ABAYOMI BABATUNDE V PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD. & 2 ORS

ABAYOMI BABATUNDE V PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD. & 2 ORS

(2007) LCN/3802(SC)

In the Supreme Court of Nigeria

Friday, April 20, 2007


Case Number:SC.154/2002

 

JUSTICES:

ALOYSIUS IYORGYER KATSINA-ALU, JSC JUSTICE, SUPREME COURT

NIKI TOBI, JSC, JUSTICE, SUPREME COURT

IKECHI FRANCIS OGBUAGU, JSC,JUSTICE, SUPREME COURT

FRANCIS FEDODE TABAI, JSC,JUSTICE, SUPREME COURT

IBRAHIM TANKO MUHAMMAD,JUSTICE, SUPREME COURT (Lead Judgment).

 

APPELLANT:

ABAYOMI BABATUNDE

 

RESPONDENTS:

1. PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD2. MOBIL OIL (NIG.) LTD

2. MOBIL OIL (NIG.) LTD.

3. UNITAF SHIPPING (NIG.) LTD.

 

RATIO:

SUMMARY OF FACTS:

The 1st respondent, instituted action in a land matter against the appellant and the 2nd respondent. The suit however suffered a number of procedural mishaps leading to the Court of Appeal striking out the appeal. Dissatisfied, the appellant appealed to the Supreme Court. The court held the decision of the court of Appeal was right as the proper order to be made in the circumstances was one of striking out and not dismissal. 

ISSUES OF DETERMINATION:

Was the court below right in striking out the suit against all the respondents instead of dismissing it having regard to the proceedings at the trial court?

STATUTES REFERRED TO:

Lagos State High Court Civil Procedure Rules 1972

 

I.T. MUHAMMAD, J.S.C. (Delivering the Judgment by the Court): This appeal has a chequered history. It is one of the old land cases still lingering in the courts. The plaintiff in 1988 took a writ of summons from the Lagos State High court. Five reliefs were indorsed in the writ. On filing its statement of claim which was later amended, some of the reliefs were abandoned and the plaintiff made the following claims against the appellant and the 2nd respondents that:-

“(a) The Defendants do deliver up the sub-lease registered as 92/92/1823 at the Lagos Lands Registry for cancellation by this Honourable Court.

(b) This Honourable Court do expunge the afore-said sub-lease from the records and entries of the land Registry.”

In their amended statement of defence, the defendants denied the claim and indorsed a counter-claim against the plaintiff. The counter-claim reads as follows:

“AND the defendant counter-claims:-

“(i) A declaration that the defendant is the person entitled to the statutory right of occupancy in respect of all that piece or parcel of land situate, lying and being along Oshodi-Tin-Can Island Express Road, Ibafon, Olodi Apapa, Awori-Ajeromi District, Badagry Division of Lagos State covered by Plan No. 1387 “A &. B” signed by A.O. Adebogun Esq., Licensed Surveyor attached to the Deed of Lease dated the 20th day of March, 1978 and registered as No. 13 at page 13 in volume 1695 of the Lands Registry in the Office at Lagos.

(ii) An order setting aside the Deed of Lease dated the 28th day of March, 1978 and registered as No. 68 at page 68 in volume 1707 of the Register of Deeds kept in the Lands Registry at Lagos.

(iii) Perpetual injunction restraining the plantiff, its servants and/or agents from interfering with the possession and/or use of the land in dispute by the defendant, his servants and/or agent.”

A reply and defence to the counter-claim was filed by the plaintiff. It was also subsequently amended. The background facts of the case according to plaintiff’s version are that the 1st respondent herein as plaintiff at the Lagos State High Court, sued the appellant and 2nd respondent as 1st and 2nd defendants over a land dispute, on February, 2nd, 1987.   Pleadings were closed by the parties but before the commencement of trial, the plaintiff filed an application for summary judgment. The application was moved on the 27th of February, 1989 and dismissed on the same day on the grounds that triable issues were disclosed in the pleadings and the suit was adjourned for trial before Agoro. J. Trial opened in the case on 6th of February, 1990 when the 1st Plaintiff’s witness testified and tendered some exhibits and the matter was adjourned for his cross examination. Agoro J was then elevated to the Court of Appeal as a result of which proceedings had to recommence De Novo before Desalu, J. Before Desalu. J trial again opened on the 6th day of 3une, 1991 and the plaintiff’s 1st witness again testified extensively tendering some exhibits. The said witness was cross-examined after which the 2nd defendant amended it’s statement of defence and the suit adjourned for further hearing. Unfortunately, Desalu J took ill from which he never recovered and the case was then re-assigned to Adeyinka, J. Before Adeyinka. J the plaintiff on the 11th day of April, 1994 moved an application for accelerated hearing dated the 18th of January, 1994, pursuant to which the court set down the suit for hearing on the 9th of June, 1994. Eleven days after the suit was set down for trial i.e. on the 22nd of April, 1994, the plaintiff filed a Notice of Discontinuance of the suit against all the parties including the 3rd defendant who had been joined by an order of court and had delivered its defence albeit out of time.  In a short ruling delivered on the 2nd day of September, 1994, Adeyinka J; dismissed the suit against the 1st and 2nd defendants and struck it out against the 3rd defendant on the basis that it had not filed its pleadings. The plaintiff appealed against this ruling to the Court of Appeal. The 3rd defendant also filed a cross-appeal contending that the case against it ought to have been dismissed and not struck out.

The Court of Appeal in it’s judgment varied the order made by the trial court from one of dismissal of the suit to one of striking it out.   It is against this decision that the 2nd defendant/respondent, but now appellant before this court, appealed on 2 grounds of Appeal in his Notice of Appeal. (pages 279-281 of the printed record of appeal)   In compliance with the provisions of Order 6 Rules 5(1) (a) and (2) of the Supreme Court Rules (as amended in 1999) the parties, with the exception of 2nd respondent, filed and exchanged their respective briefs of argument.  On the hearing date of this appeal, 22nd of January, 2007 Mr. Uwa for the appellant adopted and relied on the appellant’s brief and urged the court to allow the appeal. Mr. Okafor for the 1st respondent adopted 1st respondent’s brief and urged that the appeal be dismissed.   Learned Counsel for the appellant formulated one issue which reads:

“Whether the learned Justices of the Court of Appeal were right in holding that the action at the High court ought to have been struck out instead of being dismissed against all the defendants having regard to the stage of the proceedings at the trial court.”

Learned Counsel for the 1st respondent couched his one issue in the following words:

“WHETHER THE LEARNED JUSTICES OF THE COURT OF APPEAL WERE RIGHT IN SUBSTITUING (sic) THE ORDER OF DISMISSAL MADE BY THE HIGH COURT WITH AN ORDER OF STRIKING OUT SEQUEL TO THE DISCOUNTINUANCE NOTICE FILED BY THE 1ST RESPONDENT IN ITS SUIT AGAINST THE APPELLANT AND THE 2ND AND 3RD RESPONDENTS.”

The 3rd respondent’s issue although similar to that of the 1st respondent has slighted differed in the slang. It is reproduced hereunder:

“Whether on the facts of this case, the Court of Appeal was right to substitute its discretion for that of the trial court when it elected to strike out the plaintiff’s suit instead of dismissing it.”

It is clear from the above three issues, each by the respective parties, that they all aimed at one poser: Was the court below right in striking out the suit against all the respondents instead of dismissing it having regard to the proceedings at the trial court. Let me have the benefit of a quick hindsight to remind all and sundry that from the facts contained in the Printed Record of appeal before this court, it is my humble observation from the outset that no effective trial in fact and in law had ever been conducted to its logical conclusion by the different Judges of the High Court of Lagos State that at one time or the other dealt with the suit on appeal. I say so because of the following facts upon which there is concurrence between the parties:

(a) Hon. Justice I.O. Agoro started the suit on 18th April, 1988. After some preliminaries, the 1st plaintiff’s witness, Alhaji Adekunle Nurudeen Odunsi, testified on Tuesday, the 6th of February, 1990. The case was adjourned on that day for cross-examination to the 26th of April, 1990. Meanwhile, Agoro J, was elevated to the Court of Appeal bench and no cross-examination took place on the matter. Thus the trial was truncated at that stage.

(b) On Monday the 8th day of April, 1991, the suit was started afresh before Hon. Justice A. Desalu. On the 6th of Dune, 1991, 1st plaintiff witness in the same person of Alhaji Adekunle Nurudeen Odunsi started giving his testimony. Some exhibits were tendered and admitted in evidence. PW 1 was cross examined on the same day. The matter was further adjourned to 1st of July, 1991 and 8th October, 1991. On the 1st of July, 1991, Desalu J. granted leave to the 2nd defendant to file an amended statement of defence which was to be filed within 7 days and to be served within 14 days. The matter was then adjourned to 8th of October, 1991. Desalu J was then said to have fallen sick from which he never recovered. Thus, the trial of the suit was truncated again.

(c) On the 11th of April, 1994, Hon. Justice A.F. Adeyinka took over the case. He set down the suit for trial on the 9th of June, 1994 after granting an application for accelerated hearing of the suit.

(d) A Notice of Discontinuance of the suit against the defendants, dated 20th April, 1994 and filed on the 30th of May, 1994 was taken by Adeyinka J. and a ruling given on the 22nd of September, 1994 in which the suit was dismissed in respect of 1st and 2nd defendants and struck out in respect of the 3rd defendant.

I have set out the facts in a more comprehensive manner as above for the sake of clarity vis-à-vis the discussion I intend to embark upon on the relevant issues distilled in resolving this appeal.   Learned Counsel for the appellant submitted that the relevant rule relating to the discontinuance of an action is Order 23 Rule (1) of the High Court of Lagos State (Civil Procedure) Rules, 1972 upon which the parties fought the issue, though the ruling of the trial court was given in September, 1994 when the new High Court of Lagos State (Civil Procedure) Rules, 1994 had come into force.   Learned Counsel went further to submit that the decision whether to strike out or dismiss a suit pursuant to a notice of discontinuance in circumstances which place the discontinuance under the second limb of Order 23 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 1972 is a matter exclusively for the court in the exercise of its discretion.

He cited and relied on the cases of Aghadinno v. Onubogu (1998) 5 N.W.L.R. (Pt 548) 16 at 30; Omo v. Amatu (1993) 3 N.W.L.R. (Pt. 280) 187 at p. 196; Nwokedi v. RTA Ltd. (2002) 6 N.W.L.R. (Pt. 762) 181, (2002) 13 SCM, 92 contending that a notice of discontinuance filed when pleadings are closed and issues joined between the parties will result in a dismissal of the suit. Learned Counsel argued that pleadings, undoubtedly, in the case at the High Court had closed before the notice of discontinuance was filed. He made reference to the judgment of the Court of Appeal wherein that court held that the 3rd defendant/3rd respondent, joined by order of the court had filed its defence and that the 1st and 2nd defendants had filed their defence to the counter-claim of the 3rd respondent. It was manifest that issues had been joined in the case at the lower court and summons for directions had also been taken and the suit was fixed for hearing on the 6th and 7th of September, 1988. Trial in the suit had opened twice. The court below, he contended, ought to have affirmed the decision of the trial court dismissing the case against the 1st and 2nd defendants and ought to have substituted an order of dismissal in respect of the case against the 3rd defendant. Learned Counsel urged this court to set aside the judgment of the court below and in its place, make an Order dismissing the action against all the defendants.   Learned Counsel for the 1st respondent cited and relied on Order 23 Rule 1 of the Lagos State High Court (Civil Procedure) Rules, 1972. (referred to herein as the Rules). He made his submissions mainly on this provision. He stated that there are two limbs to Order 23 Rule 1 of the Rules. Firstly, discontinuance can be effected before or after the receipt of defendant’s defence but before taking any other steps in the action (save interlocutory applications). The court, he argued, is empowered to strike out the suit on terms. He stated that discontinuance or withdrawal Notice and the subsequent order of court striking out the suit sequel to the discontinuance or withdrawal notice, cannot be used to bar further or subsequent action over the same subject matter. In other words, once an action under this limb is discontinued, it can be relitigated and, by implication, the defence of estoppel or res judicata cannot be raised against a suit struck out by virtue of a withdrawal or discontinuance notice.

Under the 2nd limb, Learned Counsel submitted that it is where further proceeding in the action has been taken by way of trial or conclusion of evidence. In this regard, a withdrawal or discontinuance notice cannot be effected without the leave of court and the court is empowered to strike out the suit upon terms. The rule does not provide for an order of dismissal. Learned Counsel submitted that it is the first limb of order 23 rule 1 that applied to this appeal. The appropriate order the trial court ought to have made in the circumstances of the facts of this appeal is one made by the Court of Appeal substituting order of dismissal to that of striking out. The cases cited by the appellant are inapplicable to the facts and circumstances of this case. The main submission on behalf of the 3rd respondent in the brief filed by its Counsel is that having regard to the decision of the Court of Appeal to the effect that the case has reached the stage of LITIS CONTESTATIO, wherein the plaintiff is no longer DOMINIS LITIS, the lower court was wrong to have substituted its discretion for that of the trial court in reversing the order of dismissal to that of striking out as it is not for the appellate court to substitute its discretion for that of the lower court because it would have exercised the discretion in another way. He cited and relied on the case of Josiah Cornelius Ltd. v. Ezenwa (2002) 16 N.W.L.R. (Pt. 793) 298. (2002) 14 SCM, 1 55 He contended that the 1st respondent who was the plaintiff did not complain that the lower court exercised its discretion on a wrong principle. His main complaint before the court below was that the trial court misapplied the law based on the undisputed facts before it.

The court below examined his contention and the prevalent law and agreed with the trial court that the matter was within the 2nd limb of the rule. Learned Counsel contended that while the Court of Appeal in the circumstances would be justified in reversing the order of the trial court thereby striking out the matter instead of dismissing same against all the defendants. He cited and relied on the case of Akujinwa v. Nwaonuma (1998) 13 N.W.L.R. (Pt. 583) 632 SC. Learned Counsel urged this court to hold that having exercised its discretion to strike out the claim against the 3rd respondent wrongly as found by the Court of Appeal, the order made in that exercise ought not to stand. He further urged us to allow this appeal.   Let me start by observing that this appeal is otherwise a very simple one within the narrow compass of Order 23 Rule 1 of the Rules referred to earlier. However, for reasons best appreciated by the parties especially the appellant and the 3rd respondent whose respective Counsel, unwittingly, drag this court into studying and analysing their unnecessarily lengthy and verbous briefs of argument. Although it is the duty of every court, including this court, to make use of a brief of argument placed before it by a party in arriving at its opinion, however bad that brief may be, I think common sense should dictate that where the facts of a case and the law applicable to it are very straight forward, clear and unambiguous, Counsel should owe it a duty not to confuse the facts and the law applicable in a given case. It certainly serves no purpose for a Counsel to waste the court’s precious time and energy by putting up strenuous arguments and submissions on issues that are quite irrelevant to a case. There is no need in this case for the learned Counsel for the appellant making arguments on a substantive matter that the trial court did not have the benefit of deciding to its logical conclusion with finality. See: ACME Builders Ltd, v. K.S.W.B. (1999) 2 N.W.LR. (Pt.590) 288; Comptroller Nigerian Prison Services, Ikoyi, Lagos & Ors. v. Dr. F. Adekanye & Ors. (2002) 7 SCNJ, 399. (2002) 12 SCM, 33, 43, 65.   The main crux of the appeal on hand as contained in the respective briefs of argument of the appellant, the 1st and 3rd respondents is whether it was right for the trial court to dismiss the suit before it when pleadings were closed and whether the court below could substitute its discretion for that of the trial court. I will treat these two issues seriatim.  At what stage does a court of law strike out an Action and under what circumstances? Again, at what stage does a court of law make an order for dismissal of an action before it? It is not long that we saw the antecedents giving rise to this appeal. There was a Notice of discontinuance of the suit in its entirety as against the defendants and the party joined. I think, it is the right of a plaintiff to discontinue his action if he so chooses as the filing of same does not necessarily imply that the parties have irrevocably committed themselves to resolving their dispute by litigation. Discontinuance can arise from any of the following factors:

(i) where a plaintiff realizes the weakness of his claim in the light of the defence put up by the defendant,

(ii)  where plaintiff’s vital witnesses are not available at the material time and will not be so at any certain future date,

(iii) by abandoning the prosecution of the case, the plaintiff could substantially reduce the high costs that would have otherwise followed after a full-scale but unsuccessful litigation or

(iv) where the plaintiff may possibly retain the right to relitigate the claim at a more auspicious time if necessary.

The procedure for discontinuance or termination of cases/suits is laid down in the various courts Rules. In the Supreme Court Rules (as amended in 1999) for instance, Order 8 Rules (1)-(4) have made provisions for withdrawal of an appeal by an appellant, with or without the consent of the other parties and the various consequences thereof, of either striking out the suit or dismissal depending on the circumstances. The Court of Appeal Rules, as amended in 2002, Order 3 R 18(1)-(5) have made equal provisions as that of the Supreme Court. In the appeal on hand, it is order 23 rule 1 of the High Court of Lagos State (Civil Procedure) Rules 1972, that had been cited and relied upon by both the parties and the two lower courts. This order provides as follows:

“The plaintiff may at any time before receipt of the Defendants defence or after the receipt thereof before taking any other proceeding in the action (save any interlocutory application) by notice or writing discontinue his action against all or any of the defendants or withdraw any part or parts of his alleged cause or complaint and thereupon he shall pay such Defendants costs of the action, or if the action is not wholly discontinued, the costs occasioned by the matter so withdrawn. Such costs shall be taxed and such discontinuance 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 judge in chambers may, before, or at or after the hearing or trial, upon such terms as to costs and as to any other action and otherwise as may be just, order the action to be discontinued, or any part of the alleged cause or complaint to be struck out of 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 any part of his alleged grounds of defence or counter-claim to be withdrawn or struck out, but it shall not be competent to a defendant to withdraw his defence or any part thereof without leave.” (underlining supplied for emphasis).   There is a proposition to the interpretation of the above provision by the court below. It is proffered as follows:

“A careful reading of the Rules shows that it could conveniently be broken into two limbs for purposes of application in this respect I agree with the appellant. That is to say, firstly, discontinuance before and after receipt of the defendant’s defence but before taking any other proceeding in the action (save any interlocutory application). And secondly, in any other circumstance the plaintiff shall not competently do so, that is to say withdraw without leave of court. Under the 1st limb of the rule it terminates the action in fact and law beyond the point of no recall See: Chief C.C. Obienu & Ors. v. Chief K.O. Orizu & Ors. (1972) 2 ECSLR 606. The court ordinarily has to strike out the action and it is no bar to defence to a subsequent action as litis contestatio has not been reached while under the 2nd limb of the rule it (court) in exercise of its discretion has either to strike out or dismiss the action; under both limbs of the Rule with costs. In the event of a dismissal it is a bar to relitigation of the matter and thus open to a likely plea of estoppel per rem judicata.   I have no reason to jettison the above attempt to interpret the provision of Order 23 Rule 1 of the Lagos State High Court (Civil Procedure) Rules as it accords with my own view. If anything, I am only to amplify the circumstances under both limbs. In circumstances where leave of court is not necessarily required as in limb 1, it is my humble deduction from the provision that:

(i) leave of court is not required where the discontinuance is to be effected BEFORE the plaintiff is served with the statement of defence,

(i) Leave is not required for discontinuance even after the plaintiff has received the statement of Defence PROVIDED that in such a case, the plaintiff discontinues the action BEFORE taking any other proceedings in it EXCEPT any interlocutory application.

In the above two circumstances, for a plaintiff to discontinue he has to duly file in court and serve on the defendant(s) against whom he intends to discontinue or withdraw, as the case may be, a written notice of discontinuance or withdrawal. Once the service has been duly effected, the notice effectively terminates the action subject to the plaintiff’s liability for costs of the defendants action up to the date of the discontinuance. But, in a situation where discontinuance is after the receipt of the statement of defence, the plaintiff would not have taken “any other proceeding in the action” other than interlocutory application. This certainly presents it’s unique problem. This is because the phrase “before taking any other proceeding in the action,” as used in the Rule, would imply taking any proceeding with the view of continuing the litigation with the defendant and not putting an end to the action. See:Spincer v. Watts (1889) 23 QBD 350 and 353; Mundy v. The Butterley Co. (1932) 2 Ch. 227. Thus, from the point of view of the prevailing law, it follows that for a proceeding taken by the plaintiff after service of the statement of defence on him to prevent him from discontinuing the action without leave of court, the proceeding must be a formal step in the action, required by the rules to be taken by him for the prosecution of the action. If it is that formal, then, he needs  leave of court to discontinue. If it does not, then he can discontinue without leave of the court. The proceeding or step taken must be for prosecution of the action and must be required to be taken by the rules of court. The two conditions should co-exist. On the other limb of the provision of Order 23 R (1) of the Rules under consideration, a plaintiff who wants to discontinue an action, should make an application to the court for leave to do so. He can no longer file a notice of discontinuance, otherwise such a notice is invalid and should be struck out. See: Nwachukwu & Ors. Nze & Ors. (1955) 15 WACA 36; Olayinka Rodrigues & Ors. v. Okoromadu (1977) 3 SC 21. In such a situation the trial Judge has discretion as to whether or not to allow the plaintiff to discontinue or withdraw his claim at that stage of the proceedings and as to whether to dismiss or strike out the claim. The discretion however must, as is always the case, be placed on the Judicial and judicious proverbial scale of Justice.   The consequences of a striking out order is that when a plaintiff duly discontinues his action without leave, the court should merely strike out the action. See: Soetan v. Total Nigeria Ltd. (1972) 1 All NLR (Pt. 1) 1.

It all depends on the state of the law. That is, once a litigant withdraws his action in a situation where no leave of court is required, the trial court has no option but to strike out the suit. This is because a court of law cannot force an unwilling plaintiff to continue with an action. Even if the court insists that he should continue, he may refuse to tender evidence or take any further steps in the action, that same court can do nothing other than to strike out the case or where evidence has been taken to a reasonable level to dismiss the action. See: Eronini v. Iheacho (1989) 2 N.W.LR. (Pt. 616) 622. In the appeal on hand it is on record that the plaintiff received the 1st and 2nd defendant’s statements of defence dated on the 18th of March, 1987 and on the 29th of June, 1990 respectively. It is on record as well that 3rd respondent sought to be joined as co-defendant and leave to file statement of defence and counter-claim against the 1st and 2nd respondents. The said application was granted on June 8th, 1992. On 9th March, 1994 3rd defendant’s application for filing of it’s defence and counter-claim was granted. On April 11th, 1994, the trial court accelerated the hearing of the suit to June 9th, 1994. The Notice of discontinuance by the plaintiff was filed on 22nd April, 1994; taken on 9th September, 1994; dismissed against the 1st and 2nd defendants and struck out against the 3rd defendant. The reason adduced by the learned trial Judge reads as follows:

“It is now settled that where pleadings have been filed and issues joined the proper order to make is one of dismissal. The 3rd Defendant not having filed its statement of defence the proper order to make is one of striking out.”

I agree with the trial court and the court below that pleadings as between the plaintiff, 1st and 2nd defendants were completed. But I do not agree with the trial court as the court below too, did not, that the 3rd defendant did not file it’s statement of defence. The facts contained in the Record of appeal say 3rd defendant filed its defence and counter-claim. It is the finding of the court below that the 3rd defendant/respondent had filed it’s statement of defence and a counter-claim: the court below stated:

“However the issue taken in the cross-appeal appears simple and can be reduced to whether the court below is right to have struck out instead of dismissing the suit as against the 3rd respondent on the basis that the 3rd respondent did not file any defence when in fact it filed a defence but out of time. What informed the remark that the 3rd respondent did file a defence is not altogether obvious from the records. All the same, the record of appeal shows that the 3rd respondent filed its Statement of Defence and Counter-claim on 9/1/92 out of time and has contended that the effect in law is that the Statement of Defence and Counter-claim remain valid in law.” Facts never lie. In its affidavit in support of Motion on Notice for an order directing Departure from the Rules and for an order abridging the time for brief filing, the 1st respondent herein, as appellant/applicant before the court below, averred as follows:-

“8. By application dated September, 30th, 1991, the 3rd respondent sought to be joined as Co-Defendant and leave to file statement of defence and counter-claim against the 1st and 2nd respondents, and the said application was granted on June 8, 1992.

9.  The plaintiff filed a notice of discontinuance dated April 22, 1994 seeking to discontinue the suit against all the respondents.

10. The 3rd respondent was yet to file it’s statement of defence and counter-claim as at the date of filing the Notice of Discontinuance.

11. By ruling of September 22, 1994, Mr. Justice Adeyinka after taking the Notice of discontinuance dismissed the suit in respect of the 1st and 2nd respondent and struck out the suit in respect of the 3rd respondent.

12. The 3rd respondent had not filed its statement of defence at the time of the said ruling, and trial had not commenced before the said Mr. Justice Adeyinka. But in its counter-affidavit the 2nd respondent herein as 1st respondent in the court below, stated as follows:-

“17. Meanwhile the second respondent filed his written application to amend his pleadings on June 11, 1991. It was taken and granted on July 1, 1991 when further hearing of the substantive suit was scheduled for Tuesday, October 8, 1991. It is this amended pleadings of the second respondent that opened the Pandora box and scared the appellants out of their wits.

18. That date was interrupted when the third respondent brought an application for leave to join as a party to the suit. The application dated September 30, 1991 was scheduled for Monday, October, 14, 1991 but when it was mentioned on October, 1991, the third respondents were not sure of their footing despite my readiness to accommodate them in order to accelerate the disposal of the suit and had to be adjourned successively to November 25, 1991, January, 20, 1992 when the third respondents were mauled in N100 costs in favour of the 1st respondents, then to May 4, 1992, June 8,1992 when the application for joinder was granted and the substantive suit adjourned to October 12, 1992 in order to allow the new entrant to complete their pleadings.

19. On October 12, 1992 the 3rd respondents had still not put their house in order and the suit was further adjourned to November 9, 1992. The 3rd respondents waited till that very morning before filing their pleadings which were clearly out of time and upon my objection to the pretensions of these respondents the court adjourned further proceedings to January, 11, 1993 with another N100 costs against the 3rd respondents in favour of the 1st respondent. Thereafter the third respondents filed their application for leave to regularize their pleadings on November, 23 1992.

20. That application was never heard by Desalu J, the trial Judge for when we reported on January 11, 1993, the Judge never recovered and it became obvious that we had to start de novo before a new trial Judge.

21. I personally made unrecorded numerous efforts to see that the suit was re-assigned as early as practicable to a new Judge and was greatly relieved when the appellants took o

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