Elder Rufus Abee & Anor V. Chief Douglas O.N. Awala & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TUNDE OYEBANJI AWOTOYE, JCA (Delivering the leading Judgment)

This is the judgment in respect of the appeal filed by the plaintiffs in the lower court against the Ruling of High Court of Rivers State delivered on 29/9/2004.

The plaintiffs at the lower court had filed a motion on notice on 8/6/2004 praying for leave to discontinue and withdraw the action. The lower court after hearing the parties refused the plaintiffs leave to discontinue and withdraw the suit. The court then dismissed the action.

It is against this ruling that the plaintiffs being aggrieved filed this appeal after the transmission of the record of appeal from the lower court to this court, parties exchanged briefs of argument.

The appellants in their brief of argument deemed filed on 6/10/2009 formulated one issue for determination as follows:-

“1.WHETHER HAVING REGARDS TO THE CIRCUMSTANCES OF THIS CASE LEARNED TRIAL JUDGE WAS WRONG IN THE EXERCISE OF HIS DISCRETION OF MAKING AN ORDER DISMISSING THE SUIT INSTEAD OF STRIKING OUT THE APPELLANTS’ CASE WHEN IN FACT ISSUES HAVE NOT BEEN JOINED.”

Learned counsel for the appellant submitted that it was settled law that where pleadings had not been completed there was no need to seek leave of the court to withdraw the action. He referred to the recent case of EKUNDANO V. KWEREGBE (2008) 4 NWLR (PT. 1077) at 433 -434. He submitted that a court would dismiss a case when it exercised discretion and had weighed all the circumstances of the case in the interest of justice and balancing the interest of the parties involved in the case including the balance of convenience and the disadvantages which might be suffered by any of the parties concerned. Learned counsel submitted that this matter being a land case between two natives in Nigeria the trial judge should have looked at it judicially and simply imposes a condition and struck out the case. He added that the learned trial judge did not exercise his discretion judiciously and urged the Court of Appeal to intervene. Learned counsel contended that before a trial judge dismissed an action in limine he must be very sure that there was no option open to him. He cited NBC I V. MARTNE AND GENERAL INSURANCE COMPANY LTD (1992) NWLR (PT. 221) 71.

He further submitted that the facts in AGHADIUNO V. ONUBOGU (1998) LRCN 3422 were different from the one in this appeal in the sense that the defendants pleaded more than four earlier cases which amounted to res judicata and that it was only when the plaintiffs saw this that they applied to withdraw.

He posited that however in this case there was a defence and counter claim by the defendants and the plaintiffs had not filed any defence to the counter claim before they brought an application to withdraw the suit.

In conclusion learned senior counsel urged the court to allow the appeal and strike out the case instead of dismissing same because the plaintiffs/appellants.

(a) discontinued the case to enable them produce a plan of the land in dispute which would be to the advantage of even the defendants who had the counter claim.

(b) because the trial judge took into consideration matters which were irrelevant to the case.

The Respondents filed the Respondents’ brief of argument on 7-10-2009. Chief Urombo for the Respondents formulated one issue for determination to wit:

Whether taking the entire circumstances of this case into account, the learned trial judge properly exercised his discretion his discretion in this case in dismissing the appellants’ suit.