Eternal Trust Savings & Loans Ltd V. Professor Tekena Nitonye Tamuno & Ors. (2000)

LawGlobal-Hub Lead Judgment Report

OGUNTADE, J.C.A. 

On 28th July, 1998 the appellant filed in this appeal a notice of withdrawal of the appeal against all the respondents thereto pursuant to Order 3 rule 18(1) of the Court of Appeal Rules 1981 and under the inherent jurisdiction of the court.

By the present application, the appellant seeks, as it were, to undo that which it did by the notice of withdrawal of the appeal filed on 28th July, 1998. The appellant prays for:

“An order of this Honourable Court granting leave to the applicant herein to withdraw the application for discontinuance dated 24-7 -98”.

Under the above prayer, the applicant sets out the grounds for bringing the applications thus:

“Take notice that the ground upon which this prayer is made is that the former counsel handling this matter filed the said application without the authority and consent of the principal partner of the firm.Take further notice that the ground upon which the application is also made is that the said application was filed due to the inadvertence/error of judgment of counsel handling the matter”.

A counsel Vivian Ogholoh deposed to an affidavit in support of the application. Paragraphs 3 to 10 of the affidavit read:

“3. That this is an application to withdraw the notice of discontinuance dated the 24/7/98.

4. That on the 10/5/98, which was the last adjourned date of this matter, I craved the indulgence of this Honourable Court for the leave to move the application dated 18/6/98.
5. That the court rightly noted that an application to withdraw the appeal dated 24/7/98 had been filed and asked for my response in respect of the said application.
6. That I believe that the former counsel handling the matter did not intend to discontinue the appeal pending in court by the filing of the application to withdraw the appeal dated 24/7/98 but filed the notice of discontinuance to withdraw the application for extension of time dated 18/6/98 on account of his failure to exhibit the ruling of the court below.
7. That I was duly informed by A. Atanda, principal partner in chambers and I verily believe him that, the counsel who filed the said application to withdraw the appeal did not obtain his consent or authority neither did he obtain the consent or authority of the appellant before the said application.
8. That I was further informed by the principal partner and I believe him that there was a competent application for extension of time to appeal before this Honourable Court dated 18/6/98 with appeal No.CA/L/223M/98 and an application for stay of proceedings also dated the 18/6/98.
9. That if this application is not granted and the notice of withdrawal of the appeal dated 24/7/99 is not struck out, the appellant will be greatly prejudiced and his constitutional right of appeal will be eroded.
10. That the respondent will not be prejudiced by the grant of this application but that the appeal will be determined on its merits”.

The application came before us on 25/11/99 when it was argued by Miss. Anne Aimua of counsel for the applicants. Counsel said that the notice of discontinuance filed on 28/7/98 was erroneously filed. Counsel referred to Iyalabani v. Bank of Baroda (1995) 4 NWLR (Pt.387) 20. She said that the inadvertence or error of counsel should not be visited on the litigant. Sale v. Yahaya (1995) 3 NWLR (pt. 382) 24 at 146. She urged us to grant the application.

Mr. Dayo Adekola of counsel for the respondent referred to Order 3 rule 18 of the Court of Appeal rules. He submitted that once a party withdraws an appeal, he could neither reverse nor undo the withdrawal. Counsel referred to Ezomo v. A.G. of Bendel State (1986) NSCC Vol. 17(pt.2) 1154 (1986) 4 NWLR (pt.36)448. He urged the court to refuse the application. Counsel further observed that paragraph 6 of the affidavit in support of the application ran contrary to section 86 of the Evidence Act. He relied on Adewunmi v. Plastex Nig. Ltd (1987) Vol. 1QLRN 123 (1986) 3 NWLR(pt. 32) 767.

A convenient starting point to a consideration of the application is to examine Order 3 rule 18 of the Court of Appeal rules which provides:

“18-(1) An appellant may at any time before the appeal is called on for hearing serve on the parties to the appeal and file with the Registrar a notice to the effect that he does not intend further to prosecute the appeal.

(2) If all parties to the appeal consent to the withdrawal of the appeal without order of the Court, the appellant may file in the Registry the document or documents signifying such consent and signed by the parties or their legal representatives and the appeal shall thereupon be deemed to have been withdrawn and shall be struck out of the list of appeals by the Registrar and in such event, any sum lodged in Court as security for the costs of the appeal shall be paid out to the appellant.

(3) The withdrawal of an appeal with the consent of the parties under paragraph (2) of this rule shall be a bar to further proceedings on any application made by the respondent under rule 14 of this Order.