PEOPLE DEMOCRATIC PARTY & ORS V. CHIEF (ENGR.) ADEBAYO DAYO & ANOR
(2015)LCN/7986(CA)
In The Court of Appeal of Nigeria
On Friday, the 14th day of June, 2013
CA/L/515/2012
RATIO
APPEAL: ‘CALLED UP FOR HEARING’; WHAT DOES IT MEANING WHEN AN APPEAL IS CALLED UP FOR HEARING
What does it mean when an appeal is called up for hearing? From the above proceedings leading up to the Ruling; it is obvious that this appeal had not been called up for hearing.
An appeal cannot be called up for hearing when there are motions pending to be disposed of.
When is an appeal said to be called up for hearing? The Apex court answered this question in the case of Edozien v. Edozien (1993) 1 NSCC 133. Per Olatawura, JSC
“Called for hearing” under this sub-rule; means the listing of the appeal on the cause list: for the purpose of hearing the appeal.” per. MONICA B. DONGBAN-MENSEM J.C.A.
APPEAL: WITHDRAWAL OF AN APPEAL; WHEN CAN AN APPELLANT SERVE ON THE PARTIES AND FILE WITH THE REGISTRAR A NOTICE TOT EH EFFECT THAT HE DOES NOT INTENT TO PROSECUTE THE APPEAL ANY FURTHER AND THE TYPES OF WITHDRAWAL
Order 11 Rule 1 of the Court of Appeal Rules of 2011 clearly provides for withdrawal of an appeal in these clear terms:-
‘An Appellant may at any time before the appeal is called on for hearing, serve on the parties to the appeal and file with the registrar, a notice to the effect that he does not intend to prosecute the appeal any further.”
My learned brother Galinje JCA, PJ, Ilorin court in the Appeal No.CA/IL/12/2012 between Alhaji Aliyu A. Oloko v. Nigerian Telecommunication Ltd & Anor. Ruling delivered on the 27th day of November, 2012 (2013) 8 WRN 124 (P.124) @ 136 explained the types of withdrawal in these terms:-
“This Rule (order 11 Rule 1) deals with a unilateral withdrawal of the appeal, where there is no settlement out of court. Rules 2, 3, and 4 deal with withdrawal of appeal where parties have consented to the withdrawal of the appeal. per. MONICA B. DONGBAN-MENSEM J.C.A.
Justice
M. B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
Between
Justice
1. PEOPLE DEMOCRATIC PARTY (PDP)
2. ALHAJI BAMANGAR TUKUR
3. PRINCE OLAGUNSOYE OYINLOLA
4. BODE MUSTAPHAAppellant(s)
AND
1. CHIEF (ENGR.) ADEBAYO DAYO
2. ALH. SEMIU SODIPORespondent(s)
MONICA B. DONGBAN-MENSEM J.C.A. (Delivering the Leading Judgment): This is a Ruling on the motions on notice filed and dated 19/03/13 and 28/02/13 respectively by the 3rd and 4th appellants. The reliefs sought are identical and are as follows:-
(1) AN ORDER striking out the Notice of withdrawal filed purportedly on behalf of all the Appellants in this Appeal, same having been filed without the due authorisation and consent of the 3rd Appellant.
(2) AN FOR SUCH FURTHER Order or orders as this Honourable court may deem fit to make in the circumstance.”
The grounds for the application to strike out the notice of withdrawal as endorsed on the motion Papers are:
1. The Notice of withdrawal was filed purportedly on behalf of all the Appellants including the 3rd Appellant/Applicant herein.
2. The 3rd Appellant/Applicant did not authorize or consent on the filing of the Notice of withdrawal.
3. The 3rd Appellant/Applicant did not at any time instruct Counsel to file notice to withdraw his pending Appeal.
4. The Notice of Withdrawal is consequently an abuse of judicial process.”
The same grounds were raised in respect of the 4th Appellants.
The appeal has its genesis in an originating summons filed on 29th of March, 2012 before the Federal High court, Lagos, with Suit No.FHC/L/SC/347/12 by (1). Chief (Eng.) Adebayo Dayo, (2).Alhaji Semiu Sodipo (for themselves and on behalf of the Ogun State Executive Committee of the Peoples Democratic Party) and against (1). Peoples Democratic Party (PDP), (2). Alhaji Bamanga Tukur, (3). Prince Olagunsoye Oyinlola, (4). Bode Mustapha.
An Affidavit of Amos Maisamari, Male, of Legal counsel, deposed to on the 19th day of February, 2013, to which is annexed an Exhibit supports the application. A further affidavit was also deposed to by Amos Maisamari, male, of Legal Counsel on 19th and 28th February, 2013.
A further affidavit was also deposed to by Amos Maisamari, male, of Legal Counsel on 2nd day of March, 2013.
In opposing the application, the 1st and 2nd Appellants filed a counter-affidavit on the 6th of March, 2013, deposed to by Frank Egbon of learned counsel to the 1st and 2nd Appellants.
The Respondents filed no process in the application,; though they were active participants in opposition of the application to strike out the notice of withdrawal.
In this Ruling, the 3rd and 4th Appellants will be referred to simply as the Applicants, the 1s and 2nd Appellants as Appellants while the Respondents remain as such.
It is the submission of learned counsel for the Applicants that they were individual parties in the suit which led to this appeal and that they neither instructed nor gave their consent for the withdrawal of the appeal filed. It is therefore the respective contention of the Applicants that the notice of withdrawal of the appeal be struck out. In the alternative, they each seek the order of this court striking out the names of the 1st and 2nd Appellants from the appeal. The reason is that the said Appellants cannot compel the Applicants to withdraw the appeal nor can the Applicants compel the Appellants to proceed with the appeal. It is further the case of the Applicants that it is too late in the day for the Applicants to withdraw the appeal under the provisions of order 11 Rules 1-4 of the Rules of the Court of Appeal Rules of 2011 because the appeal had been called up for hearing.
The Appellants’ response is that there was no need for the consent of the Applicants to be sought before the decision to withdraw the appeal was made. The Appellants maintain that it was by virtue of the position of the Applicants as officers of the 1st Appellant that they were made parties to the suit which developed into the appeal. That right from the inception of the matter, all the Appellants were represented by the same learned Counsel until the notice of withdrawal was filed on the 31st of January, 2013. For the ease of reference, the said Notice of withdrawal is hereby reproduced:-
IN THE COURT OF APPEAL
HOLDEN AT LAGOS
NOTICE OF WITHDRAWAL OF APPEAL
ORDER 11 RULE 1
APEAL NO: CA/L/515m/12
SUIT No: FHC/L/CS/347/12
BETWEEN:
1. PEOPLES DEMOCRATIC PARTY (PDP)
2. ALHAJI BAMANGA TUKUR
3. PRINCE OLAGUNSOTA OYINYOLA
4. BODE MUSTAPHA………..APPELLANTS
AND
1. CHIEF (ENG.) ADEBAYO DAYO
2. ALH. SEMINU SODIPO
(FOR THEMSELVES AND ON BEHALF OF
THE OGUN STATE EXECUTIVE COMMITTEE OF
THE PEOPLES DEMOCRATICE PARTY)……….RESPONDENTS
TAKE NOTICE that the Appellants herein intend and doth hereby wholly withdraw their appeal against all the Respondents in the above mentioned appeal.
Dated at…..this 31st ……day of Jan…..2013
Filing-N100.00pd ………Sgd……..
Oncm009839573 FRANK EGBOH
of 31/01/13 APPELLANTS’ SOLICITOR
J-K GADZAMA LLP
UNION MARBLE HOUSE (2ND FLOOR),
COURT OF APPEAL LAGOS NIGERIA 1,AFLRED REWANE ROAD,
REGISTRAR STAMP & DATE SOUTH WEST, IKOYI
LAGOS.
08058054591
lagos@ gadzama.com
FOR SERVICE ON:
THE RESPONDENTS
C/O OLUYEDE ESQ.,
TRLPLAW
D96, LANDBRIDGE AVENUE,
ONIRU,
VICTORIA ISLAND ANNEX,
LAGOS
THE REGISTRAR
COURT OF APPEAL.”
The learned counsel relies on the cases of Omogbami Vs. Nigerian Airways Authority (2006) 18 NWLR (Pt.1011) 310 at 326-327, Nzekwu Vs. Nzegwu (1993) 5 N.W.L.R. (Pt.292) 246 at 252 to buttress his submission.
The Respondents in the Appeal, who are also the Respondents in this application filed no counter-affidavit.
The learned counsel Mr. Olujede nonetheless addressed the Court extensively on points of law while referring to the facts already placed before the Court to provide the requisite materials in support of the legal argument preferred.
The learned counsel to the Applicants dismiss as irrelevant and inapplicable, the authorities cited by the learned counsel to the respondents. On the contrary, we find the said authorities quite relevant and as provided good and relevant arrow heads to the issues raised by the application. The learned Counsel (Mr. Ogunlade Rotimi) for the Applicants also “picked a quarrel” with the categorisation of their of withdrawal available by the provisions of the order 11 Rules 1-4 of the Rules of this court; learned counsel says there is nothing like unilateral withdrawal. By whatever nomenclature the withdrawal of appeal is termed, there is no denying that by the provisions of order 11 and its sub-rules, there are different stages of withdrawal of appeal. One clear fact is that withdrawal of appeal is possible at any stage only upon conditions at some stages.
The issue to be determined is whether the Appeal of the Appellants has been withdrawn or is yet to be withdrawn and therefore the notice of withdrawal should be struck out because the Appellants as (3rd and 4th Appellants) are desirous of proceeding with the appeal. In support of the contention that the appeal still subsist, the learned Counsel maintains that the appeal had been called up for hearing. The circumstances of the call up, is explained in para. 4 (b) of the affidavit in support of the belief and contention that the appeal had been called up for hearing. The said paragraph B as deposed to by Maimasari Esq, is as follows:-
“b; That this appeal would have been heard on the 17th of January, 2013 but for the letter written against the Justices of the Court of Appeal Lagos to the Acting President of the Court of Appeal, raising spurious and baseless allegations all designed to delay the hearing of the appeal”
The court does not be labour itself with what ought to be but is concerned with what is or has been.
What this deposition of Amos Maimasari of Counsel means is that the appeal was neither called up for hearing nor was it heard. The letters of the 3rd Appellant, dated 17th January, 2013, addressed to JK Gadzama SAN of Principal Counsel for the 1st and 2nd Appellants, came belatedly after the notice of withdrawal dated the 31/01/13 had been filed on the same date. The Legal effect of a notice of withdrawal, which has been filed is enormous. In the case of Robert, C, Okafor v. Attorney-General (1993) 7 SCNJ 345) the case was clearly commenced in a representative capacity by five persons as representing the community. Four of the parties died and the surviving Plaintiff fifed a notice of withdrawal. Some members of the community then belatedly sought to be joined as Plaintiffs/Appellants. The authority of the 5th plaintiff to file the notice of withdrawal of the appeal was questioned by the Applicants/Respondents on the ground that he did not seek the consent of the communities he was representing before doing so. The court held that granted that the 5th plaintiff did not seek the consent of the community; this would not vitiate the effect of the Notice. As a Plaintiff suing in a representative capacity, he had full control of the case and could discontinue or compromise the action and could even submit to dismissal and do other things with the action. If he fell out with the represented communities, the court, on their application, could and or substitute any other person – See Thanni V. Adegboyega (1991) 1 NWLR 369 at pp.376-377, Alhaji Chief Yekini Otapo v. Chief R. O. Sunmonu & Ors. (1987) 2 NWLR 587 at p.604 where Obaseki JSC observed:-
‘A representative plaintiff is the sole plaintiff and is Dominus litis until judgment, he can discontinue, compromise, submit to dismissal and other things as he decided during the course of the proceedings. If he falls out with the represented parties for any reason, the court has power to add or substitute any person represented though unnamed in the representative action and to bring him in as at the date of the original writ. Moon V. Atherton (1972) 1 QB. 435; 1972) 3 WLR 57; (1972) 3 All ER 145 CA. Where several sue, they have the like, power as a single representative plaintiff but they must act together Leathley v. Mc Andrew (1976) WN. 38.
In the Originating Summons and the Affidavit in support, most of all the paragraphs refer to the 3rd and 4th (2nd-4th Appellants) as officers of the 1st Appellant. Without a denial, this confirms that as at the time of filling this appeal, the Applicants were officers of the 1st Appellant, whose chairman was the 2nd Appellant and who is the administrative head of the 1st Appellant, from whom administrative decisions emanate on behalf of the 1st Appellant.
Questions 3 and 4, raised in the Originating Summons, refer directly to the 4th Appellant. (4th Defendant, Bode Mustapha as an Officer (National Auditor) of the 1st Defendant (1st Appellant).
The reliefs sought in Originating Summon are directed at the 1st to 3rd Defendants and other organs and officers of the 1st Defendant (See paragraphs 1, 2, 3, 6, 7, 8, 9 and 11) while paragraphs 4 and 9 in particular, refer to the 4th Defendant (4th Appellant) as a nominated candidate of the 1st Defendant, as National Auditor).
The affidavit in support of the Originating Summons is equally awash with references in the paragraphs of the affidavit oh the 1st-3rd and 4th Defendants as acting in consonance.
No material is placed before this court in support of this application, which shows that the Applicants were acting in their personal capacities; independent of the 1st and 2nd Appellants, right from the inception of this case, They briefed no separate counsel until the notice of withdrawal was filed.
Exhibits CA1, CA2, CA3 and CA4 are the respectively the 7th March, 2013, 22/03/2013, 07/03/2013 & 26/03/2013. By their dates, all the letters of protest to the withdrawal of the appeal came after the event. The cure had died, so to speak. The appeal had been withdrawn and effectively so. All that is required of this court is to intern the cacas of the said appeal by entering an order of dismissal in accordance with order 11 Rule 10 of the court of Appeal Rules of 2011.
It is a mis-information to say that this appeal was called up for hearing. The facts are best represented by the proceedings of the 6th day of March, 2013, when a different panel including my humble self sat on the matter for the first time. The proceedings of that day are hereby reproduced for the ease of reference.
“IN THE COURT OF APPEAL
LAGOS JUDICIAL DIVISION
HOLDEN AT IAGOS
ON WEDNESDAY, THE 6TH DAY OF MARCH, 2013
JUSTICE
M. B. DONGBAN-MENSEM JUSTICE, COURT OF APPEAL
O. OGUNYA JUSTICE, COURT OF APPEAL
T. ABUBAKAR JUSTICE, COURT OF APPEAL
APPEAL NO: CA/L.515M/12
BETWEEN
People Democratic Party
Vs.
Chief (Eng.) Adebayo Dayo & Anor
Parties:
None in Court.
Appellant Counsel:
Yamta Yusuf with Rotimi Ogunlade
Respondents Counsel:
Gboyega Oyewole Esq. with Realwan Okpanachi Esq. and Amos Maisamari for the 3rd and 4th respondents
Court:
There are only two Respondents in the processes before us. Why is Gboydga Oyewole appearing
Court:
There are only two Respondents in the process before us. Why is Gboyega Oyewole appearing for 3rd and 4th Respondents?
Gboyega Oyewole:
There is some development which makes me to be the representative of the Respondents now and not the Appellants because the 1st and 2nd Appellants filed a notice of discontinuance.
Yusuf:
Mr. Gboyega Oyewole initially was briefed to represent the Appellants, he filed the notice of appeal, but was eventually debriefed and we are now handling the Appeal.
Ifeoma Eson: for the Respondents i.e Chief (Eng.) Adebayo Dayo and Alh. Semiu Sodipo.
Court:
By the processes before us now, there are four Appellants PDP/ Alh. Bamanga Tukur, Prince Olagunsoye Oyinlola and Bode Mustapha as Appellants, while Chief (Eng,) Adebayo Dayo and Alh. Semiu Sodipo are the Respondents. What has changed?
Mr. Oyewole
What has changed now is that a notice of withdrawal was filed by the firm of Gadzama SAN who is here represented by Mr. Yamta Yusuf, purportedly. However; the 3rd and 4th Appellants were not in agreement with the notice of withdrawal, Therefore, on their behalf, we filed two motions on notice. The first of which is dated the 19/02/13 filed on the same date. The second was dated the 28/02/13 and filed on the same day. Both motions seek the order of this Court striking out the motions for withdrawal because they were not authorized by the 3rd and 4th Appellants. The 1st and 2nd Appellants reacted by filing counter-affidavit this morning on the 6/03/13. I do urge the Court to give directions on this as the 1st and 2nd Appellants have indicated that the 1st and 2nd Appellant are no longer interested in pursuing this appeal.
Yamta Yusuf:
The firm of Otumba Kunle Kolejaiye sAN was instructed by the 1st Apdellant to represent the four Appellants before the Federal High Court and they were all joined as National Officers of the 1st Appellant not as individuals. Now as Counsel to the appellants we filed a notice of withdrawal dated the 31/1/13 and filed on the same date.
Ifoema Esom:
The issue in my opinion is for the Court to determine whether there is any appeal pending before the Court for determination in view of notice of withdrawal filed on behalf of all the Appellants on the 31/1/13. I urge the Court to take the motion filed by the Appellants and we are ready to proceed.
Court:
Registrar, do you have the motions filed on the 19/2/13 and that of the 28/2/13?
Registrar:
Yes, we have them but we do not have the counter affidavit, because it was filed this morning.
Yamta:
We were served on the 4/3/13.
Court:
Since the Counter affidavit was filed this morning and the motions of the 19/2/13 and 28//2/13 are not before us yet, we cannot proceed and shut our eyes to their existence. We shall take another date; therefore all the motions pending are hereby adjourned to the 18/3/13 for hearing
Signed
(M. B. Dongban-Mensem)
Presiding
6/3/13.”
Due to same intervening circumstances the court could not sit on the 18th March, 2013. The application was further adjourned to the 10th of April, 2013. The proceedings of the said date are also hereby reproduced again for the ease of reference:
“IN THE COURT OF APPEAL
LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
ON WEDNESDAY, THE 10TH DAY OF APRIL, 2013
JUSTICE
M. B. DONGBAN-MENSEM JUSTICE, COURT OF APPEAL
I. G. MBABA JUSTICE, COURT OF APPEAL
T. ABUBAKAR JUSTICE, COURT OF APPEAL
APPEAL NO.: CA/L/515M/12
BETWEEN
People Democratic Party
Vs.
Chief (Eng.) Adebayo Dayo & Anr.
Parties
4th Appellant – Mr. Bode Mustapha
Appellants Counsel:
Frank Egboh with Mr. Yanga Ali for 1st and 2nd; Gboyega Oyewole with Realswan Okpanachi and Amos S. Maisamai for 3rd and 4th Appellants.
Respondents Counsel:
R. A. Oluyede with Esom (Mrs.) for the two Respondents.
Mr. Frank Egboh:
We received no hearing notice for today, I was only called up this morning to be informed of today’s proceedings. I have therefore come totally unprepared even though this matter was to be heard on the 18th March 2013. I am therefore asking for a very short adjournment to enable us prepare for this hearing.
Oyewole for the 2nd and 3rd Appellants:
We are opposed to the Application for an adjournment. This matter was adjourn over a month ago precisely, on the 06/03/13, there was therefore ample time for the Applicants to have filed any documents they feel may be germaine to this appeal. The only process the 1st and 2nd Appellants have before this Court is a notice of withdrawal and nothing more. It is only for the Court to determine the issue of this notice before proceeding to the substantive appeal. Having signified their intention to withdraw from the appeal, there is nothing further for the 1st and 2nd Appellants to add to the appeal. We are also served with the hearing notice yesterday. I made a copy of the hearing notice and sent it to their office and it was delivered in their office Mr. Gadzama for the 1st and 2nd Appellants. We are therefore on the same side with the learned Counsel, having also been served with it yesterday, it is clear to us that their intention is only to delay the hearing of this appeal. I urge the Court to refuse this application.
Respondent Mr. Oluyede R. A.
I am not opposed to the application for an adjournment. I submit that there is no appeal before the
Court. What is before the Court is an application to vacate the withdrawal of the appeal,therefore the 1st and 2nd Appellants were also Respondents.
Appellants Counsel for 1st and 2nd Appellants:
We seek this application to enable us file an important document, a further affidavit in response to the application of the 3rd and 4th Appellants dated the 19th Feb. 2013, and filed on the same date. Our present application is also in order to file a further affidavit in response to the same application.
Court Ruling
The 1st and 2nd Appellants seek an adjournment to enable them file a further response to the process of the 3rd and 4th Appellants which process was filed on the 19th Feb. 2013. The learned Counsel to the 1st and 2nd Appellants concedes that they had filed a counter-affidavit to the said process. The said application was stated for hearing on the 18th March 20t3, but the Court could not sit. The learned Counsel for the 1st and 2nd Appellants is in court today because he received a hearing notice to that effect. The learned Counsel for the Respondent has no objection to the application for an adjournment. We fail to comprehend how the failure of the 1st and 2nd Appellants to file a further process in response to an application filed about fifty days ago should be a reason for this Court to grant an adjournment even if the parties were served the hearing notice for this proceeding this morning. By the records of this Court, hearing notices for today’s proceedings were actually served on the 03/04/2013. In the circumstance we agree with the submission of the learned counsel for the 3rd and 4th Appellants that this application is without merit and ought to be and is indeed hereby refused, we shall proceed with the matter slated for hearing today.
Signed
(M. B. Dongban-Mensem)
Presiding
10/4/13
Signed Signed
(I. G. Mbaba) T. Abubakar
J. C. A. J.C.A.
10/4/13 10/4/13
Argument on motion to strike out Notice of withdrawal
Applicants’ Counsel:
We filed an application dated and filed the 19th Feb,2013 for the 4th Appellant and another in similar terms for the 3rd Appellant dated 28th Feb,2013, seeking in both applications, an order of this court for the striking out of the notice of withdrawal, filed purportedly, on behalf of the 3rd and 4th Appellants as it relates to the 3rd and 4th Appellants in this appeal, the notice having been filed without the due authorization of the 3rd and 4th Respondents, mere are four grounds and six paragraphs affidavit filed in support of this application. A counter-affidavit of 16 paragraphs with -one exhibit was filed by the Respondents e.d of the application. We rely on all of these. Also filed was a further affidavit of six paragraphs.
The notice of withdrawal was made pursuant to order 11 of Rules of this Court. Rules 1 – 5, I submit that the notice is belated because the appeal had been called up for hearing before it was withdrawan. A condition precedent is that a notice of withdrawal must be filed before an appeal is called up hearing. By the Court record, this matter should have been heard on the 17th of January 2013, see paragraphs 4b of the affidavit in support. From the totally of the records to the affidavit before the Court, the fact that the 3rd and 4th Appellants did not authorize the 1st and 2nd Appellants to withdraw their appeal is clear. We submit that the 1st and 2nd Appellants, cannot foist their desire to withdraw their appeal on the 3rd and 4th Appellants and the 3rd and 4th Appellants cannot force them to proceed. Order 3 Rule 18 of the old rules are same with the provisions of order 11 Rule 3 of the new Rules of this court.
The provisions of the said Rule were construed in the case of Omogbami v. Nig. Airways (2006) 18 NWLR (Pt.10.1) page 306 @ 326 – 327 per Rhodes Vivour JCA.
The facts are same with those of this appeal. The response of the 1st and 2nd Appellants for their counter-affidavit says they were under a general instruction to which the exhibit attached is in support. Exhibit A referred. The said Exhibit is contradictory in terms as it relates to the individuals in the appeal and the said process has no relevance to the present appeal. The parties were not sued in a representative capacity, nor have they appealed so in a representative capacity. Order 11 Rule 4 says the appeal will proceed as it relates to the Appellants whose consent is not present. Forms 14 and 15 are absent in this application, because no consent was given. A dismissal made in general term in the circumstances will be compliance only in respect of the party who gave consent. See the case Nzegu v. Nzegu (1993) 5 NWLR (Pt.292) p.240 @ 252 per Akintan JCA. I urge the Court to follow and apply this decision.
Mr. F. Egbon for the 1st and 2nd Appellants:
In response to this matter, we filed a counter affidavit with motion dated 19th Feb,2013, sworn to on the 6th March 2013, dated the 17th March, a 15 paragraphs affidavit to which is annexed one Exhibit. We rely on both. I refer to paragraph 14 which we refer to a notice of withdrawal, filed on the 31/01/13. We submit that once a notice of withdrawal has been filed and served, the appeal is deemed dismissed – that is the effect of our notice of the 31st January 2013. I refer to… Order 1 Rule 11 of the Rules of this court and that position is supported by the case of Ekundano v. Keregbe (2008) 4 NWLR (Pt.1077) page 420 @ 430 – e.g. notice of withdrawal terminates a case. We do not need the consent of the 3rd and 4th Appellant. We have the instructions of the parties to withdraw the suit of the 1st Appellant. Paragraph 7 refers to all the Appellants before the court who were in court in their official capacity as representing the party (PDP), see also paragraph 6. We still maintain that once an appeal is withdrawn, there is nothing else left to the court. I urge the court to dismiss the motion.
R. A. Oluyede for Respondents
We are opposed to the application to vacate the notice of withdrawal. we har13 filed no counter affidavit because the material facts are not contested. It is my submission that the salient facts before the court are not contested
By paragraph 4b of the affidavit of the Applicant’s motion shows that this appeal has never been called for hearing. Paragraph 4c confirms that the appeal as never called for hearing but for the purpose of enlisting another panel. Engr. Dingyadi v. INEC No.2 (2010) 18 NWLR Pt.1224 pg.154 @ 193 – 195. Also on the issue of common ground, I refer to paragraph 4f & g of the affidavit in support, and paragraph 6 – 10 of the counter-affidavit of the 1st and 2nd Appellants show that the intention of the 3rd and 4th Appellants, to debrief the common learned counsel and withdrawing authority came earlier on in January; withdrawal of authority was in March. Paragraph 2 – 5 of the further affidavit of the 3rd and 4th Appellant to this two legal points then stand out and those are 1. Whether this notice of withdrawal was unilateral or required the consent of all the parties. (2) Whether the learned Counsel representing all the Appellants at the time the notice was filed, was obliged to consult the Appellants or obtain specific authority before filing a notice of withdrawal of the appeal. On the 1st issue, the notice of withdrawal signed was a unilateral decision by all the Appellants – Oyewole was the sole counsel until March when he started representing the 3rd and 4th Appellants. It was therefore a notice filed pursuant to order 11 Rule 1 not order 11 Rule 2. That being so, was the notice filed before the appeal was called for hearing? We submit that the notice was filed before the appeal was called for hearing and till today, the appeal has not been called for hearing and the notice cannot be withdrawn nor struck out. See Dingyandi vs. INEC (supra) at pg 193. The Applicants cite order 11 Rule 2, to say their consent was required which is not the case. In Nzeowu vs. Nzeowu, cited by the Applicant was clearly with the equivalent of order 11 Rule which requires that parties can consent to withdraw unilaterally after the appeal has been called and in which case, an order of Court is not require. Further submits that the position of the law is that the result will be the same. i.e a delayed foiled unilateral notice will still lead to the termination of the appeal see Edozien v. Edozien (1993) 1 NWLR (Pt.272) p.678 at 725 – 706. Giyandi pg of 195
Issue- of consultation by counsel, refers to Edozien vs, Edozien p’ 692 – there were two counsel on differing points. A notice filed by one Appellant is as good as filed by all. In the case of Adewumi vs. Clastex (1986) 3 NWLR Pt.32 P.767 at 784 – 785 and 794-795 per Eso and Karibi-Whyte (on specific instructions) that counsel has general authority to do as he decides to do with the case. I submit that the application is without merit and ought to be dismissed, with cost substantial cost.
On points of law by Oyewole for the Applicants:
I submit that there is nothing like unilateral withdrawal in law. There are four Appellants before the Court and four Appellants cannot unilaterally withdraw – only withdrawal by concert as person. Exhibit A, annexed to the counter-affidavit. There is an obligation to consult since it is not the same Counsel who filed the notice of withdrawal – He was not the Counsel on record – he just came in via Exhibit A, and paragraphs 2, 3, 4 and 5 of the counter affidavit refers to some Exhibits which support this submissions. All the authorities cited are not directly relevant to this case but to the scope of the authority of the Counsel who initially filed the process and not as to whether he was briefed at all to withdraw an appeal. I submit that calling an appeal and hearing of an appeal are two different things. I urge the Court to grant the application.
Court:
Ruling is reserved.
Signed
(M. B. Dongban-Mensem)
Presiding
10/4/13”
What does it mean when an appeal is called up for hearing? From the above proceedings leading up to the Ruling; it is obvious that this appeal had not been called up for hearing.
An appeal cannot be called up for hearing when there are motions pending to be disposed of.
When is an appeal said to be called up for hearing? The Apex court answered this question in the case of Edozien v. Edozien (1993) 1 NSCC 133. Per Olatawura, JSC
“Called for hearing” under this sub-rule; means the listing of the appeal on the cause list: for the purpose of hearing the appeal.”By the physical reproduction of the proceedings proceeding the hearing of this application, it is apparent that the appeal had not been called up for hearing before the notice of withdrawal was filed. Indeed, the deposition of Maimasari in para. 4 (b) of the affidavit in support of this motion is a clear admission that this appeal had not been called up for hearing. The learned Counsel to the Applicants stumbled from one point to the other in search of legal support to his argument. It is the contention of the learned Counsel that where there are four Appellants, there cannot be unilateral withdrawal of an appeal. It is further the submission of the learned Counsel for the Applicant that, because the instructions to withdraw the appeal was given to a different Counsel other than the one who filed the process, the consent of the Appellants is required. These postulations are without a legal foundation nor support. Order 11 Rule 1 of the Court of Appeal Rules of 2011 clearly provides for withdrawal of an appeal in these clear terms:-
‘An Appellant may at any time before the appeal is called on for hearing, serve on the parties to the appeal and file with the registrar, a notice to the effect that he does not intend to prosecute the appeal any further.”
My learned brother Galinje JCA, PJ, Ilorin court in the Appeal No.CA/IL/12/2012 between Alhaji Aliyu A. Oloko v. Nigerian Telecommunication Ltd & Anor. Ruling delivered on the 27th day of November, 2012 (2013) 8 WRN 124 (P.124) @ 136 explained the types of withdrawal in these terms:-
“This Rule (order 11 Rule 1) deals with a unilateral withdrawal of the appeal, where there is no settlement out of court. Rules 2, 3, and 4 deal with withdrawal of appeal where parties have consented to the withdrawal of the appeal.
Whichever is the case, by Order 11 Rule 5 of the Rules of this court, an appeal which is withdrawn under Order 11 whether with or without an order of the court shall be deemed to have been dismissed. ”
A litigant is at liberty to change his learned Counsel at any time. Nothing in the provision of Order 11 of the Rules of this court request that the learned Counsel who filed the Notice of appeal and the briefs must be the one to file a Notice of withdrawal.
The learned Counsel for the Appellants in the search for the preservation of the appeal, alleges an abuse of court process placing reliance on the case of Dingyadi v. INEC No:2 (2010) 18 NWLR (pt.1224) p 1 @ 74
With utmost respect to the learned Counsel to the Applicant, I fail to see the relationship/similarity between the case of Dingyadi v. INEC (supra) and the instant case. Wherein lies the abuse of court process? We have systematically shown thus far, that the Applicants have failed to place before this court, those material facts which support the contention of the two Applicants that they were four independent but strange bed fellows clamped together by the initiator of the originating, summon filed against them. As highlighted earlier, several paragraphs of the affidavit in support of the originating summons refer to the Applicants as national offices of the 1st Appellant and they were sued in that capacity. No counter affidavits were deposed to nor filed in contradiction with the assertion of the initiators of the originating summons.
I find it impudent that the learned counsel for the Applicants raises as an issue for submission before this court, the fact that counsel was representing all the Appellants, and had infact filed the notice of appeal, the records and all other processes in the appeal until another learned counsel came up with the notice of withdrawal, The question to ask is has the learned counsel now joined the Applicants as a party against his earlier client, the 1st Appellant? Should this conduct not raise a question of professional ethics? Should Counsel not have stepped aside and allowed another counsel take up the matter of the Applicants? My sense of Justice, a accountability and the dictates of professional ethics demands that the I learned counsel Oyewole Esq. should have stepped aside for a more neutral learned counsel to argue the matter of the Applicants for whatever it is worth. I say no more.
Since the case of Edozien v. Edozien (supra) which is clear that:-
“…appeal ceases to exist, once the Notice of Withdrawal of the Appeal is filed… The Supreme Court cannot restore the appeal on the list, because the appeal had come to an end by the filling of Notice of Withdrawal.” See also the case of Emeghara w Health Management Board, Imo State (1987) 2 NWLR (Pt.56) 330 @ 339-340 where it was held that a notice of discontinuance once it is filed, the whole suit is deemed to have come to an end, and does not need to be formally argued as a motion.”
The situation has not changed. This court is not the forum for such change.
I find the submission of the learned counsel for the Respondents, Oluyede Esq, as adequately addressing the issue of an appeal being called up. As earlier indicated in this Ruling; paragraph 4b of the affidavit of the motion shows that this appeal has never been called for hearing. Further, paragraph 4c also of the Maisamari’s deposition, confirms that when the appeal was called up, it was not for hearing but for the purpose of relisting a differently constituted panel for the determination of the appeal. For purposes of clarity, I repeat that an appeal cannot be said to be called up for hearing when there are motions pending to be determined.
The application to vacate the notice of withdrawal is without merit and is hereby dismissed. The notice of the withdrawal of this appeal filed on the 31/01/2013 effectively terminated the appeal the moment the notice was filed. Accordingly, the appeal No: CA/L/515/12 filed on 5/7/2012 which records were transmitted on the 10/07/12 is hereby deemed dismissed in accordance with order 11 Rule 5 of the Rules of the 2011.
A cost of N30,000.00 is awarded to the Respondents and against the Applicants but no cost awarded to the Appellants.
It is hereby so ordered.
ITA G. MBABA, J.C.A.: I have had the privilege of reading the lead Ruling, delivered by my learned brother, MONICA DONGBAN-MENSEM, JCA and I agree with the reasoning and conclusions expressed therein. ,
The 4th Appellant/Applicant can not apply to this Court to strike out the NOTICE OF WITHDRAWAL, filed by the Appellants (even if he does not agree with the other Appellants to withdraw the appeal), as the same had accomplished its purpose right from the date it was filed, the Applicant being under the power and control of the 1st and 2nd Appellant for the purpose of the appeal, and going by a long line of the decisions of this Court and of the Supreme Court, to the effect that “… appeal ceases to exist, once the notice of withdrawal of the appeal is filed…” Edozien Vs. Edozien (1993) 1 NWLR (Pt.271) 618 at 700.
In the above case, the Court said that “The Supreme Court cannot restore the appeal on the list because the appeal had come to an end by the filing of the Notice of Withdrawal.”
See also the Case of EMGHARA VS. HEALTH MANAGEMENT BOARD IMO STATE (1987) 2 NWLR (Pt. 56) 330 at 339 – 340, where it was held that a notice of discontinuance, once it is filed, the whole Suit is deemed to have come to an end and does not require to be formally argued as a motion. The Supreme Court also held in the case of EKUNDANO VS. KEREGBE (2008) 4 NWLR (Pt.1077) 422, ratio 2 that-
“A Plaintiff may, without leave of Court, discontinue a Suit against all or any of the defendants, or withdraw any part of his claim before the date fixed for hearing. In such a situation the notice of withdrawal automatically terminates the proceedings…”
This principle was recently applied by this Court in the recent case of ALH. ALIYU A. OLOKO VS. NIGERIA TELECOMMUNICATION & ANOR. (2013) 8 WRN L24 delivered on 20/11/2012, where it was held, setting aside an earlier decision of this Court allowing the withdrawal of a notice of withdrawal, as follows:
“Of Course, because the Notice of withdrawal filed, automatically, terminates the appeal and the same (appeal) ceases to exist, once the notice of withdrawal is filed…nothing remains for the Court to exercise its discretion on. Therefore, an application for withdrawal of the Notice of withdrawal becomes a vain exercise, the case having, become extinct, by reason of the automatic effect of the Notice of withdrawal, from the date of filing the Notice.”
I too, dismiss the Application and hold that the appeal ceased to exist since 31/01/2013, when : the Notice of Withdrawal was filed, the Appeal having not been fixed for hearing at the time.
TIJJANI ABUBAKAR, J.C.A.: My learned brother, Dongban-Mensem, JCA, granted me the privilege to read in draft the Ruling just delivered. I agree with the reasoning and conclusion.
The moment notice of withdrawal is filed, it has the automatic effect of terminating the appeal, in other words, there is nothing left before the court to strike out. Once an appeal is withdrawn, it stands dismissed see Y.S.G. MOTORS LTD. vs. OKONKWO (2010) 15 NWLR (PT.1217)
For the above reason, and the more detailed reasons given by my learned brother I too dismiss the application.
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Appearances
Frank Egboh with Mr. Yanga Ali for the 1st and 2nd Appellants.
Gboyega Oyewole with Realswan Okpanachi, Amos Maisamari for the 3rd and 4th Appellants.For Appellant
AND
R. A. Oluyede with Mrs. EsomFor Respondent
