ZOAKA v. BUBA & ANOR
(2020)LCN/15836(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Wednesday, November 18, 2020
CA/YL/111/18
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Between
ALI IDRIS ZOAKA APPELANT(S)
And
1. MR. MOHAMMED M. BUBA 2. ALHAJI ABBA BABA GALADIMA RESPONDENT(S)
RATIO:
WHERE APPLICATION FOR DISCONTINUANCE WILL AMOUNT TO DISMISSAL OF THE MATTER
As rightly argued by the learned counsel to the Respondents and earlier stated in this judgment, where pleadings have been exchanged as in this case, issues have been joined and where thereafter, the case is adjourned for hearing, the parties have reached a point/stage of no return, an application thereafter would result in an order of dismissal of the case. See, OGBU vs. NNAMCHI & ANOR (2014) LPELR – 41081 (CA) PP. 15 – 17, PARAGRAPH E, THE YOUNG SHALL GROW MOTORS LTD vs. AMBROSE OKONKWO (2002) (SUPRA). CHIDI NWAOMA UWA, J.C.A.
WHERE APPLICATION FOR DISCONTINUANCE WILL AMOUNT TO DISMISSAL OF THE MATTER
A plaintiff who has reached a point of no return so as to say, where issues have been joined with the Defendant, applies to have the matter discontinued he is entitled to have the matter terminated. At this stage, the application for discontinuance amounts to an admission of defeat, throwing in the towel so as to say. The order that meets the justice of the case is rightly one of dismissal of his action. The rationale for this position of the rule is to enable the disposal of cases where there is no real basis to contest the issues raised. See, EZOMO vs. A.G. BENDEL STATE (1986) 4 NWLR (PT 36) 448, ERONINI vs. IHEUKO (1989) (SUPRA) EDOZIEN vs. EDOZIEN (1993) LPELR – 1020 (SC), RODRIGUES vs. THE PUBLIC TRUSTEE (1977) 4 SC 29. CHIDI NWAOMA UWA, J.C.A.
WHERE A NOTICE OF DISCONTINUANCE WILL AMOUNT TO ABUSE OF COURT OF PROCESS
A striking out order would give an unmerited second chance to the plaintiff to relitigate or file a fresh action where he has seen that he has a bad case as initially instituted, to try again. In the case of OLAWORE vs. OLANREWAJU (SUPRA) this Court held in such a situation of expecting a striking out order where a notice of discontinuance had been filed after the case had been fixed for hearing held thus:
“It is an abuse of judicial process for the plaintiff to file Notice of Discontinuance so that he may have his way in a new suit. In this case, the trial Court was right when it refused to strike out the suit on the Appellant filing a Notice of Discontinuance after finding that the Appellant had in fact filed a fresh action in substitution for the suit.”
See, AGHADIUNO vs. ONUBOGU (1998) (SUPRA). CHIDI NWAOMA UWA, J.C.A.
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The High Court of Justice of Adamawa State, presided over by Abdul-Azeez Waziri, J on the 2nd day of July, 2018 in its Ruling dismissed the Appellant’s suit.
The background facts are that the Appellant as the Plaintiff at the High Court (hereafter referred to as the trial Court) sued the 1st and 2nd Respondents over a dispute arising from a sale of property No. FMW & H/52/YL which was alleged to be owned by the 1st Respondent as a beneficiary of the Owner Occupier Scheme of the Federal Government. By a Writ of Summons dated and filed on the 4th day of April, 2016, the Appellant in the suit that led to this appeal sought from the trial Court the following reliefs:
1. “AN ORDER OF THIS HONOURABLE COURT DECLARING as alive, valid and conclusive the contract of sale of House No. FMW&H/54/YL entered and duly signed by the defendant (as Seller) and the plaintiff (as Buyer) on 11/04/2013.
2. AN ORDER OF THIS HONOURABLE COURT DECLARING any sale or purported sale of house No. FMW&H/54/YL by the Defendant to anyone by whatsoever name called other than the Plaintiff as null and void.
3. AN ORDER OF THIS HONOURABLE COURT for specific performance directing the Defendant to receive from the Plaintiff the sum of ONE MILLION NAIRA (N1,000,000.00) only being the outstanding balance of the TWO MILLION NAIRA (N2,000,000.00) only being the consideration for House No. FMW&H/54/YL sold as per the sale agreement dated the 11/04/2013 and the NINETY THOUSAND NAIRA (N90,000.00) representing 10% of the offer price which he paid.
4. AN ORDER OF THIS HONOURABLE COURT directing the Defendant to pay to the Plaintiff the sum of FIVE MILLION NAIRA (N5,000,000.00) only as general damages.
5. COST OF THIS SUIT assessed at TWO MILLION NAIRA (N2,000,000.00) only.”
Pleadings were exchanged between the parties and the case fixed for hearing but, before the commencement of hearing, on the 2nd day of May, 2018, learned counsel to the Appellant applied to the trial Court to withdraw his appearance for the Appellant. The Appellant was therefore left without legal representation. On the 7th day of May, 2018 the Appellant orally applied to the Court to withdraw the suit against the defendants, the Court advised that a formal application be filed, which was complied with. On the 26th day of June, 2018 a newly engaged counsel by the Appellant appeared in Court and applied to withdraw the earlier application for the withdrawal of the suit filed by the Appellant himself to enable him proceed with the matter having secured the services of a new counsel. The learned counsel to the Respondents in the application opposed the discontinuance of the suit filed by the new counsel. In a Ruling delivered on the 27th day of June, 2018 the trial Court refused the application to withdraw the letter of discontinuance of the Appellant’s suit. Learned counsel to the parties were asked to address the Court as to the appropriate order to make in the circumstance of the Appellant’s earlier application to withdraw the substantive suit against the Respondents. The trial Court in its Ruling dismissed the Appellant’s suit. Aggrieved by the two decisions, the Appellant appealed to this Court.
Two issues were initially formulated by the Appellant for the determination of the appeal but, at the hearing of the appeal, the learned counsel to the appellant F. T. Ikyaan Esq. withdrew his ground one of the notice of appeal and issue one with all the argument in its support, same was struck out; leaving a sole issue thus:
“Whether in the circumstance of this case, the trial judge was right in dismissing the Plaintiff’s (Appellant) case on the ground that the Plaintiff (Appellant) had applied to withdraw Suit No. ADSY/51/2018.”
The Respondents on their part also formulated two issues for the determination of the appeal, the learned counsel to the Respondents J. E. Owe Esq. at the hearing of the appeal following the abandonment/withdrawal of the appellant’s issue one, also abandoned his issue one, and the argument in its support, same was struck out, leaving the following sole issue for the determination of the appeal thus:
“Whether in the circumstances of this case, particularly as the Appellant’s application for discontinuance of the case was filed after and not before the case was adjourned for hearing, the order dismissing the case was the proper order to make by the trial Court”. (Arising from Ground two).
In arguing his sole issue, the learned counsel to the appellant relied on his brief of argument filed on 5/10/18 and his reply brief filed on 19/6/2020, deemed filed on 8/9/2020 as his argument in this appeal in urging us to allow same, set aside the decision of the high Court and remit the case back to the Chief Judge of Adamawa State for assignment and retrial by another High Court of Adamawa State. It was submitted that the proper order to make pursuant to an application by the plaintiff (now Appellant) for the discontinuance of an action against the Respondents is an order striking out and not dismissal, reference was made to Order 40 Rules 1 (1) and (2) of the Adamawa State High Court (Civil Procedure) Rules 2013. In considering the order to make, it was submitted that where there is an application to discontinue a matter, the circumstance of each case must be considered in respect of the stage of the proceedings sought to be discontinued. It was argued that in respect of the above provisions of the Rules of the trial Court, no provision for dismissal was contemplated but, that of striking out and the Court cannot introduce into the rules what is not part of it where the hearing had not commenced. See, BABATUNDE vs. P.A.S & T. A. LTD. (2007) 13 NWLR (PT 1050) 113, 163 – 164, PARAGRAPHS F – F. It was argued that even though pleadings had been filed and exchanged thus, issues joined, the application to discontinue the suit was filed before the commencement of the trial. It was submitted that since the newly engaged counsel of the Appellant was willing to proceed with the matter, it ought not to have been dismissed. See, AGHADIUNO & 2 ORS vs. OMUBOGU (NWANKWO) EKEGBO (1998) 5 NWLR (PT 548) 16 at 30. It was argued that the trial Court acted in great error and the order of dismissal ought not to stand. It was argued that no evidence was called before the trial judge and that the Supreme Court has frowned at the attitude of the Court in the dismissal of actions in limine and the need to exercise restraint before dismissing a discontinued action. See, BABATUNDE vs. P.A.S. & T.A. LTD (SUPRA), PARAGRAPHS E – C, also REGISTERED TRUSTEES OF IFELOJU FRIENDLY SOCIETY vs. KUKU (1991) 5 NWLR (PT 189) 65 at 75 and NIGERIA AIRWAYS LTD vs. LAPITE (1990) 7 NWLR (PT 163) 392.
It was submitted that, it is where the plaintiff had on the merits, failed to prove his case that a verdict of dismissal could be entered. It was argued that, in the present case no evidence had been led before the trial Court, only interlocutory applications had been heard after pleadings were exchanged. We were urged to reverse the order of dismissal and instead strike out the suit, reliance was placed on the case of BABATUNDE vs. P.A.S. & T.A. LTD (SUPRA) at 150,PARAGRAPHS C – E on the basis of injustice done to the appellant.
In response, the learned counsel to the Respondents adopted and relied on his brief of argument filed on 19/11/18 as his argument in this appeal in urging us to dismiss the appeal. In arguing his sole issue, it was agreed that under Order 40 Rule 1 (1) cited by the appellant’s learned counsel, where an application for discontinuance is made before the date fixed for hearing, the proper order to make is one of striking out, this is to enable the party file a fresh action if he so wishes. It was submitted that we should dismiss the appeal because the Appellant’s application to withdraw the suit was filed after the date fixed for hearing and not before. It was argued that the case of BABATUNDE vs. P.A.S.& T.A LTD. (2007) (SUPRA) cited and relied upon by the learned counsel to the appellant was to the effect that for a striking out order, the application must be made before a hearing date is fixed. Further, the issues had been joined by the parties and had reached a stage of no return, pleadings having also been exchanged. See, THE YOUNG SHALL GROW MOTORS LTD vs. AMBROSE OKONKWO (2002) 16 NWLR 536, ERONINI vs. IHEUKO (1989) 2 NWLR (PT 101) 46, RODRIGUES vs. THE PUBLIC TRUSTEE (1977) 4 SC 29, SONEKAN vs. SMITH (1967) 1 ALL NLR 329, OLAWORE vs. OLANREWAJU (1998) 1 NWLR (PT 534) 530 and AGHADIUNO vs. ONUBOGU (1998) 5 NWLR (PT 548) P.15. Reference was made to situations where even a part heard matter could be struck out pursuant to Order 40 Rule 3, where for instance a condition precedent before filing an action has not been met, which is not the case here, reliance was placed on the case of LENAS vs. FURTADU (1997) 5 NWLR (PT 504) P. 219.
The bulk of the appellant’s reply brief was on an alleged incomplete records of appeal which is not part of any issue that has arisen in this appeal. The learned counsel merely adopted the argument in the main brief of argument.
The sole issues formulated for the determination of the appeal by each of the parties are similar, I will utilize that of the appellant in resolution of the sole issue in this appeal which is: Whether the trial Court was right to have dismissed the case which was discontinued after the matter had been adjourned for hearing? While the learned Counsel to the Appellant argued that the case should have been struck out, since hearing had not commenced, even though all the pleadings had been exchanged, the learned Counsel to the Respondents contended that since pleadings had been exchanged and the case fixed for hearing the proper order for the trial Court to make, which it did make was an order of dismissal of the case. From the records of appeal the matter had been adjourned for hearing on 24/1/18 when it was fixed for 7/2/18, page 378 of the records, there were three adjournments for hearing in between. The relevant date now is the adjournment of 13/4/2018, when the case was adjourned to 2/5/2018 for hearing, page 452 of the printed records. The applications for the discontinuance of the suit were filed on 9/5/18 and 25/5/18 respectively, from the records of appeal which is not disputed and at pages 473 – 474, in the Ruling of the trial Court. Order 40 Rule (1) provides for an Order of striking out where an application for discontinuance is made before the date fixed for hearing, which implies that the plaintiff can always come back with a fresh action, if he so wishes. Whereas, Order 40 Rule 1 (2) deals with “any other case”, which would impliedly include applications made after the date fixed for hearing. The case of BABATUNDE vs. P.A.S.T.A LTD (SUPRA) cited and relied upon by the learned counsel for the Appellant in support of his case supports the position taken by the learned counsel to the Respondents to the effect that the order for striking out a suit that has been withdrawn would be in respect of applications made before a hearing date has been fixed.
As rightly argued by the learned counsel to the Respondents and earlier stated in this judgment, where pleadings have been exchanged as in this case, issues have been joined and where thereafter, the case is adjourned for hearing, the parties have reached a point/stage of no return, an application thereafter would result in an order of dismissal of the case. See, OGBU vs. NNAMCHI & ANOR (2014) LPELR – 41081 (CA) PP. 15 – 17, PARAGRAPH E, THE YOUNG SHALL GROW MOTORS LTD vs. AMBROSE OKONKWO (2002) (SUPRA). A plaintiff who has reached a point of no return so as to say, where issues have been joined with the Defendant, applies to have the matter discontinued he is entitled to have the matter terminated. At this stage, the application for discontinuance amounts to an admission of defeat, throwing in the towel so as to say. The order that meets the justice of the case is rightly one of dismissal of his action. The rationale for this position of the rule is to enable the disposal of cases where there is no real basis to contest the issues raised. See, EZOMO vs. A.G. BENDEL STATE (1986) 4 NWLR (PT 36) 448, ERONINI vs. IHEUKO (1989) (SUPRA) EDOZIEN vs. EDOZIEN (1993) LPELR – 1020 (SC), RODRIGUES vs. THE PUBLIC TRUSTEE (1977) 4 SC 29.
In the trial Court’s Ruling, at page 474 of the records of appeal, the Court identified the contention of the parties at hand thus:
“Permit me to point out that both parties here in are not opposed to the application for withdrawal of the suit but their contest has to do with the consequential order to be made by the Court in the light of this application.” (Underlined mine for emphasis)
Further, at page 483 of the printed records, the trial Court held thus:
“In this instant case the plaintiff has applied for withdrawal of his case after the date fixed for hearing of the suit the question then what (sic) order can this Court make is a matter exclusively for it in due and deliberate exercise of its judicial discretion and the Court must inevitably take into consideration all the circumstances of the case.” (Underlined mine for emphasis)
After considering the circumstances of this case, the trial Court concluded and held thus:
“From the surrounded circumstances of this case, I hold that issues have been duly joined between the parties herein and the case had been adjourned severally for hearing. Consequently the proper order to make is an order of dismissal of the plaintiff’s suit. Accordingly Suit No. ADSY/51/2016 is hereby dismissed with a cost of N50,000 each in favour of the Defendants and against the Plaintiff.”
It is the order of dismissal above rather than a striking out that the Appellant is unhappy with. Where a case has been fixed for hearing as in the present one, evidence had not been led but, the Court would examine the pleadings with the surrounding circumstances as rightly held by the trial Court, before arriving at a finding as to whether the Plaintiff is discontinuing or withdrawing the action because it is evident that the action is likely to fail. The reason is that pleadings having been exchanged and the Plaintiff having seen the Defendant’s defence and the case having been set down for hearing, the withdrawal or discontinuance of same in such circumstance as in the present case would only attract a dismissal of the action not a striking out order. The trial Court was right to have held that the proper order in the present circumstance of this case is a dismissal. A striking out order would give an unmerited second chance to the plaintiff to relitigate or file a fresh action where he has seen that he has a bad case as initially instituted, to try again. In the case of OLAWORE vs. OLANREWAJU (SUPRA) this Court held in such a situation of expecting a striking out order where a notice of discontinuance had been filed after the case had been fixed for hearing held thus:
“It is an abuse of judicial process for the plaintiff to file Notice of Discontinuance so that he may have his way in a new suit. In this case, the trial Court was right when it refused to strike out the suit on the Appellant filing a Notice of Discontinuance after finding that the Appellant had in fact filed a fresh action in substitution for the suit.”
See, AGHADIUNO vs. ONUBOGU (1998) (SUPRA). The trial Court made the proper order of dismissal of the action, in the present circumstances of this case, it cannot be faulted. The suit stands dismissed and ceases to exist, it is an important principle of our administration of justice, to put an end to litigation by nipping at the bud the chance of the Appellant filing a fresh action on a determined case at the instance of the same plaintiff that caused the abrupt end.
In the final analysis, the appeal fails and it is hereby dismissed. The ruling of the trial Court dismissing the suit is hereby affirmed.
I award costs of N100,000.00 (One Hundred Thousand Naira) to the Respondents.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just delivered by my learned brother Chidi Nwaoma Uwa JCA.
The Appellant having filed the Notice of discountenance of the action after it had been fixed for hearing, the proper order to be made is an order of dismissal of the suit. The Court below rightly dismissed the action.
For detailed reasons contained in the judgment, I too dismiss the appeal. I affirm the ruling of the Court below.
I abide by all other orders in the judgment including the order as to costs.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.
Appearances:
K. T. IKYAAN, ESQ., with him, N. O. AROME, ESQ. For Appellant(s)
J. E. OWE, ESQ. For Respondent(s)
