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In The Supreme Court of
On Friday, the 7th day of March
2008
Before Their Lordships
S.C.
283/2002
Between
And
Judgement of the Court
Delivered by
Mahmud Mohammed,
JSC
The Appellant in this appeal,
who was the Plaintiff at the Anambra State High
Court of Justice sitting at Nnewi, is the
Traditional Ruler of Ekwulumili in
Nnewi South Local Government Area of
Anambra State.
In December 1994, he planned
to hold a festival called 'Asala' during which
he arranged to confer chieftaincy titles to deserving indigenes of his
domain. The Appellant then sought approval of the State Government for the
exercise which was duly granted. However, few days to the date of the
festival, a letter was delivered to the appellant purporting to have come
from the Government House Awka, cancelling the
festival. The Appellant accused the 2nd Respondent
Ezeani Adolphus
Ibeneme Anyaso, who
was the 2nd Defendant at the trial Court, of masterminding the
plot resulting in the cancellation of the festival and therefore logged a
complaint on the commission of various criminal offences against him to the
Anambra State Commissioner of Police who ordered
investigation into the matter. On the completion of the Police investigation
against the 2nd Respondent, the Police case diary was sent to the
State Director of Public Prosecutions for advice. The opinion of the
Director of Public Prosecutions that no
prima facie case was made up
against the 2nd Respondent was forwarded to the Police.
Aggrieved by this development,
the Appellant applied to the Attorney General of the State who was the 1st
Defendant at the trial Court and 1st Respondent in this Court for
a fiat to initiate private criminal prosecution against the 2nd
Respondent. This request was refused by the 1st Respondent
resulting in the Appellant filing an action by Originating Summons against
the 1st Respondent as Defendant/Respondent principally for the
trial High Court Nnewi to compel the 1st
Respondent to grant fiat to the Appellant to prosecute the 2nd
Respondent for the alleged offences committed by him in aborting the
festival. The 2nd Respondent on becoming aware of the Appellant's
pending action applied at the trial High Court to be joined and was
accordingly joined as 2nd Respondent to the Originating Summons
proceedings on 24th November, 1996 which was set down for hearing
on 27th January, 1997.
Meanwhile the Appellant who
was anxious to have the 2nd Respondent prosecuted initiated
criminal proceedings against him at the Chief Magistrate Court
Nnewi. However, in reaction thereto, a motion on
notice for stay of proceedings in the criminal prosecution was filed by the
learned Counsel to the 2nd Respondent at the
However,
when the motion for committal of the Appellants' and his Counsel came up for
hearing at the trial High Court, the Appellant's counsel raised a number of
objections to the hearing of the motion which were duly heard and dismissed
by the learned trial Judge on 26th March 1998.
The Appellant's appeal to the Court of Appeal Enugu Division against
the dismissal of his preliminary objections by the High Court, was heard and
dismissed on 10th July, 2000, hence the present further and final
appeal by the Appellant to this Court raising the following two issues for
determination from the grounds of appeal filed by him.
The issues are-
"1.
Whether the Court of Appeal was correct in its decision that the
non-service of an Originating process (in this
case
Form 5)
on the 2nd
Respondent was a mere irregularity?
2.
Whether the Court of Appeal was correct in its decision that the
learned trial Judge was correct in refusing a discontinuance of the suit as
sought by the Appellant?"
These two issues were adopted
in the 1st Respondent's brief of argument though with a slight
variation to suit the understanding
of the 1st
Respondent to the issues. No brief of argument was filed for the 2nd
Respondent because he and his learned Counsel have died before the
appeal came up for hearing.
In his argument on the first issue, learned
Counsel to the Appellant cited the case of
Madukolu v. Nkemdelim
(1962) 2 S.C. N.L.R. 341 and Order 3 Rule 10
of the High Court of
Anambra State Civil Procedure Rules 1988 and
submitted that the Respondents who had failed to
fulfil the condition precedent to the exercise of jurisdiction of the trial
High Court in the matter by not complying with the requirements of
Rule 10 of Order 3 of the High Court
Rules in serving Form 5 on the 2nd Respondent, the Court
below was wrong to regard this fundamental non-compliance with the rule, as
a mere irregularity. Learned Counsel maintained that whether a party joining
a suit shall have appeared or not, the issuance and service of Form 5 on
such a person is still mandatory, making it a condition precedent to the
exercise or assumption of jurisdiction over such person by the Court; that
there being no provision for a waiver express or implied in the provision of
Order 3 Rule 10 of the Rules, the
Court below was in error in reading into the Rules exemption clauses which
were not contemplated by the law makers, particularly the issue of
miscarriage of justice. Learned Counsel concluded that where special
statutory provisions are made for filing of a claim, the procedure so laid
down ought to be followed as decided by this Court in
Oseky
Omon v. Ojo (1997) 7
S.C.N.J. 367
at 368.
For the Respondents however,
it was argued that Order 3 Rule 10 of
the Rules of Court were merely to afford the parties whose interest are
manifest in pending suits, opportunity of being heard on joining as parties;
that having regard to the affidavit of the 2nd Respondent to join
the proceedings in the Originating Summons as a party, the 2nd
Respondent was already fully equipped to defend himself without necessarily
waiting for the service of Form 5 on him.
In the judgment of the Court
below now on appeal, the same issue on the complaint regarding the non
service of Form 5 on the 2nd Respondent, was raised and
Fabiyi JCA in the
lead judgment dealt with it at pages 98 - 99 of the record as follows –
"I
should state it here clearly for the avoidance of doubt that where an
extraneous legal personality is joined to an existing suit on the
application of a party thereto or
suo
motu by the Court, service of Form 5 on such
a new party is sine qua non.
In such instance, Form 5 shall be served on him to make him attend
the Court. It is only then that the Court will be imbued with jurisdiction.
On the contrary, as in this case, where the 2nd
Defendant/Respondent applied on his own volition to be joined and he was
joined in his presence, further service of FORM 5 on him will merely
be a formality.
It may amount to an 'over-kill.'
FORM 5 may be served on him. It is an instance where the word 'shall'
can be reasonably interpreted to mean 'may.' It is not in
every
case that the word 'shall' imports
a mandatory meaning into its use. See
Welcome Foundation Ltd. v. Lodeka Pharmacy Ltd.
& Or. (Supra) at pages 207 - 208."
I completely agree with the
Court below on the interpretation and application of the provisions of
Order 3 Rule 10 of the
The second issue for
determination is whether the Court of Appeal was correct in its decision
that the learned trial Judge was correct in refusing a discontinuance of the
suit as sought by the Appellant. It was argued in support of this issue by
the Appellant that following the application filed by the Appellant to
withdraw his action against the Respondents on 12th March, 1997,
the matter was adjourned to 28th May, 1997 for mention on which
date the Respondents told the Court that they were not opposed to the
application to withdraw the action but the trial Court gave no reason for
not terminating the action as sought. Learned Counsel conceded that although
the action was earlier fixed for hearing which supported the requirement of
leave of Court for the withdrawal or discontinuance of the action as held in
the cases of
Akukalia Alfred
Aghadiuno & Ors. v.
Ekegbo Onubogu
(1998) 4 S.C.N.J 8 at 93 and
Nwachukwu
& Ors. v. David Eze &
Ors. (1955) 15 W.A.C.A 36, the situation in the present action which was
later adjourned for mention, is quite different particularly when the
learned Counsel on the other side were not opposing the application of the
Appellant. Learned Counsel therefore urged this Court to allow the appeal on
this issue, as no valid reason was advanced by the Court below for the
refusal by the trial Court to grant the application.
In the 1st
Respondent's brief of argument, learned Counsel stressed that the action
filed by the Appellant was first set down for hearing on 27th
January, 1997, while the Notice of discontinuance was filed by the Appellant
on 7th May, 1997 well after the date set for the hearing of the
case. Counsel referred to Order 22
Rule 4(1) of the High Rules of Anambra State,
1991 and submitted that leave of the trial Court was required to give
effect to the Appellant's notice of discontinuance relying on a number of
cases, such as
Giwa v. John Holt & Co. Ltd. 10
N.L.R. 77; Okoro Audu
v. Okoromadu (1997) 3 S.C. 21;
Nwachukwu v. Eze
(1955) 15 W.A.C.A. 36;
Akukalia Alfed
Aghadiuno & Ors v. Ekegbo
Onubogu (1998) 4 S.C.N.J 8 at 93 and Leonard
Eronini & Ors v. Francis
Iheuko (1989) 2 N.W.L.R. (Pt. 101) 46 at
56.
I may observe at this stage
that the provisions of Order 22 Rule
4(1) of the Anambra State High Court
Rules which are in contention in
the present case are in
pari
materia with the provisions of Order 47 Rule
1 of the High Court Rules of Eastern
Nigeria which came under consideration by this Court in the cases cited
and relied upon by the 1st Respondent in support of his argument
that leave of the trial Court was required before the Appellant's notice of
discontinuance could take effect. In
Nwobu
Nwachukwu & Ors v. David
Eze & Ors.
(1955) 15 (W.A.C.A.) 36
the West African Court of Appeal interpreting , provisions of
Order XLIV Rule 1 of the old
Supreme Court (Civil Procedure) Rules CAP 211 of the
Laws of Nigeria, 1948, had this
to say on notice of discontinuance –
"Leave of the Court is necessary to discontinue a suit on or after the date
fixed for hearing."
The correct interpretation and
application of the rule therefore is that if notice of discontinuance is
filed on or after the date the action was first fixed for hearing, the
learned trial Judge has discretion to grant or refuse the application on
terms as the case may be, Coming back home to one of the decisions of this
Court in
Leonard
Eronini & Ors. v. Francis Iheuko (1989) 2
N.W.L.R. (Pt. 101) 46 at 56,
Obaseki JSC stated
the position of the law on the subject of the interpretation and application
of the provisions of Order 47 Rule 1
of the High Court Rules of
Eastern Nigeria on notice of discontinuance thus –
"It is clear therefore that a
Plaintiff and or a Defendant who counter-claims may withdraw his claim or
counter-claim at any stage of the proceedings before judgment. In some cases
(no leave is required), these are mainly in
circumstances where no date has been fixed for hearing. No leave is
required. However, where the case
has been fixed for hearing, leave to withdraw is required as the Rule gives
power to the Court to allow discontinuance.
Leave may be granted on
terms as to costs and as to any subsequent suit and otherwise as to the
Court may deem just."
See also
Akukalia
Alfred Aghadiuno & Ors.
v. Ekegbo
Onnbogn
(1998) 5 N.W.L.R. (Pt. 548) 16 at 28
- 29.
In the present case therefore,
there is no dispute whatsoever that the Appellant's notice of discontinuance
was filed after the Appellant's action had already been fixed for hearing.
Thus the Appellant not having sought and obtained the leave of the trial
Court to discontinue his action against the Respondents, that action remains
firmly before the trial Court for determination in accordance with the law.
The Court below was therefore right in its decision that the trial Judge was
correct in refusing or ignoring a discontinuance of the suit as sought by
the Appellant in the absence of the required leave under the law.
On the whole, there is no
merit at all in this appeal. The appeal is accordingly hereby dismissed and
the decision of the Court below is affirmed.
There shall be
Judgment Delivered by
Niki
Tobi, JSC
As the real facts of the case
are not of desperate importance, I will not bother to state them. I will
start from the application by the appellant for the withdrawal of the
action. That was on 12th March, 1997- The case of the appellant
is as follows. The learned trial Judge adjourned the application to 7th
May, 1997. Came 7th May, 1997, the respondents filed a
motion on notice seeking an order committing the appellant and his counsel
to prison for contempt of court based on the same suit in which notice of
discontinuance had earlier been filed and served.
The two counsels for the
respondents did not oppose the application for withdrawal but the 2nd
respondent's counsel asked for the dismissal of the main suit commenced by
originating summons. Counsel for the appellant raised a preliminary
objection on the competence of the respondent to file his motion on notice
for committal on the following grounds: (1) The mandatory service of Form 5
pursuant to Order 3 Rule 10 of the
High Court Rules 1988 on the 2nd respondent had not been
effected. (2) No memorandum of appearance had been filed
by the 2nd
respondent. (3) Forms 48 and 49 were not filed nor served.
The objection of counsel for
the appellant was overruled. An appeal to the Court of Appeal was dismissed.
The case of the respondents is
that during the pendency of an originating summons by the appellant to
compel the 1st| respondent to endorse on the private information
submitted to him that he had seen the offence therein set out but declined
to prosecute at the public instance; the 2nd respondent, who was
not originally joined in the suit, applied to be joined. The originating
summons was then set down for hearing on 27th January 1997.
During the pendency of the originating summons, counsel for the appellant
initiated criminal proceedings against the 2nd respondent at the
Chief Magistrate's Court, Nnewi. He also filed a
motion for stay of proceedings to stop the criminal prosecution of the 2nd
respondent at the Chief Magistrate's Court, Nnewi.
That notwithstanding, the appellant through his counsel continued in his bid
to prosecute the 2nd respondent. The 2nd respondent
through his counsel filed an application in the High Court for the committal
of the appellant and his counsel for contempt of court.
Respondents said th3t the
appellant on realizing that the heat was apparently being turned against
him, counsel for the appellant sought to terminate the originating summons
through a notice of discontinuance filed on 7th May, 1997. When
the motion for committal was about to be moved, counsel for the appellant
raised a preliminary objection to the competence of the respondents to
appear in the suit when they have not filed their memoranda of appearance
and all that. The learned trial Judge dismissed the preliminary objection.
An appeal to the Court of Appeal was dismissed.
The case is better presented
by the respondents. This is because the presentation is better vindicated by
the Record than that of the appellant. The appellant tried to paint a good
picture for his case when he said that on 15th May, 1997, the "2nd
respondent filed a motion on notice seeking for an order committing the
appellant and his counsel, B. S. Nwankwo, Esq.
to prison for contempt of court based on the same suit in which notice of
discontinuance had earlier been filed and served." By this statement,
appellant tried to paint a picture of abuse on the part of the respondents.
But that was not the position.
In his Ruling on the objection
in respect of the contempt proceedings, the learned trial Judge,
Ononibe, J. (as he
then was) said at page 61 of the Record:
"Finally, it was contended
that the 2nd Defendant/Applicant did not enter an appearance. The
short answer to that was provided quite aptly by the learned counsel for the
1st Defendant/ Respondent, Mr. Emenike,
who referred to the fact that this suit was commenced by originating summons
and not by Writ of Summons the originating summons says what the party
served with it should do. It says simply that the Defendant is required to
attend the High Court-
‘For the hearing and
determination of the questions contained in the originating summons.’
There is no requirement for
entry of appearance as in the ordinary writ of summons where appropriate and
applicable. The objection of the learned counsel for the
Plaintiff/Respondent cannot therefore be sustained and is hereby overruled."
On appeal, the Court of
Appeal, per Fabiyi, JCA,
said and I will quote him in extenso at
pages 101 and 102 of the Record;
"It appears that the move to
discontinue the action at the stage it was filed was designed to out-smart
and over-reach the 2nd Respondent. I do not want to say that it
was done in bad faith. Since their notice to discontinue was filed after the
first date fixed for hearing, they should not be allowed to escape by the
side door and avoid the contest After all, they are no longer
dominis litis.
To act otherwise will make the two applications filed by the 2nd
Respondent and pending at the lower court become extinct. The application
for stay of proceedings of the Chief Magistrate's Court,
Nnewi will not be taken, thus ' giving the
appellants a lee-way to continue their self imposed criminal prosecution of
the 2nd Respondent As well, the pending contempt proceedings
filed by the 2nd
Respondent against both appellants before the lower court will come
to an abrupt end. That will be unfair. In the prevailing circumstance, the
learned trial Judge has a say as to whether the pending action should be
discontinued on terms or whether to refuse same. Taking the whole gamut of
this matter into consideration, I cannot fault the trial Judge on the
reasonable stance taken by him He exercised his discretion judicially and
judiciously as well."
Litigation is not the
children's game of hide-and-seek. It is not a game of smartness. It is not a
game of artifice or cunning display of a smart conduct designed to overreach
or outsmart the adverse party. On the contrary, litigation is a decent,
open, and not deceitful process of making and defending claims in a court of
law. The art and craft of even the most litigious person does not allow him
to set a trap with a bait to lure the adverse party, as if he is a fish.
That should be left to the fisherman or the keeper of an aquarium; not the
courts.
In this appeal, the appellant
tried his head and his hands on a court process which he could not finish; a
process which finally fell on him and had a reciprocal toil on him. He
received a bomb-shell he thought he did not bargain for. He has nobody to
blame; not the respondents, but himself.
He thought he could bulldoze his way through but it has ended up
against him; the bulldozer lacking the strength, capacity and power to pull
down the case of the respondents. This sounds vague and general and generic.
Let me take the appellant to more specifics. He felt bad that the
chieftaincy lilies ceremony on some sons of the community could not go on.
He decided to fight to finish. When his efforts lo make the Stale prosecute
the 2nd respondent failed, he did it on his own. He found the
originating summons procedure appropriate. He invoked it. To him, the
prosecution of the 2nd respondent was
a do or die affair.
Although the High Court ordered a stay of proceeding of the criminal
action, he moved on. Nothing will, or better should, stop him from achieving
that goal.
The ambition gave him
contempt charge which forced him to withdraw the originating summons. He was
on cross-roads. He realized that late. He ought to have realized that early.
His counsel will take so much of the blame. I will not go further on that.
Let sleeping dogs lie. Let us not wake them because they are likely to bark
and bite. And that will be bad for those concerned.
I think the whole idea of
non-service of originating summons looks to me like a mother termite trying
to build an accommodation for its children or like trying to drain an ocean
of water. That is not the real issue and there is no point counsel labouring
on it. I think the Court of Appeal was perfectly in order in dismissing the
appeal of the appellant. At the time the appellant decided to apply to
withdraw the originating summons, the proceedings in the case were very much
alive. That was the point Fabiyi,
JCA, made at page 101 of the Record.
"Since their notice of
discontinuance was filed after the first date fixed for hearing, they should
not be allowed to escape by the side door and avoid the contest. After all,
they are no longer domints
litis. To act otherwise will make the two
applications filed by the 2nd Respondent and pending at the lower
court become extinct."
I think I can slop hero with
the quotation. I had earlier quoted it in fuller extract. I have repeated it
because I love it. I love it because it is sound I must pause here to make
the point that this case is not authority that this court will not allow a
notice of withdrawal of a case or an appeal by a plaintiff or an appellant
respectively. No. That is not the position. A case filed in court belongs to
a plaintiff and he has the right to withdraw it any time. So too an appeal
as it relates to an appellant. What happened in this case is that there was
clear male
fide on the part of the
appellant and that is the crux of the appeal.
It is for the above reasons
and the fuller reasons given by my learned brother, Mohammed, JSC, that I
too dismiss the appeal. I award
Judgment Delivered by
Sunday Akinola
Akintan,
JSC
This is an appeal from the
judgment of the Court of Appeal, Enugu Division delivered on 10th
July, 2000. The dispute that led to the action started when elaborate
preparations made by the appellant had to be postponed as a result of a
letter purported to have been written by the State Government.
The appellant was the
traditional ruler of Ekwulumili in
Anambra State. He wanted to celebrate in
December, 1994 the "Asala Festival" and during
the celebration; he intended to confer chieftaincy titles on some
illustrious sons of the community. The appellant sought and obtained a
written approval of the State Government. But a few days to the day fixed
for the ceremonies, a letter purported to be from the State Government was
delivered to the appellant. The appellant was informed in the letter that
the earlier approval has been cancelled. The 2nd respondent was
said to have accompanied someone posing as a policeman who came to deliver
the letter to the appellant.
A later investigation revealed
that the letter was fake in that the State
Government never issued such letter.
The appellant suspected the 2nd
respondent as the brain behind the issuance of the fake letter. The matter
was referred to the State police command for investigation. At the end of
the police investigation, the case file was referred to the State Director
of Public Prosecutions (DPP) for advice. The Director of Public
Prosecution's advice was that there was insufficient evidence to support
prosecuting the 2nd respondent. The appellant was not satisfied
with the Director Public Prosecutor's advice. He therefore applied for a
fiat to enable him commence private prosecution proceedings against the 2nd
respondent. This was refused. The appellant's next step was to commence an
action against the State Attorney-General at Nnewi
High Court. He sought from the court an order to compel the State
Attorney-General to grant him the fiat sought.
The 2nd respondent,
on becoming aware of the existence of the suit, applied to be joined as a
party and his request was granted. But while this action at the High Court
was still pending, the appellant commenced the private prosecution of the 2nd
respondent at the
The appellant reacted to the
application for his committal for contempt of court b y applying to
discontinue the action he filed in the High Court and the 2nd
respondent was served with a copy of the notice of discontinuance. However,
when the motion for the committal came up for hearing, the appellant raised
preliminary objections as to the competence of the 2nd respondent
to file the motion for committal on the ground, inter alia, that the
service of form 5 was irregular. The objections were over-ruled and an
appeal against the ruling to the court below was dismissed. The present
appeal is from the judgment of the court below.
Two issues were raised and
canvassed in this court by the appellants. The two issues are:
"1.
Whether the Court of Appeal was correct in its decision that non
service of an originating process on the 2nd respondent was a
mere irregularity; and
2.
Whether the Court of Appeal was correct on its decision that the
learned trial Judge was correct in refusing a discontinuance of the suit as
sought by the appellant."
The two issues raised by the
appellant were comprehensively dealt with in the leading judgment written by
my learned brother, Mahmud Mohammed JSC, the draft of which I have read. I
entirely agree with his reasoning and conclusion that there is totally no
merit in the appeal.
I
will, however, like to
add that the whole exercise by the appellant amounts to a complete waste of
this court's precious time. This is because the 2nd respondent
and his counsel are dead, and as such the outcome would be of no effect. In
conclusion, I hold that the appeal be dismissed with costs as assessed in
the lead judgment.
Judgment Delivered by
Ikechi
Francis Ogbuagu. JSC
With profound humility and the
greatest respect, this is a typical
interlocutory appeal that has
strengthened and supported
my view or advocacy that interlocutory appeals to this Court, should
and ought to be discouraged and in fact, not allowed to continue. I humbly
advocate that unless in very
special circumstances, all interlocutory appeals,
should wait and be filed together with the main and substantive appeal to
this Court. For my stance, see the cases of
Ogigie
& 3 ors. v. Obiyan (1997) 10
SCNJ.1; Okobia v.
Madam Ajanya & ors. (1998) 6
NWLR (Pt.554) 348 (a).
364-365: (1998) 5 SCNJ.95: Dr. M.
C.O. Iweka v. SCOA
(Nig)
Ltd. (2000) 3 SCNJ. 71 (a), 91 —
per Ogundare, JSC
(of blessed memory) and
Elom
Oke & ors.
v. Eze
Nwaogbuinya (2001)
1 SCNJ. 157,
just
to mention but a few. This can be done, without
filing separate appeals.
Speaking for myself, most
times, it is time wasting and most of the time, they are
designed or employed
as delaying tactics or punishment
for the opposing party by some litigants and/or learned
counsel, who know undoubtedly, or ought to know that their case like this
case, is like one standing on a
"quick sand" so to speak. Where however, they are allowed to
continue, the Rules of this
Court, need, with respect, an
urgent review in respect
of costs which will
enable the Court have discretion in
the award of costs which at least, will not be below a certain
reasonable amount.
Afterwards, it is said that it is the duty of the court, whenever
possible, in the interest of justice,
to assist the parties in reducing
the expense of litigation. That the court should try as
much as possible to avoid placing
unnecessary financial burden upon the litigants. See
the case of Giwa-Amu v.
Dipeolu & anor.
(1968) NMLR 59
@, 64.
Now, the case leading to this
interlocutory appeal was taken out by the Appellant by an
Originating Summons, on 9th
April, 1996. (i.e. about (11)
eleven years ago).
The 2nd Respondent and his learned counsel are both dead. The
facts briefly stated, are that, the Plaintiff/Appellant, is the Traditional
Ruler of Ekwulu-Mili Autonomous Community in
When the 2nd
Respondent, became aware of the pending suit on 24lh October,
1996, he applied to be joined and was so joined by the order of the High
Court and the matter was adjourned to 27th January, 1997 for
hearing which did not take place as the Court did not sit. During the
pendency of the said suit, the Appellant through his said learned counsel
Nwankwo, Esqr,
initiated the said Criminal Proceedings against the 2nd
Respondent at the Chief Magistrate's Court. Nnewi
- Learned counsel for the 2nd Respondent, late Chief
Tagbo Nwogu on 15th
May, 1997, filed an application in the trial court, for an Order for stay of
proceedings and to stop, the said criminal prosecution of the 2nd
Respondent at the Chief Magistrate's Court. But the Appellant and his said
counsel will not relent and continued the prosecution and therefore. Chief
Nwogu,
filed an application in the trial court,
for the committal of
the Appellant and his learned counsel
for contempt of court.
For the reason that appears in
the Appellant's Brief, on 12th March., 1997 the Appellant's
learned counsel applied to the trial court, to withdraw the suit. That court
adjourned the matter to 28th May. 1997 for
mention, I note that
on the 7th May, 1997, the Appellant filed a formal Notice of
Discontinuance of the said Suit and served the Respondents.
When the motion for the said
committal came up for hearing, the Appellant's learned counsel, raised
preliminary objections which included the competence of the 2nd
Respondent to file Motion on Notice for Committal on the grounds inter alia,
that the service of Form 5 pursuant to
Order 3 Rule 10 High Court Rules 1988
on the 2nd
Respondent had not been effected and that no memorandum of appearance, had
been filed by the 2nd Respondent.
After hearing arguments, the learned trail Judge, reserved Ruling to
the 28th May, 1997 when the said Objections were over-ruled.
The Appellant was dissatisfied
with the said Ruling and appealed to the court below, which on the 10th
July, 2000, dismissed the said appeal and affirmed the said Ruling of the
learned trial Judge. The Appellant still dissatisfied with the decision of
the court below, has now appealed to this Court.
The Appellant has formulated
two (2) issues for determination, namely,
“1.
Whether the Court of Appeal
was correct in is decision that non-service of an originating process (in
this case form 5) on the 2nd Respondent was a mere irregularity?
2.
Whether the Court of Appeal
was correct on its decision that the learned trial Judge was correct in
refusing a discontinuance of the Suit as sought by the Appellant? ”
On the part of the
Respondents, two (2) issues were formulated for determination -which in
substance, are the same/similar although differently couched in their
respective Briefs. They read as follows:
"(i)
Whether the Court of Appeal
was right in its decision that non-service of the originating process (FORM
5) on the 2nd respondent who applied on his own volition to be
joined and was joined in the suit in his presence, was a mere irregularity?
(ii)
Whether the Court of Appeal
was right in holding that the Trial Judge was correct in refusing a
discontinuance of the suit which had earlier been set down for hearing".
On 10th December,
2007, when this appeal came up for hearing, learned counsel for the parties,
adopted their respective Briefs. While Alaci,
Esq - learned counsel for the Appellant, urged
the Court, to allow the appeal, Emenike,
Esq -learned counsel for the Respondents
appearing with Mrs. N.J. Nwankwo, urged the
Court to dismiss the appeal and affirm the Judgment of the Court of Appeal.
He had earlier informed the Court that the learned counsel for the 2nd
Respondent -Chief Tagbo
Nwogu, had died a long time ago.
Thereafter, Judgment was
received till to-day.
Issue 1 of the Parties
I note that the Court of
Appeal, Enugu Division (hereinafter called "the court below") in its said
unanimous Judgment delivered on 10th July, 2000 per
Fabiyi, JCA, who
read the lead judgment, stated at page 98 of the Records, inter alia, as
follows:
"It
is extant on page 34 of the record of appeal that the 2" Respondent herein
was joined as the 2nd defendant by the trial court on 24-10-96.
There is no rigmarole or contention over this point.
It is on record that on the day the 2nd defendant was
joined as a defendant, he was present in court and represented by Chief
Nwogu, of counsel.
Yet, there is the fuss heavily generated by the appellants over the
non-service of FORM 5 on
him. Service of the form on a defendant is to ensure that he is present in
court to enable him partake in the proceedings leading to judgment in the
suit.
In this case, service of FORM 5 on the 2nd Respondent
enures to his benefit. It is for his protection.
Since he is already aware of the pendency of the suit and on his own
admission on oath obtained a certified true copy of the originating summons,
I cannot surmise what further benefit the 2nd
Defendant/Respondent will derive from the further service on him of FORM 5.
Such will be a mere formality leading to what I must term - a
surplusage. Failure to serve FORM5 on the
2"
defendant/Respondent, in the
circumstance depicted above, is, in my considered view, a mere irregularity
which did not occasion any miscarriage of justice to the appellants or any
of the parties. It is the 2nd defendant/Respondent who should
complain about any infraction of his rights in the matter.
But he has not complained.
The appellant's counsel cannot hold brief for him even if such is
done via the back door, as it were".
I agree and this is also
because, I note that at page 54 of the Records, the learned counsel for the
Appellant submitted inter alia, as follows:
"......... The purpose of
Order 3 Rule 10 is
misconceived.
I ask court to hold that the provision for court to issue
notice as in Form 5 is mandatory and not directing (sic)".
The learned trial Judge at
pages 59 to 61 of the Records, thoroughly in my respectful view, dealt with
the issue. He stated at page 60 thereof inter alia, as follows:
"What does FORM 5 mean?
It means simply a notice to the
party joined that he or she has
been joined as a
party............... A party
who applied to be joined and obtained the Order
requires no further notice that he
has been joined nor does he require to be served with the Court order
joining him as he has already obtained such an order".
His Lordship expatiated and
referred to some paragraphs in the affidavit of the 2nd
Respondent in support of his application to be joined in the suit and stated
inter alia, as follows:
"It
can be seen therefore that the 2nd
Defendant/Applicant obtained a certified copy of the Originating Summons
which is the originating process by which this suit was commenced.......
What then will be gained by serving him Form 5 whose main purpose is to
inform the person joined together with the authority for the
joinder and then the court processes already
filed by the opponent, The 2nd Defendant/Applicant was already in
possession of all these".
My
answer to
the issue,
therefore,
is rendered by
me in
the Affirmative/Positive.
Issue 2 of the Parties
In my respectful view, this
issue deals with the discretion of a trial court, to agree or refuse an
application to discontinue a
suit. In short, each case depends on its/the circumstances. A case may
appear similar, but two or more cases, cannot be identical. The parties, in
their respective Briefs, have cited and relied on some decided authorities.
In the Appellant's Brief the cases of
Aghadiuno & ors. v.
Onubogu which he erroneously cited as
(1989) 2 NWLR (Pt.101)46 (it is reported in
(1998) 5 NWLR (Pt.548) 16 @ 2S-29 and
rightly cited in the Respondent's Brief as also reported in (1998) 4
SCNJ. 81) and Nwachukwu & ors. v.
Eze (1955) 75
WACA 36 were cited and relied on. (1989) 2 NWLR
(Pt.101) 46 is in respect of the case of-Eronini
v. Iheuko (infra). The Respondent, in its
Brief, cited and relied on the cases of Eronini
v.Iheuko (1989)2 NWLR
(Pt.101) 46, (it is also reported in
(1989)2
SCNJ. 130); Giwa v. John Holt & Co. Ltd. 10 NLR
77: Okorodu v. Okoromadu
(1977) 3 S.C. 27; Aghadiuno
v. Onubogu and
Nwachukwu v. Eze (supra). This
again, brings to the fore, the need of learned counsel, to cross-check the
citations of any case they cite and rely on in their Briefs.
In my concurring Judgment
in the case of
Abayomi
Babatunde v. Pan Atlantic Shipping and Transport
Agencies Ltd. & 2 ors. (2007)
12 NWLR (Pt.1050) 113
@ 157-166: (2007)
4 SCNJ. 140 @
172-180: (2007) 4 S.C. (Pt.1)
71 @113-125; (2007)
All FWLR (Pt.372) 1721 @
1758-1768 and
(2007) 9 SCM 1 @,
32-40.
I dealt with the
issue of discontinuance perhaps, at some length. I dealt with the right of a
plaintiff to discontinue his action and the duty of the court, where he
exercises that right and stated, inter alia, as follows:
".......
A party comes to court for an
alleged wrong done to him or he seeks a declaration in respect of certain
rights but the moment he decides to exercise his unfettered right not to
pursue his action, what is left for the court is the order to be made as it
is outside the court's jurisdiction to force a party to continue an action
filed by him. There is clearly a difference between the right to withdraw an
action filed by a party and a consequential order to be made following the
withdrawal''.
I referred to the case
of Prof.
Edozien & 4 ors. v.
Chief (Engr).
Edozien (1993) 1
NWLR (Pt.272) 678; (1993) 1 SCNJ.
166
@
179.
and had this to say, inter alia;
"…......
From some of the Rules of some State High Courts, I note that
from the
first date that a
case is fixed for hearing and
beyond, leave to discontinue the suit is no longer automatic. This is
because it seems to me, at that stage the plaintiff is no longer
"dominus
litis". Even at that
stage, it is for the trial court to
decide whether or not the action should be discontinued and upon what terms.
In effect, a trial court can disallow discontinuance and ask the
plaintiff to proceed with his case ......."
I note that Order 22 Rule 4
(1) of the High Court Rules of Anambra State,
1991 which is applicable to the instant case, is in
pari materia
with Order 47 (1) of the former High Court Rules of Eastern
Nigeria. In the case of Eronini
& 3 ors. v. Iheuko
(supra) which I also referred to in my said Judgment (and where this
Court considered the said Order 47 Rule (1), and I stated inter alia, as
follows:
"............
It was held that a
plaintiff may withdraw his claim at any stage of the proceedings before
judgment without leave of court
where no date has been fixed for hearing and that discontinuance, is
no defence to any subsequent suit. That
where a case has been fixed for
hearing, leave of court to withdraw is required........."
From the Records, the
Appellant's Notice of Discontinuance was filed
after his said suit had been fixed
for hearing. The above case, is binding on this Court and it
disposes this appeal in favour of the Respondent.
The instant case, also
involves the exercise of discretion by the trial court. An Appellate Court
is reluctant to interfere especially, where it is not shown by the Appellant
as in the instant case, that the exercise by the trial court or even by the
court below, occasioned to him, a miscarriage of justice or that it was not
according to common sense. See the cases of
Odusote
v. Odusote (1971)
1All
NLR 219
cited in the case of
Achaka
Cattle Ranch Ltd, v. Nigerian Agricultural & Co-operative Bank Ltd. (1998) 3
SCNJ. 54 (a) 72 -
per Iguh,
JSC
and
Artra
Industries Nig, Ltd, v.
The Niserian Bank for
Commerce & Industry (1998) 4 NWLR (Pt.546)
357; (1998) 3 SCNJ,
97. -
per Onu,
JSC where it was also stated that the essence of
discretion, will be defeated, if that essence of
option of Pick and choose,
is absent. For the definition
of discretion, see
Black's Law Dictionary, 5th Edition at page 419 and the case
of
Doherty v. Doherty (1964)
NMLR
144; (1964) 1 All NLR
299.
1 note also, that there are
concurrent judgments of the two lower courts and in the circumstance, this
Court cannot interfere.
It is from the foregoing and
the reasons and conclusions contained in the lead Judgment of my learned
brother, Mohammed, JSC which I am in agreement with, that I too, find no
merit in this appeal. I too, dismiss the same and affirm the said Judgment
of the court below. I also abide by the consequential order in respect of
costs although if the Rules of this Court had allowed or permitted me, the
Appellant and particularly, his learned counsel for his unnecessary fuss
(also noted by the court
below) in this matter
up to this Court, should have paid heavier costs.
Judgment Delivered by
Francis Fedode Tabai.
JSC
I was privilege to read in
draft the lead judgment of my learned brother Mohammed JSC and I entirely
agree with the reasoning and conclusion that the appeal lacks merit. I also
dismiss the appeal. I also award costs of
Counsel
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