S.I. OKORO & ANOR v. SAMUEL ELEKWANYA & ANOR
(2018)LCN/12014(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 25th day of July, 2018
CA/OW/146/2015
RATIO
APPEAL: WHETHER LEAVE OF COURT IS REQUIRED FOR DISCOUNTENANCE OF ACTION
“If anything, I am only to amplify the circumstances under both limbs. In circumstances where leave of Court is not necessarily required as in limb 1, it is my humble deduction from the provision that: (i) leave of Court is not required where the discontinuance is to be effected before the plaintiffs served with the statement of defence.(ii) leave is not required for discontinuance even after the plaintiff has received the statement of defence provided that in such a case, the plaintiff discontinues the action before taking any other proceedings in it except any interlocutory application. In the above two circumstances, for a plaintiff to discontinue he has to duly file in Court and serve on the defendant(s) against whom he intends to discontinue or withdraw, as the case may be, a written notice of discontinuance or withdrawal. Once the service has been duly effected, the notice effectively terminates the action subject to the plaintiff’s liability for costs of the defendant’s action up to the date of the discontinuance. But, in a situation where discontinuance is after the receipt of the statement of defences, the plaintiff would not have taken “any other proceeding in the action” other than interlocutory application. This certainly presents its unique problem. This is because the phrase “before taking any other proceeding in the action,” as used in the Rule, would imply taking any proceeding with the view of continuing the litigation with the defendant and not putting an end to the action.” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
APPEAL: WHETHER THE APPELLATE COURT CAN IMPEACH THE DECISION OF THE LOWER COURT
“Given the position of the law as enunciated in the case of BABATUNDE V. PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD (supra), and the other cases cited therein, I am therefore in no doubt that the lower Court having glaringly exercised it discretion in relation to the order of dismissal of the Appellants’ case it made, judicially and judiciously, there is no basis upon which this Court as an appellate Court can interfere with the order of dismissal made by the lower Court. The settled position of the law is to the effect that if judicial discretion has been exercised bonafide uninfluenced by irrelevant considerations and not arbitrarily or illegally by the lower Court, an appeal Court will not ordinarily interfere. The exceptions to this position of the law, are that an appellate Court is entitled to impeach the exercise of judicial discretion by the lower Court, if it is shown that there has been a wrongful exercise of the discretion such as where the trial Court acted under misconception of law or under misapprehension of fact in that it either gave weight to irrelevant or unproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases, where it is in the interest of justice to interfere. See the cases of EYE V. FRN (2018) LPELR 43599 (SC) and NWADIOGBU V. ANAMBRA/IMO RIVER BASIN DEVELOPMENT AUTHORITY (2010) LPELR 2089 (SC) amongst many others.” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. S.I. OKORO
2. EMMANUEL UKACHUKWU
(For themselves and on behalf of Umudiofor Eku) Appellant(s)
AND
1. SAMUEL ELEKWANYA (For himself and on behalf of Duruenyerege Eku)
2. HRH ADOLPHUS EMEFORONU Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment):
The appeal is against the ruling delivered on 25/3/2015 by the High Court of Imo State, holden in the Etiti Judicial Division presided over by Hon. Justice E.O. Agada. The lower Court in its ruling appealed against dismissed the Appellants’ action consequent to a ‘Notice of Discontinuance’ dated 20/1/2014 and filed on 21/1/2014, brought under Order 23 Rule 3 of the High Court of Imo State (Civil Procedure) Rules 2008 (hereafter to be simply referred to as ‘Rules of the lower Court’). Prior to the filing of the notice of discontinuance, the Appellants’ had adduced evidence through a witness who was fully cross-examined after he had testified in-chief, and another witness who had been partially cross-examined after he had completed his evidence in chief.
The ruling of the lower Court appealed against is a short one and I consider it appropriate to re-produce the same. It goes thus: –
RULING
By a Writ of Summons and particulars of claim dated and filed in Court on 28/7/2008, the claimants claimed jointly and severally against the Defendants as follows:-
1. Declaration that in Eku, Dimofor is the eldest son of Eku while Duruenyeregi is the younger son of Eku.
2. Declaration that in accordance with the custom of the parties Dimofor being the eldest son of Eku and Duruenyeregi being the younger son of Eku Duruofor and his descendants have right of precedence over the Enyeregi and his descendants.
3. Declaration that Eku kindred or clan by law and tradition belong to Okwu-Owere Autonomous Community and not of the 2nd Defendant.
4. Injunction restraining the 2nd Defendant from interfering and in any manner recognizing the 1st Defendant lineage of Duruenyeregi as the head kindred clan of Eku.
These claims were repeated verbatim by the claimants in their undated statement of claim filed in court on 12/7/2010.
On 18/11/2010, the Defendants entered their statement of defence with their counter claim.
Hearing commenced on 1/12/2012 with the C.W.1 the 1st claimant, adopting his deposition. He was duly and fully cross-examined on subsequent adjournments. On 22/10/13 C.W.2 testified in chief by adopting his deposition and was partly cross-examined. Before C.W.2 could be fully cross examined, Prof F.C. Dike for the claimants entered a Notice of Discontinuance of the suit on 21/1/14 to which Chief R.O.A. Anyanwu responded with filing a “Notice to move the Honourable Court to Dismiss wholly the suit of the claimants in view of their Notice of Discontinuance.” Arguments were filed by both sides. Counsel, especially Chief Anyanwu, went to field and academic in their argument. I do not intend to do so.
At state (sic) of this case which had become part heard, the claimants had become dominus litis ? they had lost mastery of the case. They had lost the privilege of moving the Court to make a particular order. See Soetam (sic) Vs Total Nigeria Ltd (1972), All NLR (Pt. 1) 1, 3 cited by Chief Anyanwu. According to the Supreme Court in Eronini Vs. Iheuko (1989) 2 NWLR:
“In my view the rationale of the rule in Soetam’s (sic) case in that once issues have been joined to be tried and the stage set for conflict, then once a certain stage has been reached, the plaintiff is no longer dominus litis and cannot be allowed escape through the back door to enter again through another action”.
Issues have since been joined with the parties exchanging their pleadings. Pre-trial conference had been conducted and evidence taken with the full evidence of C.W.1 and C.W.2’s partly taken. At this stage, what is dictated by the interest of justice is dismissal and I accordingly allow the withdrawal of their suit and so accordingly dismiss the case with Five Thousand Naira (N5,000.00) cost to Defendants.
Being dissatisfied with the ruling of the lower Court, the Appellants initiated the instant appeal by lodging at the registry of the said Court on 9/6/2015 a notice of appeal dated 25/5/2015. The Appellants subsequently filed an amended notice of appeal on 3/3/2017. The process was deemed as properly filed and served by the order of this Court made on 6/3/2017. The grounds of appeal contained in the process with their respective particulars read thus: –
GROUNDS OF APPEAL
GROUND ONE:
The learned trial Judge erred in law by dismissing the claimant’s case pursuant to claimant’s application for discontinuance when the evidence adduced in Court did not justify a dismissal.
PARTICULARS OF ERROR
(1) A dismissal is a judgment on merit
(2) Claimant’s case was for inter alia:
(a) That Eku Kindred or Clan belongs in law and tradition to Okwe-Owerre Autonomous Community and not the Umueze II Autonomous Community of the 2nd Defendant.
(b) Injunction against 2nd Defendant HRH Adolphus Emeforonu of Umueze II from interfering in and in any manner recognizing the 1st Defendant who owe allegiance to him as senior to claimants who claim (sic) to belong to Okwe-Owerre.
(c) In the course of hearing Okwe-Owerre of claimants was gazette (sic) as recognized Autonomous Community and therefore not subject to Umueze II of 2nd Defendant.
(d) The only prayer of claimants apart from the three declarations is for an injunction against the 2nd Defendants from recognizing the 1st Defendants as senior to claimants.
(e) That act of recognition as Autonomous Community of Okwe-Owerre reduced their prayer to moot point.
GROUND TWO:
The learned trial Judge erred in law when he failed to advert to the counter-claim of the Defendants on the very issue before the Court and which has not been heard before dismissing claimants’ claim.
PARTICULARS OF ERROR
(i) Claimants claim they are of Okwe-Owerre and subject to their laws and tradition while Defendants claim they belong to Umueze II of 2nd Defendant.
(ii) By Executive fiat Okwe-Owerre was recognized as Autonomous Community and therefore distinct from Umueze II.
(iii) Claimants’ prayer to Court is to declare Eku as belonging to Okwe- Owerre and therefore prayer for injunction to restrain 2nd Defendant form interfering with Eku which belongs to Okwe-Owerre became academic by recognition of Okwe-Owerre which Claimants belong to.
(iv) Claimants has (sic) not closed their case and fielded only 2(two) witnesses of which only one was cross-examined leaving the other witnesses’ evidence not cross examined.
(v) Sonekan v. Smith (1967) All NLR 329 is distinguishable and does not apply.
(vi) Defendants can continue their case and bring it to judgment having filed a counter-claim.
GROUND THREE:
The learned trial Judge erred in law when he dismissed the claimants’ suit not yet heard on the merit pursuant to Notice of Discontinuance filed by the claimants upon the recognition of Okwu-Owerri (sic) as an Autonomous Community by the Government.
PARTICULARS OF ERROR
1. The claimants listed 5 witnesses and have called only two witnesses. The claimants 1st witness was cross-examined while the cross-examination of the 2nd witness has not been concluded before the claimants withdraw the suit upon the recognition of the Okwe-Owerre as an Autonomous Community.
2. That the suit was withdrawn because it has become academic by virtue of the recognition of Okwe-Owerre as an Autonomous Community.
3. The Claimants have not closed their case before withdrawing the said suit.
4. That since the matter has not been heard on the merit, the proper order to make would have been to strike out the suit and not to dismiss it.
GROUND FOUR:
The judgment cannot be supported on the preponderance and weight of evidence.
The relief which the Appellants seek from this Court as contained in the notice of appeal are (i) to allow the appeal; and (ii) an order of Court setting aside the order of the dismissal of the suit made by the trial Judge and substituting it with an order striking out the suit.
The appeal was entertained on 12/6/2018 with learned counsel C.N. Nwokorie in urging the Court to allow the appeal, adopting and relying on Appellants’ brief of argument dated 16/5/2016 and filed 17/5/2016 and Appellants’ reply brief dated 28/2/2018 and filed on 1/3/2018.
In the same vein, learned counsel Chief Rich O.A. Anyanwu in urging the Court to dismiss the appeal, adopted and relied on Respondents’ brief of argument dated 17/10/2016 and filed on same date but deemed to have been properly filed and served on 22/2/2018.
The Appellants formulated two issues for the determination of the appeal in their brief of argument. The issues read thus: –
(1) Whether the learned trial Judge was right to dismiss the claimants’ case based on the Notice of Discontinuance filed by the claimants when the matter has not been heard on the merit (Distilled from Grounds 1 and 3).
(2) Whether the learned trial Judge was right when he dismissed the Claimants’ suit without making any order in respect of the Defendants’ Counter claim. (Distilled from Ground 2).
The Respondents, likewise formulated two issues for the determination of the appeal from the Appellants’ grounds of appeal and they read thus: –
1. Considering the stage of the case at the trial Court where issues have been joined and applying the test of litis contestatio whether the discontinuance by the Claimants/Appellants at the stage they did makes a dismissal order of their suit a proper order in the interest of justice? Grounds 1, 3 & 4 of the appeal.
2. Whether the principal suit and a counter-claim therein are one and same suit to insist that what affects one affects the other and therefore demands a pronouncement by the Court upon dismissal of the principal suit? Ground 2 of the appeal.
I have read the briefs of argument of the parties in the instant appeal and I cannot but say that not only do I not see any basis upon which issue 2 as formulated or couched by the parties can be said to flow from the ruling of the lower Court predicated upon the notice of withdrawal of the Appellants’ action brought by or filed by their counsel, Prof. F.C. Dike SAN; but that the said issue, even if it can be said to have arisen from the ruling appeal against, cannot be raised or advanced at the instance of the Appellants who are not the ones that filed the counter-claim in the action which they discontinued and which the lower Court dismissed. This is against the backdrop of the settled position of the law that a counter-claim is an independent action even though it is anchored on the main action. See in this regard, the case of OGBONNA V. AG OF IMO STATE (1992) LPELR 2287(SC) wherein the Supreme Court per Nnaemeka-Agu, JSC; said thus: –
‘I believe it has been settled by several decided cases that a counter-claim is to all intents and purposes a separate action, although the defendant, for convenience and speed, usually joins it with his defence where a Court so grants leave. Indeed, not only can a defendant apply for summary judgment summary judgment on his counter-claim but also a plaintiff may counter-claim on defendant’s counter-claim. xxx. So, where a defendant counter-claims against the plaintiff, the latter is duty bound to file a reply in defence to the counter-claim, otherwise the Court is entitled, in fact obliged, to assume that the plaintiff has no defence to the counter-claim and may enter judgment for the defendant accordingly.’
See also the case of NSEFIK (SINCE DEAD) V. MUNA (2013) LPELR 21862 (SC) wherein the Supreme Court per Kekere-Ekun, JSC; said thus: –
”It is also relevant to observe that a counter claim is a distinct action in its own right even though made a part of the main claim. It would not fall for consideration until the main claim has been determined. A separate decision would be given in respect of the counter claim… After all, at the conclusion of the main trial the counter claimant is at liberty to abandon his counter claim, if he so desires.”
In my considered view, it is therefore glaringly that whatever perceived act of commission or omission the lower Court committed in respect of the Respondents’ counter-claim which by law continues to subsist despite the dismissal of the Appellants’ case, (and which counter-claim cannot be said to have been terminated by the ruling of the lower Court), cannot led to a reversal of the decision of the lower Court in respect of the Appellants’ case which was dismissed.
The question as to whether or not the lower Court ought to make any order in respect of the counter-claim of the Respondents will or can only become a live issue before this Court whenever the said Court takes an express decision in the counter-claim or in relation to the counter-claim and which the Appellants find unpalpable or unacceptable.
Flowing from all that has been said above, is that Appellants’ issue 2 is at this stage resolved against them as I do not see how the non-making of any order in respect of the Respondents’ counter-claim, has any bearing on the decision of the lower Court in dismissing the case of the Appellants’ consequent to the Appellants’ notice of discontinuance of their own action.
Now, to the grouse of the Appellants regarding the impropriety or wrongness of the dismissal of their action, and which in my considered view is no more than an expression of dissatisfaction by the Appellants regarding the exercise by the lower Court of its discretion in dismissing the case of the Appellants upon their filing a notice of discontinuance of the same. I am of the considered view that this is the correct and proper perceptive or view point from which to consider the instant appeal, given the wordings of the provisions of Order 23 of the Rules of the lower Court which deals with ‘DISCONTINUANCE’.
The provisions of the said Order read thus: –
1.(1) 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 claim against all or any of the defendants or withdraw any part or parts of his claims. He shall thereupon pay such defendant’s costs of the action, or if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn.
(2) A discontinuance or withdrawal as the case may be, shall not be a defence to any subsequent claim.
(3) Where a defence has been filed, the claimant may with the leave of a Judge discontinue the proceedings or any part thereof on such terms as the Judge may order.
(4) Where proceedings have been stayed or struck out upon a claimant’s withdrawal or discontinuance under this Order no subsequent claim shall be filed by him on the same or substantially the same facts until the terms imposed on him by the Judge have been fully complied with.
(5) The Judge may in like manner and like discretion as to terms, upon the application of a defendant order the whole or any part of his alleged grounds of defence or counter-claim to be withdrawn or struck out.
2. When a cause of action is ready for trial, it may be withdrawn by either claimant or defendant upon producing to the Registrar a consent in writing by the parties and thereupon a Judge shall strike out the matter without the necessity of attendance of the parties or their legal practitioner.
Having painstakingly read the brief of argument of the parties, I am of the considered view that the Appellants have lost sight of the fact that they expressly brought the notice of discontinuance pursuant to which they sought to discontinue their case under Rule 3 of Order 23 of the Rules of the lower Court re-produced above (even though they did not expressly seek for the leave of the lower Court therein to discontinue the said case). The provisions of Order 23 of the Rules of the lower Court which came into force on the 1st day of December, 2008 (see Order 1 Rule 3 thereof) is not novel in that the High Court of Lagos State (Civil Procedure) Rules, 1972, had similar provisions which were enunciated or articulated by the Supreme Court in the case of BABATUNDE V. PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD (2007) LPELR 698 (SC).
I will re-produce extensively what the Supreme Court said therein per Ibrahim Tanko Muhammad, JSC; as it sets out the proper application of the provisions of the said Order particularly as they relate to discontinuing an action in which parties had joined issue before the filing of a notice of discontinuance therein. This is what his lordship said: –
”Pleadings were closed by the parties but before the commencement of trial, the plaintiff filed an application for summary judgment. The application was moved on the 27th of February, 1989 and dismissed on the same day on the grounds that triable issues were disclosed in the pleadings and the suit was adjourned for trial before Agora (sic), J. Trial opened in the case on 6th of February, 1990 when the 1st plaintiff’s witness testified and tendered some exhibits and the matter was adjourned for his cross-examination. Agoro, J. was then elevated to the Court of Appeal as a result of which proceedings had to recommence de novo before Desalu, J. Before Desalu, J. trial again opened on the 6th day of June, 1991 and the plaintiff’s 1st witness again testified extensively tendering some exhibits. The said witness was cross-examined after which the 2nd defendant amended its statement of defence and the suit adjourned for further hearing. Unfortunately, Desalu, J. took ill from which he never recovered and the case was then re-assigned to Adeyinka, J.
Before Adeyinka, J. the plaintiff on the 11th day of April, 1994 moved an application for accelerated hearing dated the 18th of January, 1994, pursuant to which the Court set down the suit for hearing on the 9th of June, 1994. Eleven days after the suit was set down for trial i.e. on the 22nd of April,1994, the plaintiff filed a notice of discontinuance of the suit against all the parties including the 3rd defendant who had been joined by an order of Court and had delivered its defence albeit out of time.
In a short ruling delivered on the 2nd day of September, 1994, Adeyinka, J. dismissed the suit against the 1st and 2nd defendants and struck it out against the 3rd defendant on the basis that it had not filed its pleadings. The plaintiff appealed against this ruling to the Court of Appeal. The 3rd defendant also filed a cross-appeal contending that the case against it ought to have been dismissed and not struck out.
The Court of Appeal in its judgment varied the order made by the trial Court from one of dismissal of the suit to one of striking it out.
It is against this decision that the 2nd defendant/respondent, but now appellant before this Court, appealed on 2 grounds of appeal in his notice of appeal.
Learned counsel for the appellant formulated one issue which reads:
“Whether the learned Justices of the Court of Appeal were right in holding that the action at the High Court ought to have been struck out instead of being dismissed against all the defendants having regard to the stage of the proceedings at the trial Court.”
Learned counsel for the 1st respondent couched his one issue in the following words:
“Whether the learned Justices of the Court of Appeal were right in substituting the order of dismissal made by the High Court with an order of striking out sequel to the discontinuance notice filed by the 1st respondent in its suit against the appellant and the 2nd and 3rd respondents.”
The 3rd respondent’s issue although similar to that of the 1st respondent has slighted differed in the slang. It is reproduced hereunder:-
“Whether on the facts of this case, the Court of Appeal was right to substitute its discretion for that of the trial Court when it elected to strike out the plaintiff’s suit instead of dismissing it.”
It is clear from the above three issues, each by the respective parties, that they all aimed at one poser: Was the Court below right in striking out the suit against all the respondents instead of dismissing it having regard to the proceedings at the trial Court… Let me start by observing that this appeal is otherwise a very simple one within the narrow compass of Order 23 Rule 1 of the Rules referred to earlier. However, for reasons best appreciated by the parties especially the appellant and the 3rd respondent whose respective counsel, unwillingly, drag this Court into studying and analysing their unnecessarily lengthy and verbous (sic) briefs of argument.
The main crux of the appeal on hand as contained in the respective briefs of argument of the appellant, the 1st and 3rd respondents is: whether it was right for the trial Court to dismiss the suit before it when pleadings were closed and whether the Court below could substitute its discretion for that of the trial Court. I will treat these two issues seriatim.
At what stage does a Court of law strike out an action and under what circumstances? Again, at what stage does a Court of law make an order for dismissal of an action before it?
It is not long that we saw the antecedents giving rise to this appeal. There was a notice of discontinuance of the suit in its entirety as against the defendants and the party joined. I think it is the right of a plaintiff to discontinue his action if he so chooses as the filing of same does not necessarily imply that the parties have irrevocably committed themselves to resolving their dispute by litigation.
Discontinuance can arise from any of the following factors:
(i) where a plaintiff realizes the weakness of his claim in the light of the defence put up by the defendant.
(ii) where plaintiff’s vital witnesses are not available at the material time and will not be so at any certain future date.
(iii) by abandoning the prosecution of the case, the plaintiff could substantially reduce the high costs that would have otherwise followed after a full-scale but unsuccessful litigation or
(iv) where the plaintiff may possibly retain the retain the right to relitigate the claim at a more auspicious time if necessary.
The procedure for discontinuance or termination of cases/suits is laid down in the various courts rules.
Order 23 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 1972, that had been cited and relied upon by both the parties and the two lower Courts. This order provides as follows:
“The plaintiff may at any time before receipt of the defendant’s defence, or after the receipt thereof before taking any other proceeding in the action(save any interlocutory application) by notice in writing duly filed discontinue his action against all or any of the defendants or withdraw any part or parts of his alleged cause of and served, wholly complaint, and thereupon he shall pay such defendant’s costs of the action, or if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn. Such costs shall be taxed, and such discontinuance or withdrawal as the case may be, shall not be a defence to any subsequent action. Save as in this Rule otherwise provided, it shall not be competent for the plaintiff to withdraw the record or discontinue the action without leave of the Court or a Judge in chambers, but the Court or Judge in Chambers may, before, or at or after the hearing or trial, upon such terms as to costs and as to any other action, and otherwise as maybe just, order the action to be discontinued, or any part of the alleged cause of complaint to be struck out.
The Court or Judge in Chambers may in like manner, and with the like discretion as to terms, upon the application of a defendant, order the whole or any part of his alleged grounds of defence or counter- claim to be withdrawn or struck out, but it shall not be competent to a defendant to withdraw his defence, or any part thereof, without such leave.”
There is a proposition to the interpretation of the above provision by the Court below. It is proffered as follows:
“A careful reading of the rules shows that it could conveniently be broken into two limbs for purposes of application in this respect, I agree with the appellant.
That is to say, firstly, discontinuance before and after receipt of the defendant’s defence but before taking any other proceeding in the action (save any interlocutory application). And secondly, in any other circumstance the plaintiff shall not competently do so, that is to say withdraw without leave of Court. Under the 1st limb of the rule it terminates the action in fact and law beyond the point of no recall … The Court ordinarily has to strike out the action and it is no bar to defence to a subsequent action as litis contestatio has not been reached while under the 2nd limb of the rule it (Court) in exercise of its discretion has either to strike out or dismiss the action; under both limbs of the rule with costs. In the event of a dismissal it is a bar to relitigation of the matter and thus open to a likely plea of estoppel per res judicata.”
I have no reason to jettison the above attempt to interpret the provision of Order 23 Rule 1 of the Lagos State High Court (Civil Procedure) Rules as it accords with my own view. If anything, I am only to amplify the circumstances under both limbs. In circumstances where leave of Court is not necessarily required as in limb 1, it is my humble deduction from the provision that: (i) leave of Court is not required where the discontinuance is to be effected before the plaintiffs served with the statement of defence.(ii) leave is not required for discontinuance even after the plaintiff has received the statement of defence provided that in such a case, the plaintiff discontinues the action before taking any other proceedings in it except any interlocutory application. In the above two circumstances, for a plaintiff to discontinue he has to duly file in Court and serve on the defendant(s) against whom he intends to discontinue or withdraw, as the case may be, a written notice of discontinuance or withdrawal.
Once the service has been duly effected, the notice effectively terminates the action subject to the plaintiff’s liability for costs of the defendant’s action up to the date of the discontinuance. But, in a situation where discontinuance is after the receipt of the statement of defences, the plaintiff would not have taken “any other proceeding in the action” other than interlocutory application. This certainly presents its unique problem. This is because the phrase “before taking any other proceeding in the action,” as used in the Rule, would imply taking any proceeding with the view of continuing the litigation with the defendant and not putting an end to the action.
Thus, from the point of view of the prevailing law, it follows that for a proceeding taken by the plaintiff after service of the statement of defence on him to prevent him from discontinuing the action without leave of Court, the proceeding must be a formal step in the action, required by the rules to be taken by him for the prosecution of the action. If it is that formal, then, he needs leave of Court to discontinue. If it does not, then he can discontinue without leave of the Court. The proceeding or step taken must be for prosecution of the action and must be required to be taken by the rules of Court. The two conditions should co-exist.
On the other limb of the provision of Order 23 R.(1) of the Rules under consideration, a plaintiff who wants to discontinue an action, should make an application to the Court for leave to do so. He can no longer file a notice of discontinuance, otherwise such a notice is invalid and should be struck out.
In such a situation the trial Judge has discretion as to whether or not to allow the plaintiff to discontinue or withdraw his claim at that stage of the proceedings and as to whether to dismiss or strike out the claim. The discretion however must, as is always the case, be placed on the judicial and judicious proverbial scale of justice. The consequence of a striking out order is that when a plaintiff duly discontinues his action without leave, the Court should merely strike out the action.
It all depends on the state of the law. That is, once a litigant withdraws his action in a situation where no leave of Court is required, the trial Court has no option but to strike out the suit. This is because a Court of law cannot force an unwilling plaintiff to continue with an action. Even if the Court insists that he should continue, he may refuse to tender evidence or take any further steps in the action, that same Court can do nothing other than to strike out the case or where evidence has been taken to a reasonable level to dismiss the action.
What remains to be said now is on whether the appellant, under the 2nd limb of Order 23 Rule 1 of the Rules, had taken any other step(s) in the prosecution of the action. Let me start from the trial Court.
In its analysis, the Court below, observed: –
“The basis for opting for a dismissal against striking out were not given by the Court below. And if I may opine it is not as mathematical as that nor right for that matter for the Court below to hold that once pleadings have been filed and issues joined as here that ultimately an order of dismissal has to follow as of course i.e. where the plaintiff has sought to discontinue the suit.”
Let me slightly disagree with the Court below that the basis for opting for a dismissal order were not given by the trial Court. It is very clear from the trial Court’s opinion and as found by the Court below that the basis for that order as against an order for striking out was that pleadings had been filed and issues joined at least between the plaintiff, the 1st and 2nd defendants.
But whether the reasons for making the dismissal order by the trial Court were given or not is quite immaterial. What is material in view of the 2nd limb of Order 23 Rule 1 of the Rules is whether the plaintiff had taken any further step(s) in prosecuting the action which is capable of denying him a second bite on the cherry. Yes! It is true that the 1st respondent as plaintiff received the statements of defence of the defendants and pleadings were closed. But was there any step(s) taken on the action by the plaintiff before Justice Adeyinka. The 1st respondent did open its case and it called one witness before Agoro, J. The same witness was called before Desalu, J. and was even cross-examined. None of these two Judges completed the action before him when each had to surrender to his destined fate. In each occasion, the matter had to start de-novo.
I think I need to repeat what I said sometime, on trial de-novo. With these in mind, it was wrong of the trial Court to say that the earlier part heard trials were part of the records before his Court. This is because as seen earlier, the suits started by Agoro and Desalu, J. were truncated and upon transfer to Adeyinka, J. a fresh hearing had commenced. The proceedings and evidence taken before Agoro and Desalu, J. were got rid of and of no legal consequence in the new trial.
Thus, the proceedings before Agoro and Desalu, J. could not be said to be any step taken by the plaintiff in the prosecution of his action. It is clear from the record that beyond the interlocutory application filed by the plaintiff to discontinue the action and an earlier application for accelerated hearing no steps of any kind were taken by the plaintiff.
The 2nd limb of Order 23 Rule 1 of the Rules contemplates of a situation where after the receipt of the defendants’ defence the plaintiff proceeds to take any other proceedings or step in the action, except any interlocutory application, then the plaintiff, of necessity, requires the leave of Court to withdraw his action and the Court has the discretion to either strike out or dismiss the action before it. That is my humble understanding of the 2nd limb of Order 23 Rule 1 of the rules.
I must add that the principle of law for sometime has been settled that withdrawn cases are not usually dismissed by just a mere wave of hand. The trial Court must ensure that appoint of no-return or litis contestatio has been reached by parties.
I have said hereinbefore, to the effect that the provisions of the then High Court of Lagos State (Civil Procedure) Rules 1972 considered in the portion of the case of BABATUNDE V. PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD (supra) re-produced above, are not too dissimilar with those in the Rules of the lower Court that have been re-produced hereinbefore. It is obvious from the record, that though the Appellants having regard to the notice of discontinuance which they filed in their case perceived that the case was one they could simply discontinue at the point or stage they filed the said notice of discontinuance, the lower Court did not think so, particularly against the backdrop of the ‘Notice to move the honourable Court to dismiss wholly the suit of the claimants in view of their Notice of Discontinuance’ filed by the Respondents. It is not in doubt having regard to the record of appeal, that the Appellants after the receipt of the defence of the Respondents not only took copious’ other proceedings’ designed for the prosecution of their case, but that they actually commenced the prosecution of their said case by calling witnesses until they filed their notice of discontinuance on 21/3/2014.
In my considered view, the lower Court was therefore eminently right when it held in its ruling that: ”at the stage of this case which has become part heard, the claimants had become dominus litis – they had lost mastery of the case. They had lost the privilege of moving the Court to make a particular order.”
Given the position of the law as enunciated in the case of BABATUNDE V. PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD (supra), and the other cases cited therein, I am therefore in no doubt that the lower Court having glaringly exercised it discretion in relation to the order of dismissal of the Appellants’ case it made, judicially and judiciously, there is no basis upon which this Court as an appellate Court can interfere with the order of dismissal made by the lower Court. The settled position of the law is to the effect that if judicial discretion has been exercised bonafide uninfluenced by irrelevant considerations and not arbitrarily or illegally by the lower Court, an appeal Court will not ordinarily interfere.
The exceptions to this position of the law, are that an appellate Court is entitled to impeach the exercise of judicial discretion by the lower Court, if it is shown that there has been a wrongful exercise of the discretion such as where the trial Court acted under misconception of law or under misapprehension of fact in that it either gave weight to irrelevant or unproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases, where it is in the interest of justice to interfere. See the cases of EYE V. FRN (2018) LPELR 43599 (SC) and NWADIOGBU V. ANAMBRA/IMO RIVER BASIN DEVELOPMENT AUTHORITY (2010) LPELR 2089 (SC) amongst many others.
Flowing from all that has been said above, and particularly as I have found the lower Court to have exercised its discretion in dismissing the Appellants’ case judicially and judiciously, is that Appellants’ issue 1, must also be and is hereby resolved against them.
In the final analysis, I find the instant appeal to be unmeritorious and dismiss same as the two issues formulated for its determination by the Appellants, have been resolved against them.
Costs of N50, 000.00 is awarded the Respondents and against the Appellants.
ITA GEORGE MBABA, J.C.A.: I agree
TUNDE OYEBANJI AWOTOYE, J.C.A.: I agree
Appearances:
C.N. NwokorieFor Appellant(s)
Chief Rich O. A. AnyanwuFor Respondent(s)
Appearances
C.N. NwokorieFor Appellant
AND
Chief Rich O. A. AnyanwuFor Respondent
