 8/9/22 the Claimant is entitled to N20,000,000.00 (Twenty Million Naira) only damages against the Defendants jointly and severally.
    9. The Claimant claims the sum of N5,000,000.00 (Five Million Naira) only damages for trespass against the 2nd and 3rd Defendants for maliciously allocating without his knowledge and (particularly when they knew he was struggling to get through his retirement procedures) and attempted forceful takeover of his quarters at Plot QB4.
  2. Upon being served with the general form of complaint, the Defendants on 6/6/2023, filed their statement of defence, wherein they incorporated Counter Claim. in the counter-claim, the defendants counter claimants sought against the claimant defendant to counter claim for the following Reliefs. They are:-
    1. A DECLARATION that the 1st Defendant/Claimant to Counter-Claim is entitled to take over possession of House QB4 from the Claimant/Defendant to Counter-Claim in accordance with its extant laws and policies.
    2. A DECLARATION that the 1st Defendant is entitled to be paid the sum of ?230,000.00 (Two Hundred and Thirty Thousand Naira) only being income for the House QB4 which possession is held over by the Claimant/Defendant to Counter-Claim.
    3. AND ORDER that the Claimant/Defendant to Counter-Claim vacates House QB4 of the 1st Defendant quarters.
    4. AN ORDER for Claimant/Defendant to Counter-Claim to pay to the Defendant/Claimant to Counter-Claim the sum ?230,000.00 being income or penalty for the house QB4 of the 1st Defendant staff quarters being held over.
    5. AN ORDER compelling the Claimant/Defendant to Counter-Claim to pay the Defendant/Claimant to Counter-Claim the sum of N5,000,000.00 as general damages. 
  3. On 27/9/2022, the claimant filed motion on notice along with the general form of complaint. The motion on notice was brought pursuant to Order 17 rule 1(1), Rule A-12 (1-2) Rule B-14 ( (1, 2, 3, 4, 5, 8 (1) of the National Industrial Court of Nigeria   (Civil Procedure) Rules 2017.  The motion is praying for:-
    1. An order of interlocutory injunction, restraining the defendants/respondents by themselves their servants, agents, privies foot soldiers or hireling or from using a mass of men or force of men to forcibly break into claimant/applicant quarters at QB4, university staff quarters, Calabar occupied by the applicant and his children and forcibly taking over the same whilst this suit instituted by the claimant/applicant is pending gearing and determination by this court.
    2. An order for stay of all actions as contemplated by the defendants as per their letter of ejection dated the 7th February 2022, and mandatory injunction restraining the 3rd defendant from assigning or allocating claimant’s quarters constituted in the bungalow to any other person or persons or from using their servants, agents and hiring to break in and eject the applicant and his family therefrom.
  4. On 18/10/2022, the counsel for the claimant/applicant argued the motion on notice for interlocutory injunction. On 8/11/2022, the court delivered its ruling granting the application for interlocutory injunction. The success of the application was made subject to the claimant prosecuting his case diligently.
  5. However, since the grant of the application for interlocutory application, the claimant failed and refused to appear in court to testify in proof of his case since he was the only witness listed to testify. Consequently, on 6/6/2024, the court refused oral application by counsel for the claimant to have the matter adjourned sine die and struck out the claimant’s suit for lack of diligent prosecution and ordered the defendants to proceeds to prove their counter claim.
  6. On 22/1/2025, the 3rd defendant testified in proof of the counter claimant as CCW1. CCW1 adopted his witness statement on oath as his evidence in this case and tendered in evidence. The 16 documents listed in the list of documents were admitted in evidence. At the end of evidence in chief. The case was adjourned to 19/2/2025, for cross examination. 
  7. On 19/2/2025, when the matter came up for cross examination of CCW1, the claimant and his counsel were not in court. Upon the oral application of the counsel for the defendants/counter claimants, CCW1 was discharged and the matter was adjourned for adoption of final written address. On 21/4/2026, counsel for the defendants/counter claimants adopted the final written address of the defendants/counter claimants and urged the court to grant the reliefs in the counter claim.
  8. A resume of the facts giving rise to this suit are that, the Claimant/defendant to counter claim, retired from the services of the 1st Defendant/counter claimant on 23/3/2021 and ever since his retirement, the Claimant/defendant to counter claim refused to vacate the official accommodation allocated to him while in service, which is situate and located at House QB4 of the University of Calabar Staff Quarters. The refusal to vacate the accommodation was said to be in violation of Section 1.1.4(1) of University of Calabar Housing/Hostel policy manual.
  9. Following the Claimant/defendant to counter claim retirement from service of the 1st Defendant/counter claimant, a letter was written to the claimant defendant to counter claim to vacate the House No. QB4 University of Calabar Staff Quarters, which had been allocated to another serving Professor. The Claimant/defendant to counter claim instead of doing the needful by vacating the accommodation, rather he instituted this action against the Defendants/counter claimants, thereby depriving the 1st defendant/counter claimant of the use of its property.

THE SUBMISSION OF THE DEFENDANTS COUNTER CLAIMANTS:

  1. Jonas O. Abuor, Esq; counsel for the defendants/counter claimants adopted the final written address of the defendants/counter claimants as his argument in this suit. In the final written address, a single issue was formulated for determination, to wit:-

Whether the Claimant has made out a case to be entitled to the Reliefs sought in this suit. And whether the Defendants/Counter Claimants have successfully proven their Counter-Claim against the Claimant to be entitled to the Reliefs sought in the Counter-Claim.

  1. In arguing the sole issue counsel submitted that the defendans/counter claimants have by the facts and evidence adduced before thew court proved entitlement to grant of their counter claim, as the Claimant/defendant to counter claim has failed to defend the case against him in the counter claim. 
  2. Counsel submitted that the Claimant/defendant to counter claim commenced this suit by a General Form of Complaint filed on 29/9/2022 accompanied by a Statement of facts, List of witnesses, a Written Statement on Oath of Professor Frank Nwokedi Morah (the Lone Witness), List of Documents and annexed thereto 8 (eight) documents. Upon being served with the Complaint, the Defendants filed their Statement of Defence on 6/6/2023 out of time. On 29/11/2023 the court deemed the Defendants/counter claimants defence as properly filed and served.
  3. Counsel submitted that from 8/2/24 when this case came up for hearing, the Claimant failed to attend court and open his case and after several adjournments, the Defendants’ counsel prayed this Honourable Court to invoke Order 38 Rule 3 to foreclose the Claimant, strike out his case and grant the Defendants leave to prove their Counter Claim and the court granted the Application, struck out  the Claimant’s case for want of diligent prosecution and granted leave to the Defendants to prove their Counter Claim and the case was then adjourned to 23/10/24 for continuation of hearing.
  4. On 22/1/2025, the defendants/counter claimants’ lone witness, the 3rd Defendant (ESV. Ededem Henshaw, Ag Head of Estate Unit), testified in proof of the counter claim as CCW1. On 19/2/25, when the case came up for cross examination of CCW1, the Claimant/defendant to counter claim and his counsel failed to attend court despite being served with hearing notice. And on the application of the Defendant’s counsel, the Claimant/defendant to counter claim was foreclosed from cross examination of CCW1 and the matter was adjourned to 10/4/22 for adoption of Final Written Addresses.
  5. Counsel submitted that courts have the inherent vires or power to strike out or dismiss a case for want of diligent prosecution, upon application or suo motu without even waiting for an application to be made. In support of this contention counsel relied on the cases of MMUODILI V. ONWUBA (2021) 14 NWLR (PT. 1796) 211, ABAH V. MONDAY (2015) 14 NWLR (PT. 1480) 569; NIGERIAN NAVY V. LABINJO (2012) 17 NWLR (PT. 1328).
  6. According to counsel the condition precedent which must exist before court can exercise its power to strike out a suit for want of diligent prosecution, is that the case “must have been fixed for hearing”. In the instant case, the matter was adjourned several times for hearing and for the Claimant to prove his case and subsequently for the Claimant’s Counsel to cross examine but to no avail. In support of this submission reliance was placed on the cases of P.M.B. LTD. V. V.T.C. LTD. (2007) 3 NWLR (PT. 1021) 339; STATOIL NIG. LTD. V. INDUCON NIG. LTD. (2018) 9 NWLR (PT. 1625) 586; (2018) LPELR-44387 (SC). 
  7. Counsel further submitted that in the instant case the Claimant/defendant to counter claim failed woefully to exercise diligence in the prosecution of his case. The Claimant having failed to prosecute his case diligently, this Honourable Court was right in invoking Order 38 Rule 3 of the Rules of this court as well as its inherent powers in striking out the Claimant’s case. Consequently, the Claimant’s case having been struck- out, all his reliefs, automatically, stood struck out.
  8. Following striking out of claimant’s case, the defendants/counter claimants proceeded to prove their counter claim. The 3rd defendant/counter claimant testified in proof of the counter claim by adopting his witness statement on oath and exhibits 1 – 13, as listed serially on the list of documents which accompanied the Defendants/Counter claimants’ Statement of Defence. 
  9. Counsel submitted that the defendants counter claimants having proved their counter claim by their uncontroverted evidence as shown in the adopted written statement on Oath as well as all the documents admitted in evidence and marked as exhibits 1-13, are entitled to judgment and all the reliefs sought in the Counter-Claim.
  10. Counsel further submitted that it is trite law that a counter-claim is not merely a defence to the Plaintiff’s claim. It is an independent action and not part of the original action, although for convenience, the two are tried together. In support of this proposition reliance was placed on the cases of TYONEX (NIG) LTD. V. PFIZER LTD. (2020) 1 NWLR (PT. 1704) P. 125 AT 161 PARA D-H, PER ALLGIE JSC; LOKPOBIRI V. OGOLA (2016) 3 NWLR (PT. 1499) P. 328 AT 387 PARA B-C, PER ARIWOOLA JSC; ESUWOYE V. BOSERE (2017) 1 NWLR (PT. 1546) P. 256 AT 336 PARA E-F, PER PETER-ODILI JSC. MEKA-AGU, JSC.
  11. Counsel also submitted that it is trite law that where the Claimant/defendant to counter claim fails to file a defence to the Counter-Claim, the Defendants/claimants to counter claim on moving the trial court, would be entitled to judgment. And where the claim is one for unliquidated damages, the trial court, after hearing the Defendant on the issue of damages is entitled to make an award. To support this contention counsel relied on the case of DABIU V. KOLO (1993) 9 NWLR (PT. 317) P. 204 AT 281 PARA A-B.
  12. Counsel also submitted that where the claim in the counter-claim is for a declaratory right the Defendant will still have to satisfy the court that he is entitled to the declaration sought regardless of the failure of the Plaintiff to file a defence. In support of this view counsel relied on the case of OGBONNA V. A.G. IMO STATE (Supra).
  13. According to counsel in this case the Defendants/Counter Claimants even when the Claimant failed to file a defence to the counter claim, Defendants/Counter Claimants diligently proved their counter-claim by calling their lone witness, tendered 13 documents which were admitted in evidence and marked as exhibits in prove of their counter-claim. The said exhibits showed clearly that the Claimant had retired from the service of the 1st Defendant and was unlawfully still holding back possession of the 1st Defendant’s House QB4 in the Quarters and the Defendants are losing income from Rent, having allocated the said House to another Professor who could not take possession due to the refusal of the Claimant to vacate same deliver possession to the Defendants/Counter Claimants.
  14. Counsel further argued that the Defendants/Counter Claimants have also proved that by the Condition of Service, the Claimant was not entitled to accommodation as of right but as a mere privilege. Again, the Defendants/Counter Claimants have also showed that the Claimant being a Professor was not an indigent person but a person of means having worked for the Defendant as well as Cross River University of Technology, CRUTECH for over 40 years.
  15. Counsel insisted that the Defendants/Counter Claimants, have proven their counter-claim and are entitled to all the reliefs being sought in their Counter Claim. as the Claimant did not only fail or refuse or neglected to file a defence to the Counter-Claim, but also failed to cross examine CCW1 and the Supreme Court has held in the case of OFORLETE V. STATE (2000) 12 NWLR (PT. 681) P. 415 AT 436 PARA B-C, PER ACHIKE, JSC that:

“Where a witness is unchallenged under cross-examination, the court is not only entitled to act on or accept such evidence, but it is in fact bound to do so provided that such evidence by its very nature is not incredible. Thus, where the adversary fails to cross examine a witness upon a particular matter, the implication is that he accepts the truth of that matter as led in evidence”.

  1. Counsel urged the court to accept the truth of the uncontroverted evidence of the Defendants/Counter Claimants’ counter claim and enter judgment for Defendants/Counter Claimants and grant all the reliefs sought in Counter-Claim.
  2. In concluding his submission, counsel insisted that the Claimant failed to prove his case against the Defendants, the case having been struck out on 6/6/2024 for want of diligent prosecution pursuant to Order 38 Rule 3 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017. Consequently, the Defendants/Counter Claimants by leave of Court, having successfully proven their Counter-Claim against the Claimant/Defendant are entitled to Judgment to be entered in their favour and all the reliefs in the Counter-Claim granted. Counsel urged the court to enter judgment accordingly and grant all the reliefs sought by the Defendants/Counter Claimants in their Counter Claim.

COURT’S DECISION ON COUNTER CLAIM:

  1. I have considered the processes filed in this suit the evidence adduced by the counter claimants through their lone witness, as well as the written and oral submission of counsel for the defendants/counter claimants in support of the counter claim.
  2. The claimant who initiated this action and was represented by counsel abruptly decided to abandoned his case as he refused to appear to prove his claim before the court. His counsel equally decided to abandoned the case of the claimant by refusal to continue to appear for the prosecution of the case of the claimant despite having been served with hearing notices. The claimant defendant to counter claim equally decided not to defend the counter claim as he failed and neglected to file defence to the counter claim, this means that the counter claim was not challenged or controverted by the claimant defendant to counter claim. Therefore, the counter claim was undefended.
  3. However, due to the nature of the reliefs being sought in the counter claim the defendants counter claimants are by law required to succeed by minimal proof.
  4. It is trite that a counter-claim made in a suit or action is a separate and independent action from the main action in which it was made. For the purposes of determination, the counter-claimant becomes the claimant/plaintiff whilst the party against whom the counter- claim is made becomes the defendant. see Tourist Co. (Nig.) Ltd. v. Neo Vista Prop. Ltd. (2022) 15 NWLR (Pt. 1853) 317.
  5. Therefore, being an independent action, it must be proved on the balance of probability. It needs not relate to or be in anyway connected with the claimant/plaintiff’s claim or raised out of the same transaction. It is not even analogous to the claimant/plaintiff’s claim. It need not be an action of the same nature as the original claim. this is because, Nigerian adjectival law requires that it must be filed separately. The separate and independent nature of a counter-claim is borne out from the fact that it allows the defendant to maintain an action against the claimant/plaintiff as profitably as in a separate suit. It is a weapon of defence which enables the defendant to enforce a claim against the claimant/plaintiff as effectually as an independent action. As a matter of law, a counter-claim is a cross action with its separate pleadings, judgments and costs. The fate of a counter-claim being an independent action does not depend upon the outcome of the claimant/plaintiff’s claim. see Abe v. Damawa (2023) 3 NWLR (Pt. 1871) 335
  6. A counter-claim made by a defendant in an action is for the purposes of determination of a separate, independent and distinct action on its own from the action in which it was brought or made and neither of the two claims depend on the other for its success. Each has to be proved by credible evidence since none is a defence to the other. The counter-claim is called a cross-action. In that regard, a defendant in an action who makes a counter-claim therein becomes the plaintiff in the counter-claim and the plaintiff in the main action becomes the defendant for the purpose of determination of the right claimed in the counter-claim. Just like the claimant/plaintiff in the main action, the claimant/plaintiff in the counter-claim bears the initial burden of proof of his counter-claim as provided for in sections 131, 132 and 133(1) of the Evidence Act, 2011. See Onwuakpa v. Onyeama (2022) 17 NWLR (Pt. 1858) 97.
  7. From the facts and evidence before the court, there is no dispute that the claimant defendant to counter claim retired from the services of the 1st defendant counter claimant in 2021. The claimant defendant to counter claim decided to continues to occupy the official accommodation allocated to him while he was in service. Consequently, the defendants/counter claimants served the claimant defendant to counter claim with a notice to vacate the official quarters and hand over vacant possession to the 1st defendant/counter claimant. The defendants counter claimants asserted that the refusal of the claimant defendant to counter claim to continues in occupation of the official accommodation despite retirement from service has deprived the defendants/counter claimants of the revenue accruable from the officer to which the house in question was allocated to.
  8. I am satisfied the evidence before the court and the exhibits tendered and admitted in evidence have clearly established that the refusal of the claimant defendant to counter claim to vacate the official house allocated to him while in service after his retirement from the service of the 1st defendant has deprived the 1st defendant of the rent accruable from the said house. In NWANA V F.C.D.A. (2007) 11 NWLR (Pt.1044) 59, it was held that a servant/employee is only entitled to retain accommodation while in service the moment his employment ceased he is obliged to hand over the official accommodation back to his employer. 
  9. In view of the foregoing, I have no hesitation in coming to the conclusion that the claimant has proved entitlement to the counter claim
  10. For avoidance of doubt the order of the court is as follows:-
  11. A DECLARATION is hereby grated that the 1st Defendant/Claimant to Counter-Claim is entitled to take over possession of House QB4 from the Claimant/Defendant to Counter-Claim in accordance with its extant laws and policies.
  12. A DECLARATION is hereby granted that the 1st Defendant is entitled to be paid the sum of ?230,000.00 (Two Hundred and Thirty Thousand Naira) only being income for the House QB4 which possession is held over by the Claimant/Defendant to Counter-Claim.
  13. AN ORDER is hereby made directing the Claimant/Defendant to Counter-Claim to vacates House QB4 of the 1st Defendant quarters.
  14. AN ORDER is hereby granted for Claimant/Defendant to Counter-Claim to pay to the Defendant/Claimant to Counter-Claim the sum ?230,000.00 being income or penalty for the house QB4 of the 1st Defendant staff quarters being held over.
  15. Relief 5 fails same is hereby refused as the grant of the said order will amount to double compensation. 
  16. The defendants/counter claimants are entitled to cost which I assessed in the sum of N500,00.00 (Five Hundred Thousand Naira, only as cost payable by the claimant/defendant to counter claim to the defendants’ counter claimants.
  17. This judgment is with immediate effect. 
  18. Judgment is hereby entered accordingly.

 

 

 

Sanusi Kado,

Judge

REPRESENTATION:

Claimant/defendant to counter claim absent and not represented by counsel.

Jonas O. Abuor, Esq; for the defendants/counter claimants appearing with A. N. Ekumankama, Esq; and Agnes Attrogor, Esq;