What counterclaim means
A counterclaim is a claim by the defendant against the claimant, brought in the same proceedings.
Rather than starting a separate action, the defendant raises their own claim in the defence, and the court decides both together.
The important feature is that it is treated as a separate action for most purposes. It stands on its own footing. It can exceed the amount of the original claim. It requires its own pleading of the facts and the relief sought. And it survives the discontinuance of the original claim, so a claimant who withdraws does not thereby dispose of the counterclaim against them.
That last point catches claimants out. A claimant who realises their case is weak and discontinues finds that the defendant's counterclaim continues, and they are now defending.
A counterclaim is distinct from set-off. Set-off is a defence that reduces or extinguishes the claim. A counterclaim is an independent claim decided alongside.
How it is used
A defendant with their own grievance arising from the same relationship should consider a counterclaim rather than a separate action.
The advantages are practical. One set of proceedings, one court, one set of evidence about the same facts, and the two claims decided together with the net result determined at the end.
It is pleaded in the statement of defence, in a section headed as a counterclaim, setting out the facts relied on and the relief sought, in the same way a statement of claim would.
The claimant then files a reply and a defence to the counterclaim.
The practical questions before bringing one are whether the claim is worth pursuing on its own merits, whether the court has jurisdiction over it, and whether it is within the limitation period.
That last one matters, because a counterclaim is subject to limitation like any other claim. A defendant with a stale claim cannot revive it simply because they have been sued.
And the cost consequence should be considered. A counterclaim expands the proceedings, adds evidence and lengthens the trial, which in a Nigerian court means real delay.
Key features
- A claim by the defendant against the claimant in the same proceedings
- Treated as a separate action for most purposes
- Can exceed the amount of the original claim
- Survives discontinuance of the original claim
- Pleaded in the statement of defence with facts and relief
- Subject to limitation and jurisdiction like any other claim
How this works in Nigeria
The tactical use of counterclaims deserves honest treatment, because it is common.
A defendant with no real defence to a debt claim raises a counterclaim alleging poor performance, defects or losses, which expands the case, adds evidence and delays judgment. In a system where delay favours whoever holds the money, that is an effective tactic.
A claimant facing one should not simply resist it. The practical responses are to apply for summary judgment on the claim where the debt is undisputed, to seek an order that the counterclaim not delay judgment on the claim where they are genuinely separable, and to ask for costs where the counterclaim is unmeritorious.
The second Nigerian point is the discontinuance trap. A claimant reassessing a weak case cannot escape by discontinuing, because the counterclaim continues. Withdrawal has to be negotiated rather than executed unilaterally, and any settlement should deal expressly with both the claim and the counterclaim.
The third is front loading. Nigerian civil procedure requires evidence to be filed with the pleadings, so a defendant bringing a counterclaim must file the witness statements and documents supporting it at the same time. A counterclaim pleaded without that support is exposed.
And for a defendant with a genuine claim, the counterclaim is usually the right route. Bringing a separate action about the same facts wastes cost and risks inconsistent findings.
Counterclaim vs set-off vs separate action
Three ways a defendant with their own claim can respond.
Set-off is a defence. Where it applies, the defendant's claim reduces or extinguishes the claimant's, and the claimant recovers only the balance. It requires the claims to qualify, and a no set-off clause can exclude it.
A counterclaim is an independent claim decided in the same proceedings. It does not automatically reduce the claim; both are decided and the net result determined. It survives discontinuance of the original claim and it can exceed it.
A separate action starts fresh proceedings about the same facts. It duplicates cost, risks inconsistent findings, and is rarely the better route where a counterclaim is available.
A defendant should establish whether their cross claim qualifies as set-off, because that determines whether they can withhold payment, and should otherwise bring it as a counterclaim.
Limits and risks
A counterclaim expands the proceedings, which in Nigerian courts means real additional delay for both sides.
It is also subject to limitation, so a defendant cannot revive a stale claim by raising it in response to being sued.
Jurisdiction applies too. A counterclaim beyond the court's monetary or subject matter jurisdiction cannot simply be brought there because the claim was.
And an unmeritorious counterclaim attracts costs and damages credibility on the defence generally.
Worth knowing
Do not discontinue a claim without dealing with the counterclaim. A Nigerian claimant who withdraws a weak case finds the counterclaim continues and they are now the defendant, so withdrawal has to be negotiated rather than simply filed.
Questions people ask
What is a counterclaim?
A claim brought by the defendant against the claimant in the same proceedings, pleaded in the statement of defence and decided alongside the original claim.
Is a counterclaim the same as a set-off?
No. Set-off is a defence that reduces or extinguishes the claim. A counterclaim is an independent claim decided alongside, and it does not by itself justify withholding payment.
Can a counterclaim exceed the original claim?
Yes. It stands on its own footing and is treated as a separate action for most purposes, so the defendant can recover more than the claimant sought.
What happens if the claimant withdraws?
The counterclaim continues. A claimant who discontinues a weak case does not dispose of the counterclaim, and becomes the defendant to it.
Is a counterclaim subject to limitation?
Yes, like any other claim. A defendant cannot revive a claim that has become statute barred simply because they have been sued.
What should a claimant do about a tactical counterclaim?
Apply for summary judgment on the claim where the debt is undisputed, seek to have the claim determined without waiting for a separable counterclaim, and ask for costs where the counterclaim is unmeritorious.