GONIMI v. SURUNDI
(2022)LCN/16747(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Tuesday, May 24, 2022
CA/G/7/2022
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Ibrahim Shata Bdliya Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
MALLAM MOHAMMED GONIMI APPELANT(S)
And
NASIRU ALI SURUNDI RESPONDENT(S)
RATIO
WHETHER OR NOT A CASE CITED AS AN AUTHORITY MUST BE CONSIDERED AND UTILIZED FOR ITS PECULIAR FACTS AND CIRCUMSTANCES
Now while the principles of law expounded in the cases cited and relied upon are good law, they are based on the Rules of Court governing those Courts. An example is Order 11 of the Court of Appeal Rules, 2021. The decisions arising from those Courts must necessarily be applied within the context of the facts of the case presented to the Court and the applicable laws and Rules guiding the Court. The law is trite that a case is only an authority for what it decides, and nothing more. Thus, a case cited as an authority must be considered and utilized in light of its own peculiar facts and circumstances. See Anyakorah V PDP (2022) LPELR-12, D, per Muhammad, JSC; Igwe V State (2021) LPELR-55336(SC) 24-25, F-B, per Kekere-Ekun, JSC; Western Steel Workers Ltd V Iron & Steel Workers Union of Nig. (1897) 1 NWLR (Pt. 49) 284.
Oputa JSC, the Philosopher Jurist, brilliantly expressed the law this way in Fawehinmi V NBA (No. 2) (1989) 2 NWLR (Pt. 105) 558, 650:
“It is good to call the Court’s attention to its pronouncements in a previous case. Under our system (which we inherited from England and Common Law) the formulation of general principles had not preceded decisions. Our case law is the law of the practitioner rather than the law of the philosopher. Decisions have drawn their inspiration and their strength from the very facts which framed the issue for decision. Once made, these decisions control future judgments of Courts in like or similar cases. The facts of two cases must be either the same or at least similar before the decision in one can be used, and even there as a guide to the decision in another case. What the former decision establishes is only a principle, not a rule. Rules operate in all or nothing dimension. Principles do not. They merely form a principium, a starting point. Where one ultimately lands will then depend on the peculiar facts and circumstances of the case in hand.” PER SANKEY, J.C.A.
THE DIFFERENCE BETWEEN WHEN A CASE IS DISMISSED AND WHEN A CASE IS STRUCK OUT
The law is clear to the effect that there is a difference between when a case is dismissed and when a case is struck out. See Ezenwosu vs. Ngonadi (1988) 3 NWLR (pt 81) 163. A dismissed case is one which is decided on the merit against the party who instituted the action, such a case cannot be resuscitated as they operate as estoppel per ram judicata. Babatunde vs P. A. S. T. A. Ltd (2007) 13 NWLR (pt 1050) 113.
On the other hand, cases struck out are cases which were not decided on merit but for such technical irregularities are struck out. Such cases can be reinstituted when the irregularities are corrected. In this regard, I refer to the Supreme Court case of Panalpina World Transport (Nig.) Ltd v. J. B. Olandeen International & Ors (2010 19 NWLR (pt 1226) 1 where it was held:
“At this juncture, it is imperative, that I amplify on the position of the law as supported by the Rules. When an order of Court is made in respect of an application 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 order is still considered in law a mere striking out. When a matter is struck out in such circumstance, there is a liberty to relist. 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. In such a case, the plaintiff still has another opportunity to re-open the action after rectifying the deficiency that resulted in the striking out of the action. This is applicable even where the Court has not included in the order of striking out that the plaintiff has an option to relist. The matter struck out has not left the cause list – as it is still a pending case or pending cause. The same procedure applies even when a matter has been decided many years ago.
Alor v. Ngene (2007) All FWLR pt.362 pg.1836; Waterline Nigeria Limited v. Fawe Services Limited FWLR pt.163 pg.88” PER TOBI, J.C.A.
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Justice Borno State in Suit No. BOHC/MG/CV/71/2015 delivered on 31st January, 2017 by Z. Mussa J.
The appeal is anchored on the following facts briefly captured from the Record: The Appellant, as Claimant before the lower Court, filed an action against the Respondent, as Defendant, seeking a declaration of title to land, possession, perpetual injunction and costs. In response, the Respondent filed a Memorandum of appearance, Statement of defence and a Motion on Notice wherein he sought an order dismissing the suit, contending that the lower Court lacked jurisdiction to entertain the suit. Written addresses were filed, exchanged and adopted. After a consideration of the arguments in the Counsel’s written addresses, the lower Court delivered its ruling dismissing the Appellant’s suit. Aggrieved by this decision, the Appellant, with the leave of this Court, filed his Notice and Grounds of Appeal on 08-11-21. Therein, he seeks the following reliefs:
a) “To set aside the decision of the High Court, Maiduguri.
b) To remit the case to another Court of competent jurisdiction.”
At the hearing of the appeal on 02-03-22, learned Counsel for the Appellant, M. Umara Esq., adopted the submissions in the Appellant’s Brief of argument filed on 17-01-22, deemed duly filed on 24-01-22 and settled by M.S. Umar Esq. in urging the Court to allow the appeal, set aside the ruling of the lower Court and remit the case for re-trial before another Judge of the Borno State High Court. On his part, learned Counsel for the Respondent, Yusuf A. Ali Esq. holding the brief of A.A. Alfa Esq. stated that the Respondent had not filed any Brief of argument and was conceding to the appeal.
The Appellant in his Brief of Argument crafted two issues for determination from three grounds of appeal as follows:
“Whether or not a suit discontinued by the Claimant and struck out under Order 29 Rule 3 of the Borno State High Court (Civil Procedure) Rules 2004 without cost is dead and cannot be re-opened or re-filed. (Grounds 1 and 2)
2. Whether or not the lower Court was right in dismissing the Appellant’s suit on the ground that when an action is withdrawn by the owner, it is no more a subject of litigation. (Ground 3)”
The issues shall be taken together.
ARGUMENTS
Learned Counsel for the Appellant submits that Suit No. M/100/2008 earlier filed by the Appellant had been withdrawn and struck out by High Court No. 2 without any conditions attached. Subsequently, he filed the suit leading to this appeal in 2015. The suit is alleged to be substantially different from the suit earlier struck out in 2008. However, the Respondent, after filing his Statement of defence filed a Motion on Notice under Order 23 Rule 1 of the Borno State High Court (Civil Procedure) Rules, 2012 seeking an order dismissing the suit on the ground of lack of jurisdiction. He contends that the lower Court dismissed the suit without recourse to the Appellant’s Statement of claim and the judgment in the previous case, Suit No. M/100/2008 which was only struck out on the application of the Appellant’s Counsel. He argues that at the time the suit was struck out, the applicable rules of Court in operation was the Borno State High Court (Civil Procedure) Rules, 2004. He therefore places reliance on Order 29 Rule 5 of the said Rules.
Based on the Rules of Court in force at the time, Counsel submits that the High Court, as differently constituted, in striking out the Appellant’s suit on 28-07-10, did not order for payment of any costs to the Respondent. The Appellant therefore re-filed the suit as permitted by Order 23 of the Borno State High Court (Civil Procedure) Rules 2012, which was the extant Rules in 2015. The Respondent brought his application to dismiss the suit also under the 2015 Rules of Court.
Counsel therefore submits that by the 2004 Rules and the 2012 Rules, the Appellant has the right, if he so wishes, to apply to discontinue or withdraw the suit against the Defendant as he did, and the only penalty is to pay costs, if so ordered. After such payment if effected, he can re-open the case by filing it before the same Court or a different Court, or he may re-list the suit that was struck out. He contends that in this case, when the Appellant applied to withdraw Suit No. M/100/2008, the prayer was granted and the suit was struck out without any award of costs. When he re-filed the suit in 2015, it was assigned to the lower Court which dismissed the suit without recourse to the proceedings in the previous suit to confirm whether or not pleadings had been filed in the previous suit before it was withdrawn.
Counsel therefore submits that the doctrine of estoppel per rem judicata was not applicable to the suit because even if the parties and subject matter were the same, there was no valid judgment decided on the merit. Thus, a judgment which will operate as an estoppel, must be a final judgment on the merit which is valid and subsisting between the same parties in respect of the same subject matter. He relies on Order 23 Rule 1(4) of the Borno State High Court Rules, 2012 and a number of decided cases for the conditions for the application of this doctrine. Counsel submits that where any suit is struck out under this Rule, the Plaintiff is at liberty to re-list the suit. Counsel finally urged the Court to resolve the issues in favour of the Appellant and set aside the ruling of the lower Court.
RESOLUTION OF ISSUES
The facts leading to this appeal have been adequately captured in the introductory part of this judgment and the submissions of learned Counsel for the Appellant in his Brief of Argument. Suffice it to say that the Appellant had previously filed a suit against the Respondent before the High Court of Borno State, as differently constituted, sometime in 2008. He subsequently withdrew the suit sometime in 2010. Upon his application to withdraw the suit, the Judge presiding at the time, ruled as follows (at page 41 of the printed Record):
“UPON HEARING: the learned Counsel for the Plaintiff A.J. Igoche and A.A. Daiba for the Defendant and after considering the submissions that the Plaintiff is withdrawing the case.
IT IS HEREBY ORDERED: That the application be and is hereby granted without cost.”
Thereafter, sometime in 2015, the Appellant re-instituted the suit. However, upon the objection of the Respondent raised and canvassed in a Motion on notice, the suit was dismissed. The lower Court held inter alia as follows at page 57 of the printed record of appeal:
“A party is bound by his words or conduct, he has led another to believe in a particular state of affairs, he will not be allowed to go back on it when it will be unjust or inequitable to that other, for him to do so. See Edozien V Edozien (1993) 1 SCN 166. Where a party has filed a notice of withdrawal and served same on the Respondent or relevant parties on the appeal and the latter has given consent and signed documents for withdrawal, the appeal is automatically deemed to have been dismissed. Alh. Muhammadu Maigari Dingyadi & Another V INEC & 2 Ors (2010) 7-12 SC 105. In view of the above, I hereby grand (sic) the application as prayed. Suit No. BOHC/MG/CV/71/15 is hereby dismissed with a cost of N30, 000.00 in favour of the Applicant.”
Now while the principles of law expounded in the cases cited and relied upon are good law, they are based on the Rules of Court governing those Courts. An example is Order 11 of the Court of Appeal Rules, 2021. The decisions arising from those Courts must necessarily be applied within the context of the facts of the case presented to the Court and the applicable laws and Rules guiding the Court. The law is trite that a case is only an authority for what it decides, and nothing more. Thus, a case cited as an authority must be considered and utilized in light of its own peculiar facts and circumstances. See Anyakorah V PDP (2022) LPELR-12, D, per Muhammad, JSC; Igwe V State (2021) LPELR-55336(SC) 24-25, F-B, per Kekere-Ekun, JSC; Western Steel Workers Ltd V Iron & Steel Workers Union of Nig. (1897) 1 NWLR (Pt. 49) 284.
Oputa JSC, the Philosopher Jurist, brilliantly expressed the law this way in Fawehinmi V NBA (No. 2) (1989) 2 NWLR (Pt. 105) 558, 650:
“It is good to call the Court’s attention to its pronouncements in a previous case. Under our system (which we inherited from England and Common Law) the formulation of general principles had not preceded decisions. Our case law is the law of the practitioner rather than the law of the philosopher. Decisions have drawn their inspiration and their strength from the very facts which framed the issue for decision. Once made, these decisions control future judgments of Courts in like or similar cases. The facts of two cases must be either the same or at least similar before the decision in one can be used, and even there as a guide to the decision in another case. What the former decision establishes is only a principle, not a rule. Rules operate in all or nothing dimension. Principles do not. They merely form a principium, a starting point. Where one ultimately lands will then depend on the peculiar facts and circumstances of the case in hand.”
Again, in Adegoke Motors Ltd V Adesanya (1989) 5 SC 92, 100, Oputa JSC stated:
“It also appeared in rather bold relief that there is now a tendency among our lawyers, and sometimes among some of our Judges, to consider pronouncements made by Justices of the Supreme Court in unnecessary isolation from the facts and surrounding circumstances of those particular cases in which those pronouncements were made. I think it ought to be obvious by now, that it is the facts and circumstances of any given case that frame the issues for decision in that particular case. Pronouncements of our Justices whether they are rationes decidendi or obiter dicta must therefore be inextricably and intimately related to the facts of the given case. Citing those pronouncements without relating them to the facts that induced them will be citing them out of their proper context for, without known facts, it is impossible to know the law on those facts… Court’s decisions and pronouncements derive their strength, their persuasive potency, their inspiration and therefore their value as precedent from the facts of the case as pleaded and presented.”
In the light of these decisions, the principles laid down in the cases cited by the lower Court will be applicable to the instant case only where the accented facts of this matter are the same as the facts that induced the decision in those cases, due regard being had to the statutes and the Rules of Court governing the different Courts. Also, since, facts are the arrowhead and fountainhead of the law, the decision in a case is intricately related to the facts that induced that decision.
In the instant case, the Appellant admits that he filed an earlier case in 2008 which was between the same parties and subject matter. However, he subsequently withdrew the case and same was struck out without the award of any costs. Now, the Rules of Court in force at the time guiding the proceedings of the lower Court, i.e., in 2010, was the Borno State High Court (Civil Procedure) Rules, 2004. Order 29 Rules 4 & 5 of the Rules state as follows –
“4. Subject to any terms imposed by the Court in granting leave under Rule 3 of the same order, the fact that a party has discontinued an action or withdrawn a particular claim made by him therein shall not be a defence to a subsequent action for the same.”
“5. Where a party has discontinued an action or counter-claim or withdrawn any particular claim made by him therein, and he is liable to pay costs to any other party of the action or counter-claim or costs occasioned to any other party by the claim withdrawn, then if, before payment of those costs, he subsequently brings an action for or substantially the same cause of action, the Court may order the proceedings in that action to be stayed until those costs are paid.”
By these rules, the only pre-condition for re-filing a suit that has been withdrawn and/or discontinued, is the payment of costs awarded against the party, if any.
As has been pointed out by the Appellant and substantiated by the enrolled Court Order, the previous Court, in striking out the earlier suit withdrawn by the Appellant, did not award any costs. Therefore, by the Rules governing the procedure of the lower Court, the Appellant was at liberty to re-file the case, even if it is substantially the same as that which was withdrawn and struck out. The Appellant therefore exercised this right in 2015 when he filed the case leading to this appeal. By this time, fresh Rules of Court had been enacted, known as the Borno State High Court (Civil Procedure) Rules, 2012. Therein also, Order 23 Rule 1(1) of the Rules permits a party wishing to discontinue or withdraw his suit to give notice in writing. It states –
“The Claimant may at any time before receipt of the defence or after the receipt thereof, before taking any other proceeding in the action by notice in writing duly filed and served, wholly discontinue his action against all or any of the defendants or withdraw any part or parts of his claim. He shall thereupon pay such defendants cost of the action, or if the action be not wholly discontinued, the cost occasioned by the matter so withdrawn.” (Emphasis supplied)
It is therefore plain that the Rules guiding the procedure of the lower Court permits a party who instituted an action to withdraw same upon payment of costs. Thereafter, he is at liberty to re-file the action only if he has paid the costs, if any, awarded by the Court. In the instant case, the record discloses that no costs were awarded against the Appellant when he withdrew the earlier case in 2010 and same was struck out. Therefore, the Appellant acted within the confines of the Rules of Court guiding the procedure of the lower Court when he re-filed the suit in 2015. It is no wonder that learned Counsel for the Respondent readily conceded to the appeal. I commend him for his action in being a Minister in the Temple of Justice. Thus, I resolve the two issues for determination in favour of the Appellant.
In the result, I find merit in the appeal. It succeeds and is allowed.
Accordingly, I hereby set aside the ruling of the High Court of Borno State in Suit No. BOHC/MG/CV/71/2015 delivered on 31st January, 2017, Coram: A.Z. Mussa J.
Consequently, Suit No. BOHC/MG/CV/71/2015 is remitted to the Hon. Chief Judge of Borno State for assignment to be heard by a Judge other than A.Z. Mussa, J.
IBRAHIM SHATA BDLIYA, J.C.A.: I have read in advance the well considered judgment delivered by my learned brother, JUMMAI HANNATU SANKEY, JCA.
I agree with my learned brother that the appeal is meritorious and ought to be allowed, and justifiably allowed. I have nothing useful to add, as my learned brother left out nothing worthy of consideration by me in the appeal in his judgment.
I also agree that the Appellants are entitled to costs in the sum of N50,000.00.
EBIOWEI TOBI, J.C.A.: This appeal is against the ruling of the lower Court wherein the objection of the Respondent over the jurisdiction of the Court to entertain the matter was upheld and the suit was dismissed on that ground. The Appellant unhappy with the judgment filed this appeal. My lord, J. H. Sankey, JCA in the lead judgment I had the privilege to read in draft, has relayed the facts of the case. It will not achieve any useful purpose for me to repeat them yet, suffice to say however that the lower Court upheld the objection of the Respondent on grounds of lack of jurisdiction because the case had earlier been struck out and therefore the Appellant could not reinstitute a matter that was struck out. My lord in the lead judgment has held that the lower Court was wrong in that decision. I agree absolutely with the reasoning and the conclusion reached by my lord, J. H. Sankey, JCA in the judgment.
I will however add a few words of mine on the legal effect of a matter that is struck out. The law is clear to the effect that there is a difference between when a case is dismissed and when a case is struck out. See Ezenwosu vs. Ngonadi (1988) 3 NWLR (pt 81) 163. A dismissed case is one which is decided on the merit against the party who instituted the action, such a case cannot be resuscitated as they operate as estoppel per ram judicata. Babatunde vs P. A. S. T. A. Ltd (2007) 13 NWLR (pt 1050) 113.
On the other hand, cases struck out are cases which were not decided on merit but for such technical irregularities are struck out. Such cases can be reinstituted when the irregularities are corrected. In this regard, I refer to the Supreme Court case of Panalpina World Transport (Nig.) Ltd v. J. B. Olandeen International & Ors (2010 19 NWLR (pt 1226) 1 where it was held:
“At this juncture, it is imperative, that I amplify on the position of the law as supported by the Rules. When an order of Court is made in respect of an application 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 order is still considered in law a mere striking out. When a matter is struck out in such circumstance, there is a liberty to relist. 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. In such a case, the plaintiff still has another opportunity to re-open the action after rectifying the deficiency that resulted in the striking out of the action. This is applicable even where the Court has not included in the order of striking out that the plaintiff has an option to relist. The matter struck out has not left the cause list – as it is still a pending case or pending cause. The same procedure applies even when a matter has been decided many years ago.
Alor v. Ngene (2007) All FWLR pt.362 pg.1836; Waterline Nigeria Limited v. Fawe Services Limited FWLR pt.163 pg.88”
The case on appeal here was not dismissed but struck out on the premise of the Plaintiff withdrawing the case. It was not decided on the merit and therefore struck out, the Appellant is at liberty to file another action provided the conditions are satisfied, if any, is stated in the order striking out the previous case. There is no condition attached to the order striking out the case. The Appellant is entitled to file the action again since it was struck out and not dismissed.
I entirely agree with the lead judgment just delivered by my learned brother, J. H. Sankey, JCA. I abide by the consequential order.
Appearances:
M. Umara, Esq. For Appellant(s)
Yusuf A. Ali, Esq. holding the brief of A.A. Alfa, Esq. For Respondent(s)
