STABILINI VISIONI NIG. LTD. v. SANDERTON VENTURES LTD.
(2011)LCN/4407(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of March, 2011
CA/L/462/2003
RATIO
FILING OF BRIEF: WHETHER WHENEVER A RESPONDENT FAILS TO FILE HIS BRIEF, JUDGMENT MUST BE ENTERED FOR THE APPELLANT
…it is not the law that where a Respondent fails to file his brief, Judgment must be entered for the Appellant. Far be it. An Appellant in such circumstance still has the duty of convincing the court that he is entitled to Judgment. PER JOHN INYANG OKORO, J.C.A.
PROLIFERATION OF ISSUES: WHETHER A PARTY CAN FORMULATE TWO OR MORE ISSUES FROM ONE GROUND OF APPEAL
An issue may be distilled from one or more Grounds of Appeal. It is wrong for a party to formulate two or more issues from one Ground of Appeal as that would amount to an unnecessary proliferation of issues from a single Ground of Appeal. See Nnonye v. Anyiechie (2000) 1 N.W.L.R. (pt.639) 66; Witt & Busch Ltd. v. Goodwill & Trust Investments Ltd. (2004) 8 N.W.L.R. (pt.874) 179. PER JOHN INYANG OKORO, J.C.A.
ORDER OF COURT: WHETHER LEAVE OF COURT TO PERFORM AN ACT IS NECESSARY WHERE AN ORDER FOR THAT PURPOSE HAS BEEN OBTAINED
Where a Plaintiff in an action has obtained an order, say, for interim payment or an injunction, leave to withdraw from or discontinue the action will be necessary. see stephen Lawson-Jack v. The Shell Petroleum Development Company of Nig. Ltd. (2002) 13 N.W.L.R. (PT.783) 180 at 197-198 paras. G-H; Hon. Minister for Works and Housing v. Tomas Nig. Ltd. & 26 ors (2002) 2 N.W.L.R. (pt.752) 740.PER JOHN INYANG OKORO, J.C.A.
ABUSE OF COURT PROCESS: WHEN DOES “ABUSE OF COURT PROCESS” OCCUR
An abuse of court process occurs when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, such as instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. It is not the existence or pending of a previous suit that causes the problems. Rather, it is the institution of a fresh action between the same parties and on the same subject matter when the previous suit has not yet been disposed of, that constitute abuse of process of court. See Okafor v. Attorney General Anambra State (1991) 6 N.W.L.R.(pt. 200) 659 at 681; Per Karibi-Whyte JSC; Morgan v. West African Automobile Engineering Co. Ltd. (1971) 1 N.W.L.R. 219. PER JOHN INYANG OKORO, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
STABILINI VISIONI NIG. LTD. Appellant(s)
AND
SANDERTON VENTURES LTD. Respondent(s)
JOHN INYANG OKORO, J.C.A. (Delivering the Leading Judgment): The Respondent herein commenced this action at the court below on 4th June, 2002 by a Writ of Summons/Statement of Claim against the Appellant as 1st Defendant and the Commissioner of Police, Airport Police Command, Lagos as 2nd Defendant seeking the following reliefs:
“(a) A declaration that the 1st Defendant has by his various acts and conduct interfered with wrongfully and maliciously induced the breach and purported termination of the Plaintiff’s contract with the Federal Government of Nigeria and Federal Ports Authority of Nigeria for the construction of the Murtala Mohammed Airport Terminal 1, Lagos.
(b) Declaration that in pursuant of relief (A) above, the 1st and 2nd Defendants conspired to molest, intimidate and manhandled the servants of the Plaintiff and which acts were perpetrated with malice in order to injure the Plaintiff and dispossess the Plaintiff of the construction site.
(c) An order of injunction restraining the Defendants from disturbing/interfering with the Plaintiff’s possession or dealing adversely with its rights, properties and equipments on site”.
The Respondent also filed a Motion on Notice dated 3/6/02 and a Motion Ex-parte dated 27/6/02 for interlocutory injunction against the Appellant, its agents, servants, privies etc from interfering or doing anything or further doing anything to disturb or interfere with the Respondent’s possession of the construction site of the Local Terminal of the Murtala Muhammed Airport, Ikeja, Lagos, pending the determination of the suit.
Based on these motions, the court below made an order that the parties maintain the status quo and keep off the premises of the Respondent in issue with immediate effect pending the determination of the Motion on Notice filed in the said suit. The court below also made an Exparte order bearing the date of 27/7/02 that a Notice of Consequence of Disobedience to Order of Court in Form 48 to be served on Dr. Wale Babalakin and Chief T. K. Akinbami. The Appellant being dissatisfied with these orders filed Notice of Appeal dated 5/7/02 against the said order. A Motion dated 5/7/02 for stay of execution of the said order made on 4/7/02 and 27/7/02 was also filed in the court below.
Furthermore, the Appellant filed another Motion dated 5/8/02 seeking the following reliefs viz:
“That all proceedings on the said motion for interlocutory injunction be stayed or struck out on the ground that it was filed in abuse of the process of the Honourable Court and it is accordingly frivolous and vexations”‘
The ground of the said motion is that: “At the filing of the said motion for interlocutory injunction, proceedings were pending between the same parties raising the same or substantially the same issue in suit No. ID/386M/2002 before the Hon. Justice A. Ade-Alabi as raised in the present was motion and action for interlocutory injunction”.
On 9/4/03, the court below, in one of its Rulings, declared that it has no Jurisdiction to entertain a suit against the 2nd Defendant (the Commissioner of Police) and struck out its name.
After hearing argument on the motion filed on 5/8/02, the learned trial Judge on 14/8/03 dismissed the motion on various grounds including the premise that suit No. ID/38M/2002 pending before Ade-Alabi. J. substantially on the same issue had been discontinued when the Respondent filed Notice of Discontinuance on 27/6/02. Dissatisfied with the said Ruling, the Appellant filed a Notice of Appeal dated 26/8/03 though it is not apparent on the face of it when it was filed. Two grounds of appeal are contained in the said Notice of Appeal wherein, the Appellant has distilled three issues for the determination of this appeal. The issues are as hereunder stated:-
“1. whether a Notice of Discontinuance filed under order 24 Rule 1 of the High court of Lagos state (Civil Procedure) Rules 1994 is ineffective until it is moved by counsel with the leave of court.
2. whether the Respondent/Plaintiff’s second claim herein, alleging conspiracy against the Appellant/Defendant (as 1st Defendant) and the Commissioner of Police, Airport Police Command (as 2nd Defendant) can be completely tried in the state High court, particularly as this would involve the trial of a claim in which the commissioner of Police, Airport Police Command (as 2nd Defendant) with be a necessary party; whereas he had already been struck out as a party (2nd Defendant) by the court.
3. Whether by reason of the issues raised in 1 & 2 above, the action filed in the court below including the motion dated 3/6/02 for injunction, constitute abuse of court process and should be struck out”.
On 18th January, 2011 when this appeal was heard, the Respondent was not in court and was not represented by counsel, though she was duly served with hearing notice. Secondly, the Respondent did not file any brief in this appeal. It is on record that the Appellant filed its brief on 7/5/08 and same was served on the Respondent. On 9/2/10, the Appellant filed a Motion on Notice praying for an order that this appeal be heard on the Appellant’s brief alone, the Respondent having failed and/or neglected to file her brief. This application was granted on 13/10/10 by this court. As it stands, this appeal shall be determined only on the brief filed by the Appellant.
Let me quickly add that it is not the law that where a Respondent fails to file his brief, Judgment must be entered for the Appellant. Far be it. An Appellant in such circumstance still has the duty of convincing the court that he is entitled to Judgment. Therefore, though the Respondent has not filed brief in this appeal, I shall treat the issues raised by the Appellant in line with the relevant laws and authorities available for the purpose of reaching a fair decision.
On the issues formulated by the learned senior counsel for the Appellant’s observe that three issues are distilled from the two Grounds of Appeal contained in the Notice of Appeal. It has been said time without number that issues formulated by counsel should not be more than the Grounds of Appeal on the Notice of Appeal. In fact, the court may tolerate equal number of issues with the ground or less issues than the grounds but definitely not more issues than the Grounds of Appeal. An issue may be distilled from one or more Grounds of Appeal. It is wrong for a party to formulate two or more issues from one Ground of Appeal as that would amount to an unnecessary proliferation of issues from a single Ground of Appeal. See Nnonye v. Anyiechie (2000) 1 N.W.L.R. (pt.639) 66; Witt & Busch Ltd. v. Goodwill & Trust Investments Ltd. (2004) 8 N.W.L.R. (pt.874) 179.
Be that as it may, since this court is established to do substantial justice between the parties, it will amount to living in the realm of technicality if the excess issues are struck out. That is not to say that the excess issues may not be struck out if it is found to be repetitive. In the instant case, issue three appears to be the concluding part of issue No.1. So it is not an issue which stands on its own. Accordingly, I shall determine issues 1 and 3 together and then issue No. 2.
Referring to order 24 Rule 1 of the High Court of Lagos State (Civil procedure) Rules 1994, cap 61, learned senior counsel for the Appellant submitted that contrary to the decision of the court below, the rule requires the leave of court to discontinue the action in view of the facts and circumstances of the case. She posited further that the mere filing of a notice of discontinuance is ineffective and that the action will not cease to exist as held by the court below. That the decision in Ifi Izueme v. Ndokwu (1976) NMLR 280 relied upon by the lower court was not based on the kind of provisions contained in Order 24 Rule 1 of the Lagos State (Civil Procedure) Rules 1994.
Learned senior counsel further submitted that in view of the arguments herein, their Motion on Notice dated 5/8/02 should have been upheld by the court below and that this action as well as the motion for interlocutory injunction dated 3/6/02 should have been struck out as constituting an abuse of court process. The following cases were cited in support of this argument: Obasi Bros. Goy. Ltd. v. M.B.A.S. Ltd. (2005) 9 N.W.L.R. (pt.929) 117, at 129 para E-F; Hon. Minister of Works v. Tomas Nig. Ltd. & Ors. (2002) 2 N.W.L.R. (pt .752) 740; Dumez Nig. Plc v. UBA Plc (2006) 14 N.W.L.R.(pt.1000) 515; Saraki v. Kotoye (1992) 9 N.W.L.R. (pt.264) 156 and N.V. Scheep v. ‘S. Araz’ (2000) 15 N.W.L.R. (pt.691) 622.
It was the final submission of the Learned Silk that the Appellant has established that the claims in this matter are designed to harass, irritate and annoy the Appellant by the Respondent in view of the fact that suit No. ID/386M/2002 remains pending between the parties and she urged this court to so hold. She further urged this court to resolve this issue in favour of the Appellant.
As I noted earlier, the Respondent did not file any brief in this appeal and the court is deprived the opportunity to hear the other side. Be that as it may, I shall do my best to resolve this issue.
The decision of the court below giving birth to the Ground of Appeal, and also resulting in this issue relates to the following pronouncement as contained on page 244 of the record which states:
“Where a Notice of Discontinuance is filed and served in respect of any matter, that matter seizes to exist against the party which the suit was instituted against. In IFI IZIEME V. NDOKWU (1976) NMLR 280, it was held that a Plaintiff may without leave of court discontinue a suit against all or any of the defendants in an action before the date fixed for the hearing of the case”.
The above decision of the learned trial Judge is predicated on the fact that the Respondent as Plaintiff/Applicant had on 28/5/02 filed an action by Originating Summons in suit No. ID/386M/2002 seeking similar or substantially similar reliefs as in this action between similar parties herein. Upon its application the Respondent obtained an Ex-parte order of injunction in suit No. ID/386M/2002 against the Appellant herein and others enjoining them from restraining the said Respondent from the construction site or mobilizing itself (ie., the Appellant) on to the construction site of the Local Airport in Lagos State. Pages 142-144 of the record of appeal clearly show this. While suit No. ID/386M/2002 was pending before A. Ade-Alabi J. of the Lagos State High Court, the Respondent filed this present suit giving birth to this appeal also praying for similar reliefs. Pages 132-139 of the record are the counter affidavit of the Appellant to the said motion which exhibited the Ex-parte order as Exhibit TKA3. Since the Respondent had obtained an order of injunction against the Appellant in suit No. ID/386M/2002 and even also obtained another Ex-parte order in this present suit, as contained on page 145 of the record, the Appellant herein filed a Motion on Notice on 5/8/02 objecting to another application for an order of injunction in the instant suit, arguing that it was an abuse of court process. The learned trial Judge held that since the Respondent had filed Notice of Discontinuance in suit No. ID/386M/2002, the said suit was no more in existence and as such did not amount to an abuse of court process.
By Order 24 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 1994, which provides as follows:
“The Plaintiff may, at anytime before receipt of the Defendants’ defence, or after receipt thereof before taking any other proceedings in the action (save any interlocutory application) by notice in writing duly filed and served, wholly discontinue his action against all or any of the Defendants or withdraw any part or parts of its alleged cause of complaint, and thereupon he shall pay such defendants costs of the action, or if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn such cost shall be taxed and such discontinuation or withdrawal as the case may be, shall not be a defence to any subsequent action. Save as in this rule otherwise provided, it shall not be competent for the Plaintiff to withdraw the record or discontinue the action without leave of the court or a Judge in Chambers, but the court or the Judge in Chambers may, before or at, or after the hearing of trial, upon such terms as to costs and to any other action, and otherwise as may he just order the action to the discontinued, or any part of the alleged cause of complaint to be struck out. The court or Judge in Chambers may in like manner and with the like discretion as to terms, upon the application of a defendant, order the whole or part of its alleged grounds of the defence or counter claim to be withdrawn or struck out, but it shall not be competent to a defendant to withdraw its defence, or part thereof, without such leave”. (emphasis mine).
Every court established in this country, formulates its own rules which regulate proceedings in its court. And these rules are not made for window dressing, they are meant to be followed and obeyed. Before a litigant takes the first step in approaching any court, he has to be conversant with the rules governing proceedings in the said court. Failure to do so could be fatal.
Order 24 Rule 1 of the High Court (Civil Procedure) Rules of Lagos State 1994 which governs the Notice of Discontinuance dated 27th June, 2002 clearly states that a Plaintiff may at any time withdraw or discontinue his action against any or all the Defendants. It however, further states that it shall not be competent for the Plaintiff to withdraw or discontinue the action without the leave of the court or Judge in Chambers. Apart from that the said Rules state that the Plaintiff withdrawing or discontinuing the action, “shall pay such defendants costs of the action, or if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn such costs shall be taxed…”.
From the wordings of this Order 24 Rule 1, it is clear that the mere filing of the Notice of Discontinuance does not bring the matter to an end automatically, but until the Court or Judge in Chambers grants leave for the matter to be discontinued apparently after deciding on the issue as to costs and tax on the cost. The cause or matter remains pending until such formal order is made. The way Order 24 Rule 1 is couched is not without reason. Where a Plaintiff in an action has obtained an order, say, for interim payment or an injunction, leave to withdraw from or discontinue the action will be necessary. see stephen Lawson-Jack v. The Shell Petroleum Development Company of Nig. Ltd. (2002) 13 N.W.L.R. (PT.783) 180 at 197-198 paras. G-H; Hon. Minister for Works and Housing v. Tomas Nig. Ltd. & 26 ors (2002) 2 N.W.L.R. (pt.752) 740. In the instant case, the Respondent had obtained an order of interim injunction against the Appellants in suit No. ID/386M/2002 which he sought to discontinue. Thus, there was still pending before the trial court a duty not only to strike out the suit but also to determine any outstanding issues as to costs or damages due to the Respondent (now appellant) in relation to the undertaking as to damages given by the Respondent when the interlocutory injunction was awarded in his favour.
I do not intend to speculate here, but it appears the Respondent would argue that he has an unquantified right to withdraw his case from court, afterall he is the one who filed the complaint. That may be so. However, although a Plaintiff may have an unquantified right to discontinue his action with or without leave of court as the case may be (depending on the Rules of Court), he may abuse such right if he files Notice of Discontinuance after obtaining substantial advantage in the action to the prejudice of the Defendant. That will even amount to an abuse of court process.
I wish to state that quite contrary to the decision of the court below, a Plaintiff under Order 24 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 1994, requires leave of court to discontinue an action. I agree with the learned senior counsel for the Appellant that the mere filing of a Notice of Discontinuance is therefore ineffective until an order of court is made to that effect. The action will not cease to exist until the court strikes it out after deciding on issues as to costs or damages (if any) in view of the fact that the Respondent had obtained an order Ex-parte against the Appellant. The case of Ifi Izieme v. Nduokwu (Supra) relied upon by the learned trial Judge does not apply to the facts of this case. In Ifi’s case, counsel for the Plaintiffs/Respondents applied to withdraw the suit in Owerri High Court just after two witnesses had been called, giving as his reason the fact that the second Plaintiffs’ witness had “confessed to the court that he had lied on a material particular”. The learned trial Judge granted the application, and struck out the suit. The Defendants appealed to the Supreme Court contending that since the hearing had begun when the withdrawal of the suit was applied for, the proper order to make was one of dismissing the suit and not striking out.
The Supreme Court held that the learned trial Judge in striking out the Plaintiffs’ claim must have acted under the provisions of Order XLVII, Rules 1 of the High Court Rules of the East Central State and that by virtue of the provision of the Second paragraph of that rule, the learned trial Judge had a discretion firstly, as to whether or not to allow the Plaintiffs to discontinue or withdraw their claim at that stage of the proceeding, and secondly, as to whether to dismiss or strike it out. The Apex Court further held that in the particular circumstance of the case, the contention that the learned trial Judge did not exercise his discretion judicially cannot be maintained. The court then dismissed the Appeal.
Clearly, and as can be seen, the facts in Ifi’s case and the issue for consideration in the two cases are different. In Ifi’s case, the issue was whether the learned trial Judge ought to have struck out or dismissed the suit. In the instant case, the issue is whether the mere filing of Notice of withdrawal of suit without more, terminates the matter or that the court has to formally strike it out before it is finally disposed of. That is the difference.
It is my view that Ifi’s case does not apply in this case. Therefore, I hold that suit No. ID/386M/2002 was pending when this present suit No. ID/941/2002 was filed between the same parties and apparently ventilating the same subject matter.
The learned senior counsel had urged the court below to strike out this present suit being an abuse of court process but the learned trial Judge thought otherwise. An abuse of court process occurs when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, such as instituting a multiplicity of actions on the same subject matter against the same opponent on the same issues. It is not the existence or pending of a previous suit that causes the problems.
Rather, it is the institution of a fresh action between the same parties and on the same subject matter when the previous suit has not yet been disposed of, that constitute abuse of process of court. See Okafor v. Attorney General Anambra State (1991) 6 N.W.L.R.(pt. 200) 659 at 681; Per Karibi-Whyte JSC; Morgan v. West African Automobile Engineering Co. Ltd. (1971) 1 N.W.L.R.219.
For me, I think there was a clear abuse of court process when the Respondent filed this present suit when the earlier suit No. ID/386M/2002 was still subsisting at the time this current action was filed for similar reliefs and between the same parties. My view is that the motion filed by the Respondent on 5/8/02 ought to have been upheld such that this present suit ought to have been struck out. Issues one and three are thus resolved in favour of the Appellant though I shall return to this anon.
On issue No. 2, the Learned Senior Counsel drew the attention of the court to the Ruling of the lower court delivered on 14/8/02 at page 242 of the record wherein the learned trial Judge stated as follows:
“….. the 2nd Defendant has been struck off this suit in my ruling delivered on the 9th of April, 2003 having found that this court lacked the jurisdiction to entertain a Suit against the 1st Defendant”.
It was therefore the contention of the Learned Silk that having held that it has no power to try the 2nd Defendant, and in view of the fact that one of the claims against the 1st and 2nd Defendants borders on conspiracy, it follows that the court below will not be able to try only one of the Defendants as it takes more than one person to conspire. To buttress his argument, she cited the following cases in support. That is to say – State v. Haruna (1972) 8-9 SC 174; DPP V. Boot (1973) AG 807; NEPA V. Edegbero (2002) 18 N.W.L.R. (pt.798) 79; Mohammed v. Lawal (2006) 9 N.W.L.R. . (pt.985) 400 and Anyakora v. obiakor (2005) 5 N.W.L.R. (pt.919) 507.
Learned Senior Counsel then urged this Court to hold that having struck out the name of the 2nd Defendant for lack of Jurisdiction, the court below will be incompetent to entertain the conspiracy claim against both Defendants.
In both the Writ of Summons and the Statement of Claim filed by the Respondent in this case, the 2nd claim/relief sought by the Respondent is a:
“DECLARATION that in pursuance of relief 1 above, the 1st and 2nd Defendants conspired to molest, intimidate and manhandle the servants of the Plaintiffs and which acts were perpetrated with malice in order to injure the Plaintiff and dispossess the Plaintiff of the Construction site.”
Conspiracy is a secret plan by two or more persons to do something harmful or illegal/unlawful. See State v. HarunaA (1972) 8-9 SC, 174. As it is, it cannot be committed by one person. Conspiracy is an offence punishable under Sections 516, 517 and 518 of the Criminal Code, Cap C28 Laws of the Federation 2004.
In Dharmasena v. R (1951) AC I at 6 (PC), it was held that if two persons are accused of conspiracy and one is acquitted, the other must also escape condemnation. Two at least are required to commit the crime of conspiracy, one alone cannot do so.
Having struck out the name of the 2nd Defendant in this case, only the 1st Defendant was left to face this claim on conspiracy. There is no doubt that where issue relating to conspiracy is mentioned in a case, all the alleged conspirators are necessary parties. Each had a part to play.
Therefore when the learned trial Judge held that he had no Jurisdiction to try the 2nd Defendant, saying that he is an agent of the Federal Government, he ought to have struck out the suit so that the Plaintiff can take his case to another court. I ask, how did the learned trial Judge intend to address the part played by the Commissioner of Police in the suit instituted against both the Respondent and the said Commissioner of Police? Was he to be tried in absentia?
As was rightly observed by the Learned Silk, an absent Defendant in a situation such as this is automatically denied a right of fair hearing in the event of the continued hearing of a suit in which he is a party and to which his interest relate. What will happen to the evidence led by the Plaintiff against the said Defendant?
Where a court looks at both the claim and the parties and finds out that he has no Jurisdiction to try the case either as a result of the parties or the claim, all he has to do is to strike out the case. If a court has no Jurisdiction over a party but the subject matter of the claim is within its Jurisdictional competence he cannot try the claim without the parties. The matter ought to be struck out. Where the name of a party to a suit is struck out for want of Jurisdiction and yet the matter is being ventilated behind his back, such a party is denied fair hearing. See Anyakora v. Obiakor (2005) 5 N.W.L.R. (pt.919) 507.
On the whole, it is my view that allegation of conspiracy having been made against the 1st and 2nd Defendants, they ought to be tried together.
Having therefore struck out the name of the 2nd Defendant for lack of Jurisdiction, there is no basis of retaining the suit against the 1st Defendant only. Accordingly, I resolve this issue in favour of the Appellant. Having resolved all the issues in favour of the Appellant, this appeal accordingly succeeds and is hereby allowed. I set aside the Ruling of the court below delivered on 14/8/02 and order that suit No. ID/941/2002 being an abuse of court process be and is hereby struck out. I award cost of N30,000.00 in favour of the Appellant.
ADZIRA GANA MSHELIA, J.C.A.: I have had the advantage of reading in draft the judgment of my learned brother, Okoro J.C.A. just delivered. I entirely agree with the reasoning and conclusion arrived thereat. I only wish to add few words of mine for the purpose of emphasis. The court below ruled that where a Notice of Discountenance is filed and served in respect of any matter, that matter ceases to exist against the party which the suit was instituted against. Appellant then raised this issue as to whether a Notice of Discontinuance filed under Order 24 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 1994 is ineffective until it is moved by counsel with the leave of court. Order 24 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 1994 provides as follows:-
“The Plaintiff may, at any time before receipt of the Defendant’s defence, or after receipt thereof before taking any other proceedings in the action (save any interlocutory application) by notice in writing duly filed and served, wholly discontinue his action against all or any of the Defendants or withdraw any part or parts of its alleged cause of compliant, and thereupon he shall pay such defendants costs of the action, or if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn such cost shall be taxed and such discontinuation or withdrawal as the case may be, shall not be a defence to any subsequent action. Save as in this rule otherwise provided, it shall not be competent for the plaintiff to withdraw the record or discontinue the action without leave of the court or a judge in chambers, but the court or the judge in chambers may, before or at, or after the hearing of trial, upon such terms as to costs and to any other action, and otherwise as may be just order the action to be discontinued, or any port of the alleged cause of complaint to be struck out. The court or judge in chambers may in like manner and with the like discretion as to terms, upon the application of a defendant, order the whole or part of its alleged grounds of defence or counter claim to be withdrawn or struck out, but shall not be competent to a defendant to withdraw its defence, or part thereof, without such leave”.
Clearly, the provisions of Order 24 Rule 1 reproduced (supra) is clear and unambiguous. The law is trite that where the words of a statute are clear and unambiguous they should be given their ordinary and usual meaning. See Agbareh v. Mimra (2008) 2 NWLR (Pt. 1071) 378 Abubakar v. Yar’Adua (2008) 19 NWLR (pt. 1120) 1 and Cuisin (Nig.) Ltd. v. IGP (2008) 5 NWLR (Pt. 1081) 545.
The provisions of Order 24 Rule 1 of the 1994 High Court of Lagos State (Civil Procedure) Rules, clearly requires leave of court to discontinue an action. I agree with the submission of appellant’s counsel that the mere filing of a notice of discountenance is ineffective and the action will not cease to exist as decided by the court below. As observed by my learned brother every court established in this country, formulates its own rules which regulate proceedings in its court. I am of the firm view that the motion filed by the Respondent on 5/8/02 ought to have been upheld such that this present suit ought to have been struck out.
For the above reason and the more detailed reasons given in the lead judgment, I also hold that this appeal has merit and it is allowed. I abide by the consequential orders in the lead judgment cost inclusive.
MOHAMMED A. DANJUMA, J.C.A.: I have had the benefit of a preview of the Lead Judgment just delivered by my Lord, J.I. Okoro, JCA and agree with him that the Appeal has merit and should succeed.
On the 1st issue formulated by the Appellant for determination, it is clear to me that having filed a suit No. ID/386M/2002 by which an order had been obtained by the Respondent against the Appellant and others named therein (See pages 142 – 144 of the Record of Appeal), a further suit seeking the same or substantially the same or similar reliefs was an abuse of court process, the filing of a Notice of discontinuance of the earlier suit not withstanding, as the said Notice of discontinuance was in effectual in law under the High Court of Lagos State (Civil Procedure) Rules 1994, which by its Order 24 Rule 1 leave of the trial court had to be sought, obtained and the suit struck out before the suit can be said to have been validly discontinued.
As leave had not been sought, obtained and the suit struck out, the said earlier suit was still pending. The subsequent suit or action, therefore, constituted an abuse of court’s process in the circumstances. This is more so that the trial court had not done all that it ought to do in respect of the earlier suit, i.e. the court had not considered the issue of costs or damages as it had earlier on granted the Respondent an interlocutory order of injunction with an undertaking on its part. The filing of the suit when an earlier one still subsisted, and in the same matter, between same parties and for similar reliefs was an abuse of court’s process.
On issue No. 2, I agree that the second Defendant having been struck out of the claim, involving an allegation of conspiracy between him and the Appellant as Defendant No, 1, it is obvious that the trial court could no longer proceed against the Appellant – as 1st Defendant alone as conspiracy involves an agreement between two or more persons to do an unlawful or illegal act or a legal act by unlawful means.
The non availability of one of the parties in a claim in which he is a necessary party, in this case as Defendant, but whose name is struck out and/or because he is not served means that such action cannot be competently proceeded with and evidence led against such a person in absentia, as to do so will be a trial in breach of the right of fair hearing. The absentee 2nd Defendant whose name has been struck out does not complain.
The non complaint notwithstanding, this does not validate the trial and order made in, the face of the violation of the Rules of Court and injustice to the 1st Defendant, the Appellant herein. The violation cannot be condoned by a third party and more so that in my view parties cannot waive a statutory requirement. see ARIORI & ORS U. ELEMO & ORS. (1983) SC 1 AT 13.
The fate of the entire case as relating conspiracy was tied to the two Defendants jointly. It was to be proceeded upon as such or struck out in its entirety.
In EKPETO V. WANOGHO (2005) 723 LRCN 170 AT 188, the Supreme Court per Edozie JSC at para. U-EE held thus;
No doubt the right of fair hearing is a fundamental and constitutional right of a party to a dispute. It lies in the procedure followed in the determination of a case, not in the correctness of the decision of the case. See UNITED BANK FOR AFRICA LTD. AND ANOTHER V. MRS. NGOZI ACHORU (7990) 6 NWLR (PT. 756) 254.
Fair hearing in relation to a case means that the trial of a case or the conduct of the proceedings therein is in accordance with the relevant law and rule of court. See MOHAMMED V. KANO .N.A. (1968) 7 ALL N.L.R. 422 SALU EGEIBON (1994) 788 LRCN 247. SC (1994) 6 NWLR (PART 348) 23, MOHAMMED v. OLAWUNMI AND ORS. (1990) 2 NWLR (PART. 133) 458.
No one can by agreement jeopardize fair trial, for as Bello, JSC (as he then was) said in the Attorney-General of Bendel State v. Attorney-General of the Federation & 22 Ors. (1987) 10 SC 1 at page 54, ‘the law does not permit a person to contract himself out of or waive the effect of a rule of public policy.”
In the instant case at hand, the applicable rule of court governing the discontinuance of the suit or action is Order 24 Rule 1 of the Lagos State (Civil procedure) Rules 1994. The said order requires the leave of court for a discontinuance of a suit or action and an order striking out followed by a consequential order as to the assessment of damages and/or cost. That procedure, not having been exhausted or followed, there was no fair hearing therefore, when the suit was proceeded with upon merely striking out the 2nd Defendant’s name following a Notice of discontinuance against him. For the above reasons, I agree and adopt the conclusion reached in the lead Judgment that notwithstanding that there has been a proliferation of issues by the 1st Defendant/Appellant herein and notwithstanding that the Respondent did not file a Brief of Argument, the Appellant’s appeal succeeds on its merit on the 3 issues formulated by him.
The appeal is allowed. I also set aside the Ruling of the court below delivered on 14/8/02 and order that suit No. ID941/02 be struck out for being an abuse of court process. I abide the order striking out the said suit and also that relating to costs as assessed.
Appearances
Chief (Mrs.) A. Williams Akinjide SAN with S. B. Akinloye (Mrs.)For Appellant
AND
Absent and unrepresented.For Respondent
