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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
(4) If all the parties do not consent to the withdrawal of an appeal as aforesaid, the appeal shall remain on the list, and shall come on for the hearing of any issue as to costs or otherwise remaining outstanding between the parties, including any application made by the respondent under rule 14 of this Order, and for the making of an order as to disposal of any sum lodged in court as security for the cost of appeal.
(5) An appeal which has been withdrawn under this rule whether with or without an order of the Court, shall be deemed to have been dismissed”.
(italicising mine)
It was not suggested that counsel, who withdrew the appeal did so fraudulently. Nothing under the law or our rules says that a junior counsel in chambers is without authority in a case assigned to him by his principal in chambers to act with full authority as his principal would, and the court and its processes do not discriminate as between the senior or junior in chambers. Processes filed by either are therefore to be accorded the same respect and validity. The excuse offered in the affidavit which in substance was that a junior in chambers had signed and filed the notice of the withdrawal of the appeal is therefore untenable.
Applicant’s counsel also argued that this was a mistake of counsel for which the litigant ought not to be penalised. It seems to me that in recent times, the excuse of mistake of counsel, which ought not to be visited on litigants has been too often abused such that rather than be an aid to the attainment of justice has now been made a cog in the wheel of justice. When processes are not filed, at the time they should be, we are told it was the result of mistake of counsel. When representations are made, and the court relies, we are told it was the mistake of counsel. And now a notice of withdrawal of an appeal signed by counsel and filed in court is to be regarded as a result of counsel’s mistake. If justice is not to be endlessly stultified, the time is now to restrict the invocation of that excuse only to deserving cases.
Having said the above, I must say that rule 18(5) of Order 3 of the Court of Appeal rules 1981 as amended has itself provided the consequences of the filing of a notice of withdrawal by a party to an appeal. The consequence is clear and explicit. It was stated by the Supreme Court in Ezomo v. A. G., Bendel State (1986) 4 NWLR (Pt.36) 448 at 463. Where a notice of withdrawal of an appeal has been filed, with or without an order of court, that appeal shall be deemed to have been dismissed. In the Ezomo case (supra) the Supreme Court per Aniagolu, JSC put the matter succinctly thus:
“The summation of the principle, without couching it in any technical legal phraseology, is simply this, that a gentleman is bound by his words and that, therefore, where by his words or conduct, he had led another to believe in a particular state of affairs, he will not be allowed to go back on it when it will be unjust or inequitable, to that other, for him to do so. Put in popular parlance, a gentleman’s word is his bond”.
This application fails. It is dismissed with N1,500.00 costs in favour of the respondent.
Other Citations: (2000)LCN/0684(CA)