CHIEF E.H. ETIM & ANOR. V. NTOE ANDREW O. ANSA & ORS. In The Court of Appeal of Nigeria
(2010)LCN/4193(CA)
On Wednesday, the 12th day of May, 2010
CA/C/201/09
RATIO
ORDER OF COURT: WHAT DETERMINES THE APPROPRIATE ORDER A COURT CAN MAKE UPON THE WITHDRAWAL OR DISCONTINUANCE OF A COUNTER-CLAIM
The appropriate order the court can make consequent upon withdrawal or discontinuance of a counter-claim will depend on whether the matter was discontinued with or without leave of court. PER NWALI SYLVESTER NGWUTA, J.C.A.
ORDER OF COURT: THE PROPER ORDER A COURT SHOULD MAKE WHERE AN ACTION HAS BEEN DISCONTINUED WITHOUT LEAVE OF THE COURT
… after an action has been discontinued without leave as prescribed in the rules the proper order is striking out and not dismissal. PER NWALI SYLVESTER NGWUTA, J.C.A.
ORDER OF COURT: WHAT THE COURT WILL HAVE TO TAKE INTO CONSIDERATION IN DECIDING TO STRIKE OUT OR DISMISS A CASE
In its decision on whether to strike out the case or dismiss same the court has to consider the circumstances of the case including the state of pleadings. PER NWALI SYLVESTER NGWUTA, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
JAFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
Between
1. CHIEF E.H. ETIM (AKA HENRY ETIM ONWUKA)
2. OROK ETIM (AKA OROK ETIM ONWUKA) (FOR AND ON BEHALF OF HENRY ETIM MKPEKAN FAMILY AND CHIEF HENRY ETIM ISHIE FAMILY Appellant(s)
AND
1. NTOE ANDREW O. ANSA
2. MADAM MAGARET ISO
3. ASSIM O.A. ITA
4. PATRICK AGBOR 0. EDEM (FOR THEMSELVES AND ON BEHALF OF KASUK QUA CLANS, CALABAR Respondent(s)
NWALI SYLVESTER NGWUTA, J.C.A. (Delivering the Leading Judgment): This is an appeal from the judgment of Itam, J of the High Court of Justice, Calabar Judicial Division, Cross River State. The judgment in Suit No. HC/219/06 was delivered on 26/2/07.
Endorsed on the Writ of Summons issued on 6/6/06 are the claims of the Plaintiff’s against the defendants:
1. An order that the plaintiffs are entitled to the Certificate of Occupancy over the land in dispute described in Plan No. DAAC/CR/18/1 dated 29/11/77 and made by Dien Aniyom, licensed Surveyor.
2. AN ORDER of perpetual injunction restraining the Defendants by themselves, their agents, servants or assigns from upon or dealing with the land in dispute in any way without the consent and authority of the Plaintiffs.
3. An order for account and return of all monies/proceeds collected over the land in dispute by the Defendants.
4. N15 million Naira damages of trespass. (See page 5 of the records)
Upon service on them of the writ and statement of claim the defendants filed a memorandum of conditional appearance on 14/8/06.
In their statement of defence dated and filed on 20/10/06 the defendants denied the plaintiffs’ claim in its entirety and counter-claimed against the plaintiffs for:
(a) A declaration that the counter-claimants are entitled to the statutory right of occupancy in respect of the land in dispute and more particularly delineated on Survey Plan No. DAACO/CR/18/1 of 29/11/77.
(b) An order of perpetual injunction restraining the plaintiffs, their agents, secants or privies from howsoever trespassing or in any way interfering with the said land in any manner adverse to the rights and interest of the counter claimants.
(c) Fifteen Million Naira (N15,000,000.00) as damages for trespass and illegal interference in the counter claimant’s quiet and peaceable enjoyment of the land by the plaintiff and their agents.”
The plaintiffs filed a reply to the statement of defence and defence to the counter-claim on 6/11/06.
The defendants’ rejoinder was dated, and filed on 19/1/07. Earlier on a motion for substitution was filed on 4/2/06 with a 4 paragraph affidavit in support. The plaintiffs filed a 10 paragraph counter-affidavit on 7/12/06. However there is nothing on the records to show if, and when, the application was moved and granted or denied.
Consistent with their conditional appearance the defendants, in a motion on notice dated, and filed on 12/2/07 asked for
i. An order dismissing plaintiffs’ claim for being statute-barred” (See page 155 of the records)
The motion was supported by an affidavit of 6 paragraphs against which the plaintiffs filed a counter-affidavit of 13 paragraphs on 16/2/07.
The trial Court took submissions of learned counsel for the parties and in its judgment which is actually a ruling on the application to dismiss the suit, the trial court held:
ii. For the foregoing reasons, the defence raised by the defendants to the plaintiffs action is hereby sustained, and the plaintiffs action is hereby dismissed with N2,000 costs to the defendants.
Order: (1) Plaintiffs’ case dismissed with costs.
(2) As regards the counter-claim which is deemed a separate and distinct cause of action in law, I will now hear what learned defence counsel intends to do, bearing in mind the judgment in respect of the plaintiffs’ claims. Learned defence/counsel, if you please.
Chief Williams: We hereby withdraw the counter-claim in its entirety.
Court: The counter claim is hereby dismissed as no useful purpose will be served otherwise. Case dismissed.”
See pages 176-177 of the records.
The “judgment” was delivered on 26/2/07.
Pursuant to their motion for the TRIPOD reliefs granted by the court on 7/10/09 the defendants now appellants filed the notice of appeal on 12/10/09 within the 7 day period granted them on 7/10/09.
The lone ground of appeal in the notice of appeal is hereunder reproduced, with its particulars:
The learned trial Judge erred in law when he held that ‘the counter-claim is hereby dismissed as no useful purpose will be served otherwise’
PARTICULARS OF ERROR
(a) Evidence had not been taken at all from any of the parties.
(b) The entire argument before the court was whether the action was statute-barred or not on a motion on notice brought by defence counsel.
(c) In the circumstances of the case the trial Judge should have struck out the action and leave room for the defence to pursue their counter-claim if they so desire at a future date.”
In the appellants’ brief of argument dated 1/12/09 and filed on 2/12/09 settled by the learned Senior Counsel Chief A.O. Mogboh SAN the following issue was framed for determination
1. Whether in the circumstances of the case the learned trial Judge should not have struck out the case in the interest of justice.
In the Respondents’ brief of argument dated 11/01/10 and filed on 12/01/10 the Respondents’ learned Counsel, N.E. Ene Esq presented the following issue for the Court to resolve:
2. Whether the trial court was right to dismiss the counter-claim that was voluntarily withdrawn and discontinued.
In its meaning and intent the Respondents’ issue is not different from the issue presented by the appellants, bearing in mind that the voluntary withdrawal of the counter-claim is not an issue in the appeal. I intend therefore, to determine the appeal on the issue raised by the appellants in their brief of argument.
Arguing the lone issue in his brief the learned Senior Counsel for the appellant involved Order 29 Rule 2 of the Cross River State High Court (Civil Procedure) Rules 1987 for withdrawal without leave of court of a defendant’s defence or part thereof, discontinuance of a counter-claim or any particular claim made therein. Learned Senior Counsel also cited Order 29 Rule 3(1) for withdrawal with leave of court and Rule 3(2) for application for leave under the rule to be made by summons or motion on notice. It was argued for the appellants that though the application was made orally and not by summons or motion on notice as the rule provides it is nonetheless an application for leave to withdraw the counter-claim. Learned Senior Counsel for the appellants considered the provisions of Order 29 of the rules, the subject matter of the counter-claim and the fact that no evidence had been led by either side and submitted that after the ruling on the motion to dismiss the claim the court in the judicial and judicious exercise of its discretion ought to have adjourned the counter-claim for hearing.
It was further argued that since the counter-claim had not been determined on its merit, the trial court should have struck it out instead of dismissing it. He noted that the plaintiffs (now Respondents) had conceded the judgment of the court in CA/E/210.96 and relying on the lead judgment of Pat Acholonu, JSC (May God grant his soul eternal rest) in Suit No. SC/92/2002 he argued that the trial court should have struck out the counter-claim, adding that the lower court in exercise of its discretion did not consider and weigh all the circumstances of the case before dismissing it. Reliance was put on UBN Plc. v. Luobai (Nig.) Ltd. (2008) 2 NWLR (Pt. 1071)9 257 at 280 per Omoleye JCA.
It was conceded that appellate courts do not ordinarily interfere with a lower court’s exercise of discretion nor do they reverse a discretionary order of a lower court merely because the appellate courts would have exercised the discretion differently but it was however submitted that an appellate court has a burden/duty to interfere with the exercise of a discretion by a lower court where it is shown that the lower court erred in the exercise of its discretion on wrong principles or that it failed to consider relevant matters or where its conclusion results in injustice as in the case at hand. It was urged on the court to interfere with the exercise of discretion of the court below so that the counter-claim can be heard and determined on its merits. Learned counsel relied on UBN Ltd. V. Luobia (Nig) Ltd (supra) Efe Finance Edding Ltd. v. Osagie, Okeke Otegbalu & 6 ors (2005) 5 NWLR (pt 658) 536, Odutola v Kayode (1994) 2 NWLR (pt 324) 1.
The learned Senior Counsel made reference to instances under the High Court Rules where a suit is to be withdrawn or discontinued and submitted that in each case the court has to exercise its discretion to strike out or dismiss the suit. He referred to Okorodudu v. Okorodudu (1977) 3 SC 21, Rodrigues v. Pub,lic Trustee (1977) 4 SC 29, University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143, Ezowiwi v. Iheuko (1989) 2 NWLR (Pt.101) 60 and submitted that the court should exercise its discretion in a decision to grant or deny leave to discontinue not only judiciously but also judicially. He relied on the dictum of Obaseki JSC in Erowiwi v. Iheuko supra; Acting judicially imports the consideration of the interest of both parties and weighing them in order to arrive at a just and fair decision.”
He submitted that in a proper exercise of judicial discretion the lower court ought to have struck out the counter-claim instead of dismissing same. With reference to Amah v. Nwankwo (2007) 12 NWLR (Pt. 1049) p. 552 at 580 Iobigaro v. Francis (2002) 1 NWLR (sic) (Pt. 747) 45 and Order 29 Rule 3(1) and (2) and of the High Court (Civil Procedure) Rules (supra) he argued that the dismissal of the counter-claim was not a judicial exercise and discretion. It was further argued that in dismissing the counter-claim the court punished the appellant for the blunder of their Counsel, thus occasioning a miscarriage of justice. He cited on Bowaje v. Adechwura (1976) SC 143, J.A. Doherty v. R.A. Doherty (1964) 1 ANWLR 299 G.B.A. Akinyede v. Appraiser (1971) 1 NWLR 162 among others. Learned Counsel urged the court to allow the appeal.
Learned Counsel for the Respondents noted that Order 29 of the High Court Rules (supra) relied on by the appellants is not relevant since the application to withdraw the counter-claim was made orally. Counsel said the appropriate order is Order 47 of the High Court Rules which gives the Court the discretion to make any order in the interest of justice whether or not the order is expressly asked for. Reliance was placed on Banna v. Telepower MG Ltd. (2006) 15 NWLR (pt 1001) 198. Learned Counsel referred to the judgment of the court below at pages 176 and 177 and submitted hat the counter-claim was dismissed when the appellants through their Counsel applied orally to withdraw same. It was argued for the Respondents that a party who has voluntarily consented to a procedure adopted by the trial court cannot subsequently complain about that procedure on the ground that it worked injustice on him.
Learned Counsel referred to Ahamefule v. Imperial Medical Centre (2005) 5 NWLR (pt 917) 5 at 60 paras F-H and Agbakoba v. INEC (2008) 18 NWLR (pt 1119) 489 at 537 para H to 538 para A. Relying on Newswatch Communication Ltd. v. Atta (2006) 12 NWLR (pt 993) 144 at 175 paras D-E and Eronin, v. Ihenko (supra) relied on by the appellants learned Counsel maintained that the counter-claim was rightly dismissed as hearing in the suit had commenced to the stage where the plaintiffs’ claims were dismissed upon the application of the defendants, adding that the appellants were given the opportunity to prove their counter claim after the main suit was dismissed. Learned Counsel referred to Ndayako v. Mohammed (2006) 17 NWLR (pt 1009) in contending that the appellants cannot be allowed to make a case diametrically opposed to their case at the court below.
On Suit No. SC/93/2002 learned counsel said that the appellant lost nothing if the suit relates to the same land as the apex court already gave the land to them and in any case the trial court cannot give another judgment on the same land.
Learned Counsel referred to S.151 of the Evidence Act and Ariori v. Elemo & Ors. (1983) 1 SC at 18 and submitted that the appellants having waived their right to prove their counter-claim are estopped from pursuing it. He referred also to Nigerian Universal Bank Ltd. v. Samba Petroleum Co. Ltd. (2006) 12 NWLR (Pt.993) 90 also an waiver. He relied on Kamba v. Bawa (2005) 4 NWLR (Pt.914) 43 at 62-63 on the authority and right of Counsel to conduct his client’s case. It was further argued for the Respondent that the order dismissing the counter-claim on the application of counsel for the appellants was a consent judgment against which no appeal lies without leave as provided by S.241(2)(c) of the 1999 Constitution of the Federal Republic of Nigeria. Counsel argued that having obtained leave to appeal the appellants did not show that they were misled into withdrawing their counter-claim or that fraud was involved in the withdrawal.
Learned Counsel cited African Reinsurance Corporation v. JDP Construction (Nig.) Ltd. (2003) 5 MJSC 104 and Ogoeje Ofo v. Ogoejedfo (2006) 3 NWLR (Pt.966) 205 in his argument that this appeal is in the circumstances abuse of process of court as the effect of the appeal is to allow the appellants to prove the counter-claim they had abandoned or withdrawn. Learned Counsel urged the court to dismiss the appeal as the court below exercise discretion under Order 47 of the High Court Rules (supra).
The relevant portion of the judgment of the trial court is hereunder reproduced:
As regards the counter-claim which is deemed a separate and distinct cause of action in law, I will now hear what learned defence counsel intends to do bearing in mind the judgment in respect of the plaintiffs’ claims. Learned defence counsel if you please.
Chief Williams: We hereby withdraw the counter claim in its entirety.
Court: The counter claim is hereby dismissed as no useful purpose will be served otherwise. Case dismissed.”
See page 177 of the records.
The application to withdraw the counter-claim may have been prompted albeit, unwittingly by the trial court at the time learned counsel for the counter-claimants was basking in the euphoria of his success in having the main suit dismissed. The withdrawal of the counter-claim is not an issue in this appeal. Learned Counsel for the appellants withdrew the counter-claim and the trial court made the consequential order dismissing same. Up to this point there is no issue between the parties. What has become the bone of contention between them is the consequential order made by the trial court. The appellants contend that the trial court should have struck out the counter-claim. On the other hand, the respondents insist that the order dismissing the counter-claim is the appropriate order in the circumstances of the case.
I have considered and found help in the arguments of learned counsel for the parties. The next step is to determine the appropriate rule governing the order made by the trial court.
Learned Senior Counsel for the appellant relied on Order 29 of the High Court (Civil Procedure) Rules of Cross River State 1987 whereas learned counsel for the Respondent said that the court below made its order dismissing the counter-claim pursuant to Order 37 Rule 1 of the High Court Rules. The two orders are hereunder reproduced Order 29 Rule 2.
A defendant may without leave of the court:
(a) Withdraw his defence or part of it at any time.
(b) Discontinue a counter-claim or withdraw any particular claim made by him therein… at any time not later than 14 days after service on him of a defence to the counter-claim by serving a notice to that effect on the plaintiff or other party concerned.
3(1) Except as provided by rule 2, a party may not discontinue any action or counter-claim or withdraw any particular claim made by him therein without leave of the court and the court hearing the 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 as against any or all the parties against whom it is brought.
3(2) An application for the grant of leave under this rule may be made by summons or motion on notice.”
Order 47 Rule 1 of the High Court Rules provides:
Subject to particular rules, the court may in all cases and matters make any order which it considers necessary for doing justice, whether such order has been expressly asked for by the person entitled to the order or not.”
Based on this order learned counsel for the Respondents argued that the appellants having voluntarily consented to the procedure adopted by the trial court cannot subsequently challenge the procedure on the ground that it worked injustice on them. With respect to learned counsel the court below made the order dismissing the counter-claim without reference to either party to the proceedings, so the issue of the appellants consenting to the procedure adopted by the trial court could not have arise. Moreover, once the matter has been withdrawn or discontinued the trial court, in making its consequential order, is guided by the rules of court and consent or not consent of any party is irrelevant.
Order 47 Rule 1 of the High Court (supra) relied on by the learned counsel to the Respondent made general provision regarding orders the court may make in causes and matters brought before it in the interest of justice. It is subject to “particular rules” one of which, in the case at hand is the Order 29 of the rules.
On the facts before the trial court and the circumstances of the case the appellants cannot withdraw their counter-claim without leave of court. See Order 29 rules 2 and 3. The appellants should have complied with order 29 Rule 3(2).
The appropriate order the court can make consequent upon withdrawal or discontinuance of a counter-claim will depend on whether the matter was discontinued with or without leave of court. It does appear that once a matter has been discontinued with or without leave the court determines the appropriate consequential order on the same principles be the matter withdrawn the main suit or counter-claim. I will therefore seek guidance in cases in which the plaintiff discontinued the suit.
In view of the portion of the judgment of the trial court from which this appeal arose I intend to determine the propriety vel non of the order dismissing the withdrawn counter-claim from two angles – in the first place I will assume that the counter-claim was withdrawn without leave of court as is apparent from the record in contravention of Order 29 Rule 2(a), then I will assume that the court below treated learned counsel’s answer to the court as to what he intended to do with the counter-claim as an application for leave to withdraw the counter-claim pursuant to Order 29 Rule 2(b) of the rules. In other words, I seek to employ the maxim of equity to regard what ought to be as having been done.
If the counter-claim was withdrawn leave as is apparent on the records the trial court cannot make an order dismissing the counter-claim. It can only strike it out leaving the appellants with liberty to re-assert their rights in future proceedings on the same matter. The reason is that at the stage of withdrawal without leave of court no evidence has been adduced upon which, in the light of pleading the dispute between the parties could be resolved. In Soetan v. Total Nigeria Ltd. (1972) 1 All NLR (Pt.1) 1, after he issued a writ the appellant filed a notice of discontinuance pursuant to the rules, the suit was dismissed. On the final appeal to the Supreme Court it was held that after an action has been discontinued without leave as prescribed in the rules the proper order is striking out and not dismissal.
Upon a withdrawal with leave the court will in the judicious exercise of its judicial discretion, either strike out the matter or dismiss same. See Izieme v. Ndokwu (1976) 1 NWLR 280 at 283, Nwajukwu & ors. v. Nze & Ors. (1955) 15 WACA 36.
In its decision on whether to strike out the case or dismiss same the court has to consider the circumstances of the case including the state of pleadings. In the case at hand no evidence has been adduced in the counter-claim but this does not mean that the case must necessarily be struck out, not dismissed. In Aghadiuno v. Onubogu (1998) 4 SCNJ 81 in a claim for declaration of title to customary right of occupancy, damages for declaration of title to customary right of occupancy, damages for trespass and injunction the defendants relied on the plea of estoppel based on previous suits on the same subject matter. The plaintiffs did not file a reply to the statement of defence but discontinued the matter with leave after the close of pleadings and the matter fixed for hearing. The order of the trial court dismissing the suit was set aside on appeal to the Court of Appeal. On further appeal to the Supreme Court the order of the High Court dismissing the suit was restored. The apex court held that the absence of a reply to the defendant’s plea of res judicata meant that the plaintiff had no answer to the plea, implying that he had no claim against the defendant. In the case at hand, the court below dismissed the counter-claim without considering the fact that no evidence has been adduced or the state of pleadings in the counter-claim. Even when witnesses have testified for the plaintiff before his withdrawal with leave the court will strike out the case if in view of the evidence the issues involved had not been so crystallized as to make it possible for the court at that stage to give a decision on the matter without injustice to one of the parties.
I find no basis for the consequential order dismissing the appellants’ counter-claim after it was withdrawn. The order dismissing the counter-claim is not based on a judicious exercise of judicial discretion.
In conclusion I have considered the consequential order dismissing the appellants’ counter-claim on withdrawal without leave on one hand and withdrawal with leave on the other hand. In either case I find and hold that the dismissal of the appellants’ counter-claim is erroneous and ought to be set aside. Having resolved the lone issue in the appeal in favour of the appellants I allow the appeal. I set aside the order dismissing the appellants’ counter-claim and in its place make an order striking out eh counter-claim. The Respondents are ordered to pay the sum of N25,000.00 as costs to the appellants.
K.B. AKAAH, J.C.A.: I agree.
JAAFARU MIKA’ILU, J.C.A.: I have read in draft the lead judgment of my learned brother N.S. Ngwuta JCA. I agree with the reasons given in it and the conclusion reached thereof. I also give the same orders as in the lead judgment.
Appearances
O.O. Adebayo for A.O. Mogboh SANFor Appellant
AND
N.E. Ene;
N.B. UduetoFor Respondent
