UMEGBORO v. MANAGING DIRECTOR/CEO, ABUJA ELECTRICITY DISTRIBUTION COMPANY PLC (AEDC) & ORS
(2022)LCN/16583(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, August 12, 2022
CA/A/398/2019
Before Our Lordships:
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Muhammed Mustapha Justice of the Court of Appeal
Between
CARL UMEGBORO APPELANT(S)
And
1. THE MANAGING DIRECTOR/CEO, ABUJA ELECTRICITY DISTRIBUTION COMPANY PLC (AEDC) 2. ABUJA ELECTRICITY DISTRIBUTION COMPANY PLC. 3. NIGERIA ELECTRICITY REGULATORY COMMISSION RESPONDENT(S)
RATIO
THE POSITION OF LAW ON A NOTICE OF DISCONTINUANCE
This Court by Nimpar Yargata JCA equally in the case of IMPERIAL HOMES MORTGAGE BANK LTD V. MOUNT GILGAL INVESTMENTS LTD & ORS 2017 LPELR-42711 CA made the following clarifications with respect to notice of discontinuance as follows:
“Generally, a Notice of discontinuance once duly and validly filed cannot be recalled, because the moment it is effectively filed, the suit ceases to exist and is legally discontinued. The Supreme Court in the case of OGUNKUNLE V. ETERNAL SACRED ORDER, C & S (2001) 12 NWLR (PT. 727) 359 held: A discontinuance in my view, brings the action or that part of the action as is discontinued to an end against the defendants or such of them whom the action has been discontinued without further intervention from the Court… It cannot be withdrawn nor can any legal step be taken on the matter. The Court must not end the matter formally by an order. The idea of filing an objection to require a hearing is uncalled for. All the defendant needs to do is to demand for conditions to be placed on the withdrawal because the Court cannot take any step in the matter other than those necessary for formally terminating the suit, once the notice is filed. The Court and the other party cannot force the plaintiff to continue with the suit. The essence of the requirement to either file just a notice or a motion on Notice is dependent on the stage of proceedings and to allow the Court make certain orders when the matter has gone to a particular stage. It is not to allow a defendant contest the discontinuance. No, not at all …
Once the notice is filed, the matter has legally ceased…” PER WILLIAMS-DAWODU, J.C.A.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the ruling of the High Court of the Federal Capital Territory (FCT), Abuja, delivered by Hon. Justice K. N. Ogbonnaya in Suit No. FCT/HC/CV/1376/2018 on November 27th 2018, wherein the Court dismissed the suit of the Appellant (the Plaintiff at the Court below) upon his filed Notice of discontinuance.
At the Court below vide Writ of Summons and Statement of Claim on March 29th 2018, the Appellant sought the following reliefs:
a. A Declaration that the Plaintiff is a pre-paid metering electricity user-customer of the 1st and 2nd Defendants.
b. A Declaration that by virtue of the Plaintiff falling into the Prepaid metering customer category, he independently controls and manages his electricity supply and bills to his satisfaction through the Prepaid meter and therefore cannot be disconnected by the 1st and 2nd Defendants from using and enjoying electricity over estimated postpaid bills.
c. A Declaration that by virtue of the Plaintiff’s relationship with the 1st and 2nd Defendants as a pre-paid metering electricity user-customer, he is not in any way indebted to the 1st and 2nd Defendants to warrant his being constantly disconnected from the use and enjoyment of the electricity he paid for.
d. A Declaration that the 1st and 2nd Defendants act of constantly disconnecting the Plaintiff who is a prepaid metering customer from the use and enjoyment of the electricity he paid for, amounts to trespass to chattel.
e. A Declaration that the 1st and 2nd Defendants’ constant interference with the Plaintiff’s use and enjoyment of the electricity he paid for, amounts to nuisance.
f. A Declaration that the 1st and 2nd Defendants’ written statement in their letter addressed to the Plaintiff and forwarded to the 3rd Defendant accusing the Plaintiff of conniving with, aiding and abetting defaulting customers in electricity theft alongside threat to institute a criminal prosecution against him amounts to defamation of character.
g. A DECLARATION that the 1st and 2nd Defendants’ constant insult and abuse each time they came to disconnect the Plaintiff from the use and enjoyment of electricity he paid for, and branding him as a criminal, aiding and abetting defaulting customers in electricity theft, amounts to violation of his right to dignity.
h. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st and 2nd Defendants from further disconnecting the Plaintiff from the use and employment of the electricity he paid for.
i. AN ORDER OF THE COURT directing the 1st and 2nd Defendants to pay to the Plaintiff the sum of one hundred million naira (N100,000,000.00k) only as damages for defamation of the Plaintiff’s character.
j. AN ORDER OF THE COURT directing the 1st and 2nd Defendants to pay to the Plaintiff the sum of fifty million naira (N50,000,000.00k) as compensation for infringement of the Plaintiff’s right to dignity of human person.
k. AN ORDER OF THE COURT directing the 1st and 2nd Defendants to pay to the Plaintiff the sum of fifty million naira (N50,000,000.00k) as compensation for nuisance.
I. AN ORDER OF THE COURT directing the 1st and 2nd Defendants to pay to the Plaintiff the sum of fifty million naira (N50,000,000.00k) as compensation for trespass to chattel.
m. AN ORDER OF THE COURT directing the 1st and 2nd Defendants to pay to the Plaintiff the sum of N42,465,000.00k (forty two million, four hundred and sixty five thousand naira) as special damages for the loss the Plaintiff incurred on a Consultancy project which was cancelled and an outstanding of 75% withheld due to the 1st and 2nd Defendants’ constant interference with the Plaintiff’s use and enjoyment of the electricity he paid for, as follows:
N27,300,000.00 on Consultancy project on Education Curriculum, and
N15,165,000.00 on Consultancy project on Diaspora matters.
n. AN ORDER OF THE COURT directing the 1st and 2nd Defendants to tender a public apology in 2 National Newspapers to the Plaintiff.”
As garnered from the printed Record before this Court, the Appellant’s originating processes were served on the Respondents by May 2018. The Respondents filed two (2) Motions on Notice by July for enlargement of time to regularize their conditional memorandum of appearance and joint statement of defence being out of time, witness statement on oath and other accompanying documents. Service was only made on the next adjourned date, 8/10/18 on the Appellant himself as his Counsel was not in Court. The matter could not proceed on June 19th 2018 as scheduled as well as 8/10/18 on which day the Motion on Notice was served. On November 27th 2018, at the resumed hearing, the Appellant’s new Counsel informed the Court of the Notice to discontinue which was not opposed but the Respondents’ Counsel urged the Court to dismiss the suit rather than strike out. The Court in its wisdom dismissed the suit. Hence, this appeal by the Appellant being dissatisfied with the order of dismissal.
The Appellant has therefore come before this Court with his Notice and Seven (7) Grounds of Appeal filed February 12th 2019.
He seeks an order of this Court setting aside the order of dismissal by the Court made on November 27th 2018.
In accordance with the Rules of this Court, the Appellant’s brief of argument, dated and filed June 10th 2019, together with his Reply to the Respondent’s brief filed March 9th 2020 and deemed as properly filed and served on May 16th 2022 were both settled by Kelvin A. Mejulu Esq. who urged that the appeal be allowed. The Respondent’s brief filed August 29th 2019 was deemed as properly filed and served on May 16th 2022, was settled by J. N. Onyekwuluje Esq. who urged that the appeal be dismissed.
ISSUES SUBMITTED BY THE PARTIES FOR DETERMINATION
THREE (3) ISSUES DISTILLED BY THE APPELLANT
I. “Whether the learned trial Court was right in relying on the respondent’s joint statement of defence to hold that parties in the suit have joined in the case, when same was null and void, having been filed out of time without any order of Court deeming the joint statement of defence as properly filed and served (Ground 1).
2. Whether considering the relevant provisions of the rules of Court and the circumstances of the case, the trial Court was right in dismissing the suit of the appellant (Grounds 2, 3 and 5).
3. Whether the entire ruling of trial Court delivered on the 27th day of November, 2018 is not perverse (Grounds 4, 6 and 7).”
The Respondents for their part distilled the following Issue:
“Whether in the particular circumstance of this case, (where the Hon. Trial Court had specifically ordered parties to file all their processes before the next adjourned date and in view of the Frontloading system in force in the FCT High Courts and considering that the matter was adjourned for Hearing); Pleadings could be said to have closed and Issues Joined, at the point, when, the Appellant sought to discontinue their Suit on 27/11/2018 (Grounds 1, 6 and 7).”
I believe that the point in issue in this appeal is rather straight forward and narrow and without much ado, a sole issue as this Court is empowered to formulate as follows shall justly and fairly determine the appeal once and for all times sake:
“Whether or not the Court below was right when it entered an order of dismissal pursuant to the Appellant’s Notice of Discontinuance and given the stage of the proceedings and processes before the Court.”
SUBMISSIONS MADE BY BOTH PARTIES
I have thoroughly and calmly read the briefs of argument of the Appellant and the 1st to 3rd Respondents as well as the Reply of the Appellant before this Court. In a nutshell and respectfully to both sides, I have decided to sum up the totality of the submissions by both parties and to state the kernel of their arguments. The submissions of both sides in the main were centered around whether or not the parties have joined issues, their pleadings closed and whether the Court had the discretion to either strike out or dismiss the suit based on the provisions of the Civil Procedure Rules of the Court of 2018, particularly Order 15 Rule 1 (2) and Order 24 thereof.
The Appellant argued that issues were not joined, pleadings were not closed as the processes of the Respondents were yet to be properly before the Court and therefore Order 15 of the Rules of the Court was yet to be complied with. Whilst on the other hand, the Respondents submitted that issues were joined, pleadings closed according to Order 15 and therefore, the suit should be dismissed and was properly so ordered.
RESOLUTION OF THE SINGULAR ISSUE
As aforesaid, having carefully considered all the processes filed for and against the instant appeal I proceed with the determination of the only issue which is reproduced hereunder for ease of reference:
SOLE ISSUE
“Whether or not the Court below was right when it entered an order of dismissal pursuant to the Appellant’s Notice of Discontinuance and given the stage of the proceedings and processes before the Court.”
The singular issue or the crust of the matter herein, is the question whether or not it was the proper order in the circumstance of the case that was made by the Court pursuant to the Notice of Discontinuance filed by the Appellant given the processes before the Court when it dismissed the Appellant’s suit by its ruling on November 27th 2018.
“A notice of discontinuance is a voluntary termination of a suit by the Plaintiff or the complainant. Terms of settlement are filed in Court to bring the suit to an end. A Notice of discontinuance may in certain circumstances have the same effect as terms of settlement.”
This was as clearly described in the case of MABAMIJE V. OTTO 2016 LPELR-26058 SC by the apex Court. See also the case of OGUNKUNLE & ORS V. ETERNAL SACRED ORDER OF THE CHERUBIM AND SERAPHIM & ORS. 2001 LPELR-2339 SC.
This Court by Nimpar Yargata JCA equally in the case of IMPERIAL HOMES MORTGAGE BANK LTD V. MOUNT GILGAL INVESTMENTS LTD & ORS 2017 LPELR-42711 CA made the following clarifications with respect to notice of discontinuance as follows:
“Generally, a Notice of discontinuance once duly and validly filed cannot be recalled, because the moment it is effectively filed, the suit ceases to exist and is legally discontinued. The Supreme Court in the case of OGUNKUNLE V. ETERNAL SACRED ORDER, C & S (2001) 12 NWLR (PT. 727) 359 held: A discontinuance in my view, brings the action or that part of the action as is discontinued to an end against the defendants or such of them whom the action has been discontinued without further intervention from the Court… It cannot be withdrawn nor can any legal step be taken on the matter. The Court must not end the matter formally by an order. The idea of filing an objection to require a hearing is uncalled for. All the defendant needs to do is to demand for conditions to be placed on the withdrawal because the Court cannot take any step in the matter other than those necessary for formally terminating the suit, once the notice is filed. The Court and the other party cannot force the plaintiff to continue with the suit. The essence of the requirement to either file just a notice or a motion on Notice is dependent on the stage of proceedings and to allow the Court make certain orders when the matter has gone to a particular stage. It is not to allow a defendant contest the discontinuance. No, not at all …
Once the notice is filed, the matter has legally ceased…” To proceed in the resolution of the singular issue, it is important that the correct position of the proceedings before the Court must be considered in order to know whether or not the Court made the proper order in the circumstance.
On the first adjourned date, the Court was informed that the 1st to 2nd Respondents’ Statement of Defence had not been served on the Appellant though it was filed in Court. On the next adjourned date, 8/10/18, the Appellant was served with the Motion on Notice to regularize the appearance of the 1st to 3rd Respondents but their Statement of Defence was not served. The Court ordered that all processes to be served on the Appellant should be served directly on him at the address contained in the Court’s order as the Appellant did not know the current address of his Counsel who was not in Court and the case was adjourned to 27/11/18. On the adjourned date, the Appellant was represented by Kelvin A. Mejulu Esq. who notified the Court of the change of Counsel and the authority to withdraw the Appellant’s suit vide the Notice of Discontinuance already filed and prayed the Court to strike out the suit. In opposition the learned Counsel for the Respondents prayed that an order of dismissal be entered instead as their joint Statement of Defence had been served on the Appellant that the presumption was that pleadings had closed and the matter was partly heard. Further that the Court could strike out the suit but on terms. The Appellant’s Counsel opposed the submission of the Respondents’ Counsel, however conceded the sum of N5000.00 cost in the event that cost would be awarded against the Appellant. See pages 122 to 131 of the Record.
In its ruling, the Court held that parties had exchanged pleadings as the Respondents had served their Statement of Defence on the Appellant, it therefore dismissed the suit and awarded no cost against the Appellant. The ruling of the Court below is contained on pages 132 to 137 of the Record.
The Civil Procedure Rules of the Court below of 2018 provide for situation of withdrawal or discontinuance as stated in Order 24 thereof as follows:
Order 24 1 (1)
“The Claimant may at any time before receipt of the defence or after the receipt, before taking any other proceedings 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 claim. He shall pay the defendant’s cost of action, or if the action be not wholly discontinued, the costs occasioned by the matter 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 the Court discontinue the proceedings or any part on such terms and conditions as the Court may order.”
In my considered view and humbly, Order 24 Rule 1 (1) covers the circumstance of the Appellant’s suit from what one can see as contained in the Record from pages 122 to 131. At the sitting of 8/10/18, the clear order of the Court with respect to service of the Respondents’ processes on the Appellant in person as his Counsel could not be served was made. It was at the very next sitting, 27/11/18, that the Appellant’s new Counsel appeared and informed the Court of the Notice to Discontinue the suit. From the Record, one is unable to find that “any other proceeding in the action” had been taken. Further from the Record of 27/11/18, it would appear that the Respondents’ Statement of Defence had been served on the Appellant in compliance with the order of the Court on 8/10/18. In fact and in support of that position, on page 126 of the Record, the learned Respondents’ Counsel asserted that the Statement of Defence had been served. Therefore, the Appellant’s situation is as contained in Order 24 rule 1 (1), “after the receipt, before taking any other proceeding in the action by notice in writing duly filed and served” he “wholly” discontinued “his claim against all” the Respondents. That is the case or the situation of the Appellant as one finds herein. The Appellant in my view and humbly did exactly as contained in the Record by the notice in writing duly filed and served “before taking any other proceedings in the action” discontinued his claim against all the Respondents. Subrule 1 prescribes that the Appellant should pay the cost of the action to the Respondents.
On the argument whether or not issues were joined and pleadings closed as submitted by the Respondents’ Counsel, one is unable to find as such. The reason being that the Court’s order was that all the Respondents’ processes be served on the Appellant which included the Motion to enable the Respondents regularize their position and properly place before the Court all their processes, their said Statement of Defence not excluded. This was the position given the proceedings of the Court at the sitting of 8/10/18, prior to that when the prayer to discontinue the suit was made to the Court. The Court stated on 8/10/18 thus:
“….the Plaintiff though in Court is not a counsel that can respond on the motion.
Most importantly, it is not a secret that the Plaintiff was served in Court today with the said Motion. By law, their time is still running and it will not be good to short change them.
By that justice is done and done best at this stage.”
It therefore means that at that sitting, the Respondents’ Motion to regularize was not taken as the Court correctly stated that justice must be done by giving fair hearing to the Appellant who was in Court but not represented, not being a Counsel that could respond and the Respondents’ processes were still to be served on the Appellant and regularized.
The provisions of Subrules (2) and (4) are pointers to the fact that the Rules do not envisage a situation where the party who wishes to withdraw or discontinue, as the Appellant herein, would be precluded from filing his matter again or making the claims being withdrawn once he complies fully with the terms imposed by the Court. It is necessary to state that even where the Notice of Discontinuance is by the leave of the Court as opposed to the argument of the learned Respondents’ Counsel, Subrules 2 and 4 make it clear that it should not be an order of dismissal but one of striking out.
In the light of the foregoing, one finds and respectfully that the Court below misdirected itself in the interpretation it gave particularly to its Rules by the order of dismissal it entered. Further, the Court was wrong to have dismissed the suit, it was not considered on its merit and the Appellant was thereby shut out for all times sake as he would not be able to rightly or properly file the claims ever again upon the order of dismissal. Therefore, the sole issue herein is resolved in favour of the Appellant.
In the result, this appeal succeeds and is allowed, the ruling of the Court below cannot be sustained. It is hereby accordingly set aside and in consequence, and order of striking out is hereby entered in respect of the Appellant’s Suit No. FCT/HC/CV/1376/2018.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to read in draft, the decision of my learned brother, Elfrieda O. Williams-Dawodu, JCA, which has just been delivered.
I entirely agree with, and do not desire to add to the said decision.
I adopt the entire decision as mine, with nothing more to add.
MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in draft, the ruling delivered by my learned brother, ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, JCA. I am entirely in agreement with the reasoning and conclusion reached therein.
I abide by the consequential Orders.
Appearances:
Mr. Kelvin A. Mejun For Appellant(s)
Mrs. Joy N. Onyekweluje For Respondent(s)
