You are defending a client in a civil claim filed by a plaintiff. After reviewing the case, you identify a valid claim your client has against the plaintiff arising from an earlier transaction. Can you raise this as a counterclaim, and will the court entertain it?

You are defending a client in a civil claim filed by a plaintiff. After reviewing the case, you identify a valid claim your client has against the plaintiff arising from an earlier transaction. Can you raise this as a counterclaim, and will the court entertain it?

Answer: Yes, under Order VIII Rule 9 of the Civil Procedure Code, Cap. 33 R.E. 2023, a defendant is entitled to raise a counterclaim in the Written Statement of Defence (WSD). The rule permits the defendant to state any right or claim they allege against the plaintiff, provided that the cause of action arose before the defence was filed. The counterclaim may relate to a matter arising out of the same transaction or one connected with the subject matter of the suit, though it need not be identical to the plaintiff’s claim.

When included in the WSD, a counterclaim is treated procedurally as a cross-suit, and the court applies the provisions of Order VII to it, as if it were an independent plaint. This mechanism allows the court to determine both the original suit and the counterclaim in one proceeding, thereby enhancing judicial efficiency and avoiding multiplicity of suits.

However, the law expressly bars counterclaims in suits related to the recovery of taxes, duties, or penalties, or for claims of refund of such amounts, as per the proviso to Rule 9(1). Once a counterclaim is raised, the plaintiff may file a reply to the counterclaim, responding to the allegations in the same way they would respond to a normal plaint. Both the suit and the counterclaim proceed concurrently and are disposed of by a single judgment.

As an advocate, it is your duty to ensure the counterclaim is clearly pleaded in the WSD, supported by relevant facts and any necessary documents, and that the court’s jurisdiction to hear it is not ousted by law.

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