REAR ADMIRAL FBI PORBENI v. DARABELLA NIGERIA LIMITED
(2014)LCN/7498(CA)
In The Court of Appeal of Nigeria
On Friday, the 31st day of October, 2014
CA/L/172/2012
RATIO
COURT: COURT’S DISCRETION; THE MEANING OF THE CONCEPT OF DISCRETION
Discretion of a court attracted judicial pronouncements in a plethora of cases. One of the cases is the case of ONOVO & ORS v MBA & ORS (2014) LPELR- 23035 (SC) where judicial discretion was defined in the following words:
“Discretion, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule not humor, it must not be arbitrary, vague and fanciful, but legal and regular”. Per Lord Mansfield Wilkes (1263) 4 Barr (Pt.iv) 2539.
Discretion means equitable decision of what is just and proper under the circumstances or liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar case guided by the principles of law. See Artra Industries Ltd v The Nigerian Bank for Commerce and Industries (1998) 4 NWLR (Pt. 546) 381 SC; Doherty v Doherty (1960) 1 NLR 299″. Per Ngwuta, J.S.C. The concept of discretion even in its legal usage implies power to make a choice between alternative courses of action, therefore where and when it is rested, it follows that there is really no absolute answer to the solution of the problem or one way of carrying out the exercise of discretion. See IWUJI V FEDERAL COMMISSIONER FOR ESTABLISHMENT AND ANOR (1985) LPELR – 1568 (SC).
The sign post to the proper exercise of discretion has often been stated to be subject to implied limitations with respect to the administration of justice. Lord Coke in Rooke’s case (1509) 5 co. Rep 996 – 100g had this to say on discretion:
“A science of understanding to discern between falsity and truth, between right and wrong, between shadow and substance, between equity and colorable glasses and pretences and not to do according to the rules and private affections”.
In the case of ARTRA IND. NIG v. N.B.C (1998) 4 NWLR (Pt. 545) 1 at 35 the Court held that discretion means equitable decision of what is just and proper under the circumstances or a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar case guided by the principles of law. This court in the case of CELTEL NIG B.V v. ECONET WIRELESS LTD & ORS (2014) LPELR 22430 (CA) quoting TANKO MOHAMMED J.S.C. said thus:
“Discretion they say “knows no bounds” in its general usage, it is that freedom or power to decide what should be done in a peculiar situation”.
However, it has also been made clear that discretion would cease to be discretion if it has to be exercised only in a particular manner, see ANYAH v. AFRICAN NEWSPAPER OF NIG. LTD (1992) LPELR – 511 (SC) where the court held thus:
“A discretion will cease to be one if it can only be exercised in one particular form”. Per OLATAWURA J.S.C. The overriding principle in the exercise of discretion by a court is to maintain a balance of justice between parties and bearing in mind the right of the parties. Having said so much on discretion and what it is all about, it is not to say that when discretion is exercised one way or another, a party cannot challenge same. The Supreme Court in the case of MOHAMMED SANI ABACHA & ORS v. THE STATE (2002) 11 SCM 1 held thus:
“In all judicial acts whether administrative or adjudicative, where discretion of the judge is required to do or omit to do anything, that discretion when exercised is not absolute; it can be challenged if a party feels injured by it or it will affect a person’s right to freedom as to show that the discretion has not been judiciously exercised.” per. YARGATA BYENCHIT NIMPAR, J.C.A.
COURT: COURT’S DISCRETION; WHEN IS THE DISCRETION OF THE COURT SAID TO HAVE BEEN EXERCISED JUDICIALLY AND JUDICIOUSLY
Now did the trial Judge exercise its discretion judicially and judiciously? The two words were defined in the case of ENAKHIMION v. EDO TRANS SERVICES (2006) ALL FWLR (Pt. 334) 1882 at 1905 thus:
“The words judicially and judiciously mean that the exercise of discretion must not be capricious and that there must be a reason for granting or refusing the application”.
Furthermore, in the case of ABAYOMI V. ATTORNEY GENERAL, ONDO STATE (2009) ALL FWLR (Pt. 391) 1683 at 1696 the court held as follows;
“A discretion is said to have been exercised well and judicially and judiciously when it is based only on the materials placed before the court and not extraneous or whimsical considerations. Every exercise of a discretionary power must aim at the attainment of substantial justice”.
In essence, the trial court is expected to consider the materials placed before it in deciding whether to grant the application calling for its discretion. Materials placed before the trial court in this case were the affidavit in support of the motion and the counter affidavit accompanied by annexures marked as Exhibits. The trial court considered these materials against the backdrop of the law guiding such applications. Principally, the stage of the proceedings is of paramount importance. It should not be lost on our minds the fact that the plaintiff has a right to discontinue his action, see the case of ABAYOMI BABATUNDE V. PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD & 2 ORS (2007) 4 SCNJ 140 where the court held as follows:
“It is the right of a Plaintiff to discontinue his action if he so chooses, as the filing of same does not necessarily imply that the parties have irrevocably committed themselves to resolving their dispute by litigation”. per. YARGATA BYENCHIT NIMPAR, J.C.A.
COURT: DISCRETION OF THE COURT IN STRIKING OUT A SUIT; WHETHER IT IS APPROPRIATE FOR A COURT TO STRIKE OUT A SUIT THAT HAS NOT COMMENCED OR DISMISS SUCH
Ordinarily, a court will feel reluctant to strike out a suit only if the suit has reached a very late stage or advanced stage of hearing but where hearing has not commenced, the appropriate order of discontinuance to make is one of striking out not dismissal. See FESTUS ONYEKAONWU & ANOR V CHRISTIAN UDEGBUNAM (2009) LPELR – 8344 (CA), Per SANUSI JCA. per. YARGATA BYENCHIT NIMPAR, J.C.A.
COURT: INTERFERENCE; WHETHER AN APPELLANT COURT CAN INTERFERE WITH THE EXERCISE OF THE DISCRETION OF THE TRIAL COURT PROPERLY EXERCISED
When discretion has been exercised judicially and judiciously can an appellate intervene? It has been settled that a discretion properly exercised cannot be lightly interfered with by an appellate court even when the appellate court is of the opinion that it might have exercised the discretion differently. Also except where a miscarriage of justice has been established, an appellate court would not interfere. The Supreme Court in the case of NWABUEZE V NWOSU (1988) 9 SC 68 held as follows:
“An appellate court may interfere with the exercise of judicial discretion of lower court if it is shown that there has been a wrongful exercise of the discretion such as where the tribunal had acted under a misconception of law, or under misapprehension of fact in that it either gave weight to irrelevance or unproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases where it is in the interest of justice to interfere”.
Therefore except in the circumstances enumerated by the Supreme Court in the quotation above, an appellate court will not interfere with the exercise of discretion by a lower court. See CHIEF NICHOLAS BANNA v TELEPOWER NIGERIA LTD (2006) 7 SCNJ 182 where it held thus:
“An appellate court cannot substitute its discretion in the administration of justice for that of the trial court and because discretionary power is exercised within the confines of the facts of the case, the trial judge, the judge of facts, is in the best position to exercise the discretion. Where it is clear on the record that the power was not exercised judicially and judiciously, an appellate court may not interfere”.
It has been stated times without number that an appellate court cannot just interfere by showing an appellate power. The administration of justice is one founded on rules and precedents and therefore arbitrariness has no place in it. The appellant is simply asking the appellate court to interfere when conditions precedent for doing so do not exist or warrant such interference. Because appellant felt the prior sale of the land has put him in a precarious position, the court must protect him in a manner not established by law. The trial judge gave reasons backed by authorities in striking out the suit and there is no in justice done therefore this court cannot interfere with that exercise of discretion which was judicially and judiciously exercised. per. YARGATA BYENCHIT NIMPAR, J.C.A.
JUSTICE
SIDI DAUDA BAGE justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR justice of The Court of Appeal of Nigeria
Between
REAR ADMIRAL FBI PORBENI [RTD]Appellant(s)
AND
DARABELLA NIGERIA LIMITEDRespondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of HON. JUSTICE A. M. NICOL CLAY sitting at the High Court of Lagos State, Lagos Division wherein by a ruling delivered on the 5th day of October, 2011 the trial court struck out the suit of the Respondent upon a Notice of discontinuance filed after pleadings have been filed and exchanged. The appellant contended that the suit should have been dismissed and aggrieved with the decision of the court; it filed a Notice of Appeal dated 23rd day of November, 2011 on a sole ground of appeal.
FACTS:
The brief facts of this appeal are that the appellant was one of the defendants to the suit of the Respondent herein at the trial court. The Respondent while at the trial court as claimant sought from the appellant as defendant several reliefs amongst which are declaration of title, injunction and damages. The subject matter is land.
Pleadings were filed and exchanged but before it could go to trial the respondent filed a Notice of Discontinuance dated 14th day of January 2011 seeking the following reliefs:
a. An order granting leave to the claimant/ Applicant to wholly discontinue this suit against the 1st – 3rd Defendants.
b. An order that the Claimant/Applicant wholly discontinue this suit against the 1st – 3rd Defendants.
The motion was supported by an affidavit of 10 paragraphs and a written address. The appellant sought leave and was allowed to file a counter affidavit to the motion seeking leave to discontinue the suit wherein he raised the issue of the Claimant having sold the land during the pendency of the suit and that the suit should be dismissed, if the court was mindful of granting the application.
The trial court in a considered ruling dated the 5th day of October, 2011 struck out the suit and the Appellant felt aggrieved with the ruling thus this appeal.
The appellant in his Appellant’s brief of argument dated 12th July, 2011 filed on the 13th July, 2011 and deemed on the 23rd day of May, 2013 distilled a sole issue for determination namely:
Whether the lower court exercised its discretion judicially and judiciously when it merely struck out the case of the respondent instead of dismissal thereby paving the way for a third party who purchased the parcel of land unlawfully to relegate (sic) the same subject to a future dated (sic).
The Respondent in his respondent’s brief adopted the sole issue for determination formulated by the Appellant.
Proffering arguments the Appellant submitted that the ruling appealed against is at page 577 of the records of appeal presents the reasoning of the trial court leading to the strike out instead of dismissing the action. Appellant agreed with the trial Judge when she held that an application to discontinue a suit calls for the discretionary power of the court. And that such is expected to be exercised judicially and judiciously but went on to ask if the judge exercised the discretionary power as expected. Learned counsel submitted that the reasoning of the trial court that the suit had not gone to trial which informed the strike out was arrived at without regards to the facts and stage of the suit especially the grave acts of the Respondent meant to bring the court to serious disrepute.
The appellant further submitted that because the court had earlier on refused to make an order of injunction on the ground that it would amount to resolving issues meant for the substantive suit at an interlocutory stage meant that the court appreciated that there was a dispute between the parties. He referred to page 562 of the record of appeal where the motion for injunction was struck out.
On the interim order made by the trial court, learned counsel submitted that the interim order subsisted until the suit was struck out. He questioned the rationale of the order and questioned whether the Respondent as claimant was indeed in possession of the land in dispute. He contended that with the order in place, the Respondent went on to sell the land during the pendency of the interim order in clear disobedience to the order of court. He relied on the case of SHUGABA v. U.B.N PLC (1999) 11 NWLR (Pt. 627) where the Supreme Court held that where a party is in disobedience of a subsisting order of court it cannot be entitled to be granted court’s discretion to continue with the breach. He also cited the following:
– LAWAL OSULA V LAWAL OSULA (1995) 3 NWLR (Pt. 382) 128 at 142.
– FIRST AFRICAN TRUST BANK LIMITED & ANOR V BASIL O. EZEGBU & ANOR (1992) 9 NWLR (264) 132, and
– MOBIL OIL NIGERIA LIMITED V ASSAN (1995) 8 NWLR (Pt.412) at 143 where the apex court reiterated the duty on every party on whom an order of court is made to obey same. Appellant contended that the interim order was not vacated nor discharged by the court and therefore the sale of the land was in disobedience of the said order. He further disagreed with the learned trial Judge in the finding that a notice of discontinuance brings the suit between the parties to an end. He argued that it is not in all cases that a notice of discontinuance ends a matter between the parties because when the notice is filed mala fide as in this case, it would be otherwise.
He submitted that a case dismissed leaves an aggrieved party with only the option of appeal unlike a striking out order which leaves a party with an option to re litigate the matter in the future. He cited the case of AGBADINO v. ONUBOGU (1998) 58 LRCN 322 where the apex court made a pronouncement on when leave to discontinue is granted and when the court can make the order of striking out instead of dismissal. He finally urged the court to allow the appeal and substitute the order made by the trial court with an order of dismissal. Here, the appellant reiterated his defence and counter affidavit to the motion to discontinue the suit as basis for contending that the matter should have been dismissed.
On the exercise of discretion and when an appellate court can interfere with the exercise of discretion, appellant cited the case of ONWUKA V ONONU (2009) 174 LRCN 145 at 165. He urged this court to apply the decision following the principle of stare decisis. He submitted that the appellant having put forward its case clearly, the trial court erred in making the order of striking out instead of dismissal. He finally urged the court to allow the appeal and substitute the order made by the trial court with an order of dismissal.
The Respondent in reaction adopted the sole issue for determination distilled by the Appellant and argued that the trial judge indeed exercised his discretion as required by law to strike out the suit instead of dismissal. Learned counsel referred to the definition of discretion as provided in Black’s law Dictionary, Ninth Edition and cited the case of SENATE PRESIDENT v. NZERIBE (2004) 9 NWLR (Pt. 878) 269 for the definition of judicial and legal discretion and also the case of UNIVERSAL OIL LTD v. NDIC (2008) 6 NWLR (Pt. 1083) 257 at 264-265.
Respondent argued that the Appellant has failed to show what he stands to suffer if this court affirms the ruling of the trial court. He explained that proceedings at the trial court had not reached trial when the matter was struck out and therefore the matter was at a preliminary stage without hearing on the merit and the suit was rightly struck out and not dismissed. He cited the case of OGUNDIPE v. NDIC (2009) 1 NWLR (Pt. 1123) 473 at 493 where the court held that an order of dismissal is normally made after the hearing of the matter on its merit and not otherwise. He urged the court to find that the trial Judge acted judiciously and judicially.
The respondent further submitted that the appellant’s appeal is purely hypothetical and academic which the court should not indulge in hearing. He referred to the case of ADEOGUN v. FASHOGBON (2008) 17 NWLR (Pt. 1115) 149 at 180-181 on the effect of filing a notice of discontinuance; the respondent submitted that it brings the suit to an end. He cited the case of OGBAH V BENDE DIVISIONAL UNION (2001) FWLR (Pt. 63) 45 where the court held as follows:
“In law, once a suit is discontinued, it terminates thereat and cannot be reckoned as a starting point for the commencement of action in a subsequent suit filed”.
Respondent further relied on the definition of discontinuance by Black’s law Dictionary 6th Edition at page 464-465.
On the efficacy of the interim order of injunction made by the trial judge which the Appellant submitted was active because it was not vacated nor discharged before the land was sold, the respondent contended that the Appellant has failed to show that the land was actually sold as required by Section 131 (1) of the Evidence Act. He argued that no particulars of the alleged sale were established and therefore it amounts to speculation and speculation has no place in law. He relied on TRADE BANK PLC V DELE MORENIKEJI (NIG) LTD (2005) 6 NWLR (Pt. 921) 309 at 328; ABAYOMI ADELENWA v THE STATE (1972) 10 SC 13 AT 19; THE QUEEN v. IJOMA (1962) ALL NLR 402 at 403, (1962) 2 SCNLR 157; OKOKO & ANOR V THE STATE (1964) 1 ALL NLR 473; THE STATE v AIBANGBEE (1988) 3 NWLR (Pt. 84) 548 and I.B.N LTD v. ATT. GEN RIVERS STATE (2008) ALL FWLR (Pt. 417) 1 at 36.
The Respondent continued to submit further that the order alleged to be subsisting was made on the 23rd June, 2003 and it was an interim order which had a lifespan of 14 days and the sale was alleged to be on 9th May, 2009 which is almost 6 years from the date of the interim order. He relied on the ruling of the trial court on the 6th May, 2003 at page 539 of the records of appeal wherein the trial judge specifically said the order was to subsist until the next adjourned date and that the order shall expire unless renewed by the court. Respondent then submitted that since no extension was granted the order obviously lapsed and cannot be said to be alive when the property was sold to warrant the accusation that the Respondent flouted a court order.
Furthermore on the alleged contempt, the Respondent argued that there is no appeal against any decision on contempt as the only live issue before this court is the propriety of the trial judge in making an order of striking out instead of dismissal which is the only live issue before this court.
In reaction to cases on contempt as cited by the appellant, the respondent argued that the order said the interim injunction shall expire automatically unless renewed and it was not renewed. And that there was no need for an order discharging same. Respondent urged the court to discountenance the argument of the appellant on this issue.
On the case of AGBADINO V ONUBOGU supra, the respondent submitted that it supports the trial judge in striking out the suit instead of dismissal. Furthermore that the appellant was awarded cost of N50,000.00 [fifty thousand naira] upon the striking out of the suit. Respondent finally urged the court to hold that the trial Judge exercised its discretion judicially and judiciously and dismiss the appeal with substantial cost.
The appellant in his appellant’s reply to the Respondent’s brief of argument adopted his arguments in his appellant’s brief and further added that the reliance on the case of OGUNDIPE V NDIC supra by the respondent on the stage of the suit arose from a flawed understanding of the case of the appellant which is that the respondent sold the property to a third party during the pendency of the suit and therefore in contempt. More so, as he argued, the buyer may be a purchaser without notice who can re litigate the suit again. The appellant contends this is in bad faith because the appellant in its counter affidavit at page 527 of the records of appeal attached documents to show that the land was sold and therefore the appellant had established the sale and since the buyer was not a party to the suit he can re litigate the suit and therefore the trial judge should have dismissed the suit instead of striking it out.
On respondent’s submission that the appeal is hypothetical, the appellant argued that the relief they seek is neither academic nor hypothetical and referred to AGBADINO V ONUBOGU supra. On the life of the interim order, the appellant submitted that there was a further order of court maintaining status quo which is sufficient to restrain the respondent from doing anything with the property. Appellant agreed that the order of interim injunction abated but that by the second order of the trial court the respondent should not have done anything particularly selling the land. The second order of the trial court goes thus:
“Prayer 3 is refused and dismissed on the simple reason that as framed, it would serve to give the applicant the substantive suit especially as pleaded in paragraph 14(i) and (iii) of the statement of claim without this court having heard the two sides on the merit of the case.”
The appellant argues that when the court ordered status quo as per pages 546 of the record of appeal it meant that the order subsisted and it is the order that the Respondent disobeyed. And further that even if there was no order of court, parties are expected to refrain from doing anything with the subject matter of litigation until the suit is disposed off. The appellant on this basis submits that the respondent is in contempt of the order of court asking parties to maintain status quo. Appellant finally urged the court to allow the appeal.
There is only one issue for determination in this appeal and it question whether the trial judge exercised discretion as required when the judge struck out a suit instead of dismissing same. The appellant agrees that the suit had not gone into hearing when the notice of discontinuance was filed and taken. Discretion of a court attracted judicial pronouncements in a plethora of cases. One of the cases is the case of ONOVO & ORS v MBA & ORS (2014) LPELR- 23035 (SC) where judicial discretion was defined in the following words:
“Discretion, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule not humor, it must not be arbitrary, vague and fanciful, but legal and regular”. Per Lord Mansfield Wilkes (1263) 4 Barr (Pt.iv) 2539.
Discretion means equitable decision of what is just and proper under the circumstances or liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar case guided by the principles of law. See Artra Industries Ltd v The Nigerian Bank for Commerce and Industries (1998) 4 NWLR (Pt. 546) 381 SC; Doherty v Doherty (1960) 1 NLR 299″. Per Ngwuta, J.S.C.
The concept of discretion even in its legal usage implies power to make a choice between alternative courses of action, therefore where and when it is rested, it follows that there is really no absolute answer to the solution of the problem or one way of carrying out the exercise of discretion. See IWUJI V FEDERAL COMMISSIONER FOR ESTABLISHMENT AND ANOR (1985) LPELR – 1568 (SC).
The sign post to the proper exercise of discretion has often been stated to be subject to implied limitations with respect to the administration of justice. Lord Coke in Rooke’s case (1509) 5 co. Rep 996 – 100g had this to say on discretion:
“A science of understanding to discern between falsity and truth, between right and wrong, between shadow and substance, between equity and colorable glasses and pretences and not to do according to the rules and private affections”.
In the case of ARTRA IND. NIG v. N.B.C (1998) 4 NWLR (Pt. 545) 1 at 35 the Court held that discretion means equitable decision of what is just and proper under the circumstances or a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar case guided by the principles of law. This court in the case of CELTEL NIG B.V v. ECONET WIRELESS LTD & ORS (2014) LPELR 22430 (CA) quoting TANKO MOHAMMED J.S.C. said thus:
“Discretion they say “knows no bounds” in its general usage, it is that freedom or power to decide what should be done in a peculiar situation”.
However, it has also been made clear that discretion would cease to be discretion if it has to be exercised only in a particular manner, see ANYAH v. AFRICAN NEWSPAPER OF NIG. LTD (1992) LPELR – 511 (SC) where the court held thus:
“A discretion will cease to be one if it can only be exercised in one particular form”. Per OLATAWURA J.S.C.
The overriding principle in the exercise of discretion by a court is to maintain a balance of justice between parties and bearing in mind the right of the parties. Having said so much on discretion and what it is all about, it is not to say that when discretion is exercised one way or another, a party cannot challenge same. The Supreme Court in the case of MOHAMMED SANI ABACHA & ORS v. THE STATE (2002) 11 SCM 1 held thus:
“In all judicial acts whether administrative or adjudicative, where discretion of the judge is required to do or omit to do anything, that discretion when exercised is not absolute; it can be challenged if a party feels injured by it or it will affect a person’s right to freedom as to show that the discretion has not been judiciously exercised.”
Now the question to answer is whether the trial Judge in the circumstances of this case exercises discretion judicially and judiciously.
The discretion under challenge here was exercised over a Notice of discontinuance that the Respondent filed which the court granted and consequently struck out the suit. The appellant contends that the court should have taken other factors into account to dismiss the suit instead of the striking out order. It is clearly agreed between the parties that the matter had not gone into hearing. The trial court at page 576 – 578 (the ruling) of the Record of Appeal considered facts of the suit and the stage it was. Order 23 Rule 1(3) of the Lagos State Civil Procedure Rules 2004 provides as follows:
“Where a defence has been filed, the claimant may with the leave of a judge discontinue the proceedings or any part thereof on such terms and conditions as the court may order”.
It is clear from the above provision that when a defence has been filed discretion is left with the judge to allow the party discontinue the suit or any part thereof on such terms and conditions as the Judge may order. It is instructive to note that the word “May” was used twice in the said provision which goes to reinforce the discretion as a latitude given to the trial Judge to pick and decide any terms or conditions for discontinuing the suit under consideration. Here the trial Judge considered the law or took it into account in its decision making.
The same ruling also considered the facts including the objection of the appellant and grounds of the objection. The question is that at that stage and taking the kind of application into account, should the Court take such extraneous matters like contempt of court into account? Let me consider the over flogged issue of the appellant being in contempt of a court order and therefore should not be entitled to discretion. Candidly speaking, the appellant missed the point here. The said authority of SHUGABA V U.B.N. Supra had a different set of facts; that case had nothing to do with discontinuance of a suit. In that case there was an extant order of court for the Plaintiff to pay cost before taking any step such as relisting a suit that was struck out for want of diligent prosecution. The Plaintiff then opted to file a fresh suit instead of relisting the one struck out and applied for injunction. The defendant objected and the court agreed with him by refusing the application for injunction and struck out the suit which paved way for the defendant therein to take steps and the plaintiff again filed a fresh action and sought for several reliefs which were refused. That situation is completely different from the facts of this present appeal. There was no drawn up order on the Respondent here that can be said to have been flouted. Contempt proceedings are quasi criminal and have its specialized procedure. The appellant did not take any step to initiate such proceedings before the Respondent filed his notice of discontinuance. At the stage the notice of discontinuance was filed there was no such application against the Respondent. The Court therefore was right to proceed with the motion to discontinue the suit as it could not have suspended it for the determination of the allegation of contempt which was not before it. Making the issue of contempt part of the objection to the notice of discontinuance was of no benefit to the appellant beyond what the trial court did. The rules of court gave the trial court discretion in that matter.
This is not to whittle down the issue of disobedience to court orders. The dignity and honor of the court cannot be maintained if its orders are treated disdainfully and without due respect. Therefore noncompliance with orders of court is a serious issue that should not be trivialized. For a subsisting suit, disobedience to an order of court has dire consequences but that cannot be the same here. There was no drawn up order of court that was disobeyed.
Now did the trial Judge exercise its discretion judicially and judiciously? The two words were defined in the case of ENAKHIMION v. EDO TRANS SERVICES (2006) ALL FWLR (Pt. 334) 1882 at 1905 thus:
“The words judicially and judiciously mean that the exercise of discretion must not be capricious and that there must be a reason for granting or refusing the application”.
Furthermore, in the case of ABAYOMI V. ATTORNEY GENERAL, ONDO STATE (2009) ALL FWLR (Pt. 391) 1683 at 1696 the court held as follows;
“A discretion is said to have been exercised well and judicially and judiciously when it is based only on the materials placed before the court and not extraneous or whimsical considerations. Every exercise of a discretionary power must aim at the attainment of substantial justice”.
In essence, the trial court is expected to consider the materials placed before it in deciding whether to grant the application calling for its discretion. Materials placed before the trial court in this case were the affidavit in support of the motion and the counter affidavit accompanied by annexures marked as Exhibits. The trial court considered these materials against the backdrop of the law guiding such applications. Principally, the stage of the proceedings is of paramount importance. It should not be lost on our minds the fact that the plaintiff has a right to discontinue his action, see the case of ABAYOMI BABATUNDE V. PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD & 2 ORS (2007) 4 SCNJ 140 where the court held as follows:
“It is the right of a Plaintiff to discontinue his action if he so chooses, as the filing of same does not necessarily imply that the parties have irrevocably committed themselves to resolving their dispute by litigation”.
The quarrel of the appellant in this appeal is that the court should have considered the materials before deciding to dismiss the suit. The appellant has failed to appreciate that the suit had not gone into hearing and judicial precedents in line with the law suggested that such matters should be struck out. If we agree with the appellant that would mean granting approval to trial courts to consider extraneous matters in an application for discontinuance. I don’t find where the trial court erred in this regard. The law gave it discretion and the trial Judge considered all materials before it and exercised its discretion to strike out the suit. A suit that has not gone into hearing is liable to be struck out and not dismissed given the circumstances of this appeal. The rule of the trial court allows for the imposition of conditions or terms and the trial Judge awarded cost to the appellant taking all materials into consideration. The argument and contention of the appellant that striking out the suit would give room to a third party to re litigate the same subject matter is flawed because whatever order the court makes would bind only those in the matter. A third party who is not before the court in this case, if he decides to, can of course institute an action against the appellant. The court’s order cannot bind a party not before it. The appellant cannot expect that the trial court should have made an order on third parties. That being the case even if the trial court had ordered a dismissal, that order cannot be binding on non-parties. So the argument of the appellant is of no moment and whether the order made was a dismissal or striking out, it cannot affect those not before the court.Looking at it differently, that is even if the suit was dismissed, since it was not a decision on the merit, the effect is still the same as an order striking out the suit. A dismissal with prejudice usually occurs after adjudication on the merit(s). That is not the case here.
Ordinarily, a court will feel reluctant to strike out a suit only if the suit has reached a very late stage or advanced stage of hearing but where hearing has not commenced, the appropriate order of discontinuance to make is one of striking out not dismissal. See FESTUS ONYEKAONWU & ANOR V CHRISTIAN UDEGBUNAM (2009) LPELR – 8344 (CA), Per SANUSI JCA.
When discretion has been exercised judicially and judiciously can an appellate intervene? It has been settled that a discretion properly exercised cannot be lightly interfered with by an appellate court even when the appellate court is of the opinion that it might have exercised the discretion differently. Also except where a miscarriage of justice has been established, an appellate court would not interfere. The Supreme Court in the case of NWABUEZE V NWOSU (1988) 9 SC 68 held as follows:
“An appellate court may interfere with the exercise of judicial discretion of lower court if it is shown that there has been a wrongful exercise of the discretion such as where the tribunal had acted under a misconception of law, or under misapprehension of fact in that it either gave weight to irrelevance or unproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases where it is in the interest of justice to interfere”.
Therefore except in the circumstances enumerated by the Supreme Court in the quotation above, an appellate court will not interfere with the exercise of discretion by a lower court. See CHIEF NICHOLAS BANNA v TELEPOWER NIGERIA LTD (2006) 7 SCNJ 182 where it held thus:
“An appellate court cannot substitute its discretion in the administration of justice for that of the trial court and because discretionary power is exercised within the confines of the facts of the case, the trial judge, the judge of facts, is in the best position to exercise the discretion. Where it is clear on the record that the power was not exercised judicially and judiciously, an appellate court may not interfere”.
It has been stated times without number that an appellate court cannot just interfere by showing an appellate power. The administration of justice is one founded on rules and precedents and therefore arbitrariness has no place in it.
The appellant is simply asking the appellate court to interfere when conditions precedent for doing so do not exist or warrant such interference. Because appellant felt the prior sale of the land has put him in a precarious position, the court must protect him in a manner not established by law. The trial judge gave reasons backed by authorities in striking out the suit and there is no in justice done therefore this court cannot interfere with that exercise of discretion which was judicially and judiciously exercised.
On the whole therefore this appeal lack merit and is hereby dismissed. The ruling of the trial Judge, Hon. justice A. M. Nicol Clay of the High Court of Lagos State delivered on the 5th of October, 2011 is hereby affirmed.
SIDI DAUDA BAGE, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother YARGATA BYENCHIT NIMPAR JCA.
I agree with the reasoning and conclusion reached therein and have nothing extra to add.
On the whole therefore, this appeal lacks merit and is also hereby dismissed by me. The ruling of the trial Judge, Hon. justice A. M. Nicol Clay of the High Court of Lagos State delivered on the 5th of October, 2011 is hereby affirmed.
TIJJANI ABUBAKAR, J.C.A.: My learned brother NIMPAR JCA, dealt with the issues in this appeal so well, I have nothing useful to add except to join quickly in holding that the appeal is bereft of merit and is also accordingly dismissed by me. The ruling delivered by Nicol – Clay J. on the 5th day of October 2011 is affirmed.
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Appearances
P. E. Okohue Esq.For Appellant
AND
Stephen Amalla Esq., O. Ndukwe (Miss)For Respondent
