Professor Ogbuefi Joseph Edozien & Ors Vs Chief (Engr) Onia Edozien (1993)

LawGlobal-Hub Lead Judgment Report

OLATAWURA, J.S.C.

This application before us has nothing to do with the merit of the appeal filed against the judgment of the Court of Appeal, Benin Division delivered on 28th June, 1991. It raises issue of procedure as to the legality or propriety of withdrawing a “notice” already filed by an appellant that he does not wish to prosecute the appeal. To withdraw an appeal is straightforward and uncomplicated but to withdraw a notice already filed has now given rise to the eloquent submissions made before us. Whatever be the merits of this application, it is necessary to state background facts which are not in issue.

The plaintiff at the court of trial sued the defendants and claimed the following reliefs

“1. A declaration that in accordance with the Customary Law of Asaba, the provisions of the Traditional Rulers and Chiefs Edict 1979. and of 8.S.L.N. 139 of 1979, regulating the succession to the title of Asagba of Asaba, it is the turn of Umuezei (Ezenei) Quarter of Asaba to nominate, select and present a candidate for appointment as the next Asagba of Asaba.

2. A declaration that pursuant to the Customary Law of Asaba, the provisions of the Traditional Rulers and Chiefs Edict, 1979. and of B.S.L.N. 139 of 1979 regulating the succession to the title of Asagba of Asaba no candidate or candidates have been nominated by the said Umuezei Quarter of Asaba.
3. A declaration that pursuant to the Customary Law of Asaba and provisions of the Traditional Rulers and Chiefs Edict, 1979, and of B.S.L.N. 139 of Asagba of Asaba, no candidate or candidates have been duly presented to the 2nd defendant for the vacant stool of Asagba of Asaba.
4. A declaration that the purported meeting summoned on 31st January, 1990 by the 2nd defendant was summoned, and/or constituted contrary to the Customary Law of Asaba, the provisions of the Traditional Rulers and Chiefs Edict 1979, and of B.S.L.N. 139 of 1979, regulating the succession to the title of Asagba of Asaba, and in further violation of the principles of natural justice, equity and good conscience and accordingly illegal, unconstitutional, null and void and of no effect whatsoever.
5. A declaration that the Customary Law of Asaba, the provisions of the Traditional Rulers and Chiefs Edict 1979, and of B.S.L.N. 139 of 1979, regulating the succession to the title of Asagba of Asaba, “adult males” include males of the age of 18 to 55 years and accordingly are entitled to attend meeting participate, or vote in the nomination, selection, and/or presentation of the next Asagba of Asaba.
6. A declaration that the 1st defendant has not been duly nominated, presented and or/ selected as the next Asagba of Asaba, in accordance with the Customary Law of Asaba, the provisions of the Traditional Rulers and Chiefs Edict 1979, and of B.S.L.N, 139 of 1979, regulating the succession to the title of Asagba of Asaba.
7. An order settling (sic) aside the purported selection of 1st defendant as the next Asagba of Asaba.
8. An order of injunction restraining the defendants, jointly and severally, from parading, holding-out, presenting, recognizing and/or installing the 1st defendant as the next Asagba of Asaba.”

Pleadings were filed by the plaintiff and 1st-3rd defendants. Interlocutory applications were made by the plaintiff and the 1st to 3rd defendants. Rulings were delivered by the learned Judge. The ex-parte application filed by the plaintiff for an order of interim injunction restraining the 1st defendant from parading, holding out or presenting himself as or for installation as Asagba of Asaba and other prayers pending the determination of the substantive application was granted on 12-12-90. Consequently the 1st, 2nd and 3rd defendants brought an application for the discharge of that order. It was refused on 31st January, 1991. The substantive application for the interlocutory injunction was granted.

The 1st, 2nd and 3rd defendants filed a motion on notice praying the court for:

“An order dismissing/striking out the action of the plaintiff/respondent as the court as at present stage lacks jurisdiction as the condition precedent to assuming jurisdiction has not been compiled with.”

On 15th February 1991, the application was dismissed. On 18th February, 1991 the 1st-3rd defendants filed notice of appeal against the said ruling of 15th February, 1991. On 19th, 1991 the 1st-3rd defendants also filed an appeal against the ruling of 7th February 1991 whereby the learned Judge granted the application for interlocutory injunction. In sum there were two appeals to the Court of Appeal. One was allowed and the other dismissed. The 1st-3rd defendants appealed against the decision of the lower court dated 28th June, 1991. On an application dated 13th March, 1992 and filed on 18th March, 1992, the 1st-3rd defendants (hereinafter referred to as the applicants) filed an application praying this Court:

“for an order granting the 1st, 2nd and 3rd defendants leave to withdraw the NOTICE OF WITHDRAWAL OF APPEAL” filed at the Registry of the Supreme Court on 7th February, 1992 OR otherwise to retain or restore the appeal on the list so that it may be heard on the merit and for such further or other orders as the Supreme Court may deem fit to make.”

There is an affidavit in support of the application. The material averments in the said affidavit are paragraphs 4-18 which read as follows:

“4. On 25th July, 1991 the 1st, 2nd and 3rd defendants filed a motion praying for an order staying or adjourning proceedings in the suit pending the determination of the appeal to the Supreme Court.

5. The motion for stay of proceedings was argued before Edah, J. and ruling thereon was adjourned to 11th December, 1991 but before 11th December, 1991 the matter had been transferred to another Judge Maido, J. and nothing further has yet been said or done about the motion.
6. Because the plaintiff had not been served, the suit was on 10th December, 1991 before Maido, J. adjourned to 17th December, 1991 and thence to 6th January, 1992 for service.
7. On 6th January, 1992, Chief Olisa Chukura was sworn in as Chairman of the Lagos and Ogun States Governorship and Legislative Houses Tribunals and he left the files with me and my senior colleague, Cyril O. Okonkwo, Esquire.
8. On 23rd January, 1992 the trial Judge indicated that he would wish to hear the case as he was specially assigned by warrant to travel from his station at Agbor to Asaba for the case and would not allow interlocutory matters to delay the hearing.
9. Leading Counsel for the plaintiff; Dr. Ilochi Okafor, raised the issue of the pending appeal in the Supreme Court which raised the question of jurisdiction. He urged that the appeal be discontinued so that the trial would begin and be completed if possible on the next adjourned dates i.e. 18th and 20th March, 1990.
10. I thereupon settled and filed a Notice of withdrawal of the appeal at the Registry of the Supreme Court on 7th February, 1992.
11. When Chief Chukura returned to Asaba during the first week in March, he questioned the propriety of withdrawing the appeal and directed that steps be taken to have it restored on the cause list for hearing on the merit.
12. The record of appeal has not been sent to the Supreme Court from the Court of Appeal, Benin City.
13. The Notice of withdrawal of the appeal was signed by myself alone. Neither the plaintiff nor counsel representing him joined in signing or presenting the Notice of withdrawal.
14. The appeal raises important and substantial issues of constitutional and administrative law, particularly, the issue of the fundamental right of fair hearing.
15. The appeal has not been called up for hearing at the Supreme Court.
16. On 11th February, 1992 the plaintiff filed a motion seeking leave to amend his statement of claim but after argument the application was dismissed.
17. The plaintiff appealed from this dismissal on 21st February, 1992 and on 3rd March, 1992 applied for a stay of proceedings pending the determination of his appeal. This was served on me on 9th March, 1992.
18. I agreed to, and did, withdraw the appeal to the Supreme Court on the prospect of a speedy hearing of the suit – without consultation with senior counsel leading me (who was not then available).”

The plaintiff (hereinafter referred to as the respondent) filed a counter-affidavit. The counter-affidavit was filed by one of his Solicitors. Mr. Onyekwuluje deposed in paragraphs 2-15 as follows:

“2. That I am an associate in the legal firm of Okafor, Okere, Ugolo & Co. the Solicitors to Chief (Engr) Onia G. Edozien, the plaintiff/ respondent in the above-mentioned matter.

3.That on 6/1/92, I appeared alone on behalf of the Chambers for the plaintiff/respondent, and informed the court that the suit was not ripe for hearing since there were pending an appeal to the Supreme Court challenging the jurisdiction of the Honourable Court as well as a motion for stay of proceedings pending the determination of said appeal.

4. That in reply, B.O.I. Ogbolumani, Esq. who was led on said date by C.O. Okonkwo, Esq. for the appellants, assured the court that they were ready to go on with the hearing of the main suit and undertook to abandon the said pending matters.
5. That upon said assurance, I maintained that it would still be necessary that both appeals and motions be formally withdrawn to o enable hearing in the main suit to proceed.
6. That in his Ruling, the learned trial Judge said he was prepared to give accelerated hearing to the main suit and adjourned same to 22/1/92,23/1/92 and 24/1/92.
7. That on 22/1 /92, I was led for the plaintiff/respondent by Dr. Ilochi A. Okafor, while C.O. Okonkwo, Esq. again appeared with B.O.I, Ogbolumani, Esq. for the appellants.
8. That Dr. Okafor re-iterated our earlier position that unless both appeals and motions were formally withdrawn the hearing of the main suit could not go on, and despite the contrary position of the learned trial Judge, Dr. Okafor refused to open the case for the plaintiff.
9. That on his part, B.O.I. Ogbolumani, Esq. wanted the suit to go on as the appellants would abandon the appeal.
10. That in the end, the learned trial Judge adjourned the hearing to 18/ 2/92 and 19/2/92 respectively before which dates, the appellants would in keeping with their undertaking, have filed an application to withdraw said appeal.
11. That before the adjourned date of 18/2/92, the formal notice of withdrawal filed at the Supreme Court on 7/2/92 was served on our chambers.
12. That before the withdrawal was formally made and filed, the appellants through their counsel, had undertaken to do so, and had ample time to consider or re-consider their position.
13. That B.O.I. Ogbolumani, Esq. never, on any of the material dates, appeared alone but was led by C.O.Okonkwo, Esq. who never repudiated any statements or undertaking made by him, and similarly the appellants.
14. That at the hearing of this matter, I shall seek leave of the Supreme Court to tender a certified copy of the relevant proceedings at the High Court, same not being ready at the moment.
15. That subject to the foregoing, I deny all the averments stated in the affidavit of the appellants except as admitted herein-above.”

He filed a further counter-affidavit wherein he attached a certified true copy of the proceedings of 22nd January, 1992. The material proceedings of that day read:”Court: Since Ogbolumani indicates that the appeal in relation (sic) jurisdiction of court over this case, is to be abandoned in the Supreme Court, Lagos, this Court has ordered that notice of discontinuance to that effect be filed in the appropriate Court and shown to this Court on the adjourned date before the commencement of this case. Case is adjourned to 18th and 19th of February 1992 for hearing. (Sgd) A.N. Maidoh – Judge 22/1/92″

Both parties filed briefs of argument. The applicants formulated one issue for determination:

“Whether in the particular circumstances of this case, an applicant should not be granted leave to withdraw a notice of his appeal given under Order 8 rule 6 of the Supreme Court Rules 1985.”

On the other hand the, respondent has three issues for determination:

(1) Whether the appellants can withdraw the notice of withdrawal of appeal duly filed under Order 8 rule 6(1) of the Supreme Court Rules.

(2) Whether a notice filed by the appellants under Order 8 rule 6(1) is ineffective if all parties in the appeal had not given their consent to the withdrawal of the appeal under Order 8 rule 6(2) of the Supreme Court Rules.

(3) Whether a notice for the withdrawal of the appeal duly filed by a legal representative of the appellants is ineffective because of the absence of the leading counsel for the appellants.”

In his oral submission in support of his brief filed along with the application, Chief Olisa Chukura, S.A.N., the learned counsel to the applicants referred to the affidavit in support of the application and relied on the facts deposed to in the affidavit. In reply, Dr. Okafor, the learned counsel for the respondents, referred to the counter-affidavit and further counter-affidavit in opposition to the application. Learned counsel also relied on the brief of arguments and the documents filed. Counsel then submitted that once a notice of withdrawal has been filed by a party to an action, “the matter is already dismissed”: Ezomo v. Attorney-General of Bendel State (1986) NWLR (Pt.36) 448 or (1986) 2 N.S.C.C. 1154. Learned counsel referred to the judgments of Aniagolu and Karibi- Whyte, JJ.S.C, Ezeonu v. Agheze (1991) 4 NWLR (Pt.187) 631,642-3; Eronini v. Iheuko (1989) 2 NWLR (Pt.101) 46; Majekodunmi v. WAPCO (1992) 1 NWLR (Pt.219) 564, 576-577. Learned counsel further submitted that the appellant intended to withdraw the matter and acted on that intention. The mere fact that the appellants’ counsel was a junior counsel did not affect the intention to withdraw the appeal. Learned counsel pointed out that since the applicants have not asked the court to depart from our earlier decisions, the court should therefore not depart from them. He also submitted that the amendment to Order 8 rule 6 notwithstanding, the earlier principles stated in the earlier decision should be followed. I will now set down the provisions of Order 8 rule 6 of the Supreme Court Rules, 1985. They are as follows:

“6(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 by their legal representatives and the appeal shall thereupon be deemed to have been withdrawn and shall be struck out of he list of appeal by the court, and in such event any sum lodged in court as security for the costs of the appeal shall be paid out to the appellant.

(4) If all the parties do not consent to the withdrawal of the 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, and for the making of an order as to the disposal of any sum lodged in court as security for the costs of appeal.

(5) An appeal which has been withdrawn under this Rule, shall be deemed to have been dismissed.

(6) Any application under this Rule may be considered and determined by the court in chambers without oral argument.”

Sub-rule 1 of rule 6 makes provision for the withdrawal of the appeal “before the appeal is called on for hearing”.

This withdrawal as provided by Form 19 envisages a situation where one or all the appellants, where they are more than one, can file the Notice in the prescribed form. “Appellant” by virtue of order 1 rule 2 Rules of the Supreme Court includes the legal practitioner acting for the appellant. In other words, the appellant or the legal practitioner can file the Notice of Withdrawal.

I therefore hold, and this is not in dispute, that the Notice dated 27th January, 1992 and filed on 7th February 1992 is in compliance with order 8 rule 6(1) of the Supreme Court Rules 1985. It is a proper Notice. And where the Notice is signed by either a legal practitioner acting for the appellant or the appellant, there has been due compliance with order 8 rule 6(1) of the Rules of the Supreme Court. In this appeal as at the time the Notice of Withdrawal was filed on 7th February 1992 the appeal has not been called for hearing. “Called for hearing” under this sub-rule means the listing of the appeal on the cause list for the purposes of hearing the appeal.

It appears to me that sub-rule 2 of the same rule of order 8 applies to where all the parties jointly signed and filed Notice of Withdrawal as a result of agreement reached by the parties to the appeal. Parties here also relate to the appellant and respondent or their legal practitioners. This is the requirement of Form 20. I will therefore agree with the submission of Dr. Okafor that once a Notice of Withdrawal of an appeal has been filed by a legal practitioner retained by the appellants, “the notice is just as effective and binding on the appellants, as if the notice had been filed by the appellants themselves”.

Similarly, a notice signed by one of the legal practitioners retained by an appellant is as good as if all of them signed the Notice of withdrawal. It has not been alleged by the applicants that the Notice of Withdrawal settled and signed by Mr. Ogbolumani, one of the junior counsel in the case was signed as a result of negligence of counselor that he had no authority of the parties to do so. Infact, paragraphs 9 and 10 of the affidavit in support of the application leave no one in doubt that it was a decision taken after a due consideration of the circumstances that led to the adjournment of the case by Maidoh, J., on 22nd January, 1992.

For ease of reference I will reproduce those paragraphs 9 and 10 of the affidavit in support again. They read thus:

“9 Leading Counsel for the plaintiff, Dr. Ilochi Okafor, raised the issue of the pending appeal in the Supreme Court which raised the question of jurisdiction. He urged that the appeal be discontinued so that the trial would begin and be completed if possible on the next adjourned dates i.e. 18th and 20th March, 1990.

10. I thereupon settled and filed a Notice of Withdrawal of the appeal at the Registry of the Supreme Court on 7th February, 1992.”

One can at this stage ask a pertinent question: When is an appeal withdrawn In my view an appeal is withdrawn under order 8 rule 6(1) of the Rules of the Supreme Court when the notice of withdrawal is filed by the party entitled to do so; in this case the appellant. The filing of the noticed implies full knowledge and implication of the said notice. There can be no better manifestation of intention to withdraw an appeal than an appeal withdrawn by the appellant or by one of the solicitors briefed by the party withdrawing the appeal. The court will believe in the sincerity of that intention. The applicants i.e. 1st, 2nd and 3rd defendants had predicated their submissions on these arguments.:

1. Only the applicants’ counsel signed the notice of withdrawal. Neither the plaintiffs’ counsel for the plaintiff nor the plaintiff joined in signing it.
2. It is believed the appeal has not been entered in the cause list of the Supreme Court.
3. The issues raised in the appeal are constitutional and administrative matters relating to section 32(2) of the 1979 Constitution which guarantees right of fair hearing.
4. Whether a party who favours a speedy trial can resile from that stand and thereafter creates a situation that will stall speedy trial.
5. Whether such a party is note stopped and if not whether the opposite party cannot change his own position. What is really in issue here is the interpretation of Order 8 rule 6(1) of the Supreme Court Rules to which I had made earlier reference. The arguments and submissions made by the applicants are not dissimilar to the issues and arguments canvassed in this court in the case of Ezomo v. A.G. Bendel State (1986) 4 NWLR (Pt.36) 448, (1986) 2 N.S.C.C. 1154. I will now deal with the issue affair hearing raised by the applicants. Reliance is placed on section 32(2) of the Constitution of the Federal Republic of Nigeria. This section reads:

“Any person who is arrested or detained shall have the right to remain silent or avoid answering any question until after consultation with a legal practitioner or any other person of his own choice” I cannot see the relevance of this section of the Constitution to the matter before us. Right of fair hearing is enshrined under section 33 of the same constitution. In so far as the notice of withdrawal filed by the applicants is concerned, invocation of this section by the applicants is an attempt to confuse the real issue. Notice of withdrawal in the case was filed by one of he counsel in the case, though it is being urged indirectly that since it was filed in the absence of the leading counsel we should disregard that notice. See paragraph 18 of the affidavit in support of the application. Senior counsel are briefed to lead junior counsel. The right to appear in a case is an authority conferred by law on a counsel properly briefed. The authority or right of the leading counsel in a case to address the court where there are junior counsel is a rule of practice which has the force of law. If however the leading counsel announces that one of his junior counsel will address the court or conduct the case, the senior is equally bound by the result of the case. To shift responsibility thereafter is to engage in a game of hide and seek in legal practice. No court should be put in a straight jacket. A client who briefs a counsel is presumed to have confidence in the counsel. This confidence will continue for the entire duration of the case unless the brief is withdrawn. The number of counsel that appears in a case sometimes depends on the complexity of the case. All those briefed have right to conduct, settle or compromise in so far as their actions are within the ethics of the profession.

The question of fair hearing does not arise in this matter. It can only avail the applicants if the court has forced the applicants to withdraw the action. It is also being suggested that the respondents had been lured into a position where the notice can be withdrawn. The position taken by Dr. Okafor that he would not go on until the appeal filed was withdrawn is right in that until the appeal filed is withdrawn, it is still pending; besides it is an appeal that is based on jurisdiction and unless it is heard and determined or withdrawn, any step taken in respect of the case may amount to an exercise in futility. The solemn undertaking given by Mr. Ogbolumani on 22/1/92 was that the appeal on jurisdiction would be abandoned. He was given time to do so, hence the learned Judge Maidoh G J. adjourned the case to 18th and 19th February 1992. It was there after that the same counsel, Mr. Ogbolumani filed the notice of withdrawal dated 27th January, 1992 more than three weeks before the action was to be heard. Exhibit R1 the proceedings of 22nd January, 1992 has not been impugned.

It is the submission of the applicants that there cannot be a successful withdrawal of the notice until all (he parties consent to the withdrawal, in other words, there must be compliance with order 8 rule 6(2). I cannot easily contemplate a situation where an appellant who gave notice of appeal and filed the grounds of appeal and later changes his mind, about the appeal will be forced to continue with the case. In an extreme case one can ask what will happen if he fails to turn up when the appeal is fixed for hearing The appeal may be struck out or dismissed. The successful notice of withdrawal of an appeal filed under order 8 rule 6(1) is not dependent on the consent stated under Order 8 rule 6(2) nor can it be called a condition precedent to the successful withdrawal of the appeal under Order 8 rule 6(1) of the Rules of the Supreme Court. The intention of rule 6(1) of Order 8 is to simplify and without any impediment, the withdrawal of an appeal by the party affected by the judgment or decision appealed against. There cannot be a resort to Order 8 rule 6(4) of the Rules of the Supreme Court in this matter before us. This sub-rule contemplates where there are more than one plaintiffs or defendants where one of the parties decides to withdraw an appeal without the consent of others. A party comes to court for an alleged wrong done to him, or he seeks a declaration in respect of certain rights but the moment he decides to exercise his unfettered right not to pursue his action, what is left for the court is the order to be made, as it is outside the court’s jurisdiction to force a party to continue an action filed by him. There is clearly a difference between the right to withdraw an action filed by a party and a consequential order to be made following the withdrawal.

In Ozomo’s case (supra) this court held that a party who has filed a notice of withdrawal has no power to revoke his withdrawal, and therefore the appeal cannot be heard. A party is bound by his words, and where by his words or conduct he has 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. Although we have not been asked to overrule that decision, it is a decision which applies to this application and I will follow it.

In sum I will answer in the affirmative the question posed by the applicant that once the notice of withdrawal has been filed, the appeal stands dismissed. There can be no leave to withdraw an action that has already been dismissed. Costs of N100.00 are awarded in favour of the respondent to this application.

Other Citation: (1993) LCN/2588(SC)