ALHAJI ISIYAKU YAKUBU ENT LTD v. MR ALIYU B. TARFA & ANOR (2014)

ALHAJI ISIYAKU YAKUBU ENT LTD v. MR ALIYU B. TARFA & ANOR

(2014)LCN/7245(CA)

In The Court of Appeal of Nigeria

On Friday, the 30th day of May, 2014

CA/YL/18/2011

RATIO

CIRCUMSTANCES UNDER WHICH A LEAVE TO DISCONTINUE BY THE PLAINTIFF MAY BE REFUSED

It is the law that a Plaintiff is permitted to discontinue his suit against Defendants before a Court. Where he does so, he is entitled to an order directing the discontinuance of the abandoned claim. However, the grant or refusal of leave to discontinue a suit is at the discretion of a court. The leave could be refused in the following circumstances:
(a) Where granting it will serve no useful purpose in cases where the suit, in any case, ought to be dismissed;
(b) Where, if granted, it may work injustice to the defendants. A plaintiff must not be allowed to use this as a device to better his case as already presented;
(c) The plaintiff also cannot be allowed to use discontinuation to bring about indirectly that which cannot be effected directly.
However, where a suit is discontinued and was struck out, it may afterwards, if the circumstances warrant, be re-listed. See The Young shall grow Motors Ltd V Okonkwo (2010) 3 SCNJ 396. per JUMMAI HANNATU SANKEY, J.C.A

WHETHER A DE NOVO HEARING OR TRIAL CAN AMOUNT TO A CONTINUATION OF PREVIOUS HEARING

In law, a de novo hearing or trial simply put is tantamount to wiping out of the slate and making it clean for a new beginning in the hearing of the case. It cannot and will never in law be tantamount to a continuation of the hearing already done before the previous judge before its transfer to the present judge. It is indeed a new dawn and behold all things have become new in terms of both orders and proceedings already done in the previous court, which proceedings no longer defines what is relevant in the proceedings before the present court, unless in those excepted circumstances in which the law allows the use of previous proceedings in a present proceedings, including inter alia for the purposes of cross examination of witnesses who had earlier testified. per JUMMAI HANNATU SANKEY, J.C.A

IMPLICATION OF AN ORDER OF COURT MADE IN IN RESPECT OF AN APPLICATION OR A SUIT NOT HEARD ON THE MERITS

When an order of court is made in respect of an application or a suit not heard on the merits, it amounts to striking out simpliciter. Even where an order of dismissal is made following a hearing which is not based on the merits, such an order is still considered in law a mere striking out. When a matter is struck out in such a circumstance, there is a liberty to re-list. The simple explanation is that while the matter is discontinued as from that date, it is still alive and kept in the court’s general cause list and can be brought back to the hearing cause list when an application to relist has been granted. See Panalpina World Transport (Nig.) Ltd V JB Olandeen International (2010) 12 SCNJ 494. Where a party withdraws his action, the right to re-file it is preserved as there is no final determination in the matter on the merits and the resultant effect is trite. See Regd. Trustees of Ifelogu V Kuku (1991) 5 NWLR (Pt. 189) 65. per MMAI HANNATU SANKEY, J.C.A

WORDS AND PHRASES: ABUSE OF COURT PROCESS

The circumstances in which an abuse of the judicial process occurs has been stated in a number of decisions of the Supreme Court including Saraki V Kotoye (1992) 9 NWLR (Pt. 264) 156; & Tomtec Nig. Ltd V FHA (2009) 12 SCNJ 190. Thus, abuse of court processes have been variously defined to include a situation where a party improperly uses the judicial process to the irritation, harassment, and annoyance of his opponent and to interfere with the administration of justice. Where two or more similar processes are issued by a party against the same party/parties in respect of the exercise of the same right and same subject-matter or where the process of the court has not been used bona fide and properly. To institute an action during the pendency of another one claiming the same reliefs amounts to an abuse of process of court. For as long as the previous action has not been finally decided, the subsequent action constitutes an abuse of the process of the court. It is not the existence or pendency of a previous suit that causes the problem but the institution of a fresh action between the same parties and on the same subject-matter when the previous suit has not been disposed of that constitutes an abuse of process of court. See ACB V Nwaigwe (2011) 1 SCNJ 162; Olutinrin V Agaka (1998) 6 NWLR (Pt. 554) 366; COP V Fasehan (1997) 9 NWLR (Pt. 507) 171; Saraki V Kotoye (1992) 9 NWLR (Pt. 264) 156; Okafor V AG Anambra State (1991) 6 NWLR (Pt. 200) 63; Nanna V Nwanebe (1991) 2 NWLR (Pt. 172) 181. Consequently, it is only considered an abuse of process of court for a plaintiff to re -litigate an identical issue which has been decided against him. See Yar’Adua V Abubakar (2008) 12 SCNJ 381; Onyeabuchi V INEC (2002) 8 NWLR (Pt. 769) 417. The term abuse of process connotes simply the misuse of the court’s process and it includes acts which otherwise interfere with the course of justice. These acts include where, without reasonable ground, a party institutes frivolous, vexatious and oppressive actions and also where a party institutes a multiplicity of actions or engages on a frolic by acts of forum-shopping, i.e. seeking for a favourable court to entertain his matter.per JUMMAI HANNATU SANKEY, J.C.A

JUSTICES

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria

Between

ALHAJI ISIYAKU YAKUBU ENT. LTD Appellant(s)

AND

1. MR ALIYU B. TARFA
2. YOLA ELECTRICITY POWER CO. LTD Respondent(s)

JUMMAI HANNATU SANKEY, J.C.A.: (Delivering the Leading Judgment): This is an Appeal against the Ruling of the Adamawa State High Court of Justice sitting in Yola in Suit No. ADSY/49/2005 delivered on 2nd November, 2010. The Appellant had filed the action against the Defendants, and subsequently sought to discontinue same. In granting the application, the learned trial Judge made a consequential order barring the Appellant from re-instituting the action again.

The facts of the case can briefly be summarized as follows: The Plaintiff, via a Writ of Summons dated 26th August, 2005, commenced an action against the Defendants for trespass. The case was assigned to Nathan Musa, J. of the Adamawa State High Court of Justice. The Appellant filed his Statement of Claim, and upon being served the Writ of Summons and Statement of Claim, the 1st Defendant entered an appearance and, with the leave of Court sought and obtained, filed his Statement of Defence out of time. However, the 2nd to 4th Defendants, even though duly served all the processes of Court, did not put in any appearance neither did they file any processes in response to the claim.

After pleadings had been duly filed and exchanged between the Plaintiff and the 1st Defendant, the Plaintiff opened its case with PW1 testifying and tendering nine (9) documents. Quite suddenly and before PW1 could be cross-examined, the suit was transferred to another High Court of concurrent jurisdiction presided over by Lagre, J.

Subsequently, an oral application to discontinue the suit, (which was pending for trial de novo), was made by learned Counsel for the Appellant before Lagre, J., who insisted that the Defendants be placed on notice. As a result, a Motion on Notice for leave to discontinue the action was filed and served on all the Defendants. The Defendants, having been duly placed on notice in line with the direction of the learned trial Judge, did not file any counter affidavit contesting averments in the Applicant’s affidavit, which gave reasons for the discontinuance of the suit, nor did they oppose the motion on any point of law nor did they even appear in Court during the proceedings.

After giving consideration to the application, which was not contested, the learned Judge of the lower Court granted the prayer to discontinue the suit. He however made a further un-solicited order barring the Appellant from bringing the same action against the Defendants again. He found inter alia as follows at page 43 of the Record:
“This application therefore for leave of court to discontinue this action be and is hereby granted as prayed. The order striking out the case is refused. The defendants who were put on notice did not respond. They were not in court when this application was heard. Application for cost was made. There will therefore be no order as to cost. This case having gone this far, it is hereby ordered that plaintiff is barred from bringing the same action against the defendants subsequently. All Exhibit tendered in this case are (sic) hereby ordered to be returned to the plaintiff.”

Not satisfied with the consequential order, the Appellant has appealed to this Court.

At the hearing of the Appeal on 28-04-14, learned Counsel for the Appellant, Mr. J. Olabode Makinde, appearing with Mr. M.J. Ifegwu, adopted the Amended Appellant’s Brief of Argument deemed duly filed on 11-03-14 as well as the Appellant’s Reply Brief filed on 14-04-14 in response to the 2nd Respondent’s Brief of Argument, and relied on the arguments contained therein as the arguments of the Appellant in this Appeal. Learned Counsel stated that he distilled one sole issue from Grounds 2, 3 and 4 of his Grounds of Appeal in the Amended Notice of Appeal deemed properly filed on 11-03-14; and he abandoned Ground one. He urged the Court to allow the Appeal.

On his part, Mr. Etim Akpan, learned Counsel for the 2nd Respondent, adopted the 2nd Respondent’s Brief of Argument filed on 04-04-14 and relied on the arguments therein contained as the 2nd Respondent’s arguments in the Appeal. He distilled two issues for determination from the four (4) Grounds of Appeal, and urged the Court to dismiss the Appeal in its entirety.

Upon a careful inspection of the issues distilled by the parties’ vis-‘a-vis the four (4) Grounds of Appeal, it is evident that the sole issue formulated by the Appellant and issue one distilled by the 2nd Respondent are virtually identical, but for minor differences in phraseology. Also, contrary to the submission of learned Counsel for the Appellant, it is evident that, from the Amended Appellant’s Brief of Argument, his sole issue for determination is expressly stated therein to have been distilled from Grounds 2 and 3 only. Indeed, no issue was distilled from Ground four by the Appellant. What this means is that Counsel has abandoned Grounds 1 and 4. The law on this is trite that where no issue is distilled from a Ground of Appeal, same is deemed abandoned. That being the case and by the same token, the second issue formulated by the 2nd Respondent which takes its source from Ground 4, is no longer relevant.

Consequently, Grounds one and four of the Grounds of Appeal, having been abandoned, are struck out. Thus, all arguments and submissions contained in both Briefs of argument pertaining to those Grounds are accordingly discountenanced. The Appeal shall therefore be determined on the Appellant’s sole issue, which I set out hereunder:

Whether the learned trial Judge was justified in his decision barring the Plaintiff from reinstituting the same action against the Defendants on the ground that the suit before him has reached hearing stage? (Grounds 2 and 3)

Learned Counsel for the Appellant submits that the learned trial Judge, was in error when he held that the matter before him has reached hearing stage and when he held that:
“the least that can happen before me here if the case is to continue is for the case to start from hearing”;

and when he relied on the above finding as his reason to bar the Plaintiff from reinstituting the same action, which in effect amounted to a dismissal of the Plaintiff’s suit before him.

Counsel submits that the learned trial Judge, Lagre, J., ought not to have taken cognizance of the hearing that took place before Nathan Musa, J., because the matter was fresh and new, i.e. de novo before the Court. Counsel contends that the trial Court did not see or hear the witness testify, so he could not rely on the evidence taken and recorded by Nathan Musa, J. before the matter was transferred to him. That being the case, Counsel contends that Lagre, J. was in error to have treated the matter which came before him for the first time as having been heard or part-heard.

Counsel submits that when the application for discontinuance was brought before Lagre, J., the Appellant’s suit was to commence anew. Since the suit was transferred from another Judge, the proceedings before the earlier Judge could not be held to be proceedings before the later Judge. He argues that the learned trial Judge was clearly under a misapprehension of the law and the facts as the matter could only proceed to hearing before him where the parties choose to proceed on the pleadings already filed before his learned brother Nathan Musa, J.

Counsel further argues that the first time the Plaintiff formally appeared before the later trial Judge through his Counsel, he made an oral application to discontinue the suit which the lower Court directed that the Defendants be placed on notice. The case was therefore clearly a new matter before the learned trial Judge, which was to commence de novo and none of the parties had properly appeared before the trial Court. He contends that, in point of fact, the Plaintiff did not take any further step in prosecuting the action before he made the application to withdraw the suit. He relied on the definition of de novo in Babatunde V Pan Atlantic Shipping and Transport Agencies Ltd (2007) 4 SC (Pt. 1) 71 @ 98-99. Counsel thus urged the Court to find that the case before Lagre, J. was a new case which was to start de novo and that the Appellant was entitled to ask that, the suit which he filed and which had not been heard, be discontinued without foreclosing his right to approach the court again if necessary.

Counsel submits that where there is a wrongful exercise of discretion or misapprehension of facts by a lower court, as in this case, the Court of Appeal is entitled to interfere with the exercise of discretion by the lower Court in the interest of Justice. He relies on Dalfam Nig. Ltd V Okaku International Ltd (2002) FWLR (Pt. 96) 501 @ 526; Houtmangracht V Oduba (1997) 50 LRCN 1291 @ 1309.

Counsel therefore submits that the learned trial Judge did not judicially and judiciously exercise his discretionary powers when, relying on a wrong premise, he made the order barring the Plaintiff from reinstituting the same action against the Defendants, thus entitling this Court to interfere with the exercise of its discretion and set aside the consequential order barring the Plaintiff from any subsequent action against the Defendants. Counsel thus urged the Court to strike out the Plaintiff’s suit before the lower Court and set aside the consequential order made by the trial Judge barring the Plaintiff from re-instituting the same action against the Defendants.

In his response, learned Counsel for the 2nd Respondent contends that the learned trial Judge properly exercised his discretion in the circumstances of this case when he granted the Appellant’s application for discontinuance and barred it from bringing the same action against the Defendants subsequently. He argues that the relevant Order of Court under which the Appellant brought his application is Order 28 of the Adamawa State High Court (Civil Procedure) Rules, Cap. 63, Laws of the Adamawa State 1997, particularly Rules 3 (1) and (2) thereof.

Counsel refers to the Appellant’s Motion on Notice and the affidavit in support, particularly paragraphs 3 and 4 thereof. He argues that the advice of Counsel was the only reason given by the Appellant for withdrawing its suit against the Respondents at the trial Court. Counsel contends that, in considering an application for discontinuance under the said Order 28 Rule 3 (1), the trial Court has a duty to look at the reason proffered for the party’s decision to withdraw or discontinue his claim against the other parties. The Court would necessarily base the exercise of its discretion availed it under the Order on the reason given for the withdrawal or discontinuance of the matter.

Counsel argues that the Appellant gave no cogent reason for his decision to discontinue the case after parties had exchanged pleadings and commenced hearing, albeit before a different Judge. He submits that this case is distinguishable from the case of Babatunde V Pan Atlantic Shipping and Transport Agencies Ltd (supra) and so the principle stated therein is inapplicable in the circumstances.

Counsel further contends that the present matter was at the point of litis contestatio at the time the Appellant brought its application to discontinue same. He submits that by the Civil Procedure Rules of Adamawa State High Court, cases that have not reached this point could ordinarily be withdrawn under Order 28 Rule 2. That however, Rule 3 under which the Appellant approached the lower Court applies to cases that have matured for hearing or in which hearing has actually commenced. After coming under Order 28 Rule 3, the Appellant can no longer be heard to say that its case was to be heard de novo and was not ripe for hearing. Counsel thus submits that the order of the lower Court barring the Appellant from bringing a subsequent suit against the Respondents is well founded and supported by the decisions of the Supreme Court. Counsel relies on The Young Shall Grow Motors Ltd V Okonkwo (2010) 3 SCNJ 396 @ 409-410.

Counsel further contends that the order barring the Appellant from bringing a subsequent action against the Respondents is also justified on the ground that the Court has a duty to prevent an abuse of its processes. Counsel contends that this is a proper step to take to protect the integrity and dignity of the trial Court and to prevent an abuse of its processes by an impulsive and apparently disrespectful party. He contends that withdrawing the matter preemptorily and filing the same case again against the Respondents will surely annoy, irritate and even intimidate them. He relies on Dingyadi V INEC (2010] 6 SCNJ 196 @ 251-252; AG Anambra State V UBA (2005) All FWLR (Pt. 277); & Africa Continental Bank Plc V Nwaigwe (2011) 1 SCNJ 162 @ 170 for the definition of abuse of process. He also relies on Ajuwa V SPDC Ltd (2011) 12 SCNJ (Pt. II) 596 @ 621 to submit that, in the exercise of the trial Court’s discretion with regard to the application to discontinue the case by the Appellant, the Presiding Judge enjoys an unfettered power to decide as he deems fit. He thus submits that the trial Court properly exercised its discretion under the Rules of Court to debar the Appellant from abusing the processes of the Court.

In conclusion, learned Counsel for the 2nd Respondent urges the Court to dismiss the Appeal on the ground that the trial Court properly exercised its jurisdiction under Order 28, Rule 3 of the Adamawa State High Court (Civil Procedure) Rules, 1997 when it made an order debarring the Appellant from reinstituting the case it discontinued after parties had joined issues.

In reply to the arguments and submissions of the 2nd Respondent, learned Counsel for the Appellant submits that the advice of Counsel is a good enough ground to make the application in the circumstances of the application before the lower Court. He argues that, in law, the reasons founding and supporting the advice of counsel made to a party is privileged and a party is not bound to reveal the communication on any matter between him and his Counsel. He relies on Section 195 of the Evidence Act, 2011. Counsel relies on Order 28 Rule 2 of the Adamawa State High Court Civil Procedure Rules Cap 63, Laws of Adamawa State 1987 to submit that the Appellant was entitled in law to withdraw the suit without proffering any reason. Counsel submits that the Appellant, upon being informed that his matter before one Court had been moved to another Court, without taking any further step in the matter before the later Judge, sought to withdraw the suit. He submits that the Appellant was entitled in law to so do without any punitive action against him, more so when the Defendants, having been put on notice, had no objection.

Counsel further submits that even if the Appellant’s motion was brought under a wrong rule, he is still entitled to the striking out order which he sought for and was entitled to under the law, on the authority of Babatunde V Pan Atlantic Shipping and Transport Agencies Ltd (supra), as the matter was commencing de novo before the lower Court Judge. He relies on Order 28 Rules 2, 3 and 4 of the Adamawa State High Court Civil Procedure Rules Cap 63 Laws of Adamawa State, 1987.

Counsel further submits, in relation to the decisions in Young Shall Grow Motors Ltd V. Okonkwo (supra); Dingyadi (supra) & AG Anambra State V UBA (supra) cited by the 2nd Respondent that the question of abuse of court process does not arise here as there is nothing to show that the Appellant filed or intends to file another suit before another court. Counsel therefore urged the Court to discountenance the submissions of Counsel above and give Judgment in favour of the Appellant.

Findings

A careful examination of the proceedings of the 22-04-09 at page 40 of the printed Record, discloses that learned Counsel for the Plaintiff made an oral application to discontinue the suit, and the learned trial Judge instructed him to place the Defendants on notice. Thereafter, the Plaintiff came by way of a formal Motion on Notice seeking the leave of Court to withdraw the suit. He also prayed for an order striking out the suit and returning the documents earlier tendered before the previous Court presided over by Nathan Musa, J. All the Defendants, even though on notice, did not file any counter affidavit disputing any of the averments in the Appellant’s supporting affidavit and did not in any way oppose the application. (See page 41 of the Record). The application was brought pursuant to Order 28 Rule 3 of the Adamawa State High Court Civil Procedure Rules Cap 63 Laws of Adamawa State, 1987. For ease of reference, Order 28 Rules 2, 3 and 4 of the said Rules provide as follows:

“2 – The Plaintiff in an action may, without leave of the court, discontinue the action or withdraw any particular claim made by him therein as against any or all of the defendants at any time not later than 14 days after the service of the defence.

3 – (1) Except as otherwise provided by Rule 2, a party may not discontinue an action or counter-claim, or withdraw any particular claim made by him therein without leave of the court, and the court hearing an application for the grant of such leave may order the action or counterclaim to be discontinued or any particular claim made therein to be struck out, as against any or all of the parties against whom it is brought or made on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks fit.

4 – Subject to any terms imposed by the court in granting leave under rule 3 the fact that a party has discontinued an action or counterclaim or withdrawn a particular claim made by him therein shall not be a defence to a subsequent action for the same or substantially the same cause of action.”

Thus, the learned trial Judge granted the application; and then proceeded to make an order which amounted to a dismissal of the action. He specifically ordered that the Appellant could never re-institute the action again against the Respondents, and his reason was that hearing had commenced in the matter. That however was not a true reflection of the state of affairs before the lower Court.

Much as the suit was part-heard before the earlier Court presided over by Nathan Musa, J., after it was transferred to the lower Court, it was to commence de novo. The consequences of a retrial order or a de novo trial (o venire de novo), is an order that the whole case should be re-tried or tried anew as if no trial whatsoever had been held in the first instance. It was therefore mistaken for the learned trial Judge to have found that the earlier part-heard trial was part of the Record before his Court. This is because the suit started by Nathan Musa, J. was truncated and, upon transfer of the matter to Lagre, J., a fresh hearing had commenced. The proceedings and evidence taken before Nathan Musa, J. was gone forever and became of no legal consequence to the new trial. Thus, the proceedings before Nathan Musa, J. could not be said to be any step taken by the Plaintiff in the prosecution of his action. Therefore, the premise upon which the lower court anchored its order that the suit cannot be re-litigated was false Consequently, the order made was perverse, and in the light of Order 28 Rules 2 and 3 of the Adamawa State High Court Civil Procedure Rules, made without jurisdiction.

In the instant case, the Rules of Court guiding the trial Court made provision for the withdrawal or discontinuance of suits before the High Court. Thus, reference would have to be made to them for a strict application. However, the general principle is that a case which has been withdrawn and subsequently struck out or dismissed when the point of litis contestatio has been reached cannot be relisted for another bite at the cherry.

In Eronini V Iheuko (1989) 20 NSCC (Pt. 1) 503, at the trial stage, after a few faltering steps, the Plaintiff’s Counsel, who was taken aback by the witnesses’ evidence which was at variance with the Plaintiff’s pleading, stopped the witness from concluding his evidence and applied to the trial Court to discontinue the case. The application was granted and the case was struck out. On appeal against the order striking out the action, the Court of Appeal affirmed the decision of the trial court. On further appeal to the Supreme Court, the decision of the trial court which was affirmed by the Court of Appeal was reversed and an order dismissing the action substituted therefore, on the ground that, at the time the Plaintiff discontinued the action, litis contestatio had been reached. Nnamaeka-Agu, JSC, elaborated on the decision thus:
“In my view the rationale of the rule i.e. in Soetan’s case, is that once issues have been joined to be tried and the stage set for the conflict, then once a certain state has been reached the plaintiff is no longer Dominis Litis and cannot be allowed to escape through the back door to enter again through another action.”
In other words, after pleadings have been exchanged by the parties whereby issues between them have become crystallized, litis contestatio can be deemed to have been reached. A withdrawal of a suit from that point in time must, as an unbendable rule, lead to the dismissal of the action. Thus, where the suit is shown to have been withdrawn at a point when litis contestatio has been reached, the proper order to be made by the court is, by operation of law, one of dismissal. And since the order of dismissal erases any expectation for a revivification of the suit, an application for its relistment is tantamount to a stab in the dark, a hopeless quest. See again The Young shall grow Motors Ltd V Okonkwo (2010) 3 SCNJ 396.

In the instant case, there is nothing on Record to show that any other suit was pending before any other court by the same parties in respect of the same subject matter. There is also nothing to even vaguely suggest that the Plaintiff, by applying to discontinue the suit, was engaged in forum shopping. The allegation of abuse of process is therefore without basis.

Finally, it is well to re-state here that, in the determination of an application to discontinue a suit, a trial Court must ensure that a point of no-return or litis contestatio has been reached by the parties. In this case, it is obvious that pleadings had not even been exchanged and issues had not been joined between the parties. Indeed, no evidence was ever taken before Lagre, J. and so, a point of litis contestatio cannot be said to have existed between the parties at the stage the application to discontinue the suit was made. The learned trial Judge should therefore not have shut the gate with such finality against the Plaintiff, more so when the drafters of the Rules made it clear that such discontinuance or withdrawal of the action, as the case may be, shall not be a defence to any subsequent action.

The provision of Order 28 of the Adamawa State High Court Civil Procedure Rules, no doubt, calls for an exercise of the discretion of the trial Court. It is well recognized that discretion is always that of the trial court and not of the Appeal Court. Hence, this Court should not ordinarily or lightly substitute its own discretion for that of the trial Court. However, the Appeal Court would not hesitate to interfere with the exercise of such discretion in extraordinary circumstances. The most obvious circumstance is where the exercise of discretion by the trial court tends to do injustice to one of the parties. An appellate court will certainly interfere with the exercise of discretion by a trial court where it is shown that the discretion was not exercised judicially and judiciously, that is to say, if the exercise is mala fide, arbitrary or illegal, either by considering extraneous matters or by failing to consider material issues. The question to be borne in mind at all times in reviewing the exercise of discretion is whether the exercise accords with the dictates of justice. In this instance, clearly the lower Court exceeded the bounds of law when it made the order barring the Appellant from re-instituting the suit in any court when the parties before it had not engaged in any way at all before that Court. This Court is therefore on solid ground and ought to interfere with this wrongful exercise of discretion in order to do justice to the parties before the lower Court.

It is therefore for these reasons that I find merit in the Appeal. It succeeds and is allowed.

It is hereby Ordered that the Ruling delivered by the Adamawa State High Court on 2nd November, 2010, striking out Suit No ADSY/49/2005 between Alhaji Isiyaku Yakubu Enterprises Ltd And Mr Aliyu B. Tarfa & Yola Electricity Power Co. Ltd, having been discontinued, is affirmed.

It is further Ordered that the consequential Order of the Adamawa State High Court made on the 2nd November, 2010, wherein it barred the Appellant from bringing the same action against the Respondents subsequently, is hereby set aside.

I make no order as to costs.

Appeal allowed

ADAMU JAURO, J.C.A.: I have the privilege of reading in draft the lead judgment just delivered by my learned brother, JUMMAI HANNATU SANKEY, JCA. The reasoning and conclusion contained in the lead judgment tallied with mine and I subscribe to the fact that the appeal is meritorious and should succeed.

I adopt the judgment as mine in allowing the appeal and abide by all consequential Orders made therein.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: Looking critically at the whole issues as canvassed in this appeal as revealed in all the processes filed, it would reveal that it is akin to a raging storm or rather a raging tempest in just a steaming cup of tea, boiling at the highest boiling point of 100 degree centigrade. Indeed it is clearly making a mountain out of a molehill when all that is truly involved in this appeal is rather within the very narrow confines of what is the proper order a court should make in the circumstances of this case at the stage when it was sought to be discontinued by the Appellant as Plaintiff before the court below?

The appeal therefore, touches on an issue which though seemingly simple and straight forward but on deeper scrutiny has become a thorny issue resulting from the action or inaction of the court below quite contrary to the very unambiguous provision of order 28 Rules 2, 3 and 4 of the Adamawa State High Court Procedures Rules, Cap 63 Laws of Adamawa State 1987 while hearing an application by the Appellant as Plaintiff to discontinue its clams against the Respondents as Defendants.

The thorny issue of law thrown up by this appeal is simply this:
What is the proper order a court should make where a party after due exchange of pleadings but before hearing commences decides to opt out of pursuing his claims against the other party and applies to withdraw same before the court?

In the instant appeal, it would appear that an otherwise very obviously simple issue of an application to discontinue a suit filed by the Appellant as Plaintiff after an order of transfer was practically transformed into a huge issue of law by the court below when it on hand acceded to the request for leave by the Appellant to discontinue the suit against the Respondent but curiously on the other hand refusing to strike out the suit and thus taking back, as it were with the other hand, what it has already granted to the Appellant by making a consequential order barring the Appellant from re-instituting the claims against the Respondent.

In law, by the above consequential order, it is very clear that the court below effectively ended up dismissing the claims of the Appellant, which were yet to be heard on the merit before it.

In my view, going by the succinct and very unambiguous provisions of order 28(3)(1) of the Adamawa State High Court Civil procedure Rules 1987, the court below, with due deference, did not properly appreciate the purport of the these provision of its Rules of Court but rather showed a clear misapprehension and misunderstanding of the stage of the proceeding at which the application for discontinue was made by the Appellant in the light of the provisions of Order 28 Rule(3)(1) of the Rules of the Court below, which provides inter alia thus:
…the court hearing an application for the grant of such leave may order the action or counter claim to be discontinued or any particular claim made therein to be struck out as against any or all the parties against whom it is brought or made on such terms as to cost, the bringing of a subsequent action or otherwise as it thinks fit.”

It does appear to me, going by the views of the court below at page 43 of the record, that it allowed itself to be misguided by the mere fact that the case was already part heard before the former trial Judge, Nathan Musa J., before it was transferred to the court below presided over by Lagre J.

It is my view and I so hold that it was clear misconception by the Court below that led it to fall into the grave error of failing to make the order of striking out simple as expressly provided for in Order 28(3)(1) of the Rules of the Court below and proceeding to make an order effectively amounting to a dismissal of the claims of the Appellants, which were yet to be heard on the merit having been transferred to it for a fresh or new or de novo hearing.

The court below at the stage of being on the verge of a de novo hearing was faced with an application by the Appellant as Plaintiff to discontinue his claim against the Respondents as Defendants. In my view the only duty incumbent on the court below at that stage was simply to confine itself to the application before it, particularly more so when it was even not being opposed or objected to by the Respondents as Defendants. There was absolutely no need for the court below to have digressed from the unopposed and uncontroverted reasons proffered by the Appellant as Plaintiff in the application before it to consider such irrelevant matters as to the stage of the proceedings before the former trial Judge prior to its transfer to the court below.

Now by order 28(3)(1) of the Rules of the Court below, in an application to discontinue a suit for which leave of Court is required, the court below had the following two options namely:
(1) To grant the Application if it finds it meritorious and thereby striking out the suit of the Appellant as Plaintiff or
(2) To refuse the Application if it finds it lacking in merit and thereby dismissing the application and proceeding with the proceedings in the suit before it.

In law, the court below cannot at the same time in the same proceedings, while granting an application to discontinue the suit proceed to held as it did that it cannot strike out the suit. In my view such a position as held by the court below at page 43 of the Record was both incongruous and unsustainable, with due deference to the court below, as it is clearly contrary to and does great violence to the clear and unambiguous provisions of order 28(2)(1) of the Rules of the court below which provides for the striking out of the suit where the court below decides to grant such an application for leave to discontinue the suit pending before it where leave of court is required for discontinuation of the suit.

The court below was thus gravely in error when it having decided to and indeed granted the application to discontinue the suit of the Appellant as Plaintiff proceeded to, without any legally justifiable reasons, put or set up on its own, unsolicited as it were by either of the parties before it, a stumbling block or plaiting a dangerous mine field on the path of the Appellant, who had merely exercised his right as recognized by the Rules of the Court below to discontinue with his claims with the leave of court first sought and obtained.

The Appellant by so doing deserves no condemnation and deprivation of his right to further relitigate his claims that were yet to be determined on the merit. It was left and indeed open to the court below to have refused the application to discontinuance and to dismiss it and proceed with the proceedings before it if it deems it fit so to do but once the court below acceded to the request for leave to discontinue with the suit, it cannot in my view and in the absence of any legally justifiable reason refuse to strike out the suit and in its stead barring the Appellant from re-instituting his claim, an order which I find to be completely unwarranted and unnecessarily punitive without any legal basis.

I therefore, find the consequential order barring the Appellant from re-instituting his claims against the Respondents for merely applying to discontinue his claims, which were yet to be heard afresh or de novo having been transferred to the court below from the previous court where it had been partly heard, as an invidious, arbitrary, whimsical, capricious and lackadaisical exercise of discretion by the court below.

In law such an arbitrary exercise of discretion by a Court, which is both a court of law and of justice as the court below, cannot be allowed to stand. Therefore, the consequential order, which I liken to a raging bull in a China shop, having been made without any foundational basis or jurisdictional competence is perverse and must be set aside in the interest of justice.
In Chief Ikechukwu v. Hon. Tony Nwoye (2014) 4 NWLR (Pt.1392) 227 @ P.239, Ogunbiyi JSC, had pointedly observed on the issue of exercise of discretion by a court thus:
“It is also trite though elementary to state that the court is, as provided by the constitution, clothed and imbued with enormous, wide and inherent powers, which are excisable at its discretion for purpose of doing justice. The caveat of however restrict that the exercise of such discretion must not be whimsical or lackadaisical without due care and attention. It must in orders words, be judicial and judicious having regard to all the facts and materials placed before it and also the circumstances relating to the case…”

Now, by way of Ex abudandi cautela, the Suit No: ADSY/49/2005 Alhaji Isiyaku Yakubu Enterprises Ltd. V. Mr. Aliyu B. Tarfa & Another, having been discontinued by the Appellant as Plaintiff with the leave of the court below, is hereby consequently struck out.

It is in the light of the above reasons and the fuller reasons eloquently marshaled out in the lead judgment of my learned brother, Jummai Hannatu Sankey JCA, that I too hereby allow the appeal and abide by all the consequential orders made therein including the order as to no cost.

Appearances

Mr. J. Olabode Makinde, with Mr. MJ Ifegwu,For Appellant

AND

Mr. Etim Akpan appears for 2nd Respondent.
No appearance for 1st Respondent.For Respondent