ELDER RUFUS ABEE & ANOR V. CHIEF DOUGLAS O.N. AWALA & ORS
(2011)LCN/4447(CA)
In The Court of Appeal of Nigeria
On Monday, the 11th day of April, 2011
CA/PH/412/2005
RATIO
DISCONTINUANCE OR WITHDRAWAL OF ACTION: POSITION OF THE LAW ON THE ORDER TO BE MADE WHERE A SUIT IS WITHDRAWN AFTER ISSUES HAVE BEEN JOINED; WHETHER IN GRANTING LEAVE TO DISCONTINUE AN ACTION, THE INTEREST OF BOTH SIDES MUST BE WEIGHED AND CONSIDERED JUDICIOUSLY AND JUDICIALLY
There are several authorities to the effect that a suit withdrawn after issues have been joined should be dismissed and not merely struck out. See OMO v. ANANTU (1993) 3 NWLR (PT. 280) 187, ERONINI & ORS V. IHEUKO (1989) 2 NWLR (PT. 101) 46; RODRIGUES V. PUBLIC TRUSTEE (1971) 4 SC 29; AGHADIUNO & 2 ORS v. ONUBOGU EKEGBO (supra). But it has been held that the wordings or provisions of each particular rules of the trial court governing discontinuance or withdrawal of an action should be the determining factor. See BABATUNDE V. PAN AST A. LTD (2008) 11WRN 58 -59.It must also be noted that the decision to grant leave to discontinue is discretionary and the interest of both sides must be weighed and considered judiciously and judicially, See OKORODUDU & ANOR V. OKOROMADU & ANOR (2002) 23 WRN 188. PER TUNDE OYEBANJI AWOTOYE, JCA
DISCONTINUANCE OF ACTION: PROPER ORDER TO MAKE UNDER THE RIVERS STATE HIGH COURT CIVIL PROCEDURE RULES 1987 WHEN A PLAINTIFF DISCONTINUES HIS ACTION
…the next step is to consider what order to make under the Rivers state High Court Civil Procedure Rules 1987 when a plaintiff discontinues his action after pleadings are deemed closed. To appreciate what is stipulated by the Rule one needs to juxtapose ORDER 29 Rule 3(1) of the Rivers State Rules alongside ORDER 37 Rules 1-3 of the Rules. After the close of pleadings either of the parties is expected to apply that the case be set down hearing. See ORDER 37 Rules 1 – 3. If when a trial is called on the defendant appears and the plaintiff does not appear, ORDER 37 Rule 8 states “the defendant, if he has no counter claim shall be entitled to judgment dismissing the action but if he has a counter claim, then he may prove the counter claim, to far as the burden of proof lies on him. PER TUNDE OYEBANJI AWOTOYE, JCA
INTERPRETATION OF STATUTE: PURPORT OF ORDER 37 RULE 8 AND ORDER 29 RULE 3 (1) OF RIVERS STATE HIGH COURT RULES
Each of ORDER 37 Rule 8 and ORDER 29 Rule 3 (1) deals with a situation where an action is being brought to end prematurely either because of absence of plaintiff as in ORDER 37 Rule 8 or because of application to discontinue the action by the plaintiff. When the application comes after close of pleadings it should lead to the same result: dismissal. PER TUNDE OYEBANJI AWOTOYE, JCA
JUSTICES:
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. ELDER RUFUS ABEE
2. DEACON ISREAL EJIRE ABEE
(for themselves and on behalf of Abee Oborle Family of Alode, Elema). – Appellant(s)
AND
1. CHIEF DOUGLAS O.N. AWALA
2. MR. NBOWA ONUNGWE
3. MR. CHU OBO AWALA
4. MR. ONUANDO NYIMEONE ONUANDO
(Sued jointly and severally). – Respondent(s)
TUNDE OYEBANJI AWOTOYE, JCA (Delivering the leading Judgment): This is the judgment in respect of the appeal filed by the plaintiffs in the lower court against the Ruling of High Court of Rivers State delivered on 29/9/2004.
The plaintiffs at the lower court had filed a motion on notice on 8/6/2004 praying for leave to discontinue and withdraw the action. The lower court after hearing the parties refused the plaintiffs leave to discontinue and withdraw the suit. The court then dismissed the action.
It is against this ruling that the plaintiffs being aggrieved filed this appeal after the transmission of the record of appeal from the lower court to this court, parties exchanged briefs of argument.
The appellants in their brief of argument deemed filed on 6/10/2009 formulated one issue for determination as follows:-
“1.WHETHER HAVING REGARDS TO THE CIRCUMSTANCES OF THIS CASE LEARNED TRIAL JUDGE WAS WRONG IN THE EXERCISE OF HIS DISCRETION OF MAKING AN ORDER DISMISSING THE SUIT INSTEAD OF STRIKING OUT THE APPELLANTS’ CASE WHEN IN FACT ISSUES HAVE NOT BEEN JOINED.”
Learned counsel for the appellant submitted that it was settled law that where pleadings had not been completed there was no need to seek leave of the court to withdraw the action. He referred to the recent case of EKUNDANO V. KWEREGBE (2008) 4 NWLR (PT. 1077) at 433 -434. He submitted that a court would dismiss a case when it exercised discretion and had weighed all the circumstances of the case in the interest of justice and balancing the interest of the parties involved in the case including the balance of convenience and the disadvantages which might be suffered by any of the parties concerned. Learned counsel submitted that this matter being a land case between two natives in Nigeria the trial judge should have looked at it judicially and simply imposes a condition and struck out the case. He added that the learned trial judge did not exercise his discretion judiciously and urged the Court of Appeal to intervene. Learned counsel contended that before a trial judge dismissed an action in limine he must be very sure that there was no option open to him. He cited NBC I V. MARTNE AND GENERAL INSURANCE COMPANY LTD (1992) NWLR (PT. 221) 71.
He further submitted that the facts in AGHADIUNO V. ONUBOGU (1998) LRCN 3422 were different from the one in this appeal in the sense that the defendants pleaded more than four earlier cases which amounted to res judicata and that it was only when the plaintiffs saw this that they applied to withdraw.
He posited that however in this case there was a defence and counter claim by the defendants and the plaintiffs had not filed any defence to the counter claim before they brought an application to withdraw the suit.
In conclusion learned senior counsel urged the court to allow the appeal and strike out the case instead of dismissing same because the plaintiffs/appellants.
(a) discontinued the case to enable them produce a plan of the land in dispute which would be to the advantage of even the defendants who had the counter claim.
(b) because the trial judge took into consideration matters which were irrelevant to the case.
The Respondents filed the Respondents’ brief of argument on 7-10-2009. Chief Urombo for the Respondents formulated one issue for determination to wit:
Whether taking the entire circumstances of this case into account, the learned trial judge properly exercised his discretion his discretion in this case in dismissing the appellants’ suit.
Learned counsel referred the court to order 29 Rules 2(1) and 3 of the Rivers State High Court (Civil Procedure) Rules 1987. He submitted that Order 47 Rule 1 of the High Court Rules of Eastern Nigeria was similar. He commended the case to the court. He submitted that every such application was grounded in equity and thus subject to the absolute discretion of the Honourable trial judge and that the onus was always upon the plaintiff/applicant to provide the necessary facts and materials why he must be allowed to escape from or discontinue an action he brought to court. He cited COMEK LTD v. NAB LTD (1997) 49 LRCN 815 at 822; OWHOVORIOLE v. FRN (2003) 1 SC (PT. 1) at 10; OWNERS OF THE M. V. LUPEX N.O.C’S. LTD (2003) 65 C (PT. II) 62 at 71.
He referred to the processes filed and submitted that the learned trial judge was on firm ground to take the decision.
He contended further that in the face of the bad faith and the mischief the trial judge was entitled to dismiss the Appellants case.
He finally urged the court to dismiss the appeal.
I have carefully considered the submission made on both sides.
The stage of the pleadings as at the time the plaintiff/applicant applied for discontinuance was as follows:
(a) On 7/11/2002 the plaintiff filed further amended statement of claim.
(b) On 12/3/2003 the defendants filed further amended statement of defence and counter claim
(c) On 8/6/2004 the plaintiffs applied for discontinuance.
Order 25 Rule 35 (1) of High Court Rules of Rivers State defines when pleadings in an action are deemed to be closed thus:
“The pleadings in an action are deemed to be closed.
a) at the expiration of 30 days after service of the reply or if there is no reply but only a defence to counter claim, after service of the defence to counter claim, of
b) if neither a reply nor a defence to counter claim is served at the expiration of 30 days after service of the defence.”
On page 104 of the record of appeal, the further amended statement of defence and counter claim of the defendants were deemed filed and served on 15/4/2003.
The plaintiffs never filed a Reply to the further amended statement of defence and defence to counter claim even though the court ordered that it should be filed within 30 days from 15/4/2003.
This means that as at 8/6/2004 when the plaintiffs applied for discontinuance pleadings were deemed closed.
An application for discontinuance of an action is provided for under order 29 of the Rivers State High court civil Procedure Rules of 1987.
Order 29 Rules 2 – 4 of the Rules are very pertinent for the purpose of this appeal. It reads:-
“2-(1) The plaintiff in an action may, without the 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 service of the defence on him or, if there are two or more defendants, of the defence last served, by serving a notice to that effect on the defendant concerned.
(2) A defendant may, without leave of the court –
(a) withdraw his defence or any part of it at any time;
(b) discontinue a counter-claim, or withdraw any particular claim made by him therein, as against any or all of the parties against whom it is made, at any time not later than 14 days after service on him of a defence to the counter-claim or, if the counter-claim is made against two or more parties, of the defence to the counter-claim last served, by serving a notice to that effect on the plaintiff or other party concerned.
(3) where there are two or more defendants to an action not all of whom serve a defence on the plaintiff and the period fixed by or under this rule for service by any of those defendants of hi defence expires after the latest date on which any other defendant serves his defence, paragraph (1) shall have effect as if the reference therein to the service of the defence last served were a reference to the expiration of that period.
(4) Paragraph (3) shall apply in relation to a counter-claim as it applies in relation to an action, with the substitution for references to a defence, to the plaintiff and to paragraph (t), of references to a defence to counter-claim, to the defendant and to Paragraph (2) respectively.
(5) if all the parties to an action consent, the action may be withdrawn without leave of the court at any time before trial by producing to the Registrar a written consent to the action being withdrawn signed by all the parties, and the action shall thereafter be struck out.
3-(1) Except as provided by rule 2, a party may not discontinue an action or counterclaim, or withdraw any particular court 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 counter-claim 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 just.
(2) An application for the grant of leave under this rule may be made by summons or motion on notice.
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 counter-claim 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”
Pleadings having been closed in this case, the application for discontinuance of the plaintiffs was brought under Order 29 Rule 3(1) Order 29 Rule 3(1) of the said Rules of Court specifies the orders that the court can make in the circumstance as follows:-
(a) The action or counter claim to be discontinued or any particular claim as against any or all of the parties against whom it is brought or made on such terms as to
(i) costs.
(ii) the bringing of a subsequent action or otherwise as it thinks just.
There are several authorities to the effect that a suit withdrawn after issues have been joined should be dismissed and not merely struck out. See OMO v. ANANTU (1993) 3 NWLR (PT. 280) 187, ERONINI & ORS V. IHEUKO (1989) 2 NWLR (PT. 101) 46; RODRIGUES V. PUBLIC TRUSTEE (1971) 4 SC 29; AGHADIUNO & 2 ORS v. ONUBOGU EKEGBO (supra).
But it has been held that the wordings or provisions of each particular rules of the trial court governing discontinuance or withdrawal of an action should be the determining factor. See BABATUNDE V. PAN AST A. LTD (2008) 11WRN 58 -59.It must also be noted that the decision to grant leave to discontinue is discretionary and the interest of both sides must be weighed and considered judiciously and judicially, See OKORODUDU & ANOR V. OKOROMADU & ANOR (2002) 23 WRN 188.
Having reviewed the state of the authorities the next step is to consider what order to make under the Rivers state High Court Civil Procedure Rules 1987 when a plaintiff discontinues his action after pleadings are deemed closed.
To appreciate what is stipulated by the Rule one needs to juxtapose ORDER 29 Rule 3(1) of the Rivers State Rules alongside ORDER 37 Rules 1-3 of the Rules. After the close of pleadings either of the parties is expected to apply that the case be set down hearing. See ORDER 37 Rules 1 – 3.
If when a trial is called on the defendant appears and the plaintiff does not appear, ORDER 37 Rule 8 states “the defendant, if he has no counter claim shall be entitled to judgment dismissing the action but if he has a counter claim, then he may prove the counter claim, to far as the burden of proof lies on him. “If at this stage the absence of the plaintiff leads to a dismissal of his action, then to my mind an application to discontinue an action at this stage should lead to a dismissal of the action.
It needs be noted that in this case it was not only that the pleadings had closed the suit had been adjourned for hearing’ See paragraphs 6 – 7 of the plaintiff’s supporting affidavit to the application for discontinuance which read:-
“6. That pleadings have been filed and exchanged in this suit.
7. That the suit has been adjourned to 14/6/2004 and 15/6/2004 respectively for commencement of hearing”.
I am therefore of the respectful view that the close of pleadings impacts the discretion that can be exercised under the Rivers state High Court Rules in the sense an application for discontinuance of action by the plaintiff at this stage should lead to a dismissal of such action. I am therefore of the firm view that the lower court was right to have dismissed the action of the plaintiff. Each of ORDER 37 Rule 8 and ORDER 29 Rule 3 (1) deals with a situation where an action is being brought to end prematurely either because of absence of plaintiff as in ORDER 37 Rule 8 or because of application to discontinue the action by the plaintiff.
When the application comes after close of pleadings it should lead to the same result: dismissal.I am more fortified in my view that the decision of the lower court was unimpeachable when one considers the circumstances as explained in the ruling of the court. The learned trial judge found that.
(1) The intention of the plaintiff to ask for discontinuance of the suit was to enable them re-litigate on the same subject matter.
(2) It was only after the filing of the amended statement of defence and counter claim that the Plaintiffs/applicants asked for an order of discontinuance.
(3) Issues had been joined and the case had been fixed for hearing.
The above findings have not been challenged in this appeal. These findings are therefore deemed to be valid. See ZEKERI v. ALHASSAN (2002) 14 NWLR (PT.786) 52; see also CALABAR C.C.T. SOCIETY LTD. V. EKPO (2008) 25 WRN 1 at 29 and S.P.D.C. & ANOR. V. X M. FEDERAL LIMITED & ANOR (2007) WRN 80 at 91.
I must add also that the plaintiffs did not file a defence to the counter claim of the defendant at the close of pleading where the defendant counter claimant claimed essentially what the plaintiffs claimed in his statement of claim.
I see no merit in this appeal. I resolve the sole issue formulated in favour of the respondents.
This appeal is dismissed with N60, 000.00 cost in favour of the Respondent.
HON. JUSTICE M. DATTIJO MUHAMMAD, JCA: I had a preview of the lead judgment of my learned brother Awotoye JCA and resultantly agree that this appeal, for the reasons contained in the judgment, lacks merit. I dismiss the appeal and abide by the consequential orders decreed.
EJEMBI EKO, JCA: The facts of this case have been elaborately set out in the judgment just delivered by my learned brother, T.O. AWOTOYE, JCA, which I had a preview of, and in agreement with.
This appeal turns on whether or not the learned trial Judge exercised his discretion properly in accordance with Order 29, rules 2 (1) & (5) and 3 (1) of the High Court (Civil Procedure) Rules, 1987 of Rivers State. They are herein below reproduced.
29.2 (1) 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 service on him or, if there are two or more defendants, of the defence last served, by serving a notice to that effect on the defendant concerned.
(5) if all the parties to an action consent, the action may be withdrawn without leave of court at any time before trial by producing to the Registrar a written consent to the action being withdrawn by all the parties, and the action shall thereafter be struck out.
3. (1) Except as 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 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 whom it is brought or made on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just.
The appellants, as the plaintiffs, brought their application to discontinue their suit against the Defendants/Respondents on 8th June, 2004, more than 419 days after the defendants’ amended statement of defence and counter-claim were deemed filed and served on the plaintiffs. Accordingly, by virtue of order 29, Rule 2 (1) it was necessary for them to obtain leave of court to discontinue their suit.
From the Record the defendants did not consent that the action be discontinued. No written consent signed by all parties, as required by Order 29 Rule 2 (5), was filed.
Order 29, Rule 3 (1) is very clear that a party may not discontinue an action without leave of court, and the court hearing an application for the grant of such leave may order the action discontinued to be struck out either on terms “or otherwise as it thinks just”. The trial court, on application of the plaintiffs seeking leave to discontinue their suit against the defendants after the defendants, amended statement of defence and counter-claim had been served on the plaintiffs for well over 400 days, as against the 14 days provided for in order 29, Rule 2 (1) dismissed the plaintiffs’ action, order 29, Rule 3(1) gives the trial court the discretion to dismiss the suit under the omnibus clause therein, to wit: or otherwise as it think just. The learned trial Judge, in law, was therefore not wrong when, in the exercise of the discretion conferred on him or his court by Order 29, Rule 3(1) or the Rules of the court, he dismissed the suit, instead of striking it out. The learned trial Judge found, to support the discretion he had exercised, that the intention of the plaintiffs in asking for discontinuance of their suit was to enable them re-litigate on the same subject matter after issues had been duly joined in the case and the matter was fixed for hearing. Every court has a duty to prevent abuse of its process. This finding, clearly showing that the plaintiffs intended to use the discontinuance of their suit to abuse the process of court, has not been appeared or challenged. It is therefore deemed not only as valid, on the presumption of regularity under section 150 of the Evidence Act; but also acceptable to the plaintiffs or the parties against whom it is made. See KOJO II v. BONSIE (1955) 14 WACA 242.
The appeal, in my judgment, is frivolous. It is hereby dismissed with cost assessed at N60, 000.00 in favour of the Respondents and against the Appellants
Appearances
Chief A. O. Mogboh, SAN
I. Ukoh Esq. For Appellant
AND
Chief F.M.B.R. Urombo For Respondent
