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BENJAMIN & ORS v. APC & ORS (2022)

BENJAMIN & ORS v. APC & ORS

(2022)LCN/16020(CA) 

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Wednesday, November 30, 2022

CA/OW/423/2022

Before Our Lordships:

Rita Nosakhare Pemu Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Ademola Samuel Bola Justice of the Court of Appeal

Between

1. LUCKY BENJAMIN 2. AZUBUIKE KELECHUKWU 3. COLLINS IFEANYI 4. CHIMA ORIAKU 5. ISIENYI BONIFACE N. 6. BLESSING UWAOMA 7. JOY ONYENSO 8. NNENNAYA C. OGBONNA 9. DR. CHIDIEBERE NWANKPA 10. WILSON EZE CHUKWUMA 11. IKECHUKWU ENWEREMADU APPELANT(S)

And

1. ALL PROGRESSIVES CONGRESS 2. SENATOR ABDULLAHI ADAMU (THE CHAIRMAN, ALL PROGRESSIVE CONGRESS) 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) RESPONDENT(S)

 

RATIO:

CLOSE OF PLEADINGS IS DIFFERENT FROM ISSUES BEING JOINED

“It is my view that close of pleadings is different from issues being joined. Once a Plaintiff files an originating process, any of the Defendants enters appearance and in furtherance files either a statement of defence or a Counter-Affidavit, the parties have joined issues. I understand the point being made by Learned Plaintiff’s Counsel but I say that the proper thing would have been to apply to amend by adding the names of the proper parties. The 1st and 2nd Defendants having filed their Counter-Affidavits before the filing the notice to discontinue, issues at that point has been joined and it is material that the Plaintiff had not been served nor that the other parties to the suit had not filed any process nor that Plaintiff had not filed a Reply. This is a Pre-election matter and time is of essence. In the circumstance, the proper Order to make in line with the authority cited above is that of dismissal.
Accordingly, this case is hereby dismissed.” ADEMOLA SAMUEL BOLA, J.C.A.

THE POWER OF COURT TO DISMISS A CASE SHOULD BE EXERCISED WITH UTMOST CIRCUMSTANCES AND NOT LIGHTLY AS A MATTER OF COURSE

It is settled principle that withdrawn cases are not usually dismissed by just a mere wave of hand. The trial Judge must ensure that a point of no return or “litis Contestatio” has been reached by the parties. See Eronini V. Iheuko (1989 2 NWLR Pt. 101) 46. In Nigeria Airways Ltd. V. Lapite (1990) 7 NWLR (Pt. 163) 392, Uwais, JCA (as he then was) made the following observation;
“the power of the Court to dismiss a case in Limine should be exercised with utmost circumstances and not lightly as a matter of course”
Tobi, JSC followed this observation in the case of Registered Trustees of Ifeloju Friendly Society V. Kuku (1991) 5 NWLR (Pt. 189) 65 at 79 thus;
“It is only when the justice of the case tilts heavily in favour of dismissal that he should dread to tread unless all other predeterminable paths, including that of striking out are closed to him … In our democracy where the rule of law both in its conservative and contemporary constitutional meaning operates, the doors of the Court should be left wide open and I mean really wide throughout … for aggrieved persons and the generality of litigants to enter and seek any form of judicial redress or remedy. This is a desideratum in our polity” ADEMOLA SAMUEL BOLA, J.C.A.

SOME OF THE CONSIDERATIONS TO BE CONSIDERED BY THE COURT BEFORE AN APPLICATION FOR DISCOUNTENANCE OF AN ACTION IS GRANTED

In Babatunde V. Pan Atlantic Shipping and Transport Agencies Ltd. & Ors (2007) LPELR – 698 (SC), The apex Court held:-
“… when an application for discountenance of an action is made, one of the things to be considered by a trial Judge is at what stage the said application is made. If it is made before a hearing date has been fixed, it seems to me that it is now firmly settled that the proper Order to make is one of striking out. This is because there has been no “litis Contestatio” and a determination on the merits has not been made after hearing evidence of either the whole or some fundamental part of the claim. If the application was made after hearing has commenced, the trial Court must weigh and consider all the circumstances of the case in the interest of justice and thus balance the interest of the parties and thus balance the interest of the parties involved, the balance of convenience and disadvantage which might be suffered by any of the parties concerned” ADEMOLA SAMUEL BOLA, J.C.A.

ISSUES WHEN JOINED BETWEEN THE PARTIES AND UNDER WITHDRAWAL AT THAT STAGE WILL BE DISMISSED AND NOT STRUCK OUT

In the case Nwokedi V. Roxy Travel Agency Ltd. (2006) 6 NWLR (Pt. 762) 181 at 199, the apex Court held:
“It is important to note that once pleadings have been filed in a given case and issues probably joined between the parties, a case under withdrawal at that stage will be dismissed and not struck out”
In a similar situation, this Court, Court of Appeal Owerri Division in the case of Egbukohia V. Onyegbule (2015) 8 NWLR (Pt. 1461) 377 at 393 held as follows:                                                                                                                                 

“… when the stage of “Litis contestatio” has been achieved, which ordinarily describe as between the litigants; a period of “no retreat no surrender” but that if ever there is to be a surrender on the part of the Claimant, that automatically will be dismissal of his suit and a defeat of his Claim.”
​I have given deep consideration to the fact that the Notice of discontinuance filed by the Appellant at the lower Court was filed at the stage when pleadings had been completed and issues joined and when the parties have reached the stage of “litis contestatio”. I have no further conclusion than to say that the trial Court correctly took the step of procedure when it dismissed the case of the Plaintiff/Appellant  upon the filing of the Notice of Discontinuance when the parties have joined issues. The failure of the 3rd Respondent (INEC) to file any process in the matter would not prejudice the exercise of the discretion of the trial Judge to dismiss the action.
It is the considered view of this Court that the lower Court arrived at a correct position of the law when he dismissed the Appellants’ action upon the filing of the Notice of withdrawal after the joinder of issues vide pleadings of the parties. There is no basis to warrant the setting aside of the decision of the lower Court. ADEMOLA SAMUEL BOLA, J.C.A.

AFFIDAVIT EVIDENCE TAKES THE PLACE OF PLEADINGS IN  ACTIONS COMMENCED BY ORIGINATING SUMMONS

As held by the Supreme Court in Owuru v. Adigwu (2018) 1 NWLR (Part 1599) Page 1 at 27 Para E – F per Kekere-Ekun JSC;
“In actions commenced by Originating Summons, the affidavit evidence takes the place of pleadings. The averments are on oath and are of the same evidential value as a witness statement on oath”.
In consequence, the parties being “litis contestatio” at the stage at which the Notice of Discontinuance was filed, the lower Court was right to have dismissed the Appellant’s claims.
Where issues have been joined between the parties, a case discontinued will be dismissed and not struck out. See Egbukohia v. Onyegbule(2015) 8 NWLR Part 1461 Page 377 at 393 Para E – F Per Oho JCA. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

ADEMOLA SAMUEL BOLA, J.C.A.:[Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court, Umuahia Judicial Division, presided over by Hon. Justice E. N. Anyadike delivered on the 7th October, 2022 wherein the suit of the Appellants as Plaintiffs before the lower Court was dismissed pursuant to the Notice of Discontinuance filed by the Appellants.

Aggrieved with the decision and Order of dismissal by the lower Court, the Appellants filed a Notice of Appeal dated 24th October 2022 and filed on the said date. The Notice of Appeal consist of two grounds. The Record of Appeal was transmitted to this Court on 2nd November 2022.

The Appellants Brief of Argument settled by O. O. Amuzie Esq was filed on 8th November 2022 while the 1st and 2nd Respondents filed their joint Brief of Argument settled by Prof. Sam Erugo, SAN on 9th November 2022. The 3rd Respondent (INEC) filed no Brief of Argument.

BACKGROUND FACTS
​The Plaintiffs filed their Originating Summon on 8th June 2022 in respect of the primary election conducted in the various State Assembly Constituencies in Abia State. The Plaintiffs now Appellants in this appeal participated in the primary elections. The Plaintiffs claimed they won the primary elections in their respective constituencies. It was the contention of the Plaintiff) Appellants that the 1st and 2nd Defendants were unwilling to uphold the outcome of the elections in which they – Plaintiffs emerged winners. This culminated to the suit instituted by the Plaintiffs at the Federal High Court to challenge the action of the 1st and 2nd Respondents.

Parties filed their respective Court processes at the lower Court including the Counter-Affidavit of the 1st and 2nd Defendants filed on 15/6/2022.

​On 11th November, 2022, the Plaintiffs Counsel O. O. Amuzie Esq. applied to discontinue the matter. He adopted the Notice of Discontinuance filed by the Plaintiffs dated 26/7/2022. The 1st and 2nd Defendant did not object to the application but applied that the Plaintiffs’ action be dismissed since issues had been joined. It was the Plaintiffs’ Counsel’s contention that the Plaintiffs had not filed response to the processes filed by the 1st and 2nd Defendants. Pronouncing on this application, the trial Court ruled as follows:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

“It is my view that close of pleadings is different from issues being joined. Once a Plaintiff files an originating process, any of the Defendants enters appearance and in furtherance files either a statement of defence or a Counter-Affidavit, the parties have joined issues. I understand the point being made by Learned Plaintiff’s Counsel but I say that the proper thing would have been to apply to amend by adding the names of the proper parties. The 1st and 2nd Defendants having filed their Counter-Affidavits before the filing the notice to discontinue, issues at that point has been joined and it is material that the Plaintiff had not been served nor that the other parties to the suit had not filed any process nor that Plaintiff had not filed a Reply. This is a Pre-election matter and time is of essence. In the circumstance, the proper Order to make in line with the authority cited above is that of dismissal.
Accordingly, this case is hereby dismissed.”

Consequent upon the above decision of the trial Court, the Plaintiffs/Appellants filed this appeal vide a Notice of Appeal on 1st November 2022 consisting of two grounds reproduced hereunder:
“l. GROUNDS OF APPEAL:
GROUND ONE: ERROR IN LAW:
The Learned trial Judge erred in law when he dismissed the suit instead of striking same out upon the notice of discontinuance filed by the Appellants in the circumstances of the case.
PARTICULARS OF ERROR:
1. Issues had not been joined and/or fully joined in the matter as at when the notice of discontinuance was filed by the Appellants.
2. The Appellants had not been served with any process filed by the 1st and 2nd Respondents when the notice of discontinuance was filed by the Appellants.
3. The 3rd Respondent has not entered appearance or filed any process in the suit when the notice of discontinuance was filed by the Appellants and the suit dismissed by the trial Court.
4. The suit had not been mentioned or hearing commenced as at when the said notice of discontinuance was filed and the suit dismissed.
5. The notice of discontinuance was filed prior to service of the 1st and 2nd Respondents’ memorandum of appearance, notice of preliminary objection and counter affidavit on the Appellants.
6. By Order 50 Rule 2(1) of the Federal High Court (Civil Procedure) Rules, 2019, ​the Appellants were within their right in the circumstances of the case to discontinue the suit without the leave of the trial Court and the suit ought to have been discontinued and/or struck out.
GROUND TWO: ERROR IN LAW
The learned trial Judge erred in law when he misapplied the law in dismissing the suit instead of striking same out in the circumstances of the case.”

APPELLANTS’ BRIEF OF ARGUMENT: ISSUE DISTILLED
The Appellants distilled a sole issue for determination. It is-
“Whether the dismissal of the suit by the lower Court was proper in the circumstance of this case.”

Argument of Issue
It was submitted that by the Rule of the (Pre-Election) Practice Directions, 2022 where no provision is made therein, the provisions of the Federal High Court (Civil Procedure) Rules, 2019 will apply. That withdrawal and discontinuance of suit is regulated by Order 50 of the said Rules of the lower Court which provides for 2 classes of discontinuance viz: Without Leave and with Leave of Court (Rules 2 and 3 of Order 50 respectively). Both have different criteria, conditions, consequences or effects thereto.

It was submitted that the lower Court failed to appreciate the law that given the circumstances of the case that the discontinuance of the suit by the Appellants was without the leave of the lower Court, Counsel referred to Order 50 Rule 2(1) of the Rules. That the Appellants were served with the Counter-Affidavit from one of the two legal representations of the 1st and 2nd Respondents only on 14/9/2021, a period of 50 days from the filing of the Appellant’s Notice of discontinuance. By reason of the above provision, the Appellants have a right to discontinue their suit without the leave of Court or later than 14 days after the service of defence. That the lower Court failed to appreciate the law that it was the service of the defence that should be reckoned with in determining whether or not a discontinuance is without leave or otherwise. That the suit could be discontinued after service of defence as in the case at the lower Court.

​Submitted that the holding of the lower Court was wrong, patently flawed and reached per incuriam, when it failed to take the provisions of Order 50 Rule 2 (1) of the Rules into consideration in dismissing the suit in the circumstance of the case.

It was argued that the lower Court failed to appreciate that it was the service of the defence (Counter-Affidavit) on the Appellants and not the filing of the defence that should be reckoned with in determining whether or not a discontinuance was without leave or otherwise. That the determination of the same would have guided the lower Court in striking out the case and not dismissal; that Order 50 Rule 2 (i) mentioned “Service”. That in this case, the Counter-Affidavit had not been served on the Appellants as at the time of the filing of the notice of discontinuance. That the case of Ugwuoke V. FRSC (2019) LPELR – 46611 (CA) referred to by the lower Court before dismissing the case was inapplicable. Counsel referred to the case of Ekundano & Anor. V. Keregbe & Ors. (2008) LPELR – 1100 (SC); Bello V. Federal Mortgage Bank Ltd. & Ors. (2021) LPELR – 55693 (CA).

​He submitted that the suit could only be struck out but not one for dismissal. Counsel urged the Court to resolve the lone issue for determination in favour of the Appellants. <br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

The 1st and 2nd Respondents Brief
The 1st and 2nd Respondents equally formulated a lone issue for determination. It is-
“Whether the lower Court was not right to have dismissed the Suit of the Appellants.”

It was submitted that the Appellants misconstrued the purport of Order 50 Rule (1) of the Federal High Court (Civil Procedure) Rules, 2019 that the Rules permit a Plaintiff to discontinue his action at any time even before the service of defence or not later than 14 days after service of defence. That as at the time the Appellants filed their notice of discontinuance on 27th of July 2022 after the 1st and 2nd Respondents filed their defence on 15th July 2022 both the Appellants and the 1st and 2nd Respondents have joined issues and reached the stage of “litis Contestatio”. That once a Defendant on an action commenced by Originating Summons files a defence to the pleadings of the Plaintiffs, issues had been joined and parties have reached the stage of “litis Contestatio”. That a trial Judge considering a Notice of Discountenance at that stage has the powers and the discretion to make the appropriate Order the justice of the case demands. That the justice of the case demanded that the suits of the Appellants be dismissed, which the lower Court rightly did.

It was submitted that the rules of Court not being law could not be superior and/or override the decisions of our superior Courts that serve as judicial precedent.

Counsel referred to the cases of Bola Tinubu V. I. M. B. Securities (2001) 16 NWLR (Pt. 740) 670 at 722 which defined the word “discontinuance”. He also referred to the case Mabamije V. Hans Wolfgang Otto (2016) 13 NWLR (Pt. 1529) 171 at 177 where the apex Court held that a notice of discontinuance filed at an advanced stage of a suit and when issues have been joined, attracts a dismissal order and a party who files same cannot be allowed to relitigate the subject matter. Counsel also cited the cases Nwokedi V. Roxy Travel Agency Ltd. (2002) 6 NWLR (Pt. 762) 181 at 189; Young Shall Grow Motors V. Okonkwo (2002) 16 NWLR (Pt. 794) 536 at 568; Babatunde V. P. A. S. & T. A. Ltd. (2007) 13 NWLR (Pt. 1050) 113; Ecobank Trans In Corp V. Broad Comms. Ltd. (2022) 5 NWLR (Pt. 1769) 209 at 215; Egbukohia V. Onyegbule (2015) 8 NWLR (Pt. 1461) 377 at 393.

It was submitted that based on the above decisions, the lower Court was perfectly at the right side of the law in dismissing the suit of the Appellants.

In view of the foregoing, Counsel urged the Court to determine the issue in favour of the Respondents and dismiss the appeal.

ISSUE FORMULATED BY THE COURT
Flowing from the identical issues formulated by the parties, this Court adopts the aforesaid issues, particularly the one that donated by the Appellants. It is –
“Whether the dismissal of the suit by the lower Court was proper in the circumstance of the case.”

RESOLUTION OF ISSUES
It is to be noted that the action at the lower Court was commenced by way of Originating Summons which require the filing of Affidavits and documents as Exhibits. In other words, the action would be fought on the basis of affidavits viz Supporting affidavit, Counter-Affidavit and possibly further affidavit coupled with the documents attached to the affidavits and marked as Exhibits.

​It is settled principle that withdrawn cases are not usually dismissed by just a mere wave of hand. The trial Judge must ensure that a point of no return or “litis Contestatio” has been reached by the parties. See Eronini V. Iheuko (1989 2 NWLR Pt. 101) 46. In Nigeria Airways Ltd. V. Lapite (1990) 7 NWLR (Pt. 163) 392, Uwais, JCA (as he then was) made the following observation;
“the power of the Court to dismiss a case in Limine should be exercised with utmost circumstances and not lightly as a matter of course”
Tobi, JSC followed this observation in the case of Registered Trustees of Ifeloju Friendly Society V. Kuku (1991) 5 NWLR (Pt. 189) 65 at 79 thus;
“It is only when the justice of the case tilts heavily in favour of dismissal that he should dread to tread unless all other predeterminable paths, including that of striking out are closed to him … In our democracy where the rule of law both in its conservative and contemporary constitutional meaning operates, the doors of the Court should be left wide open and I mean really wide throughout … for aggrieved persons and the generality of litigants to enter and seek any form of judicial redress or remedy. This is a desideratum in our polity”
​In Babatunde V. Pan Atlantic Shipping and Transport Agencies Ltd. & Ors (2007) LPELR – 698 (SC), The apex Court held:-
“… when an application for discountenance of an action is made, one of the things to be considered by a trial Judge is at what stage the said application is made. If it is made before a hearing date has been fixed, it seems to me that it is now firmly settled that the proper Order to make is one of striking out. This is because there has been no “litis Contestatio” and a determination on the merits has not been made after hearing evidence of either the whole or some fundamental part of the claim. If the application was made after hearing has commenced, the trial Court must weigh and consider all the circumstances of the case in the interest of justice and thus balance the interest of the parties and thus balance the interest of the parties involved, the balance of convenience and disadvantage which might be suffered by any of the parties concerned”
​In the matter before the lower Court the subject of this appeal, the Plaintiff/Appellant had filed his Originating Processes including the affidavit evidence and documents attached. The 1st and 2nd also filed their counter-affidavit against the processes filed by the Plaintiff/Appellant. Thereafter the Appellant filed his Notice of Discontinuance to discontinue with the action. All things being equal, both parties had joined issues at this stage taking into consideration that it was an action that had to be determined by affidavit evidence. Both parties had also field their written address. At this stage, the only step to be taken before judgment was to adopt their respective written addresses. At that stage, both sides save for the 3rd Respondent which decided not to enter into the frays of contention between the parties refused to file any response to the Appellants’ originating process and affidavit evidence – have filed their respective affidavit evidence and joined issues thereby. Suffice to say, the parties at this stage have reached “litis Contestatio”. In the circumstance, I am in agreement with the submission of the 1st and 2nd Respondent’s Counsel to the effect that where the parties have joined issues and reached the stage of “litis Contestatio” a trial Court considering a notice of discontinuance filed at that stage has the powers and the discretion to make the appropriate order the justice of the case demands. As in the instant case, the justice of the matter demands that the suit of the Appellant be dismissed and the lower Court rightly made the appropriate Order of dismissal suit.
In the case Nwokedi V. Roxy Travel Agency Ltd. (2006) 6 NWLR (Pt. 762) 181 at 199, the apex Court held:
“It is important to note that once pleadings have been filed in a given case and issues probably joined between the parties, a case under withdrawal at that stage will be dismissed and not struck out”
In a similar situation, this Court, Court of Appeal Owerri Division in the case of Egbukohia V. Onyegbule (2015) 8 NWLR (Pt. 1461) 377 at 393 held as follows:
“… when the stage of “Litis contestatio” has been achieved, which ordinarily describe as between the litigants; a period of “no retreat no surrender” but that if ever there is to be a surrender on the part of the Claimant, that automatically will be dismissal of his suit and a defeat of his Claim.”
​I have given deep consideration to the fact that the Notice of discontinuance filed by the Appellant at the lower Court was filed at the stage when pleadings had been completed and issues joined and when the parties have reached the stage of “litis contestatio”. I have no further conclusion than to say that the trial Court correctly took the step of procedure when it dismissed the case of the Plaintiff/Appellant upon the filing of the Notice of Discontinuance when the parties have joined issues. The failure of the 3rd Respondent (INEC) to file any process in the matter would not prejudice the exercise of the discretion of the trial Judge to dismiss the action.
It is the considered view of this Court that the lower Court arrived at a correct position of the law when he dismissed the Appellants’ action upon the filing of the Notice of withdrawal after the joinder of issues vide pleadings of the parties. There is no basis to warrant the setting aside of the decision of the lower Court.

​Consequently, the sole issue raised by the parties in this appeal and adopted by the Court is hereby resolved in favour of the 1st and 2nd Respondents. The appeal is accordingly dismissed. The decision of the lower Court the subject matter of this appeal is affirmed.
There shall be no Order as to cost.

RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my brother, SAMUEL ADEMOLA BOLA, JCA.
I agree with his reasoning and conclusions.

I have nothing more to add thereto. I dismiss the appeal.
The decision of the Federal High Court, Umuahia Judicial Division, delivered on the 7th of October 2022 in suit No. FHC/UM/CS/99/2022 is hereby affirmed.

I abide by the consequential more made that there shall be no order as to costs.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft, the judgment of my learned brother, SAMUEL ADEMOLA BOLA, JCA, where the issue in contention, to wit; whether the dismissal of the suit by the lower Court was proper in the circumstances of the case, has been succinctly determined.

​I am in agreement with my learned brother that by the Appellants filing his Notice of Discontinuance after the Counter Affidavits of the 1st and 2nd Respondents had been filed, the parties had reached the stage of “litis contestatio”.

This is because the exchange of affidavits in a case commenced by Originating Summons is tantamount to a hearing.
As held by the Supreme Court in Owuru v. Adigwu (2018) 1 NWLR (Part 1599) Page 1 at 27 Para E – F per Kekere-Ekun JSC;
“In actions commenced by Originating Summons, the affidavit evidence takes the place of pleadings. The averments are on oath and are of the same evidential value as a witness statement on oath”.
In consequence, the parties being “litis contestatio” at the stage at which the Notice of Discontinuance was filed, the lower Court was right to have dismissed the Appellant’s claims.
Where issues have been joined between the parties, a case discontinued will be dismissed and not struck out. See Egbukohia v. Onyegbule (2015) 8 NWLR Part 1461 Page 377 at 393 Para E – F Per Oho JCA.

I also resolve the sole issue for determination against the Appellants and dismiss this appeal. I affirm the decision of the lower Court.

Appearances:

O. O. Amuzie For Appellant(s)

Prof. Sam Erugo, (SAN) – for 1st Respondent For Respondent(s)