GAFARI v. AGU & ORS (2022)

GAFARI v. AGU & ORS

(2022)LCN/16708(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Monday, October 31, 2022

CA/LAG/CV/604/2021

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Peter Oyinkenimiemi Affen Justice of the Court of Appeal

Between

NAKEEB GAFARI APPELANT(S)

And

1. CHIEDOZIE AGU 2. OBIAGELI AGU 3. AMOBI AGU RESPONDENT(S)

RATIO

THE POSITION OF LAW ON NOTICE OF DISCONTINUANCE

Undoubtedly, no one can be compelled to proceed with a matter which he no longer wishes to proceed with, but he must discontinue with the suit within the confines of the provisions of the relevant Rules of Court. A notice of discontinuance amounts to a voluntary termination of a suit by the claimant. It cannot be recalled, and it effectively puts an end to any further intervention by the Court. Mabamije v. Otto (2016) LPELR-26058(SC), Ogunkunle & Ors v. Eternal Sacred Order of the Cherubim and Seraphim & Ors (2001) LPELR-2339(SC), Benaplastic Industries Limited v. MV “Anatoliy Vasilyev” & Ors (1999) LPELR-6552(CA), Tailor & Ors v. Balogun & Ors (2012) LPELR-19673(CA), Imperial Homes Mortgage Bank Ltd v. Mount Gilgal Investments Ltd & Ors (2017) LPELR-42711(CA). PER OTISI, J.C.A.

WHETHER OR NOT THE COURT CAN ORDER A SUIT TO BE STRUCK OUT WHERE A CLAIMANT FILES FOR A DISCONTINUANCE OF THE SUIT

By Order 25 Rule 2, the order the trial Court may make upon discontinuance of the suit by the claimant is to strike out the suit. Expounding similar provisions in Order 43 Rule 1 of the Federal High Court (Civil Procedure) Rules, 1976 in The Vessel ”Saint Roland” & Anor v. Osinloye (1997) LPELR-3234(SC) at page 19, the Supreme Court, per Iguh, JSC said:
“Such Notice of Discontinuance should, once filed, terminate the proceedings and the appropriate order to make by the Court is that of striking out the suit. See Okorodudu v. Okoromadu (1977) 3 SC. 21 at 28, Abidogun v. Arowomokun (1990) 6 NWLR (Pt. 158) 618, Ijiwoye v. N.P.F.M.B. (1990) 2 NWLR (Pt.134) 583.”
(Emphasis mine).
See also APGA & Anor v. Umeh & Ors (2011) LPELR-426(SC), Babatunde v. Pan Atlantic Shipping and Transport Agencies Limited & Ors (2007) LPELR-698(SC), Minister of Youth and Sports & Ors v. Gusau (supra). PER OTISI, J.C.A.

THE PRINCIPLE OF LAW REGARDING THE REQUIREMENT FOR LEAVE TO DISCONTINUE A SUIT

In Ekudano & Anor v. Keregbe & Ors (2008) LPELR-1100(SC) at pages 6-7, the Supreme Court, per Akintan, JSC succinctly explained the position of the law thus:
“The law is settled, that the principle underlying the requirement for leave to discontinue a suit is that after proceedings have reached a certain stage, the plaintiff who had brought his adversary into Court, should not be allowed to escape by the side door and avoid the contest. At that stage, he is to be no longer dominus litis and it is for the learned trial Judge to say whether the action should be discontinued and upon what terms. It follows, therefore that a plaintiff may, without the leave of Court, discontinue a suit against all or any of the defendants or withdraw any part of his claim before the date fixed for hearing. In such a situation, the notice of withdrawal automatically terminates the proceedings and a formal order striking out the suit may be made by the Court. See Soetan v. Total Nig Ltd. (1972) 1 ALL NLR (Pt. 1) 1, Izieme v. Ndokwu (1976) NMLR 280, Aghadiuno v. Onubogu (1998) 5 NWLR (Pt. 548) 16.
But where the request for discontinuance is made after the date fixed for the hearing of the suit, the plaintiff may discontinue only with the leave of the Court and subject to conditions that may be imposed by the Court. In granting the request, the learned trial Judge may order that the case be struck out or make an order for outright dismissal of the suit. Whichever order the Court makes will depend on all the circumstances of the case and an appellate Court will not ordinarily tamper with the trial Court’s exercise of such judicial discretion.
See Nigerian Properties Co. Ltd. v. Alegbeleye (1950) 19 NLR 101, Giwa v. John Holt Co. Ltd (1930) 10 NLR 77, Eronini v. Iheuko (1989) 2 NWLR (Pt 101) 46, Ajayi v. Odunsi (1959) SCNLR 496, Rodrigues v. Public Trustee (1977) 4 SC 29; and Aghadiuno v. Onubogu, (supra).”
(Emphasis mine). PER OTISI, J.C.A.

WHETHER OR NOT A COUNTER-AFFIDAVIT REQUIRES TIME LIMIT TO FILE BY A RESPONDENT

In Ugwuoke v FRSC & Ors (supra) at page 23 of the E-Report, this Court, per Mbaba, JCA expressed the view that:
“Counter-affidavit requires no time limit to file, as a Respondent, upon being served with a Court process including an affidavit in support, has the right to file his counter-affidavit at anytime, prior to the hearing of the application or matter to which the affidavit relates. The law rather affords parties the right of being served with an affidavit or counter-affidavit, at least, 48 hours, before the same is being used in Court, and except the party served with such process, less than 48 hours, before the hearing of the matter, waives his right to being given 48 hours or does not insist on the minimum time allowed him by law, the Court has to adjourn the matter, to afford the opposing party his legal right to study and react to the affidavit (or Counter affidavit, as the case may be).” PER OTISI, J.C.A.

THE LEGAL INTERPRETATION OF THE WORD “AND” AND “MAY”

In Dasuki v. Director General State Security & Ors (2019) LPELR-48113(CA) at pages 30-31, this Court, per Akomolafe-Wilson, JCA said:
“In ordinary usage, the word “and” is a conjunctive. Black’s Law Dictionary 6th Edition, described the word “and” as “A conjunction connecting words or phrase expressing the idea that the latter is to be added to or taken along with the first. Added to; together with, joined with as well as, including.”
Synonyms of the word ‘and’ include: together with, along with, with, as well as, in addition to, including, also, too, besides, furthermore, moreover.
I think it is well settled that the word “may” generally interpreted as connoting a permission or discretion, except there are compelling reasons to construe the word as having a mandatory meaning. In Edewor v. Uwegba & Ors (1987) LPELR-1009(SC) at 45-46, the Supreme Court, per Nnamani, J.S.C said:
“Generally the word ‘may’ always means ‘may’. It has long been settled that may is a permissive or enabling expression. In Messy v. Council of the Municipality of Yass (1922) 22 S.R.N.S.W. 494 per Cullen, C.J at pp.497, 498 it was held that the use of the word ‘may’ prima facie conveys that the authority which has power to do such an act has an option either to do it or not to do it. See also Cotton, L.J. in Re Daker, Michell v. Baker (1800) 44 CH. D 282. But it has been conceded that the word may acquire a mandatory meaning from the context in which it is used. See Johnson’s Tyre Foundary Pty Ltd. v. Shire of Maffra (1949) A.L.R. 88. The word may also acquires a mandatory meaning from the circumstances in which it is used.”
See also Bakare v. AG of the Federation & Ors (1990) LPELR-707(SC), Mokelu v. Federal Commissioner for Works and Housing (1976) LPELR-1904(SC), Orakul Resources Ltd & Anor v. NCC & Ors (2022) LPELR-56602(SC), Nigerian Navy & Ors v. Labinjo (2012) LPELR-7868(SC), Obong & Ors v. Government of Akwa Ibom State & Anor (2014) LPELR-24259(CA), Ekpenyong v. A.G And Minister of Justice of the Federation (2022) LPELR-57801(CA). PER OTISI, J.C.A.

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): The Respondents, as applicants, filed before the High Court of Lagos State, Coram A.O. Opesanwo, J., an Originating Summons for the enforcement of their fundamental rights against the Appellant, as respondent. The case of the Respondents was that they were notified, sometime in 2018, by the Landgrabbers Taskforce, Ministry of Justice, Alausa that property belonging to the 1st and 2nd Respondents, which was under the care of the 3rd Respondent, was under investigation on account of an adverse claim on the land, and sealed. The said property was a vacant piece of land, which the Respondents averred that they had purchased from one Prophet Isaac Ilemubayo Jojolawa, and covered by Certificate of Occupancy dated 17/2/2015, registered as No 5/5/15J of the Lands Registry, Alausa, Ikeja, Lagos in the name of one Olatubosun Ololade Olumuyiwa. Before the Taskforce reached a decision on the issue, the Appellant, with the aid of armed thugs, was alleged to have forcibly torn down the perimeter fence of the property and seized the entire land, including areas not disputed in his petition before the Taskforce, as shown in his survey plan. The matter was reported at Adekunle Police Station by the 3rd Respondent. The trespass was also reported to the Chairman of the Land grabbers TaskForce, and to the Oloto family, who were the traditional landowners, Omoniles, in the area, for their adjudication, intervention and assistance.

Upon noticing that the Appellant was preparing the land to build for construction, despite the pending petition before the Taskforce, the Respondents by an Originating Summons sued for the enforcement of their fundamental right.

When the matter came up on 4/3/2021, both the Appellant and his Counsel were not in Court and had not filed any process. The matter was then adjourned to 8/4/2021 for hearing. The Appellant subsequently filed:
1. A Notice of Preliminary Objection and affidavit in support on 8/3/2021; pages 89-103 of the Record of Appeal;
2. A Counter-Affidavit in opposition to the Applicants’ affidavit on 8/3/2021; pages 104-112 of the Record of Appeal; and,
3. Motion for extension of time to regularize the Counter-Affidavit and written address, with an affidavit in support on 11/3/2021; pages 126-129 of the Record of Appeal.

The Respondents filed a Notice of Discontinuance of the suit on 31/3/2021. At further proceedings in the matter on 14/7/2021, the learned trial Judge, struck out the suit and awarded costs of N200, 000.00 against the Respondents in favour of the Appellant, on the ground that parties had joined issues.

The Appellant, who was dissatisfied with the said ruling of the lower Court lodged the instant appeal by Notice of Appeal filed on 26/72021 on one ground of appeal.

The parties filed Briefs of Argument. The Appellant’s brief was filed on 30/8/2021. The Respondents’ Brief was filed on 21/9/2021, while the Appellant’s Reply Brief was filed on 16/3/2022. All the Briefs of Argument were deemed properly filed and served on 17/3/2022.

At the hearing of the appeal on 26/9/2022, the Respondents were served with a hard copy of the hearing notice on 23/9/2022 through their Counsel, but they were absent and unrepresented by Counsel. Being satisfied that the Respondents had due notice, the Court proceeded with the hearing of the appeal. The Respondents’ brief was deemed adopted and argued, pursuant to Order 19 Rule (4) of the Court of Appeal Rules, 2021. The Appellant’s brief was adopted by Ibukunoluwa Olu-Jacobs, Esq., for the Appellant, who urged the Court to allow the appeal.

The Appellant distilled one issue for determination of this appeal:
“Whether parties having joined issues and the suit adjourned for hearing, the lower Court erred when his Lordship refused the application of the Appellant to dismiss the suit and rather struck the suit out following the application of the Respondents to discontinue the suit against the Appellant.
(Ground 1).

For the Respondents, two issues were raised, thus:
1. Whether a party who is yet to regularize his process in Court can validly claim to have joined issues in a matter before the Honorable Court.
2. Whether from the record of proceedings of 14th day of July, 2021 His Lordship’s order to strike out the originating summons has in anyway prejudiced the Appellant’s right for which he wants this Appellate Court to remedy
(Issues 1 & 2 are formulated from Ground 1 of the notice of Appeal).
The Appellant in the Reply Brief attacked the competence of Issue 1 as framed by the Respondents, that the issue as framed, did not flow from the ground of appeal and should be struck out, citing Okpauchui v Ayeni & Ors (2018) LPELR-46158(CA) at pages 12-13. This challenge ought to be resolved first in order to identify the proper issue or issues for determination of this appeal.

Primarily, the principles guiding the issues for determination of an appeal have been well articulated by various judicial pronouncements by the appellate Courts. It is now well settled that an appeal is decided on the issues formulated for determination by Counsel or the Court, and these issues for determination must arise from the grounds of appeal. An issue that does not arise or flow directly from the ground or grounds of appeal violates this principle. Such issue is incompetent and must be discountenanced. See Controller General of Prisons & Ors v. Elema & Anor (2021) LPELR-56219(SC), Ezeani v FRN (2019) LPELR-46800(SC), Kalu v Odili (1992) LPELR-1653(SC), Abisi & Ors v. Ekwealor & Anor (1993) LPELR-44(SC), Jev & Anor v. Iyortyom & Ors (2014) 8 SCM 131 at 151, Omo v. Judicial Service Committee of Delta State & Ors (2000) LPELR-2642(SC), Maiyegun & Ors v. Governor of Lagos State & Ors (2010) LPELR-4459(CA).
Further, issues for determination from both the appellant or a respondent must not be more than the grounds contained in the notice and grounds of appeal. The law is well established that framing two issues from one ground of appeal is a violation of this principle. Society Bic SA & Ors v. Charzin Industries Limited (2014) LPELR-22256(SC), (2014) 3 SCM 208 at 228, Agu. v. Ikewibe (1991) LPELR-253(SC), (1991) 3 NWLR (Pt.180) 385. It amounts to proliferation of issues, which is not permitted.
In Executive Governor, Nasarawa State & Anor v. Ukpo (2017) LPELR-42445(CA) at pages 6-7, this Court expressed:
“There are established principles that govern formulation of issues for determination in an appeal. At the core is that issues distilled for determination in an appeal must flow from the grounds of appeal. An issue formulated for determination that does not relate to or arise from any of the grounds of appeal is not competent and ought to be disregarded; Oyegun v Nzeribe (2010) 16 NWLR (Pt.1220) 568 S.C, Kalu v Odili (1992) 6 SCNJ 76, Oje v Babalola (1991) 5 S.C. 128. Indeed, a Court is without the vires to consider for determination an issue that does not relate to or flow from a ground of appeal. Furthermore, issues for determination reduce the grounds of appeal from which they are distilled into compact formulations. Sanusi v. Ayoola (1992) 11/12 SCNJ 142. Thus, a number of grounds could, where appropriate, be formulated into a single issue running through them. There need not be a separate issue formulated for each ground of appeal. But it is patently undesirable to split the issue in a ground of appeal per Karibi Whyte, JSC in Labiyi v Anretiola (1992) LPELR-1730 (SC). Therefore, formulating issues for determination in excess of the grounds of appeal or formulating more than one issue from a single ground of appeal is not in line with the principles governing the formulation of issues for determination in an appeal. It amounts to proliferation of issues, which is not acceptable. Nwankwo v Yar’Adua (2010) 12 NWLR (Pt.1209) 518 S.C., Okwuagbala v Ikwueme (2010) 19 NWLR (PT. 1226) 54 S.C. Where a respondent does not file a cross-appeal or a respondent’s notice, he must distill issues for determination within the grounds as framed by the appellant.”
(Emphasis supplied).

Now, a respondent who is dissatisfied with any part of the decision of the lower Court over which there is an appeal lodged by the appellant, may file a cross-appeal seeking to set aside the said decision. On the other hand, a respondent’s notice is filed by a respondent, who not having appealed from the decision of the lower Court, desires to contend, on the appeal, that the decision of that Court should be varied, either in any event or in the event of the appeal being allowed in whole or in part; or by a respondent who desires to contend on the appeal that the decision of the lower Court should be affirmed on grounds, other than those relied upon by that Court. In both events, the respondent must give notice to that effect specifying the grounds of that contention. A respondent’s notice therefore, presupposes that, fundamentally, the respondent is satisfied with the decision of the lower Court. See Order 9 Rules 1 and 2 of the Court of Appeal Rules, 2021. See also Ogunbadejo v Owoyemi (1993) 1 SCNJ 148, (1993) 1 NWLR (PT. 271) 517; (1993) LPELR-2321(SC) at page 23 of the E- Report, Itodo v. Olofu & Ors (2010) LPELR-4342(CA), Ukachukwu v. Ezike & Ors (2014) LPELR-22488(CA), APP v. INEC (2021) LPELR-53529(CA), St. Peter Parish Makurdi v. Registered Trustees of Deeper Life Bible Church & Ors (2018) LPELR-45892(CA).

Thus, a respondent who did not cross-appeal and who has filed no respondent’s notice, has no valid reason to go outside the confines of the appellant’s ground of appeal to formulate an issue or issues that are not directly related to the ground of appeal. Such respondent to an appeal who neither files a cross-appeal nor a respondent’s notice, will not be allowed to even file a brief of argument attacking the judgment appealed against. Obi v. INEC & Ors (2007) LPELR-24347(SC), Rear Admiral Francis Echie Agbiti v. The Nigerian Navy (2011) LPELR-2944(SC) at page 24, (2011) 1 SCM 31 at 48.

The Respondents, from the issues formulated, have clearly violated these established principles. I shall once more reproduce the said issues hereunder:
1. Whether a party who is yet to regularize his process in Court can validly claim to have joined issues in a matter before the Honorable Court.
2. Whether from the record of proceedings of 14th day of July, 2021 His Lordship’s order to strike out the originating summons has in anyway prejudiced the Appellant’s right for which he wants this Appellate Court to remedy.
(Issues 1 & 2 are formulated from Ground 1 of the Notice of Appeal).

The Appellant’s sole ground of appeal, shorn of particulars, was:
“The learned trial Judge erred in law when His Lordship held that the suit ought to be struck out and went ahead to strike out the suit instead of holding that the suit ought to be dismissed and dismissing the suit.”

In the first place, the Respondents formulated two issues from a single ground of appeal in the Appellant’s Notice of Appeal, which was wrong. Secondly, the Respondents’ issue 1, in essence, covertly attacks the decision of the lower Court that the parties had joined issues. This issue did not arise from the sole ground of appeal formulated by the Appellant. The Respondents, who did not file a cross-appeal, cannot raise this issue for determination. It was not distilled from the Appellant’s sole ground of appeal.

The only duty of a respondent, who has neither filed a respondents’ notice nor a cross-appeal, is to support the decision of the lower Court on appeal in its form. Kayili v. Yilbuk & Ors (2015) LPELR-24323(SC), Minister of Petroleum & Mineral Resources & Anor v. Expo-Shipping Line (Nig) Ltd (2010) LPELR-3189(SC), Ogunbadejo v Owoyemi (supra), Obi v. INEC & Ors (supra), St. Peter Parish Makurdi v. Registered Trustees of Deeper Life Bible Church & Ors (supra). Issue 1, as formulated by the Respondents, which is neither related to the Appellant’s sole ground of appeal, nor flows directly therefrom, is therefore incompetent.

The Respondents’ predicament is compounded or exacerbated by the fact that this Court is not empowered to choose between which of the two issues formulated by the Respondents, purportedly from the Appellant’s sole ground of appeal, should be addressed. The two issues deserve to be ignored or struck out as incompetent as it is not the duty of the Court to make a choice for the Respondents between the two issues allegedly framed from one ground of appeal. Society Bic SA & Ors v. Charzin Industries Limited (supra) at pages 30-31 of the E-Report, Agu v. Ikewibe (1991) LPELR-253(SC), ENL Consortium Ltd v Danasulu Brothers Nigeria Ltd (2020) 8 NWLR (Pt 1725) 179 at 196, Adeleke & Anor v. Adejumo (2022) LPELR-58176(CA). The two issues as formulated by the Respondents, are therefore incompetent and are hereby struck out.

This appeal shall therefore be resolved on the sole issue formulated by the Appellant, and any relevant arguments proffered by the Respondents shall be considered alongside. In consequence, the sole issue for resolution of this appeal is:
“Whether parties having joined issues and the suit adjourned for hearing, the Lower Court erred when his Lordship refused the application of the Appellant to dismiss the suit and rather struck the suit out following the application of the Respondents to discontinue the suit against the Appellant.
(Ground 1).

Arguments of Counsel
The Appellant contended that the lower Court erred when, following the Notice of Discontinuance filed by the Respondents, it refused the application of the Appellant to dismiss the suit but rather struck it out. That the proper order to make when issues have been joined and a party files a notice of discontinuance, is to dismiss the suit, and not to strike it out. Reliance was placed on the decisions in Mautech v Adamawa State Board of Internal Revenue (2019) LPELR-47773(CA), Ugwuoke v FRSC & Ors (2019) LPELR-46611(CA). Counsel for the Appellant referred to the proceedings before the lower Court to submit that where a trial Court proceeds on a wrong principle of law in a matter within its discretion, its orders may be set aside by an appellate Court, citing Baba v Iyeghe (2019) LPELR – 46933(CA). The Court was urged to interfere with this exercise of discretion by the lower Court and correct same by ordering the dismissal of the suit.

The contention of the Respondents, per contra, was that the suit was not yet ripe for hearing because the Appellant had not regularized his processes and had not paid the necessary default fees. The parties had therefore not joined issues. That the decisions in Mautech v Adamawa State Board of Internal Revenue (supra), Ugwuoke v FRSC & Ors (supra), relied on by the Appellant were not applicable in this appeal. The Respondent rather relied on the decision in Minister of Youth and Sports & Ors v Gusau (2020) LPELR-51329(CA) on the effect of a notice of discontinuance.

In the Reply Brief, the Appellant reiterated his argument that the lower Court ought to have dismissed the suit.

Resolution
Undoubtedly, no one can be compelled to proceed with a matter which he no longer wishes to proceed with, but he must discontinue with the suit within the confines of the provisions of the relevant Rules of Court. A notice of discontinuance amounts to a voluntary termination of a suit by the claimant. It cannot be recalled, and it effectively puts an end to any further intervention by the Court. Mabamije v. Otto (2016) LPELR-26058(SC), Ogunkunle & Ors v. Eternal Sacred Order of the Cherubim and Seraphim & Ors (2001) LPELR-2339(SC), Benaplastic Industries Limited v. MV “Anatoliy Vasilyev” & Ors (1999) LPELR-6552(CA), Tailor & Ors v. Balogun & Ors (2012) LPELR-19673(CA), Imperial Homes Mortgage Bank Ltd v. Mount Gilgal Investments Ltd & Ors (2017) LPELR-42711(CA).

The Notice of Discontinuance in the instant case was filed pursuant to Order 25 Rule 2 of the Lagos State High Court (Civil Procedure) Rules, 2019, which provides:
“2.
(1) Where a Defence has been filed and served, the Claimant may, with the leave of a Judge, before taking any other step in the proceedings withdraw or discontinue the proceedings or any part of it on such terms and conditions as the Judge may order.
(2) 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.
(3) …
(4) Where trial has commenced, the Claimant may with the leave of Court withdraw or discontinue the claim or any part of it and the Judge may dismiss the claim wholly or in part or make such order as the Judge shall deem fit.”
These provisions are explicit, and unambiguously, set out its boundaries.
After a defence has been filed, the claimant may discontinue the suit with leave of Court, before taking any further step in the matter, on such terms and conditions as the trial Judge may order. A valid notice of discontinuance must be filed before the claimant takes any further step, after he is served with the defence. At this stage, pleadings have not closed, as a claimant may decide to file a reply or further affidavits, as the case may be.

By Order 25 Rule 2, the order the trial Court may make upon discontinuance of the suit by the claimant is to strike out the suit. Expounding similar provisions in Order 43 Rule 1 of the Federal High Court (Civil Procedure) Rules, 1976 in The Vessel ”Saint Roland” & Anor v. Osinloye (1997) LPELR-3234(SC) at page 19, the Supreme Court, per Iguh, JSC said:
“Such Notice of Discontinuance should, once filed, terminate the proceedings and the appropriate order to make by the Court is that of striking out the suit. See Okorodudu v. Okoromadu (1977) 3 SC. 21 at 28, Abidogun v. Arowomokun (1990) 6 NWLR (Pt. 158) 618, Ijiwoye v. N.P.F.M.B. (1990) 2 NWLR (Pt.134) 583.”
(Emphasis mine).
See also APGA & Anor v. Umeh & Ors (2011) LPELR-426(SC), Babatunde v. Pan Atlantic Shipping and Transport Agencies Limited & Ors (2007) LPELR-698(SC), Minister of Youth and Sports & Ors v. Gusau (supra).

However, a different scenario emerges when a notice of discontinuance is filed at the close of pleadings. A date for hearing is fixed when the matter is ripe for hearing, that is to say, at the close of pleadings or when all affidavit evidence is before the Court, as the case may be, and all that is left is for hearing to commence. At this time, the stage is set for hearing, there is now litis contestatio, and the Court is in charge. The claimant is no longer dominus litis. It is for the claimant to commence his case. At this stage, the claimant cannot be allowed to escape through the back door only to re-enter by way of another action. A notice of discontinuance that is filed at the close of pleadings and when the matter has been fixed for hearing or is part-heard, is invalid. Okorodudu v. Okoromadu (1977) LPELR-2495(SC), Eronini v Iheuko (1989) LPELR-1161(SC), Alhaji Isiyaku Yakubu Ent Ltd v. Tarfa & Anor (2014) LPELR-24223(CA).
It follows that a valid notice of discontinuance must be filed before the case is fixed for hearing. If the claimant fails or declines to proceed with his case on the date for hearing but rather files a notice of discontinuance, such notice is invalid and should be struck out. The claimant’s suit would be dismissed at that stage. Indeed, a notice of discontinuance filed at this stage is an admission of defeat. The claimant cannot be given an opportunity to escape to either refine or retune his case and return. The order that meets the justice of the case is one to dismiss the action. Okorodudu v. Okoromadu (supra), Zoaka v. Buba & Anor (2020) LPELR-51484(CA), Mautech v Adamawa State Board of Internal Revenue (supra).

In the light of the foregoing, the relevant question now is: at what stage of the suit did the Respondents file the Notice of Discontinuance?

Order IV Rule 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, provides that the application to enforce fundamental rights shall be fixed for hearing within 7 days from the day the application was filed. By Order V Rule 2, service of the application must be served directly on the parties. On 4/3/2021, the Respondents’ Counsel notified the learned trial Judge that, page 149 of the Record of Appeal: “FADUMILA: We have successfully served the Respondent and by substituted means of posting.
The proof is before the Court. The Respondent is yet to react.
COURT: 8th April, 2021 for hearing.
Hearing Notice shall issue and proof forwarded before the said date.”

Thus, by the Fundamental Rights (Enforcement Procedure) Rules, 2009, as well as the ruling of the learned trial Judge, the matter was adjourned to 8/4/2021 for hearing. The stage was set for the Respondents to prove their case. However, the Respondents filed a Notice of Discontinuance on 31/3/2021.
Now, I think it is important to emphasize that the fact that a respondent did not file a counter affidavit or any process in response to an application to enforce fundamental rights is not material. When, on the hearing date, the applicant is not prepared to go on with the matter, all that remains is for the trial Court to dismiss the matter. In Ekudano & Anor v. Keregbe & Ors (2008) LPELR-1100(SC) at pages 6-7, the Supreme Court, per Akintan, JSC succinctly explained the position of the law thus:
“The law is settled, that the principle underlying the requirement for leave to discontinue a suit is that after proceedings have reached a certain stage, the plaintiff who had brought his adversary into Court, should not be allowed to escape by the side door and avoid the contest. At that stage, he is to be no longer dominus litis and it is for the learned trial Judge to say whether the action should be discontinued and upon what terms. It follows, therefore that a plaintiff may, without the leave of Court, discontinue a suit against all or any of the defendants or withdraw any part of his claim before the date fixed for hearing. In such a situation, the notice of withdrawal automatically terminates the proceedings and a formal order striking out the suit may be made by the Court. See Soetan v. Total Nig Ltd. (1972) 1 ALL NLR (Pt. 1) 1, Izieme v. Ndokwu (1976) NMLR 280, Aghadiuno v. Onubogu (1998) 5 NWLR (Pt. 548) 16.
But where the request for discontinuance is made after the date fixed for the hearing of the suit, the plaintiff may discontinue only with the leave of the Court and subject to conditions that may be imposed by the Court. In granting the request, the learned trial Judge may order that the case be struck out or make an order for outright dismissal of the suit. Whichever order the Court makes will depend on all the circumstances of the case and an appellate Court will not ordinarily tamper with the trial Court’s exercise of such judicial discretion.
See Nigerian Properties Co. Ltd. v. Alegbeleye (1950) 19 NLR 101, Giwa v. John Holt Co. Ltd (1930) 10 NLR 77, Eronini v. Iheuko (1989) 2 NWLR (Pt 101) 46, Ajayi v. Odunsi (1959) SCNLR 496, Rodrigues v. Public Trustee (1977) 4 SC 29; and Aghadiuno v. Onubogu, (supra).”
(Emphasis mine).
On 14/7/2021, which was the next date the matter came up, the Respondents’ Notice of Discontinuance was before the lower Court. The Appellant’s Counsel applied that the matter be dismissed with costs. The learned trial Judge then ruled, page 150 of the Record of Appeal:
“Pursuant to the Notice of Discontinuance herein dated 31st March, 2021, this Court do hereby struck (sic) out this suit.
The Defendant having joined issue(sic) is deemed entitled to cost and same is set at N200k only.”
I note that the learned trial Judge did not refer to or allude to any process that was before the trial Court upon which the ruling that the parties had joined issues was premised.
The Record of Appeal reveals that by the said hearing date on 14/7/2021, the Appellant had filed a notice of preliminary objection with an affidavit in support; a counter-affidavit in opposition to the Respondent’s affidavit and a written address, all filed on 8/3/2021. The Appellant also filed a Motion on Notice seeking an order for extension of time to file and serve his counter-affidavit and written address, as well as an order deeming the process as properly filed and served. See pages 89 – 133 of the Record of Appeal. The position of the Respondents was that issues had not been joined as the Appellant’s processes had not been regularized. The Appellant argued, per contra, that the parties had joined issues by the processes filed on both sides. The Appellant relied strongly on the decisions in Mautech v Adamawa State Board of Internal Revenue (supra) and on Ugwuoke v FRSC & Ors (supra).
In Mautech v Adamawa State Board of Internal Revenue (supra), the respondent therein had closed its case and the case was adjourned for defence when it filed the application to discontinue the matter. In line with the position of the law, this Court held that once pleadings have been filed in a given case and issues joined between the parties, a case for withdrawal at that stage will be dismissed and not struck out. In the same vein, where a matter has become part heard, the proper order to make is one of dismissal.
In Ugwuoke v FRSC & Ors (supra) at page 23 of the E-Report, this Court, per Mbaba, JCA expressed the view that:
“Counter-affidavit requires no time limit to file, as a Respondent, upon being served with a Court process including an affidavit in support, has the right to file his counter-affidavit at anytime, prior to the hearing of the application or matter to which the affidavit relates. The law rather affords parties the right of being served with an affidavit or counter-affidavit, at least, 48 hours, before the same is being used in Court, and except the party served with such process, less than 48 hours, before the hearing of the matter, waives his right to being given 48 hours or does not insist on the minimum time allowed him by law, the Court has to adjourn the matter, to afford the opposing party his legal right to study and react to the affidavit (or Counter affidavit, as the case may be).”
My Lord Mbaba, JCA further relied on the decision in Maersk Nigeria Ltd v Oguejiofor (2018) LPELR-44889(CA) at pages 14 – 16, in which this Court, per Mbaba, JCA held:
“Appellant had made a heavy weather about the issue of not obtaining the leave of Court to file the Counter affidavit, alleging that the Respondent had failed to file the same within time. I have tried to locate the law which Appellant relied upon to make such outlandish submission, without success. I am yet to come by a law that stipulates a time frame for the filing of a counter-affidavit in a cause or matter, either by this Court, or the Lower Court, to suggest the need to file an application for extension of time to file Counter affidavit!
I am rather aware that a process with an affidavit, served on the opponent within (sic) (before) 48 hours (2 days), to the hearing, remains potent and can be moved, used and relied upon, whether or not the same is reacted to or countered by the opponent, once he has been served within time. Thus, where a party fails to file a counter-affidavit to deny an averment in an affidavit, he is deemed to have admitted the said averment, until he denies the same, and he has all the time in the world to deny it, while the averment is not used yet. That does not mean that the denial must come within 48 hours of being served with the affidavit. CPC VS Lado & Ors (2011) LPELR 3997 CA; Ogunleye Vs Aina (2012) LPELR Pt.7877 CA …
I have earlier stated that there is no time limit in our Rules for the filing of counter-affidavit, and so a party is not expected, ordinarily, in law, to seek extension of time or the leave of this Court (or of the Lower) to file a Counter affidavit, to deny a given affidavit standing against him. To that extent, Appellant’s argument about filing a counter-affidavit, after 6 months, without the leave of Court was/is strange, in my opinion. In saying this, I have also considered the Order 8 of the Abia State High Court (Civil Procedure) Rules, 2009, which makes provisions for interlocutory applications, whereby the Rules authorize that for any application to be made, the same (motion) shall be made, and served, with supporting affidavit, on the defendant (where it is a Motion on Notice). And:
Unless the Court gives special leave to the contrary, there shall be at least two clear days between the service of a notice of motion and the day named in the motion for the hearing. See Order 8 Rule 17 of the Abia State High Court Civil Procedure Rules 2009.
The above provision locates a Respondents right to always insist on his right of 2 clear days (or 48 hours) notice of any application raised against him, to enable him react to same by filing a Counter affidavit, if necessary. Of course, that does not limit the time of a respondent to file a counter-affidavit which he can do at any time, after being served with the application in contention.”
In Ugwuoke v FRSC & Ors (supra), his Lordship, Mbaba, JCA, further said, pages 26 – 27 of the E-Report:
“In this case, at hand, the Respondents had deposed to their counter-affidavit of 32 paragraphs on 12/5/15 (see pages 48 to 52 of the Records of Appeal). They also filed a motion on the same date 12/5/15 for extension of time to file Respondent/Applicants Address, affidavit and written address accompanying the counter-affidavit. See page 42 of the Records.
The motion by the Respondents was therefore not necessary for the purpose of their counter-affidavit, but may have been necessary for the purpose of the Respondents’ Address, brought outside the 5 days of service of the Fundamental Rights Suit on them.
Order 2 Rule 6 of the Fundamental Rights (Enforcement Procedure) Rules, 2009, requires a Respondent who intend to oppose fundamental rights Suit, to file his address within 5 days of the service on him of the application, and may accompany it with a counter-affidavit. The phrase and may accompany it with a Counter affidavit, in the above provision, clearly, in my opinion, shows that, it should be read disjunctively from the proceeding provision, that A Respondent who intends to oppose the application shall file his address within 5 days of the service on him of the application.
(Emphasis mine).
Now, the procedure for the enforcement of fundamental rights guaranteed under Chapter IV of the Constitution of the Federal Republic of Nigeria, 1999, as amended, as governed by the Fundamental Rights (Enforcement Procedure) Rules, 2009, is sui generis. Jaiyesimi & Anor v. Darlington (2022) LPELR-57344(SC), Jack v. University of Agriculture Makurdi (2004) LPELR-1587(SC). It is a specialized procedure that must be strictly complied with.
The provisions of the Fundamental Rights (Enforcement Procedure) Rules, 2009 are quite unambiguous. Order 2 Rule 6 of the Rules provides that:
“Where a respondent intends to oppose the application, he shall file his written address within 5 days of the service on him of such application and may accompany it with a counter affidavit.”
To my mind, fundamental words to be considered in these provisions are: “and may accompany”.
It is settled canon of interpretation of statutes, known as the literal rule of interpretation, that where the words of a statute are plain and admit of one and only one meaning, there is no room for the application of any principles of interpretation or construction of the words. Ifezue v. Mbadugha & Anor (1984) LPELR-1437(SC) at pages 73-74, Adetayo & Ors v. Ademola & Ors (2010) LPELR-155(SC); Kassim v. Sadiku & Ors (2021) LPELR-55334(SC), Nwobike v. FRN (2021) LPELR-56670(SC).

Idigbe, J.S.C in Uwaifo v. AG Bendel State & Ors (1982) LPELR-3445(SC) at page 46 said:
“…In order to determine the meaning of any expression or phrase in an enactment “the first question to ask always is what is the natural or ordinary meaning of the words used therein in the context in the statute;” and it is only when the ordinary meaning of those words leads to some result which cannot reasonably be supposed to have been the intention of the legislature that it becomes proper to look for some other possible meaning of the words concerned. See Lord Reid in Pinner v. Everett (1969) 3 All ER 257).”
The Learned Author in Guidelines to Interpretation of Nigerian Statutes, Obande F. Ogbuinya, JCA, at page 81 thereof, wrote:
“The literal rule, in a precise form, postulates that the Courts are enjoined to render to plain, clear, unambiguous, explicit or express words and phrases, in enactments, their ordinary, original or grammatical meanings even if such ascription will engender hardship, inconvenience or injustice to the parties concerned so long as it brings out the intentions of the Legislature. Under this rule, the Courts are only permitted to expound the meanings of legislative provisions, but refrained from expanding them.”
In this vein, the Court should give a holistic interpretation to a statute with the aim of giving it purposeful interpretation. NURTW & Anor v. RTEAN & Ors (2012) LPELR-7840(SC), Orakul Resources Ltd & Anor v. NCC & Ors (2022) LPELR-56602(SC).
With this intent, it would be helpful to examine what the words “and may accompany”, as used in Order 2 Rule 6 of the Fundamental Rights (Enforcement) Procedure Rules, 2009, portend.
The word “and” is usually used as a conjunction. It is:
“used as a function word to indicate connection or addition especially of items within the same class or type – used to join sentence elements of the same grammatical rank or function.” Merriam-Webster.com Dictionary, Merriam-Webster, https://www.merriam-webster.com/dictionary/and. Accessed 13 Oct. 2022.
In Dasuki v. Director General State Security & Ors (2019) LPELR-48113(CA) at pages 30-31, this Court, per Akomolafe-Wilson, JCA said:
“In ordinary usage, the word “and” is a conjunctive. Black’s Law Dictionary 6th Edition, described the word “and” as “A conjunction connecting words or phrase expressing the idea that the latter is to be added to or taken along with the first. Added to; together with, joined with as well as, including.”
Synonyms of the word ‘and’ include: together with, along with, with, as well as, in addition to, including, also, too, besides, furthermore, moreover.
I think it is well settled that the word “may” generally interpreted as connoting a permission or discretion, except there are compelling reasons to construe the word as having a mandatory meaning. In Edewor v. Uwegba & Ors (1987) LPELR-1009(SC) at 45-46, the Supreme Court, per Nnamani, J.S.C said:
“Generally the word ‘may’ always means ‘may’. It has long been settled that may is a permissive or enabling expression. In Messy v. Council of the Municipality of Yass (1922) 22 S.R.N.S.W. 494 per Cullen, C.J at pp.497, 498 it was held that the use of the word ‘may’ prima facie conveys that the authority which has power to do such an act has an option either to do it or not to do it. See also Cotton, L.J. in Re Daker, Michell v. Baker (1800) 44 CH. D 282. But it has been conceded that the word may acquire a mandatory meaning from the context in which it is used. See Johnson’s Tyre Foundary Pty Ltd. v. Shire of Maffra (1949) A.L.R. 88. The word may also acquires a mandatory meaning from the circumstances in which it is used.”
See also Bakare v. AG of the Federation & Ors (1990) LPELR-707(SC), Mokelu v. Federal Commissioner for Works and Housing (1976) LPELR-1904(SC), Orakul Resources Ltd & Anor v. NCC & Ors (2022) LPELR-56602(SC), Nigerian Navy & Ors v. Labinjo (2012) LPELR-7868(SC), Obong & Ors v. Government of Akwa Ibom State & Anor (2014) LPELR-24259(CA), Ekpenyong v. A.G And Minister of Justice of the Federation (2022) LPELR-57801(CA).
The word “accompany” is defined in the Cambridge Dictionary as “to go with someone or to be provided or exist at the same time as something”.
Let me be a bit graphic here. A bride may decide to have a chief bride’s maid or she may decide not to have any. A groom may decide to have a best man or he may decide not to have any. In the event that the bride decides to have a chief bride’s maid, she accompanies the bride to the wedding. If the groom decides to have a best man, he accompanies the groom to the wedding. Neither the chief bride’s maid nor the best man has the choice to go to the wedding without the bride or the groom. Their relationship is by no means disjunctive.
All put together, in my understanding, the words “and may accompany” as used in Order 2 Rule 6 may be interpreted in this manner: if the respondent to the application so desires, he may file a written address only on points of law, or if he so chooses or decides to, in addition to the written address, he may file a counter-affidavit. If he does decide to file a counter-affidavit, it must accompany the written address and the both must be filed within 5 days of service of the application on him. The word “and” used therein is conjunctive, while the word “may” would imply a discretion. The word “accompany” connotes something that would exist at the same time as another thing, therefore, the word “and”, as used herein, can only be in its conjunctive sense or meaning.
The decision in Maersk Nigeria Ltd v Oguejiofor (supra) relied on in Ugwuoke v FRSC & Ors (supra) considered the High Court (Civil Procedure) Rules in Abia State. The specialized nature of the fundamental rights enforcement procedure was not considered in Ugwuoke v FRSC & Ors (supra). This is central in this appeal. The Fundamental Rights (Enforcement Procedure) Rules are sui generis. Although Order 15 (4) of the Rules provide that recourse may be had to the Civil Procedure Rules of the Court in force, where in the course of any Human Rights proceedings, any situation arises for which there is or appears to be no adequate provision in these Rules, the High Court (Civil Procedure) Rules are not analogous in any manner. To that extent, Ugwuoke v FRSC & Ors (supra) cannot be relied on in this matter.
The Record of Appeal reveals that on 4/3/2021 when the matter now on appeal, was adjourned for hearing, the Appellant’s processes were not before the trial Court. The Record of Appeal further reveals that the Appellant’s processes were filed on 8/3/2021 but out of time. There was a pending application filed on 12/3/2021 by the Appellant to regularize the Appellant’s written address and counter affidavit filed in opposition to the Respondents’ application. The said motion, which was still pending, had not been disposed of when the matter came up for hearing on 14/7/2021.
I am not unmindful of the provisions of Order IX of the Fundamental Rights (Enforcement Procedure) Rules, 2009, which provides that:
Where at any stage in the course of or in connection with any proceedings there has, by any reason of anything done or left undone, been failure to comply with the requirement as to time, place or manner or form, the failure shall be treated as an irregularity and may not nullify such proceedings except as they relate to –
(i) Mode of commencement of the application;
(ii) The subject matter is not within Chapter IV of the Constitution or the African Charter on Human and People’s Rights (Ratification and Enforcement) Act.
In my view, these provisions cannot be relied on to dispense with compliance with the provisions of Order 2 Rule 6, when there was a pending application to regularize the Appellant’s processes.
However, let me reiterate that the fact that a respondent in an application to enforce fundamental rights had not filed a counter affidavit or any process at the time the matter is fixed for hearing is not material. The respondent may decide not to file any process. But, if by that hearing date an applicant is no longer prepared to go on with the matter, all that remains for the trial Court to do is to dismiss the suit. Okorodudu v. Okoromadu (supra), Eronini v Iheuko (supra); Ekudano & Anor v. Keregbe & Ors (supra), Alhaji Isiyaku Yakubu Ent Ltd v. Tarfa & Anor (supra), Zoaka v. Buba & Anor (supra); Mautech v Adamawa State Board of Internal Revenue (supra).
The Respondents herein, on the date fixed for hearing, were not ready to proceed with the matter. They had filed a Notice of Discontinuance. They cannot be allowed to return subsequently for a second bite at the cherry. This is the reason why I am of the firm view that the lower Court ought to have dismissed the Respondents’ suit. As expressed in Nnaemeka-Agu, JSC in Eronini v Iheuko (supra) at page 46 of the E-Report:
“In my view, the rationale of the rule is that once issues have been joined to be tried and the stage set for the conflict, then once a certain stage has been reached the plaintiff is no longer dominis litis and cannot be allowed to escape through the back door to enter again through another action.”
I want to emphasize that, in my considered opinion, the suit did not deserve dismissal because the parties had joined issues. There was a pending application to regularize processes filed by the Appellant, which had not been disposed of, one way or the other, by the trial Judge. It is an elementary and fundamental principle of our administration of justice to hear all applications properly brought before the Court; Nalsa & Team Associates v. NNPC (1991) LPELR-1935(SC) at pages 36-37, Okeke v Uwaechina (2022) LPELR-57291(SC). Further, by Order 2 Rule 7, an applicant, upon being served with the respondent’s written address, may file and serve an address on points of law within 5 days of being served. Therefore, even if the matter were proceeding after the Appellant’s processes had been regularized, the Respondents were still within their rights to respond to the Appellant’s written address. But by the date fixed for hearing, the Respondents had filed a Notice of Discontinuance. In other words, on the hearing date, the Respondents resiled from proving their claims. This was the crux of the matter. In fundamental rights applications, on the date fixed for hearing, the matter is to proceed for hearing, even if solely on the applicant’s affidavit. If the applicant is no longer prepared to proceed, the application will be dismissed.
It is on this premise that I agree that the order of the lower Court ought to have been for the dismissal of the Respondents’ suit, and not for the striking out of the same. The issue for determination is therefore resolved in favour of the Appellant and against the Respondents.

This appeal therefore succeeds. The decision of the lower Court delivered on 14/7/2021 striking out the suit of the Respondents is hereby set aside. In its place, I enter an order dismissing the suit of the Respondents. The costs of N200,000.00 against the Respondents awarded by the lower Court in favour of the Appellant is hereby affirmed.
Parties shall bear their costs.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in advance, the leading judgment delivered by my learned brother, Onyekachi Aja Otisi, JCA. I concur fully with the reasoning and conclusion in it. l too allow the appeal in the manner decreed in the leading judgment. I abide by the consequential orders contained therein.

PETER OYINKENIMIEMI AFFEN, J.C.A.: The opinions expressed on the issues raised in this appeal accord with mine, and I give my concurrence to the leading judgment just delivered by my learned brother, ONYEKACHI AJA OTISI, JCA the draft of which I had the privilege of reading before now. I equally abide by the consequential orders decreed therein.