Unique Phamaceutical Ltd & Anor V. Sidney Rotimi Sawyer & Anor (2007)

LawGlobal-Hub Lead Judgment Report

M. D. MUHAMMAD, J.C.A.

The Respondents in this appeal commenced suit no. FHC/AB/CS/1/96 at the Federal High Court Abeokuta, Ogun State against the Appellants. The former’s claim against the latter was for the sum of N287,034,188:00k damages and N82,613,133:00k interest for an alleged breach of contract relating to product Labels.

At the conclusion of pleadings, Appellants by a motion on notice challenged the jurisdiction of the court to hear Respondents’ suit. Before the objection was heard, Respondents sought and obtained leave of the court to amend particulars of their statement of claim. Appellants herein appealed against the lower court’s ruling granting Respondents leave to amend their claim. Appellants also had proceedings in the suit stayed by the trial court.

On 7th March 1997 the Respondents filed and served Appellants a notice of discontinuance of their action. The notice of discontinuance is dated 5th March 1997. Appellants thereupon by a motion dated 30th June 1997 prayed the trial court to strike out Respondents’ action and award the Appellants N150,000.00 costs of the action. A Three paragraph affidavit supported Appellants application. Paragraphs 2 and 3 of the supporting affidavit are hereunder reproduced for their relevance:-

“2. After the last adjourned date, the plaintiffs filed a Notice of Discontinuance of this action but failed to serve the defendants with a copy thereof; a copy of the said Notice is herewith attached and marked Exhibit “A”.

3. I am informed by Mr. Fashanu, of Counsel, and I verily believe, that:

(i) the defendants have made over twelve appearances in this action after being dragged to court by the plaintiffs;

(ii) on each occasion, trips had to be made from Lagos where the defendants and their counsel are based to Abeokuta costing the defendants, at least N12,000.00k on each occasion in transportation and hotel costs as the Counsel had to travel to Abeokuta the previous day to each court sitting to ensure prompt attendance in court the next day and had to stay in an hotel overnight;

(iii) it is necessary to have the action formally struck-out so that the defendants can discontinue their pending interlocutory appeal at the Court of Appeal, Ibadan;

(iv) the defendants have incurred other costs in this action including filing of process herein and arranging for the hearing of their interlocutory appeal.” (Underlining supplied for emphasis)

It is rewarding to particularly restate that Respondents’ notice of discontinuance was filed during the pendency of Appellants appeal against the lower court’s ruling granting the Respondents leave to amend their statement of claim. Appellants objection to the court’s exercise of jurisdiction into Respondents action also abided in the proceedings the lower court had stayed on 20/2/97 following Appellants prayer to that effect pending the determination of the appeal against court’s ruling granting leave to the Respondents to amend their statement of claim.

On 20th January 1998, Respondents notice of discontinuance as well as Appellants application asking that Respondents suit be struck out and for N150.000:00k cost of the action came before the lower court. Both sides were represented by Counsel on that date. The court’s proceedings that day was brief and the court’s terse regarding what occurred reads:-

“Having read the Notice of Discontinuance from the Plaintiff and the motion of the defence asking for the striking out the suit, and asking for N150,000.00k cost against the Plaintiff.

This Court hereby Orders that the suit be struck out. There is no Order as to costs.