MOBIL PRODUCING NIG. UNLTD & Anor v. LAWRENCE D. HOPE
(2010)LCN/3872(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of June, 2010
CA/C/7/2009
RATIO
ACTION: STATUTORY PROCEDURE FOR DISCONTINUANCE OF ACTION WITH OR WITHOUT LEAVE OF COURT
Order 29 of the High Court (Civil Procedure) Rules of Akwa Ibom State deals with Withdrawal and Discontinuance of action. Rule 2 specifies when an action can be discontinued without leave while Rule 3 states when leave is required to discontinue the action. Order 29 Rules 2(1) states as follows:-
“29(2)(1) The Plaintiff in an action may, without the leave of the Court, discontinue the action, or withdraw any particular claim by him therein, as against any or all of the defendants at any time not later than 14 days after service of the defence on him or, if there are two or more defendants, of the defence last served, by serving a notice to that effect on the defendant concerned.
Rules 3(1) & (2) of Order 29 stipulate as follows:
“3(1) Except as provided by rule 2, a party may not discontinue an action or counter-claim, or withdraw any particular claim made by him therein without leave of the court, and the court hearing an application for the grant of such leave may order the action or counter-claim to be discontinued or any particular claim made therein to be struck out, as against any or all of the parties against whom it is brought or made on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just.
(2) An application for the grant of leave under this rule may be made by summons or motion on notice.”
Rule 6 provides that a party who has taken out a summons or filed a motion in a pending cause or matter may not withdraw it without leave of the court while Rule 4 deals with the effect of discontinuance where it says-
“4. Subject to any terms imposed by the court in granting leave under rule 3, the fact that a party has discontinued an action or counter-claim or withdrawn a particular claim made by him therein shall not be a defence to a subsequent action for the same, or substantially the same cause of action.” PER KUMAI BAYANG AKAAHS, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
JA’AFARU MIKAILU Justice of The Court of Appeal of Nigeria
NWALE SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
Between
1. MOBIL PRODUCING NIG. UNLTD
2. ATLANTIS ESTATES LTD. Appellant(s)
AND
LAWRENCE D. HOPE Respondent(s)
KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment): Appeal Nos. CA/C/7/09 and CA/C/8/09 were consolidated by order of court on 19/5/2009. Appeal No. CA/C/7/09 arose from an interlocutory ruling delivered on 13/12/2004 while Appeal No. CA/C/8/09 arose from a final ruling delivered on 31/10/2005 in the same Suit No. HEK/8/83.
The Notice of Appeal in CA/C/7/09 was filed on 1/6/2006 while that of CA/C/8/09 is dated 21/11/2005.
The Plaintiff commenced Suit NO. HEK/8/83 by Writ of Summons dated 24th February, 1983 and claimed in his further amended State of Claim dated 28th July, 2000 and filed on 4/8/2000 the following reliefs:
“(i) A declaration of this Honourable Court that the plaintiff is entitled to the Statutory Right of Occupancy to all that piece or parcel of land known as and called USAN UKU MKPOK verged red in survey plan No.AQ3/85 (LD) dated 12th January, 1985 lying and situate at Mkpok Eket in Eket Urban which annual value is N20.00 (Twenty Naira).
(ii) N30.000,000.00 (Thirty Million Naira) being special and general damages for trespass in that the 1st Defendant in or about March 1976 without the consent, leave, permission or licence of the plaintiff entered the land aforesaid which was under the quiet and undisturbed possession and enjoyment of the Plaintiff by clearing same, destroying the Plaintiff’s shrines, economic crops in purported pursuance of a sublease by the 2nd defendant, we refer the court to the particulars of special damages at page 8 of the records of proceedings.
(iii) Perpetual injunction to restrain the Defendant, their servants privies, assigns and agents form further interference with the use and right of the plaintiff over the said land.
(iv) An order of this Honourable Court for the 1st defendant to remove all the structures it has erected on the land aforesaid.
The parties duly filed and exchanged pleadings. Thereafter they opted for an out of court settlement. This led to the Plaintiff being paid the total sum of N18,892,440.00 out of which amount a cheque of N16,058,574.00 was made out in the name of the plaintiff and another cheque in the sum of N2,833,866.00 made out in the name of Joseph Ekanem, Esq. the Legal Practitioner who represented him. The Plaintiff signed for and collected the said sum of N16,058,574.00. According to the Plaintiff the money he received was part payment out of N75,754,204.00 the defendants agreed to pay him but the defendants said the amount was in full and final settlement of the agreement reached to terminate the case.
Shortly after collecting the money the plaintiff registered his protest that the money he received was not for full and final settlement of the dispute over the land. This is contained in the counter-affidavit of 25/10/2002 which was in reaction to the defendants’ motion on 29th July, 2002 praying the High Court to dismiss the suit. The court in its ruling struck out the motion and ordered for the hearing of the substantive suit but the plaintiff filed a Notice of discontinuance of the suit on 26/10/2005 and the matter was struck out. The defendants are aggrieved and appealed against the two Rulings.
The following four issues were identified by the appellant? For determination:
1. Whether the learned trial Judge in ruling on the 1st Defendant/Appellants motion on notice dated 29th July, 2002 ought to have resolved the conflicts in the parties respective affidavit evidence one way or the other rather than striking out the motion on notice because of the said conflicts.
2. Whether there was enough evidence laid before the trial court to enable the learned trial judge to evaluate and determine the issue of “accord and satisfaction” raised by the 1st defendant/appellant in its motion on notice dated 29th July 2002
3. Was the Plaintiffs/Respondent’s Notice of Discontinuance dated 26th October, 2005 competent in the face of the provisions of Order 29 Rule 3 of the High Court of Akwa Ibom State (Civil Procedure) Rules 1989 or an abuse of the process of the court.
4. Was the trial court right in upholding the Notice of Discontinuance dated 26th October, 2005 and striking out the suit instead of dismissal after issues have been joined and affidavit evidence adduced by both parties.
The Respondent identified two issues for determination which are:
1. Whether it was proper for the lower court to strike out the motion of and order full hearing of HEK/8/83 instead given the circumstances.
2. Whether the court was right to strike out Suit No. HEK/8/83 based on the Notice of Discontinuation of the Plaintiffs (sic) of 26/10/05.
I think there is only one issue that calls for determination in this appeal and it is simply this:
Whether the learned trial Judge was right to strike out the suit instead of dismissing it after the Respondent had filed Notice of Discontinuance of the suit.
In his brief of argument, learned counsel for the appellants contended that issues had been joined by both parties and the last defendant had filed its Statement of Defence since 4th July, 1990, which was more than 15 years before the Plaintiff/Respondent filed his Notice of Discontinuance. He further argued that after the hearing and the eventual striking out of the 1st Defendant/Appellant’s application the trial court set the Plaintiff/Respondent’s suit down for hearing when he held:
“all the issues involved in this case are better sorted out in a full-dressed trial where the parties will face the crucibles of evidence in chief and cross-examination”.
He therefore submitted that issues having been joined between the parties, Order 29 Rule 2(1) of the High Court of Akwa Ibom State (Civil Procedure) Rules was no longer available to the Plaintiff when he filed his notice of discontinuance. The option left was to bring an application to the court by summons or motion on notice praying for leave to discontinue as provided by Order 29 Rule 3. Since this was not done, the court ought to have made a finding that the notice was incompetent and proceed to strike out the action on conditions or dismiss the suit. The following cases were cited in support: AGHADIUNO v ONUBOGU (1998) 5 NWLR (Pt.548)16; THE VESSEL “SAINT ROLAND & ANOR v. ADEFEMI OSINLOYE (1997) 4 NWLR (Pt. 500) 387 and CASTANHO v BROWN ROOT (UK) LTD. (1981) AC 557. He urged this court to consider the circumstances of this case and dismiss the case.
Learned counsel for the Respondent referred to Order 29 Rule 2(1) and submitted that the use of the word “may” is discretionary and directory and not mandatory and relied on ATAYI FARMS LTD v NACB (2003) 4 NWLR (Pt.810) 427 and M. B. ELECTRICAL CO LTD v. G.C.R.S. (2005) 6 NWLR (Pt. 922) 471. He said the parties had agreed that the cases were to be withdrawn and discontinued and this is contained in the settlement agreement. It was in compliance with provisions of the said settlement agreement that made plaintiffs counsel to file the notice of discontinuance. He therefore submitted by relying on RANK XEROX (NIG, LTD. v CENTREX (NIG) LTD. (1995) 1 NWLR (Pt. 347) 703 that once the terms of the contract are written and signed by the parties thereto, it is such terms that the court will resort to in determining the rights and obligations of the parties.
Order 29 of the High Court (Civil Procedure) Rules of Akwa Ibom State deals with Withdrawal and Discontinuance of action. Rule 2 specifies when an action can be discontinued without leave while Rule 3 states when leave is required to discontinue the action. Order 29 Rules 2(1) states as follows:-
“29(2)(1) The Plaintiff in an action may, without the leave of the Court, discontinue the action, or withdraw any particular claim by him therein, as against any or all of the defendants at any time not later than 14 days after service of the defence on him or, if there are two or more defendants, of the defence last served, by serving a notice to that effect on the defendant concerned.
Rules 3(1) & (2) of Order 29 stipulate as follows:
“3(1) Except as provided by rule 2, a party may not discontinue an action or counter-claim, or withdraw any particular claim made by him therein without leave of the court, and the court hearing an application for the grant of such leave may order the action or counter-claim to be discontinued or any particular claim made therein to be struck out, as against any or all of the parties against whom it is brought or made on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just.
(2) An application for the grant of leave under this rule may be made by summons or motion on notice.”
Rule 6 provides that a party who has taken out a summons or filed a motion in a pending cause or matter may not withdraw it without leave of the court while Rule 4 deals with the effect of discontinuance where it says-
“4. Subject to any terms imposed by the court in granting leave under rule 3, the fact that a party has discontinued an action or counter-claim or withdrawn a particular claim made by him therein shall not be a defence to a subsequent action for the same, or substantially the same cause of action.”
At pages 145 – 146 of the record is the Ruling in Suit HEK/8/83 on the motion of the Defendants to dismiss the suit wherein the learned trial judge declined to dismiss the action and ruled that all the issues involved in the case are better sorted out in ” a full-dressed trial where the parties will face the crucibles of evidence in chief and cross- examination: He then proceeded to strike out the application to dismiss the defendant’s motion on 13th December, 2004 and then adjourned the matter to 23rd February, 2005 for hearing.
The Plaintiff filed an application dated 8th February, 2005 for leave to further amend the Statement of Claim which the defendants opposed by filing a counter affidavit. Then on 21st February, 2005 the defendants filed a Motion on Notice praying for an order to stay further proceedings in the action pending the determination of a motion dated 18th February, 2005 which was pending before the Court of Appeal wherein the defendants were seeking leave to appeal against the Ruling delivered on 13/12/2004. This motion was still pending when the Plaintiff filed Notice of Discontinuance on 26th October, 2005 and when learned counsel for the plaintiff informed the court on 31/10/2005 that he had filed Notice of Discontinuance, the Court there and then struck out the suit. Under the circumstances of the facts stated above the suit could not be discontinued without leave as envisaged by Order 29 Rule 2 but it should be done under Order 29 Rule 3. Although an agreement had been drawn up indicating that the case was to be withdrawn and discontinued but the plaintiff was not acting pursuant to the agreement since he had lodged a protest alleging that Mr. Akinsanya forced him to sign the documents during the transactions and his signature on the letter of indemnity was forged by Adeyemi Adesanya and Itauma Udoeyo Itauma (see letter dated 11th June, 2002 at pages 49 – 51 of the Records). At the time the Defendants/Appellants filed their motion to dismiss the suit, pleadings had been filed and exchanged between the parties and the 2nd defendant had even amended its Statement of Defence.
The time of giving notice of discontinuance under the Akwa Ibom State High Court (Civil Procedure) Rules is not the same as that under Order 47 Rule 1 High Court Rules Cap 61 Laws of Eastern Nigeria 1963 as interpreted in AGHADIUNO v ONUBOGU supra because the Eastern Nigeria Rules talk of the period of filing notice of discontinuance before the date fixed for hearing as opposed to the 14 days after the service of the defence as stipulated under the Akwa Ibom High Court Rules. From the record Mobil Producing Nigeria filed its Statement of Defence on 28/5/86 while the 2nd defendant filed its Amended Statement of Defence on 4/7/90.
The motion to further amend the Statement of Claim dated 20/7/2000 was filed on 4/8/2000. If that motion had been moved and granted and a consequential order made allowing the appellants to amend the Statement of Defence, the time for filing the Notice of Discontinuance would start running from the date the last Amended Statement of Defence was filed.
Since the motion to further Amend the Statement of Claim has not been taken the Pleadings that should determine when the Notice ought to have been filed is the Amended Statement of Defence filed by the 2nd Defendant or at best from the date the Plaintiff protested against the agreement on the settlement of the case. The learned trial Judge was therefore in error when he struck out the suit on 31/10/2005 based on the Notice of Discontinuance.
Notwithstanding what I have stated above, the Respondent should seek leave to formally withdraw Suit No. HEK/8/83 if he is no longer interested in pursuing his claim to enable the learned trial Judge pronounce on the terms of the withdrawal of the suit as required by Order 29 Rule 3(1) of the Akwa Ibom State High Court (Civil Procedure) Rules.
There shall be no order on costs.
JAAFARU MIKA’ILU, J.C.A.: I agree with the reasons and the conclusion in the lead judgment delivered by my learned brother Kumai Bayang Akaahs, J.C.A. I issue the same consequential order as in the lead judgment.
I award no order as to costs.
NWALI SYLVESTER NGWUTA, J.C.A.: I read in draft the lead judgment delivered by my learned brother Akaahs, JCA and I agree that in the circumstances of the case the learned trial judge erred when His Lordship struck out the suit. I also allow the appeal and adopt the consequential orders.
Appearances
Essien E. UdomFor Appellant
AND
Kufre EffiongFor Respondent
