Alhaji Yusuf Adisa V. Alhaji Malomo Mohammed (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Leading Judgment)

The appellant was the claimant at the High Court of Kwara State in suit No. KWS/32/2009. He originally proceeded against four defendants. The Respondent by an application filed on 10th March 2010 sought an order of the trial Court to be joined as a defendant in the suit to defend the suit for himself and on behalf of all the members of the Masudo family in a representative capacity.

Annexed to the affidavit were Exhibits A, B, C, D and E. Exhibit ‘C’ purported to be the statement of defence and counter-claim. This motion was granted on 14th April 2010. Thus the Respondent joined as the 5th defendant to the suit on 14th April 2010. The Respondent thereafter filed no other pleadings relating to the suit. The appellant as claimant thereafter withdrew against the 1st to 4th defendants.

On 10th April 2012 the appellant filed an application brought pursuant to Order 31 Rules 1 and 6 praying the trial Court for leave to withdraw and discontinue the suit against the Respondent and an order of the Court striking out the suit against the Respondent. The Respondent joined issues with the appellant and sought a dismissal of the suit. In its ruling of 3rd May, 2012 the trial Court adjudged as follows:-

“In the final result the claimant/Applicant’s application to withdraw suit is granted and the suit is hereby dismissed as against the defendant Alhaji Malomo Mohammed for himself and on behalf of Masudo family.”

Dissatisfied with this ruling the appellant on 21-5-12 filed this appeal setting out four grounds of appeal to wit-

“1. The trial Court erred in law when it dismissed the appellant’s suit fixed for mention on an application to withdraw the suit.

2. The trial court erred in law when it dismissed the Appellant suit for want of diligent prosecution.
3. The trial Court erred in law when it dismissed the Appellant’s suit on the ground that ORDER 31 of the Kwara State High Court (Civil Procedure) Rules 2005 will not avail the Appellant.
4. The trial Court misdirected itself when it held that the filing of Form 23 and 24 of the Kwara State High Court Civil Procedure Rules presuppose that the respondent has filed the statement of defence.”

The appellant filed his brief of argument on 7-12-12. In the said brief at page 4 he distilled two issues for determination to wit-

“1. Whether in the circumstances and fact of this case the trial Court ought not to have struck out the appellant’s case after granting leave to withdraw the suit instead of dismissing it.

2. Whether the filing of Forms 23 and 24 pursuant to Order 33 of the Kwara State High Court Civil Procedure Rules 2005 signified the filing of Statement of Defence in the circumstance of this case.”

The Respondent filed no brief of argument. Strangely enough, when the appellant applied to this Court to argue his appeal on appellant’s brief alone, the Respondent filed a notice of intention not to contest pursuant to Order 7 Rule 8 of the Rules of this Court.

For full appreciation of the issues involved, it is necessary to set out Order 31 of the Kwara State High Court (Civil Procedure) Rules 2005.

Order 31:

1. (1) The claimant may at any time before receipt of the defence or after the receipt thereof, before taking any other proceedings in the action, by notice in writing duly filed and served, wholly discontinue his claim against all or any of the defendants or withdraw any part or parts of his claim. He shall thereupon pay such defendant’s costs of the action, or if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn.

(2) A defendant may:

(a) withdraw his defence or any part of it any time;