Rear Admiral FBI Porbeni V. Darabella Nigeria Limited (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment)

This appeal is against the ruling of HON. JUSTICE A. M. NICOL CLAY sitting at the High Court of Lagos State, Lagos Division wherein by a ruling delivered on the 5th day of October, 2011 the trial court struck out the suit of the Respondent upon a Notice of discontinuance filed after pleadings have been filed and exchanged.

The appellant contended that the suit should have been dismissed and aggrieved with the decision of the court; it filed a Notice of Appeal dated 23rd day of November, 2011 on a sole ground of appeal.

FACTS:

The brief facts of this appeal are that the appellant was one of the defendants to the suit of the Respondent herein at the trial court. The Respondent while at the trial court as claimant sought from the appellant as defendant several reliefs amongst which are declaration of title, injunction and damages. The subject matter is land.

Pleadings were filed and exchanged but before it could go to trial the respondent filed a Notice of Discontinuance dated 14th day of January 2011 seeking the following reliefs:

a. An order granting leave to the claimant/ Applicant to wholly discontinue this suit against the 1st – 3rd Defendants.

b. An order that the Claimant/Applicant wholly discontinue this suit against the 1st – 3rd Defendants.

The motion was supported by an affidavit of 10 paragraphs and a written address. The appellant sought leave and was allowed to file a counter affidavit to the motion seeking leave to discontinue the suit wherein he raised the issue of the Claimant having sold the land during the pendency of the suit and that the suit should be dismissed, if the court was mindful of granting the application.

The trial court in a considered ruling dated the 5th day of October, 2011 struck out the suit and the Appellant felt aggrieved with the ruling thus this appeal.

The appellant in his Appellant’s brief of argument dated 12th July, 2011 filed on the 13th July, 2011 and deemed on the 23rd day of May, 2013 distilled a sole issue for determination namely:

Whether the lower court exercised its discretion judicially and judiciously when it merely struck out the case of the respondent instead of dismissal thereby paving the way for a third party who purchased the parcel of land unlawfully to relegate (sic) the same subject to a future dated (sic).

The Respondent in his respondent’s brief adopted the sole issue for determination formulated by the Appellant.

Proffering arguments the Appellant submitted that the ruling appealed against is at page 577 of the records of appeal presents the reasoning of the trial court leading to the strike out instead of dismissing the action. Appellant agreed with the trial Judge when she held that an application to discontinue a suit calls for the discretionary power of the court. And that such is expected to be exercised judicially and judiciously but went on to ask if the judge exercised the discretionary power as expected. Learned counsel submitted that the reasoning of the trial court that the suit had not gone to trial which informed the strike out was arrived at without regards to the facts and stage of the suit especially the grave acts of the Respondent meant to bring the court to serious disrepute.