Abayomi Babatunde V. Pan Atlantic Shipping And Transport Agencies Ltd & Ors (2007)

LAWGLOBAL HUB Lead Judgment Report

T. MUHAMMAD, J.S.C

This appeal has a chequered history. It is one of the old land cases still lingering in the courts. The plaintiff in 1988 took a writ of summons from the Lagos State High Court. Five reliefs were indorsed in the writ. On filing its statement of claim which was later amended some of the reliefs were abandoned and the plaintiff made the following claims against the appellant and the 2nd respondents that: –

(a) The defendants do deliver up the sub-lease registered as 92/92/1823 at the Lagos Lands Registry for cancellation by this Honourable Court.

(b) This Honourable Court do expunge the aforesaid sub-lease from the records and entries of the land registry. ”

In their amended statement of defence, the defendants denied the claim and indorsed a counter-claim against the plaintiff. The counterclaim reads as follows:

“AND the defendant counter-claims:

“(i) A declaration that the defendant is the person entitled to the statutory right of occupancy in respect of all that piece or parcel of land situate, lying and being along Oshodi-Tin-Can Island Express Road. Ibafon, Olodi Apapa, Awori-Ajeromi District, Badagry Division of Lagos State covered by plan No. 1387 “A & B” signed by A. O. Adebogun, Esq., licensed surveyor attached to the deed of lease dated the 20th day of March, 1978 and registered as No. 13 at page 13 in volume 1695 of the Lands Registry in the office at Lagos.

(ii) An order setting aside the deed of lease dated the 28th day of March, 1978 and registered as No. 68 at page 68 in volume 1707 of the register of deeds kept in the Lands Registry at Lagos.

(iii) Perpetual injunction restraining the plaintiff, its servants and/or agents from interfering with the possession and/or use of the land in dispute by the defendant, his servants and/or agent.”

A reply and defence to the counter-claim was filed by the plaintiff. It was also subsequently amended.

The background facts of the case according to plaintiff’s version are that the 1st respondent herein as plaintiff at the Lagos State High Court, sued the appellant and 2nd respondent as 1st and 2nd defendants over a land dispute, on February, 2nd, 1987. Pleadings were closed by the parties but before the commencement of trial, the plaintiff filed an application for summary judgment. The application was moved on the 27th of February, 1989 and dismissed on the same day on the grounds that triable issues were disclosed in the pleadings and the suit was adjourned for trial before Agora, J. Trial opened in the case on 6th of February, 1990 when the 1st plaintiff’s witness testified and tendered some exhibits and the matter was adjourned for his cross-examination. Agoro, J. was then elevated to the Court of Appeal as a result of which proceedings had to recommence de novo before Desalu, J. Before Desalu, J. trial again opened on the 6th day of June, 1991 and the plaintiff’s 1st witness again testified extensively tendering some exhibits. The said witness was cross-examined after which the 2nd defendant amended its statement of defence and the suit adjourned for further hearing. Unfortunately, Desalu, J. took ill from which he never recovered and the case was then re-assigned to Adeyinka, J. Before Adeyinka, J. the plaintiff on the 11th day of April, 1994 moved an application for accelerated hearing dated the 18th of January, 1994, pursuant to which the court set down the suit for hearing on the 9th of June, 1994. Eleven days after the suit was set down for trial i.e. on the 22nd of April, 1994, the plaintiff filed a notice of discontinuance of the suit against all the parties including the 3rd defendant who had been joined by an order of court and had delivered its defence albeit out of time.

In a short ruling delivered on the 2nd day of September, 1994, Adeyinka, J. dismissed the suit against the 1st and 2nd defendants and struck it out against the 3rd defendant on the basis that it had not filed its pleadings. The plaintiff appealed against this ruling to the Court of Appeal. The 3rd defendant also filed a cross-appeal contending that the case against it ought to have been dismissed and not struck out.

The Court of Appeal in its judgment varied the order made by the trial court from one of dismissal of the suit to one of striking it out.

It is against this decision that the 2nd defendant/respondent, but now appellant before this court, appealed on 2 grounds of appeal in his notice of appeal. (Pages 279-281 of the printed record of appeal).

In compliance with the provisions of Order 6 rule 5(1)(a) and (2) of the Supreme Court Rules (as amended in 1999) the parties, with the exception of 2nd respondent, filed and exchanged their respective briefs of argument.

On the hearing date of this appeal, 22nd of January, 2007 Mr. Uwa for the appellant adopted and relied on the appellant’s brief and urged the court to allow the appeal. Mr. Okafor for the 1st respondent adopted 1st respondent’s brief and urged that the appeal be dismissed.

Learned counsel for the appellant formulated one issue which reads:

“Whether the learned Justices of the Court of Appeal were right in holding that the action at the High court ought to have been struck out instead of being dismissed against all the defendants having regard to the stage of the proceedings at the trial Court.”

Learned counsel for the 1st respondent couched his one issue in the following words:

“Whether the learned Justices of the Court of Appeal were right in substituting the order of dismissal made by the High Court with an order of striking out sequel to the discontinuance notice filed by the 1st respondent in its suit against the appellant and the 2nd and 3rd respondents.”

The 3rd respondent’s issue although similar to that of the 1st respondent has slighted differed in the slang. It is reproduced hereunder:-.

“Whether on the facts of this case, the Court of Appeal was right to substitute its discretion for that of the trial court when it elected to strike out the plaintiff’s suit instead of dismissing it.”It is clear from the above three issues, each by the respective parties, that they all aimed at one poser:

Was the court below right in striking out the suit against all the respondents instead of dismissing it having regard to the proceedings at the trial court

Let me have the benefit of a quick hindsight to remind all and sundry that from the facts contained in the printed record of appeal before this court, it is my humble observation from the outset that no effective trial in fact and in law had ever been conducted to its logical conclusion by the different Judges of the High Court of Lagos State that at one time or the other dealt with the suit on appeal. I say so because of the following facts upon which there is concurrence

between the parties:

(a) Hon. Justice I. O. Agoro started the suit on 18th April, 1988. After some preliminaries, the 1st plaintiff’s witness, Alhaji Adekunle Nurudeen Odunsi, testified on Tuesday, the 6th of February, 1990. The case was adjoumed on that day for cross-examination to the 26th of April, 1990. Meanwhile, Agoro, J., was elevated to the Court of Appeal bench and no cross-examination took place on the matter. Thus the trial was truncated at that stage.

(b) On Monday the 8th day of April, 1991, the suit was started a fresh before Hon. Justice A. Desalu. On the 6th of June, 1991, 1st plaintiff witness in the same person of Alhaji Adekunle Nurudeen Odunsi started giving his testimony. Some exhibits were tendered and admitted in evidence. PW1 was cross-examined on the same day. The matter was further adjoumed to 1st of July, 1991 and 8th October, 1991. On the 1st of July, 1991, Desalu, J. granted leave to the 2nd defendant to file an amended statement of defence which was to be filed within 7 days and to be served within 14 days.

The matter was then adjourned to 8th of October, 1991. Desalu, J. was then said to have fallen sick from which he never recovered. Thus, the trial of the suit was truncated again.

(c) On the 11th of April, 1994, Hon. Justice A. F. Adeyinka took over the case. He set down the suit for trial on the 9th of June, 1994 after granting an application for accelerated hearing of the suit.

(d) A notice of discontinuance of the suit against the defendants, dated 20th April, 1994 and filed on the 30th of May, 1994 was taken by Adeyinka, J. and a ruling given on the 22nd of September, 1994 in which the suit was dismissed in respect of 1st and 2nd defendants and struck out in respect of the 3rd defendant. I have set out the facts in a more comprehensive manner as above

for the sake of clarity vis-a-vis the discussion I intend to embark upon on the relevant issues distilled in resolving this appeal. Learned counsel for the appellant submitted that the relevant rule relating to the discontinuance of an action is Order 23 rule (1) of the High Court of Lagos State (Civil Procedure) Rules, 1972 upon which the parties fought the issue, though the ruling of the trial court was given in September, 1994 when the new High Court of Lagos State (Civil Procedure) Rules, 1994 had come into force. Learned counsel went further to submit that the decision whether to strike out or dismiss a suit pursuant to a notice of discontinuance in circumstances which place the discontinuance under the second limb of Order 23 rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 1972 is a matter exclusively for the court in the exercise of its discretion. He cited and relied on the cases of Aghadiuno v. Onubogu (1998) 5 NWLR (Pt. 548) 16 at 30; Omo v. Amantu (1993) 3 NWLR (Pt. 280) 187 at p.196; Nwokedi v. R. T.A. Ltd. (2002) 6 NWLR (Pt. 762) 181, contending that a notice of discontinuance filed when pleadings are closed and issues joined between the parties will result in a dismissal of the suit. Learned counsel argued that pleadings, undoubtedly, in the case at the High Court had closed before the notice of discontinuance was filed. He made reference to the judgment of the Court of Appeal wherein that court held that the 3rd defendant/3rd respondent, joined by order of the court had filed its defence and that the 1st and 2nd defendants had filed their defence to the counter-claim of the 3rd respondent. It was manifest that issues had been joined in the case at the lower court and summons for directions had also been taken and the suit was fixed for hearing on the 6th and 7th of September, 1988. Trial in the suit had opened twice. The court below, he contended, ought to have affirmed the decision of the trial court dismissing the case

against the 1st and 2nd defendants and ought to have substituted an order of dismissal in respect of the case against the 3rd defendant. Learned counsel urged this court to set aside the judgment of the court below and in its place, make an order dismissing the action against all the defendants.

Learned counsel for the 1st respondent cited and relied on order 23 Rule 1 of the Lagos State High Court (Civil Procedure) Rules, 1972 (referred to herein as the Rules). He made his submissions mainly on this provision. He stated that there are two limbs to Order 23 rule 1 of the rules. Firstly, discontinuance can be effected before or after the receipt of defendant’s defence but before taking any other steps in the action (save interlocutory applications). The court, he argued, is empowered to strike out the suit on terms. He stated that discontinuance or withdrawal notice and the subsequent order of court striking out the suit sequel to the discontinuance or withdrawal notice, cannot be used to bar further or subsequent action over the same subject matter. In other words, once an action under this limb is discontinued, it can be religated and, by implication, the defence of estoppel or res judicata cannot be raised against a suit struck out by virtue of a withdrawal or discontinuance notice.

Under the 2nd limb, learned counsel submitted that it is where further proceeding in the action has been taken by way of trial or conclusion of evidence. In this regard, a withdrawal or discontinuance notice cannot be effected without the leave of court and the court is empowered to strike out the suit upon terms. The rule does not provide for an order of dismissal. Learned counsel submitted that it is the first limb of Order 23 rule that applied to this appeal.The appropriate order the trial court ought to have made in the circumstances of the facts of this appeal is one made by the Court of Appeal substituting order of dismissal to that of striking out. The cases cited by the appellant are inapplicable to the facts and circumstances of this case.

The main submission on behalf of the 3rd respondent in the brief filed by its counsel is that having regard to the decision of the Court of Appeal to the effect that the case has reached the stage of litis contestatio, wherein the plaintiff is no longer dominis litis, the lower court was wrong to have substituted its discretion for that of the trial court in reversing the order of dismissal to that of striking out as it is not for the appellate court to substitute its discretion for that of the lower Court because it would have exercised the discretion in another way. He cited and relied on the case of Josiah Cornelius Ltd. v. Ezemva (2002) 16 NWLR (Pt. 793) 298. He contended that the 1st respondent who was the plaintiff did not complain that the lower court exercised its discretion on a wrong principle. His main complaint before the court below was that the trial court misapplied the law based on the undisputed facts before it. The Court below

examined his contention and the prevalent law and agreed with the trial court that the matter was within the 2nd limb of the rule. Learned counsel contended that while the Court of Appeal in the circumstances would be justified in reversing the order of the trial court thereby striking out the matter instead of dismissing same against all the defendants. He cited and relied on the case of Akujinwa v. Nwaonuma (1998) 13 NWLR (Pt. 583) 632 Sc. Learned counsel urged this court to hold that having exercised its discretion to strike out the claim against the 3rd respondent wrongly as found by the court of Appeal, the order made in that exercise ought not to stand.

He further urged us to allow this appeal.

Let me start by observing that this appeal is otherwise a very simple one within the narrow compass of Order 23 rule 1 of the Rules referred to earlier. However, for reasons best appreciated by the parties especially the appellant and the 3rd respondent whose respective counsel, unwittingly, drag this court into studying and analysing their unnecessarily lengthy and verbous briefs of argument. Although it is the duty of every court, including this court, to make use of a brief of argument placed before it by a party in arriving at its opinion, however bad that brief may be, I think common sense should dictate that where the facts of a case and the law applicable to it are very straight forward, clear and unambiguous, counsel should owe it a duty not to confuse the facts and the law applicable in a given case. It certainly serves no purpose for a counsel to waste the court’s precious time and energy by putting up strenuous arguments and submissions on issues that are quite irrelevant to a case. There is no need in this case for the learned counsel for the appellant making arguments on a substantive matter that the trial court did not have ” the benefit of deciding to its logical conclusion with finality. See: Ache Builders Ltd. v. K.S. WB. (1999) 2 NWLR (Pt. 590) 288; Comptroller Nigerian Prison,Services, Ikoyi, Lagos & Ors. v. Dr. F. Adekanye & Ors. (2002) 7 SCNJ 399; (2002) 15 NWLR (Pt. 790) 318.

The main crux of the appeal on hand as contained in the respective briefs of argument of the appellant, the 1st and 3rd respondents is: whether it was right for the trial court to dismiss the suit before it when pleadings were closed and whether the court below could substitute its discretion for that of the trial court. I will treat these two issues seriatim.

At what stage does a court of law strike out an action and under what circumstances Again, at what stage does a Court of law make an order for dismissal of an action before it

It is not long that we saw the antecedents giving rise to this appeal. There was a notice of discontinuance of the suit in its entirety as against the defendants and the party joined. I think it is the right of a plaintiff to discontinue his action if he so chooses as the filing of same does not necessarily imply that the parties have irrevocably committed themselves to resolving their dispute by litigation.

Discontinuance can arise from any of the following factors:

(i) where a plaintiff realizes the weakness of his claim in the light of the defence put up by the defendant.

(ii) where plaintiff’s vital witnesses are not available at the material time and will not be so at any certain future date.

(iii) by abandoning the prosecution of the case, the plaintiff could substantially reduce the high costs that would have otherwise followed after a full-scale but unsuccessful litigation or

(iv) where the plaintiff may possibly retain the right to relitigate the claim at a more auspicious time if necessary.

The procedure for discontinuance or termination of cases/suits is laid down in the various courts rules. In the Supreme Court Rules (as amended in 1999) for instance, Order 8 rules (1)-(4) have made provisions for withdrawal of an appeal by an appellant, with or without the consent of the other parties and the various consequences thereof, of either striking out the suit or dismissal depending on the circumstances. The Court of Appeal Rules, as amended in 2002, Order 3 rr. 18(1)-(5) have made equal provisions as that of the Supreme Court.

In the appeal on hand, it is Order 23 rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 1972, that had been cited and relied upon by both the parties and the two lower courts. This order provides as follows:

“The plaintiff may at any time before receipt of the defendant’s defence, or after the receipt thereof before taking any other proceeding in the action (save any interlocutory application) by notice in writing duly filed discontinue his action against all or any of the defendants or withdraw any part or parts of his alleged cause of and served, wholly complaint, and thereupon he shall pay such defendant’s costs of the action, or if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn. Such costs shall be taxed, and such discontinuance or withdrawal as the case may be, shall not be a defence to any subsequent action. Save as in this Rule otherwise provided, it shall not be competent for the plaintiff to withdraw the record or discontinue the action without leave of the court or a Judge in chambers, but the court or Judge in Chambers may, before, or at or after the hearing or trial, upon such terms as to costs and as to any other action, and otherwise as may be just, order the action to be discontinued, or any part of the alleged cause of complaint to be struck out.

The court or Judge in Chambers may in like manner, and with the like discretion as to terms, upon the application of a defendant, order the whole or any part of his alleged grounds of defence or counter-claim to be withdrawn or struck out, but it shall not be competent to a defendant to withdraw his defence, or any part thereof, without such leave.”

There is a proposition to the interpretation of the above provision by the court below. It is proffered as follows:

“A careful reading of the rules shows that it could conveniently be broken into two limbs for purposes of application in this respect I agree with the appellant.

That is to say, firstly, discontinuance before and after receipt of the defendant’s defence but before taking any other proceeding in the action (save any interlocutory application). And secondly, in any other circumstance the plantiff shall not competently do so, that is to say withdraw without leave of court. Under the 1st limb of the rule it terminates the action in fact and law beyond the point of no recall See: Chief C Obienu & Ors. v.Chief K. O. Orim & Ors. (1972) 2 ECSLR 606. The court ordinarily has to strike out the action and it is no bar to defence to a subsequent action as litis contestatio has not been reached while under the 2nd limb of the rule it (court) in exercise of its discretion has either to strike out or dismiss the action; under both limbs of the rule with costs. In the event of a dismissal it is a bar to relitigation of the matter and thus open to a likely plea of estoppel per res judicata.

I have no reason to jettison the above attempt to interpret the provision of Order 23 rule 1 of the Lagos State High Court (Civil Procedure) Rules as it accords with my own view. If anything, I am only to amplify the circumstances under both limbs. In circumstances where leave of court is not necessarily required as in limb 1, it is my humble deduction from the provision that:

(i) leave of court is not required where the discontinuance is to be effected before the plaintiff is served with the statement of defence.

(ii) Leave is not required for discontinuance even after the plaintiff has received the statement of defence provided that in such a case, the plaintiff discontinues the action before taking any other proceedings in it except any interlocutory application.

In the above two circumstances, for a plaintiff to discontinue he has to duly file in court and serve on the defendant(s) against whom he intends to discontinue or withdraw, as the case may be, a written notice of discontinuance or withdrawal. Once the service has been duly effected, the notice effectively terminates the action subject to the plaintiff’s liability for costs of the defendant’s action up to the date of the discontinuance. But, in a situation where discontinuance is after the receipt of the statement of defences, the plaintiff would not have taken “any other proceeding in the action” other than interlocutory application. This certainly presents its unique problem.

This is because the phrase “before taking any other proceeding in the action,” as used in the Rule, would imply taking any proceeding with the view of continuing the litigation with the defendant and not putting an end to the action. See: Spincer v. Watts (1889) 23 QBD 350 and 353; Mundy v The Butterfly Co. (1932) 2 Ch. 227. Thus, from the point of view of the prevailing law, it follows that for a proceeding taken by the plaintiff after service of the statement of defence on him to prevent him from discontinuing the action without leave of court, the proceeding must be a formal step in the action, required by the rules to be taken by him for the prosecution of the action. If it is that formal, then, he needs leave of court to discontinue.

If it does not, then he can discontinue without leave of the court. The proceeding or step taken must be for prosecution of the action and must be required to be taken by the rules of court. The two conditions should co-exist.

On the other limb of the provision of Order 23 r. (1) of the Rules under consideration, a plaintiff who wants to discontinue an action, should make an application to the court for leave to do so.

He can no longer file a notice of discontinuance, otherwise such a notice is invalid and should be struck out. See: Nwachukwu & Ors. v. Nze & Ors. (1955) 15 WACA 36; Okorodudu & Ors. v. Okoromadu (1977) 3 SC 21. In such a situation the trial Judge has discretion as to whether or not to allow the plaintiff to discontinue or withdraw his claim at that stage of the proceedings and as to whether to dismiss or strike out the claim. The discretion however must, as is always the case, be placed on the judicial and judicious proverbial scale of justice.

The consequences of a striking out order is that when a plaintiff duly discontinues his action without leave, the court should merely strike out the action. See: Soetan v. Total Nigeria Ltd (1972) 1 All NLR (Pt. 1) 1. It all depends on the state of the law. That is, once a litigant withdraws his action in a situation where no leave of Court is required, the trial court has no option but to strike out the suit. This is because a court of law cannot force an unwilling plaintiff to continue with an action. Even if the court insists that he should continue, he may refuse to tender evidence or take any further steps in the action, that same court can do nothing other than to strike out the case or where evidence has been taken to a reasonable level to dismiss the action. See: Eronini v. lheuko (1989) 2 NWLR (Pt. 101) 46. In the appeal on hand it is on record that the plaintiff received the 1st and 2nd defendant’s statements of defence on the 18th of March, 1987 and on the 29th of June, 1990 respectively. It is on record as well that 3rd respondent sought to be joined as co-defendant and leave to file statement of defence and counter-claim against the 1st and 2nd respondents. The said application was granted on June 8th, 1992. On 9th March, 1994 3rd defendant’s application for filing of its defence and counter-claim was granted. On April 11th, 1994, the trial court accelerated the hearing of the suit to June 9th, 1994.

The notice of discontinuance by the plaintiff was filed on 22nd April, 1994; taken on 9th September, 1994; dismissed against the 1st and 2nd defendants and struck out against the 3rd defendant. The reason adduced by the learned trial Judge reads as follows:

“It is now settled that where pleadings have been filed and issues joined the proper order to make is one of dismissal. The 3rd defendant not having filed its statement of defence the proper order to make is one of striking out.”I agree with the trial court and the court below that pleadings as between the plaintiff, 1st and 2nd defendants were completed.

But I do not agree with the trial court as the court below too, did not, that the 3rd defendant did not file its statement of defence. The facts contained in the record of appeal say 3rd defendant filed its defence and counter-claim. It is the finding of the court below that the 3rd defendant/respondent had filed its statement of defence and a counterclaim: the court below stated:-

“However the issue taken in the cross-appeal appears simple and can be reduced to whether the court below is right to have struck out instead of dismissing the suit as against the 3rd respondent on the basis that the 3rd respondent did not file any defence when in fact it filed a defence but out of time. What informed the remark that the 3rd respondent did file a defence is not altogether obvious from the records. All the same, the record of appeal shows that the 3rd respondent filed its statement of defence and counter-claim on 9/1/92 out of time and has contended that the effect in law is that the statement of defence and counter-claim remain valid in law.”

Facts never lie. In its affidavit in support of motion on notice for an order directing departure from the rules and for an order abridging the time for brief filing, the 1st respondent herein, as appellant/ applicant before the court below, averred as follows: –

“8. By application dated September 30th, 1991, the 3rd respondent sought to be joined as co-defendant and leave to file statement of defence and counter-claim against the 1st and 2nd respondents, and the said application was granted on June 8, 1992.

9. The plaintiff filed a notice of discontinuance dated April 22, 1994 seeking to discontinue the suit against all the respondents.
10. The 3rd respondent was yet to file its statement of defence and counter-claim as at the date of filing the notice of discontinuance.
11. By ruling of September 22, 1994, Mr. Justice Adeyinka after taking the notice of discontinuance dismissed the suit in respect of the 1st and 2nd respondent and struck

out the suit in respect of the 3rd respondent.

12. The 3rd respondent had not filed its statement of defence at the time of the said ruling, and trial had not commenced before the said Mr. Justice Adeyinka.”

But in its counter-affidavit the 2nd respondent herein as 1st respondent in the court below, stated as follows:

“17 Meanwhile the second respondent filed his written application to amend his pleadings on June 11, 1991. It was taken and granted on July 1, 1991 when further hearing of the substantive suit was scheduled for Tuesday, October 8, 1991. It is this amended pleadings

of the second respondent that opened the Pandorax box and scared the appellants out of their wits.

18. That date was interrupted when the third respondent brought an application for leave to join as a party to the suit. The application dated September 30, 1991 was scheduled for Monday, October, 4, 1991 but when it was mentioned on October, 1991, the third respondents were not sure of their footing despite my readiness to accommodate them in order to accelerate the disposal of the suit and had to be adjourned successively to November 25,1991, January, 20,1992 when the third respondents were mauled in N100 costs in favour of the 1st respondents, then to May 4, 1992, June 8, 1992 when the application for joinder was granted and the

substantive suit adjourned to October 12, 1992 in order to allow the new entrant to complete their pleadings.

19. On October 12, 1992 the 3rd respondents had still not put their house in order and the suit was further adjourned to November 9, 1992. The 3rd respondents waited till that very morning before filing their pleadings which were clearly out of time and upon my objection to the pretensions of these respondents the court adjourned further proceedings to January, 11,1993 with another N100 costs against the 3rd respondents in favour of the 1st respondent. Thereafter the third respondents filed their application for leave to regularize their pleadings on November 23, 1992.
20. That application was never heard by Desalu, J., the trial Judge for when we reported on January 11, 1993, the Judge never recovered and it became obvious that we had to start de novo before a new trial Judge.
21. I personally made unrecorded numerous efforts to see that the suit was re-assigned as early as practicable to a new Judge and was greatly relieved when the appellants took out an application, first scheduled for Monday, January 1, 1994 was adjourned to March 9, 1994 in order to hear an application on behalf of the 3rd respondents to file their defence and counter-claim out of time. The application was taken and granted on the said date when the substantive suit was adjourned to April 11, 1994 to ensure the close of pleadings when the court would then consider the appellants plea to accelerate the hearing of the suit.
22. On April 11, 1994, the court accelerated the hearing of the suit for June 9, 1994.
23. It was against this background that the appellants surprised the court and every other party to the suit by filing a notice of discontinuance on April 22, 1994 without assigning any reason thereof. This arrested the scheduled accelerated hearing on June 9, 1994 at which the appellants were to have proffered evidence in support of their claims.

The notice of discontinuance could not be considered until resumption of proceedings on June 9, 1994 since the appellants advanced their chicanery by not bringing it as an application but hoping that their tactics would present the court and the respondents with a fait accompli

24. On June 9, 1994 against the objection to the 1st and 2nd respondents that the notice of discontinuance needed complete visitation, it was agreed that the matter be argued for the court’s ruling on Thursday, September 9, 1994. On that day, the court heard counsel on behalf of all parties to the suit and dismissed the claims of the appellants against their plea that their writ be struck out. Thereafter the court adjourned further proceedings between all the parties to the suit for hearing. These proceedings include the counter-claims of the 1st respondents against the appellants. That hearing is now scheduled for March 21, 1995.”

These averments without any doubt show that the 3rd defendant/ respondent filed its statement of defence though out of time. The consequences of the notice of discontinuance that affected the 1st and 2nd defendants/respondents, who were said to have filed their statements of defence within time ought to have equally affected the 3rd defendant/respondent whose statement of defence and counter-claim ought to be deemed as duly filed and served prior to the consideration of the notice of discontinuance. It was an unnecessary hair splitting embarked upon by the trial court in differentiating the consequences of the notice of discontinuance filed against the 1st, 2nd and 3rd respondents. Be that as it may, the court below, corrected the mistake of the trial court by holding that all the 3rd defendants/respondents ought to suffer same fate as each filed its statement of defence. I agree with the court below.

What remains to be said now is on whether the appellant, under the 2nd limb of Order 23 rule 1 of the Rules, had taken any other step(s) in the prosecution of the action. Let me start from the trial court. The learned trial Judge held as follow:-

“It is now settled that where pleadings have been filed and issues joined the proper order to make is one of dismissal. ….there is only one High Court notwithstanding that a case has gone from one Judge to another Judge. The earlier part heard trials are part of the records before this court. It is hereby ordered that:-

1. This suit is hereby dismissed in respect of the 1st and 2nd defendants.”

In its analysis, the court below, observed; –

“The basis for opting for a dismissal against striking out were not given by the court below. And if I may opine it is not as mathematical as that nor right for that matter for the court below to hold that once pleadings have been filed and issues joined as here that ultimately an order of dismissal has to follow as of course i.e. where the plaintiff has sought to discontinue the suit.”

Let me slightly disagree with the court below that the basis for opting for a dismissal order were not given by the trial court. It is very clear from the trial court’s opinion and as found by the court below that the basis for that order as against an order for striking out was that pleadings had been filed and issues joined at least between the plaintiff, the 1st and 2nd defendants. (See pages 35 and 275 of the printed record of appeal which contains the judgments of the trial court and the court below respectively.) But whether the reasons for making the dismissal order by the trial court were given or not is quite immaterial. What is material in view of the 2nd limb of Order 23 rule 1 of the Rules is whether the plaintiff had taken any further step(s) in prosecuting the action which is capable of denying him a second bite on the cherry. Yes! It is true that the 1st respondent as plaintiff received the statements of defence of the defendants and pleadings were closed. But was there any step(s) taken on the action by the plaintiff before Justice Adeyinka

The 1st respondent did open its case and it called one witness before Agoro, J. The same witness was called before Desalu, J. and was even cross-examined. None of these two Judges completed the action before him when each had to surrender to his destined fate. In each occasion, the matter had to start de-novo. I think I need to repeat what I said sometime, on trial de-novo.

I observed as follows:

“The Latin maxim “de novo” connotes a ‘New’, ‘Fresh’, a ‘beginning’, a ‘start’ etc. In the words of the authors of Blacks Law Dictionary, de novo trial or hearing means ‘trying a matter anew, the same as if it had not been heard before and as if no decision had been previously rendered … new hearing or a hearing for the second time, contemplating an entire trial in same manner in which the matter was originally heard and a review of previous hearing. On hearing ‘de novo’ court hears matter as court of original and not appellate jurisdiction …

… that a trial de novo could mean nothing more than a new trial. This further means that the plaintiff is given another chance to relitigate the same matter, or rather, in a more general sense, the parties are at liberty, once more to reframe their case and restructure it as each may deem it appropriate.”

See the case of Biri v. Mairuwa (1996) 8 NWLR (Pt. 467) 425 at page 433 paragraphs A-B and F-G.

This is an auspicious occasion for me to improve on what I said before (quoted above) and I will quote with approval, the dictum of Oputa, JSC in Kajubo v. The State (supra):

“The expressions “anew trial” “trial de novo” “retrial” “fresh hearing” “trial a second time” have been freely used in these judgments.

This suggests that these expressions are interchangeable as they relate to the concept that is the finding out by due examination of witness the truth of a point in issue or a question in controversy whereupon judgment may be given.”

The consequence of a retrial order or a de novo (a VENIRE DE NOVO), is an order that the whole case should be retried or tried anew as if no trial whatsoever has been had in the first instance.

See: Kajubo v. The State (supra). In 1978 this court per Idigbe, JSC; in the case of Fadiora v. Gbadebo (1978) NSCL (Vol. 1) 121; (1978) 3 SC 219 had cause to make the following observation.

“We think that in trials de novo the case must be proved anew or rather re-proved de novo and therefore, the evidence and verdict given are completely inadmissible on the basis that prima facie they have been discarded or got rid of.”

With these in mind, it was wrong of the trial court to say that the earlier part heard trials were part of the records before his court. This is because as seen earlier, the suits started by Agoro and Desalu, J. were truncated and upon transfer to Adeyinka, J. a fresh hearing had commenced. The proceedings and evidence taken before Agoro and Desalu, J. were got rid of and of no legal consequence in the new trial. See: Roe v . Naycor (1918) 87 L.J., K.B. 950. Thus, the proceedings before Agoro and Desalu, J. could not be said to be any step taken by the plaintiff in the prosecution of his action. It is clear from the record that beyond the interlocutory

application filed by the plaintiff to discontinue the action and an earlier application for accelerated hearing no steps of any kind were taken by the plaintiff. The 2nd limb of Order 23 rule 1 of the Rules contemplates of a situation where after the receipt of the defendants’ defence the plaintiff proceeds to take any other proceedings or step in the action, except any interlocutory application, then the plaintiff, of necessity, requires the leave of court to withdraw his action and the court has the discretion to either strike out or dismiss the action before it. That is my humble understanding of the 2nd limb of Order 23 rule 1 of the rules.

I must add that the principle of law for sometime has been settled that withdrawn cases are not usually dismissed by just a mere wave of hand. The trial court must ensure that a point of no-return or litis contestatio has been reached by parties. See: Eronini v. Iheuko (supra). In Nigeria Airways Ltd. v. Lapite (1990) 7 NWLR (Pt. 163) 392, Uwais, JSC (as he then was) made the following observation:

“the power of the court to dismiss a case limine should be exercised with utmost circumspection and not lightly as a matter of course.”

Not much longer thereafter, Tobi, JSC followed suit in the case of Registered Trustees of Ifeloju Friendly Society v. Kuku (1991) 5 NWLR (Pt. 189) 65 at 79, that:-

“it is only when the justice of the case tilts heavily in favour of dismissal of the action in limine that he should tow that cruel and lonesome path, a path that a trial Judge should really dread to tread, unless all other pedestrainable paths, including that of striking out are closed to him …. In our democracy where the rule of law both in its conservative and contemporary constitutional meaning operates, the door of the courts should be left wide open and I mean really wide throughout the deny for aggrieved persons and the generality of litigants to enter and seek any form of judicial redress or remedy. This is a desideratum in our polity.”

It is clear that no evidence was ever taken before Adeyinka, J., and a point of litis contestatio had never been alleged to exist between the parties as at that stage. The learned trial Judge should not have shut the gate with finality against the plaintiff more so when the drafters of that statute (i.e the Rules) made it clear that such discontinuance or withdrawal of the action as the case may be shall not be a defence to any subsequent action. Judge’s duty is to interpret and not to make the law. In the interpretation process, the Judge should be Liberal and give the natural meaning of the statute where the words are clear and unambiguous. After all, a close look at the Lagos State High Court (Civil Procedure) Rules, 1972, Order 23 rule 1 shows that no provision for dismissal was ever contemplated but that of striking out. l resolve appellant’s sole issue in respondents’

favour.

I will now consider the 1st and 3rd respondents identical issues of whether the Court of Appeal was right to substitute its discretion for that of the trial court when it struck out, instead of dismissing the plaintiff’s suit. Below is what the court below held:

“fully aware of the settled principle that an appellate court ought not to disturb an exercise of judicial discretion by the court below as here just for the mere fact that it may not have made the same, I feel strongly that to decline to do so here would lead to a miscarriage of justice. It therefore follows that the justice of this matter would be better served by intervening to vary the order of dismissal made by the court below to one of striking out to obviate an impending miscarriage of justice in this matter”

The authors of the Black’s Law Dictionary, 6th Edition, 1990, define “Judicial and Legal Discretion” as follows-:

“These terms are applied to the discretionary action of a Judge or court, and mean discretion bounded by the rules and principles of law, and not arbitrary, capricious, or unrestrained. It is not the indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by law, or the equitable decision of what is just and proper under the circumstances. It is a legal discretion to be exercised in discerning the course prescribed by law and is not to give effect to the will of the Judge, but to that of the law. The exercise of discretion where there are two alternative provisions of law applicable, under either of which court could proceed. A liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of the law, and exercise of such discretion is reviewable only for an abuse thereof.

Manekas v. Allied Discount Co., 6 Mise 2d 10779, 166 N.Y.S. 2d 366, 369.”

The general law on exercise of judicial discretion is that discretion is always that of the trial court and not of the Appeal Court. Hence, an appeal court cannot substitute its own discretion. However, the appeal court would interfere with the exercise of such discretion in

the most extra ordinary circumstances. The most obvious case is where the exercise of discretion by the trial court tends to do injustice to one of the parties. See: Efetiroroje v. Okpalefe II (1991) 5 NWLR (Pt. 193) 517, per Nnaemeka-Agu, JSC, Royal Exchange Assurance (Nig.) Ltd. v. Aswani iles Ltd. (1992) 3 NWLR (Pt. 227) 1 at page 5; Resident, the lbadan Province & Anor. v. Mamudu Lagunju (1954) WACA 14, 549 at page 552.

Among the reasons given by the court below for interfering with the learned trial Judge’s discretion is what I quoted earlier on. The court below said that it had to intervene to vary the order of dismissal to that of striking out.

“to obviate an impending miscarriage of justice in this matter.”

In substantiating its view on the above quoted phrase, the court below, earlier on observed:

“The court below opted at the end of the day to dismiss this matter. However, having deliberated on the decisions in Eronin v. Iheako (1989) 2 NWLR (Pt. 101) 46, Nigeria Airways Ltd. v. Lapite (1990) 7 NWLR (Pt.163) 392. Registered Trustees Ifelodu Friendly Union v. Kuku (1991) 5 NWLR (Pt.189) 65 and Soekan v. Total (Nig.) Ltd. (supra). I couldn’t agree more that by opting to dismiss the claim, in lumine that the court below has exercised its discretion in a manner leading inexorably to sealing for all time the fate of the appellant in this matter: Whether this has satisfactorily resolved this matter – I have serious reservations. I suppose that some other considerations should have come into the matter. Where a court as here has the option to allow litigants in a matter another chance of having their dispute sorted out on the merits by due exercise of its discretionary power speaking for myself, I take the humble view that a discretionary power of dismissing the matter in lumine (sic) in such a situation ought to be exercised sparingly with the utmost care; indeed as a last resort due regard having been had of the balance of convenience and disadvantages to the parties. See Rodngue’s case (supra). The court is the sole arbiter of the two alternatives which to follow.”

Thus, it is in order to obviate an impending miscarriage of justice that was why the court below had to interfere with the trial court’s exercise of discretion. I think the court below is right in adopting that line of action. An appellate court will certainly interfere with the exercise of discretion by a trial court where it can be shown that the discretion was not exercised judicially and judiciously that is to say if the exercise was mala fide, arbitrary, illegal either by considering extraneous matters or failing to consider material issues. The question to be borne in mind at all times in reviewing the exercise of discretion is whether the exercise accords with the dictates of justice. See: Oyeyemi v. Irewole Local Government (1993) 1 NWLR (Pt. 270) 462 at p. 484 per Ogwuegbu, JSC; Solanke v. Ajibola (1969) 1 NMLR 253; Albert Ilona & George Ugboma v. Olugheli Dei (1971) 1 All NLR 8.

I think in view of the old age of this matter, it is better if the parties shall allow it to prosper to conclusion with finality. It does not do any of the parties any good by allowing this matter rolling between one court to another. I resolve this issue, too, in favour of the respondents.

Finally, this appeal lacks merit and is hereby dismissed. I affirm the judgment of the court below which substituted the order of dismissal to that of striking out of the suit before the trial court against all the respondents. I order each party to bear its own costs in this appeal.

SC.154/2002