RASHEED ABIODUN BALOGUN-ETTI & ANOR v. HUMPHREY ABAH & ANOR
(2018)LCN/12107(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 31st day of October, 2018
CA/L/1049/2015(R)
RATIO
APPEAL: REASON TO APPEAL
“I am aware and it is the law that once a decision of Court has been handed down, unless and until it is appealed against and set aside it remains valid and subsisting. Thus, an appeal is an invitation to a higher Court, empowered by law to hear such appeal, to review the decision of the lower Court to see whether on the proper consideration of the facts and applicable law, the lower Court arrived at a correct decision. See Oredoyin V. Arowolo (1989) 4 NWLR (Pt. 114). See alsoOgunremi V. Dada (1962) 2 SCNLR 417; Ezeokafor V. Ezeilo (1999) 9 NWLR (Pt. 619) 513.” PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
Between
1. RASHEED ABIODUN BALOGUN-ETTI
(For himself and on behalf of Sherifat Etti branch of the family of Abubakar Balogun Etti-Jikoji)
2. ALHAJA KUBURAT ADENIYI
(For herself and on behalf of Alhaja Sidikat Ayika, the family of Abubakar Balogun Etti-Jikoji)
-APPELLANTS/RESPONDENTS Appellant(s)
AND
1. HUMPHREY ABAH -1st RESPONDENT/APPLICANT
2. ALHAJI TAOFEEK ETTI
(Head of the family, for himself and on behalf of the Sinatu Abeje branch of the family of Abubakar Balogun Etti-Jikoji) -RESPONDENT Respondent(s)
BIOBELE ABRAHAM GEORGEWILL, J.C.A.(Delivering the Lead Ruling):
This is an Application filed by way of a Motion on Notice on 19/5/2017 by the 1st Respondent/Applicant and brought pursuant to Section 15 of the Court of Appeal Act; Order 6 Rules 1 & 4 of the Court of Appeal Rules 2016; Order 23 Rule 2(1) of the High Court of Lagos State (Civil Procedure) Rules 2012 and under the inherent jurisdiction of this Court, praying this Court for the following orders, namely:
1. An Order granting leave to the Applicant to withdraw Suit No. LD/428/2012: Humphrey Abah V. Rasheed Abiodun Balogun – Etti & Others, which was instituted by the Applicant in the High Court of Lagos State.
2. An Order deeming the Notice of Withdrawal dated and filed in the High Court of Lagos State on 9/5/2017 in Suit No. LD/428/2012: Humphrey Abah V. Rasheed Abiodun Balogun Etti & Others as having properly filed.
3. An Order striking out Suit No. LD/428/2012: Humphrey Abah V. Rasheed Abiodun Balogun Etti & Others which was instituted by the Applicant in the High Court of Lagos State.
4. An Order striking out this Appeal.
The Grounds of the Application are as follows, namely:
1. The Applicant is the Claimant in Suit No. LD/428/2012: Humphrey Abah V. Rasheed Abiodun Balogun Etti & Others, in the High Court of Lagos State and from which this appeal arose.
2. The Applicant is no longer desirous of pursuing his case at the High Court and needs leave of Court to discontinue the said suit.
3. The Applicant has filed a Notice of Withdrawal before the lower Court.
4. The Appellants’ appeal has been entered in this Court by reason of which the lower Court has lost jurisdiction to make orders on the Notice of Discontinuance.
5. Interest of justice.
In support of the application is an affidavit of 13 paragraphs deposed to by one Nsikan Udo, Litigation Officer in the law firm of the counsel for the 1st Respondent/Applicant. In further support of the application, the 1st Respondent/Applicant on 26/7/2017 filed further affidavit of 13 paragraphs deposed to by Nsikan Udo, Litigation Officer in the law firm of the counsel for the 1st Respondent/Applicant. In response, the Appellant/Respondent on 10/7/2017 filed a counter affidavit of 14 paragraphs deposed to by one Ruth Adesua Erewele, a legal practitioner in the law firm of the counsel for the Appellants/Respondents. On 26/10/2017, the Respondent/Applicant filed a reply to the counter affidavit of the Appellants.
In compliance with the directive of this Court made on 11/7/2017, the parties filed and exchanged written addresses. The written address of the 1st Respondent/Applicant was settled by Obaloluwa Adeleke Esq. and filed on 26/7/2017. The written address of the Appellants/Respondents was settled by Ejeta Otuoniyo Esq. and filed on 9/10/2017. The written reply of the 1st Respondent/Applicant was settled by Obaloluwa Adeleke Esq. and filed on 26/10/2017.
At the hearing of the application on 2/10/2018, A. A. Abduwahab Esq., learned counsel for the 1st Respondent/Applicant, appearing with Umar Padah Esq., relied on the affidavit and further affidavit and reply affidavit of the 1st Respondent/Applicant and adopted the written and reply addresses as their arguments in support of the application and urged the Court to grant the application and to strike out the Respondent?s Suit before the Court below and strike out the appeal.
The Appellants/Respondents, though duly served with hearing notice on 12/9/2018, were not in Court and were also not represented by counsel but the written address of their counsel in opposition to the application was deemed as argued. The 2nd Respondent, though duly served with hearing notice on 13/9/2018, was also not in Court and was also not represent by counsel.
My lords, looking at the facts as deposed to in the affidavit, further affidavit, counter affidavit and reply to counter affidavit, it would appear that while the 1st Respondent/Applicant did not clearly set out any specific issues for determination but addressed the Court on all the matters in the application as it appeared to him, the Appellants/Respondents had set out a sole issue for determination in this application, namely:
“Whether an application to discontinue a Suit which already embeds a living judicial order or ruling can if granted, extinguish or kill the judicial order or ruling without further ado.”
I find the above issue as inapt in the light of the reliefs sought in this application and would consider this application of the simple sole issue of whether the 1st Respondent/Applicant is entitled to and made out his entitlement to the reliefs sought in the application before this Court. It is my view that a consideration of this sole issue for determination would involve a due consideration of all the submissions of the parties in this application and I proceed to do so anon.
SOLE ISSUE
Whether the 1st Respondent/Applicant is entitled to and made out his entitlement to the reliefs sought in the application before this Court?
1ST RESPONDENT/APPLICANT’S COUNSEL SUBMISSIONS
The learned counsel for the 1st Respondent/Applicant had submitted that the 1st Respondent/Applicant has by the Notice of Withdrawal filed before the Court below and annexed to these proceedings as Exhibit ABN 1 given vent to his decision to discontinue his Suit No. LD/428/2012 pending before Court below against the Appellants and the 2nd Respondent and contended that though an appeal has been filed by the Appellants but it having been duly entered before this Court, the 1st Respondent, who is the Claimant before the Court below, can no longer be competent to apply to the Court below to strike out his Suit since the power of the Court below over the Suit had ceased upon the due entering of this appeal in this Court, an order which only this Court can make in the circumstances. Counsel referred to Section 15 of the Court of Appeal Act.
It was further submitted that the corollary to a Claimant’s unfettered constitutional right to approach the Court to ventilate his grievance is the right to withdraw or discontinue his complaint from Court without let or hindrance and contended that it was in the exercise of this unfettered right that the 1st Respondent/Applicant is seeking leave of this Court to discontinue his Suit before the Court below and urged the Court to hold that since the Court below had the power to grant leave to the 1st Respondent/Applicant to withdraw the suit had the appeal not been entered, this Court has the same right to so order since the appeal has been entered and to strike out the Suit as well as the appeal. Counsel relied on Efet V. INEC & Anor. (Supra); PDP V. ABUBAKAR (Supra); Babatunde V. P.A.S & T.A Ltd. (Supra).
It was also submitted that the right of withdrawal without any let or hindrance is however subject to if the Defendant had filed a defense, as in the instant case, in which case the leave of Court is required for the Claimant to abate his Suit and contended that the 1st Respondent/Applicant having filed his notice of withdrawal was entitled to the order of Court striking out the Suit and urged the Court to grant leave to the 1st Respondent/Applicant to withdraw his Suit and to strike out the Suit, it having been withdrawn and to also strike out the appeal which is dependent on the existence of the suit can no longer stand once the suit is withdrawn and struck out. Counsel referred to Order 23 Rules 1 & 2 of the Lagos State (Civil Procedure) Rules 2012 and relied on APGA V. Umeh (Supra); Dalfam Nigeria Limited V. Okaku International Limited (Supra); Itota V. Akokoru (2001) 1 NWLR (Pt. 736) 284 @ pp. 290 – 291.
APPELLANTS/RESPONDENTS? COUNSEL SUBMISSIONS
On his sole issue, learned counsel for the Appellants/Respondents had submitted that the Appellants had by their notice of appeal filed on 1/11/2012 appealed against the Ruling of the Court below dismissing their preliminary objection challenging the competence of the 1st Respondent’s suit and which appeal has already been entered before this Court and contended that in law a discontinued action does terminate a subsisting judicial order and urged the Court to hold that in the circumstances it would be better for the appeal to be heard and determined first before any withdrawal of the Suit by the 1st Respondent/Applicant since in law a finding or ruling against which there is no appeal stands admitted or undisputed. Counsel relied on UBA Plc V. Mr. Sunday Udusip (2014) Legal Pedia; Oredoyin V. Arowolo (1989) 4 NWLR (Pt. 114) SC.
It was further submitted that in the circumstances of the facts of this case before the Court below leading to the appeal, it is the requirement of the Rules of the Court below that leave must be obtained to withdraw a Suit in which proceedings have been taken and contended that the prerogative of withdrawing an appeal is that of an Appellant as governed by the Rules of this Court 2016 and not by a Respondent under the Rules of the Court below and urged the Court to hold that the appeal having been entered and the Appellant not applying to withdraw their appeal it was incumbent on this Court to hear and determine the appeal on the merit and to dismiss the application for lacking in merit. Counsel referred to Section 242 of the Constitution of the Federal Republic of Nigeria 1999 and relied on Ogunremi V. Dada (1962) 2 SCNLR 417; Ezeokafor V. Ezeilo (1999) 9 NWLR (Pt. 619) 513 @ p. 517; Saraki V. Kotoye (1992) 9 NWLR (Pt. 264) 156 SC.
1ST RESPONDENT/APPLICANT’S COUNSEL REPLY SUBMISSIONS
In his reply address, learned counsel for the 1st Respondent/Applicant had submitted that in law once a suit has been struck out, all subsisting orders made in that suit automatically lapses and contended that the order sought to be set aside in this appeal is not one which touches on the subject matter of the suit but rather one which touches on the locus standi of the 1st Respondent/Applicant to institute this suit at the Court below and urged the Court to hold that while in law the ordinary mode of setting aside a subsisting order of Court is by obtaining another order of Court setting the former aside, but once the suit on which the order sought to be set aside is withdrawn and struck out, the order becomes spent. Counsel relied on Maigari V. Adama (Supra)
RESOLUTION OF SOLE ISSUE
My lords, I have given considerable thought to the facts and circumstances of this application as can be gleaned from the affidavit, further affidavit, counter affidavit and reply to counter affidavit evidence of the parties. I have also taken time to review and consider the submissions of counsel in their respective written addresses.
Now, on the one hand, the 1st Respondent/Applicant in his affidavit in support had specifically deposed in inter alia thus:
4. By a Writ of Summons dated 22 March, 2012 the Applicant instituted SUIT NO. LD/428/2012: HUMPHREY ABAH V. RASHEED ABIODUN BALOGUN-ETTI & OTHERS, at the High Court of Lagos State.
5. After the service of the Writ of Summons, Statement of Claim and other accompanying processes, the Appellants and the 2nd Respondent entered appearance and filed their respective Statements of Defense and accompanying processes.
6. The Appellants filed a Notice of Preliminary Objection along with their Statement of Defence, challenging the jurisdiction of the trial Court to entertain the matter.
7. After hearing the Appellants’ Preliminary Objection, the trial Court, in a Ruling delivered on 18th October, 2012 dismissed it for lacking merit.
8. Being dissatisfied with the decision of the trial Court dismissing the Notice of Preliminary Objection, the Appellants lodged the instant appeal seeking a reversal of the trial Court’s ruling.
9. The Record of Appeal in this Appeal has since been transmitted to this Court and therefore the trial Court has lost its jurisdiction to entertain any further proceeding in respect of this case.
10. The Applicant is no longer interested in pursuing his suit filed in the Court below from which this appeal arose and is now desirous of withdrawing same. Consequently, the Applicant has filed a Notice of Withdrawal before the trial Court dated and filed on 9th May, 2017. Now produced, shown to me and marked Exhibit ABN 1 is a certified copy of the Notice of Withdrawal.
In the further affidavit, it was deposed specifically inter alia thus:
8. I know as a fact that by the said ruling the lower Court found in favour of the Applicant by holding inter-alia that the Applicant had locus standi to institute the suit against the Appellants and 2nd Respondent
9. Subsequent to the ruling of the lower Court in favour of the Applicant, the Applicant engaged the services of Messrs Tayo Oyetibo LP to take over the conduct of the suit in the Court below consequent upon which the new counsel after a review of the facts of the case advised the applicant that the suit as constituted in the lower Court should be discontinued.
10. The Applicant then took a decision and instructed that the suit be so discontinued consequent upon which a Notice of Withdrawal was filed.
11. The Appellant cannot force the Applicant to continue prosecuting the suit which the latter desires to discontinue.
e. The withdrawal of the suit would not amount to pulling any rug from the Appellants feet in view of the fact that when leave is granted by this Court for the suit to be withdrawn the suit would be struck out thereby achieving the purpose which the Appellants want by their appeal.
On the other hand, in their counter affidavit, the Appellants/Respondent had deposed specifically inter alia thus:
5. That further to paragraph 4 above the appellants compiled the Record of appeal and filed Appellants brief dated 30th of September 2015 and filed on the same date.
6. That by the steps taken by the Appellants, the liberty to peremptorily withdraw the originating suit in LD/428/2011 unilaterally and solely by the Applicant no longer exists.
7. That the appeal is against a judicial decision of the Hon Justice Nicol Clay dated 18th October 2012 which retains a force of law unless set aside by the Court.
8. That the only modus to set aside a judicial decision is not by a peremptorily withdrawal but by a countermanding and higher judicial decision which this Court has been invited to do.
9. That it is only and after this Court or a higher Court decides the fate of this standing judicial decision by the Hon Justice Nicol Clay can the body of its case for decent burial.
10. That the leave envisaged by the Order 23 Rule (2)(1) of the High Court of Lagos State Civil Procedure Rules 2012 to withdraw a case such as this is the heaping and disposal of the appeal which is ripe.
11. That the appellants feel strongly about the ruling of the trial Court which by the current appeal, the appellants wants this Court to resolve.
12. That not resolving it well be tantamount to allowing the applicants pull the ‘rug’ from the appellants feet.
It is on the strength of the above facts on which the parties had addressed this Court in their written addresses that I intend to consider the merit or otherwise of this Application. At the Court below in its ruling, the subject matter of the appeal before this Court, dismissing the preliminary objection of the Appellants/Respondents challenging the locus standi of the 1st Respondent/Applicant, held inter alia thus:
I have carefully considered the 3 issues raised for determination by the 3rd Defendant/Applicant? It is my view that there exists a factual situation existence of which entitles him to remedy against the Defendants. Furthermore, where a consent judgment is violated by fraud, a person who is not a party to it can seek to set it aside by instituting afresh suit. Accordingly, this application is hereby refused and accordingly dismissed.
Both parties are agreed on all the common facts in this application. They are both agreed that an appeal is pending before this Court against the ruling of the Court below refusing to strike out the Suit filed by the 1st Respondent against the Appellants and the 2nd Respondent, which is still pending in the Court below. They are also agreed that the appeal before this Court has been duly entered. They also agree that the primary right to grant leave to discontinue suit filed before the Court below is that of the Court below. They further agree that indeed the 1st Respondent has by Exhibit ABN 1 filed at the Registry of the Court below a notice of withdrawal of the suit filed by him against the Appellants before the Court below. See Order 23 Rule 2(1) of the High Court of Lagos State (Civil Procedure) Rules 2012.
Thus, the only area of disagreement, in my view, is purely one of law, namely: the appeal before this Court having been duly entered, which Court as between this Court and the Court below has the power to grant leave to the 1st Respondent/Applicant to withdraw his suit against the Appellants still pending before the Court below?
I am aware and it is the law that once a decision of Court has been handed down, unless and until it is appealed against and set aside it remains valid and subsisting. Thus, an appeal is an invitation to a higher Court, empowered by law to hear such appeal, to review the decision of the lower Court to see whether on the proper consideration of the facts and applicable law, the lower Court arrived at a correct decision. See Oredoyin V. Arowolo (1989) 4 NWLR (Pt. 114). See alsoOgunremi V. Dada (1962) 2 SCNLR 417; Ezeokafor V. Ezeilo (1999) 9 NWLR (Pt. 619) 513.
Now, while the right of the 1st Respondent/Applicant to withdraw his suit before the Court below against the Appellant is undoubted and can either be automatic, where issues by way of pleadings have not been joined by the parties or with the leave of the Court below first sought and obtained, where issues had been duly joined by their pleadings, I am of the view that an application to withdraw a pending suit, before an appeal has been heard and determined or where the appeal had only already been duly entered at the Registry of this Court, lies to the Court below, at whose Registry the 1st Respondent/Applicant’s notice of withdrawal was properly filed.
Having filed it at the appropriate Registry of the Court below and both parties having agreed that primarily the power to grant or refuse such leave to withdraw a suit pending before the Court below is that of the Court below, it makes no difference in my view that the appeal has been entered in this Court. I am of the view that the Court with the power and primary duty to act on the notice of withdrawal is the Court below before whose Registry it was filed and the suit is still pending and not this Court.
The scope of the powers conferred on this Court by virtue of Section 15 of the Court of Appeal does not extend annexing powers clearly belonging to the Court below even before the appeal before it is heard and determined. This Court does not and would not need a notice of withdrawal filed before the Court below to strike out the 1st Respondent/Applicant’s suit if in this appeal it comes to the finding that the decision of the Court below was perverse and that he lacked the locus standi to have instituted the suit against the Appellants. This Court in such a circumstance would be in good a position as the Court below to proceed to strike out the suit upon allowing the appeal but not before then!
When an appeal is entered in this Court under and by virtue of Order 4 of the Court of Appeal Rules 2016 it does, in my view, not confer any power on the Court of Appeal beyond the powers it conferred that this Court become seised of the matters in the appeal to the exclusion of the Court below. It does not automatically relieves the Court below of every role in the matter if it were an appeal over an interlocutory decision of the Court below. This is why in law an appeal does not operate automatically as a stay of proceedings of the Court below. There is therefore, in my finding no basis for the 1st Respondent to apply to this Court to strike out a suit still pending before the Court below on the ground that he has filed a notice of withdrawal of the suit before the Court below not at the Registry of this Court, which would be inappropriate so to do, but at the Registry of the Court below, the appropriate place to so do, and yet calling on this Court to act on the process filed at the Registry of the Court below, where the suit is still pending, to strike out not only the suit before the Court below but also this appeal in which he is Respondent merely on the basis that he has filed a notice of discontinuance of his suit before the Court below. No, the law does not operate in such disorderly manner!
My lords, it does appear that the whole essence of the application is to sweep the carpet under the feet of the Appellants to take the wind out of the sail of this appeal. I think the more honourable thing to do would have been to accede to the merit of the appeal if the 1st Respondent now conceives that truly his suit before the Court below was incompetent as urged upon that Court by the Appellants but which was refused rather than using subterfuge to get this appeal out of the way. The 1st Respondent should either go back to the Court below and get his suit struck out, which undoubtedly in my view would then render this appeal merely academic or he simply accede to the appeal and the appeal is allowed on the merit and the suit before the Court below is then consequently, struck out by this Court. Thus, unless and until the question of the striking out of the suit, still pending before the Court below, is answered positively in favour of the 1st Respondent/Applicant, the question of striking out this appeal does not even arise for any consideration and or resolution one way or the other as it would then remain a live appeal to be heard and determined, one way or the other, on the merit.
In my view, there is no middle course or option open to the 1st Respondent to ask this Court to act on a process he filed before the Court below which is not even part of the record of appeal in this appeal to strike out a suit still pending before the Court below and consequently striking out this appeal. There is even no one single deposition of fact by the 1st Respondent in this application to the effect that the Court below had refused to act on the notice of withdrawal properly and appropriately filed before its Registry by the 1st Respondent to warrant and or necessitate the present, obviously premature as well lacking in merit, call on this Court to take over and do what primarily is the duty of the Court below. At best, this application is a mere illusion far from reality on the part of the 1st Respondent/Applicant, who need and ought to come back to reality and face the only true options, as earlier observed, available to him to either go to the Court below and urge it to act on his notice of withdrawal and to strike out his suit or he concedes to the appeal and it is allowed and in consequence thereof, his suit is struck out by this Court for being incompetent. No more, no less.
In the circumstances therefore, the sole issue is resolved against the 1st Respondent/Applicant in favour of the Appellants/Respondents. Consequently, this application devoid of any iota of merit is liable to be dismissed and it is hereby so dismissed for lacking in merit.
There shall be no order as to cost.
JOSEPH SHAGBAOR IKYEGH. J.C.A.: I am in agreement with the succinct ruling prepared by my learned brother, Biobele Abraham Georgewill, J.C.A.
UGOCHUKWUU ANTHONY OGAKWU, J.C.A.: I am in entire agreement with, and do not desire to add to, the conclusions expressed by my learned brother, Biobele Abraham Georgewill, JCA, in the Ruling just delivered. For the same reasons therein expressed I concur in holding that the application has no merit and I join in dismissing the same.
Appearances:
The Appellants/Respondents, though duly served with hearing notice on 12/9/2018, were not in Court and were also not represented by counselFor Appellant(s)
A. A. Abduwahab Esq. with him, Umar Padah Esq. for 1st Respondent/Applicant.
The 2nd Respondent, though duly served with hearing notice on 13/9/2018, was also not in Court and was also not represented by counsel.For Respondent(s)
