Anireju Ekudano & Anor V. Sunday Keregbe & Ors (2008) LLJR-SC

Anireju Ekudano & Anor V. Sunday Keregbe & Ors (2008)

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The appellants were the plaintiffs in this case which was filed at the Warri Area Customary Court while the respondents were the defendants. The plaintiffs’ claim before the court as amended was: (1) for N2000 damages for trespass committed by the 1st defendant when he entered the plaintiffs’ bush between August and September, 1992 at Uba Majebi Ogbosanine in Warri Local Government Area where he fell timber trees without the consent and authority of the plaintiffs; (2) Declaration that the plaintiffs were entitled to the customary right of the land in dispute; and (3) Forfeiture of the customary tenancy granted to the defendants in all the fishing camps situated in the plaintiffs land.

At the trial which commenced in the court, the 1st plaintiff and two other witnesses had given evidence and they were duly cross-examined by learned counsel for the defence. Thereafter the case had to be adjourned on a number of times at the instance of learned counsel for the plaintiffs. This was followed by the appearance of new counsel for the plaintiffs who again requested for a further adjournment to enable him study the case as he claimed that he was recently briefed. His request was granted. But at the resumed hearing, the new counsel applied to the court to discontinue the case on the ground that the court lacked jurisdiction to entertain the claim before the court. The court took submissions on the application and adjourned its ruling.

In its reserved ruling, the court overruled the objection to its jurisdiction and went ahead to dismiss the plaintiffs’ claim. The plaintiffs were dissatisfied with the order dismissing the case. An appeal was therefore filed against that decision to the Warri High Court sitting in its appellate capacity. The appeal was dismissed. A further appeal to the Court of Appeal, Benin Division was also dismissed. The present appeal is from the decision of the Court of Appeal.

The parties filed their brief of argument in this court. The appellant formulated the following three issues as arising for determination in the appeal:

“1 Did the learned Justice of the Court of Appeal err in upholding the decision of the Warri Area Customary Court dismissing the plaintiff’s suit, after it ruled that it had jurisdiction to entertain it, without first calling on the plaintiffs to proceed with their case

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2 Were the plaintiffs not denied the right of fair hearing when the Court of Appeal upheld the decision of the court of first instance not to call on the plaintiffs to proceed with their case after it ruled that it had jurisdiction

3 Did the learned Justice of the Court of Appeal err in upholding the decision of the Warri Area Customary Court that it had jurisdiction to entertain plaintiffs suit”

Three similar issues were also formulated in the respondent’s brief. I therefore consider it unnecessary to reproduce them.

It is the contention of the appellants, as canvassed in the appellants’ brief, that the lower court was wrong in dismissing the claim without first calling on the plaintiffs (now appellants) to proceed with their claim after over ruling the objection to the court’s jurisdiction. This is their main complaint. It is submitted that the action of the trial court in dismissing the plaintiffs’ claim after overruling the submissions made on the court’s lack of jurisdiction to entertain the suit was premature. It is argued that the correct procedure is that if the court refuses the application, the trial Judge is expected to call on the plaintiffs to proceed with the case. It is where the plaintiffs refuse to proceed that the Judge will consider the evidence led so far and then decide either to strike out the suit on conditions given or dismiss same. The decision of this court in Olayinka Rodrigues v. The Public Trustees & Ors. (1977) 4 SC 29 is cited in support of this submission.

It is submitted in reply in the respondents’ brief that whether issue of jurisdiction could be raised at any stage does not arise in the appeal. That what happened was that the appellants had made up their mind to withdraw their claim and as such the court could not compel them to go on with the case which they had instituted in a court of their choice. Calling on the appellants to proceed with their case after the ruling that the court had jurisdiction to entertain the claim therefore could not arise. It is further submitted that it was obvious to the judicial minds of the Area Court Judges that the implication to withdraw was not made bona fide but merely an attempt to fight and run away in order to fight another day, thus having a second bite at the cherry. The decision of the trial court to dismiss the appellants’ claim before the court is therefore said to be quite appropriate. Similarly, both the Warri High Court and the lower court acted within the law by affirming the stand taken by the trial court. A number of decisions of this court are cited in support of this submission.

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The appellants’ grievance in this appeal is in respect of the trial court’s order dismissing the case instead of making an order striking out the case. The law is settled that the principle underlying the requirement for leave to discontinue a suit is that after proceedings have reached a certain stage, the plaintiff who had brought his adversary into court, should not be allowed to escape by the side door and avoid the contest. At that stage, he is to be no longer dominus litis and it is for the trial Judge to say whether the action should be discontinued and upon what terms. It follows, therefore that a plaintiff may, without the leave of court, discontinue a suit against all or any of the defendants or withdraw any part of his claim before the date fixed for hearing. In such a situation the notice of withdrawal automatically terminates the proceedings and a formal order striking out the suit may be made by the court. See Soetan v. Total Nig Ltd. (1972) 1 ALL NLR (Pt. 1) 1; Izieme v. Ndokwu (1976) NMLR 280; Aghadiuno v. Onubogu (1998) 5 NWLR (Pt. 548) 16.

But where the request for discontinuance is made after the date fixed for the hearing of the suit, the plaintiff may discontinue only with the leave of the court and subject to conditions that may be imposed by the court. In granting the request, the trial Judge may order that the case be struck out or make an order for outright dismissal of the suit. Whichever order the court makes will depend on all the circumstances of the case and an appellate court will not ordinarily tamper with the trial court’s exercise of such judicial discretion. See Nigerian Properties Co. Ltd. v. Alegbeleye 19 NLR 101; Giwa v. John Holt Co. Ltd. (1930) 10 nlr 77; Eronini v. Ihuko (1989) 2 NWLR (Pt 101) 46; Ajayi v. Odunsi (1959) SCNLR 496; Rodrigues v. Public Trustee (1977) 4 SC 29; and Aghadiuno v. Onubogu, (supra).

The facts of the present case, as already set out above, are that the appellants, as plaintiffs filed their claim in the Area Customary Court. The trial started and in fact three witnesses, including the first plaintiff, had given evidence and were duly cross-examined. It is also on record that some of the vital documents the plaintiffs relied on in proving their claim were rejected when they tried to tender them. Thereafter their enthusiasm to prosecute or continue with their claim diminished. They started to ask for adjournment which culminated in procuring another Counsel to appear for them. Eventually, their newly introduced Counsel applied to discontinue the suit on the ground that the court lacked jurisdiction to entertain the claim. The court, in a reserved ruling, over ruled the objection to jurisdiction and then dismissed the claim.

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The order dismissing the claim was quite within the discretionary power of the court and comes within the powers of the court as I have declared above. In the result, the appeals filed by the appellants to the two lower courts were properly dismissed. I also hold that this appeal lacks any merit and I accordingly dismiss it. I also hold that the issue whether the appellants right to fair hearing was breached, raised as an issue, does not arise and the appeal as it relates to that issue also fails. In conclusion, I dismiss the entire appeal with N10,000 costs ill favour of the respondent.


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