Akukalia Alfred Amachukwu Aghadiuno & Ors. V. Ekegbo Onubogu (Nwakwo)
LawGlobal-Hub Lead Judgment Report
OGWUEGWU, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Enugu Division which allowed the appeal of the plaintiff in that court.
The plaintiff instituted an action in the High Court of the former Anambra State, Onitsha Judicial Division claiming the following reliefs:-
- Declaration that the Plaintiff is entitled to the customary rights of occupancy of the piece and parcel of land known as and called Ozalla Land situate in Obosi in Idemili Local Government Area of Anambra State within the jurisdiction of this Honourable Court with the annual value of N20.00 (Twenty Naira).
- N10,000.00 (Ten thousand naira) being damages for trespass to the said piece and parcel of land called “Ozalla” Land.
- Perpetual injunction restraining the Defendant, his servants, agents and/or workmen from further trespass and from further interfering with the possessory rights of the Plaintiff over the said piece and parcel of land known as and called “Ozalla” Land”
In the statement of defence filed on 8-12-86, the defendant averred as follows in paragraphs 7, 8, 9 and 10:-
“7. The defendant’s family have from as far back as 1917 been prosecuting and defending series of actions against the Obosi people over the whole of Isiafor land and of portions thereof. In Suit No.8 of 1932 Chief J.N. Kodilinye for and on behalf of the people of Obosi sued Mhanefo Odu for and on behalf of the Odimegwugbuagu family of Onitsha in respect of Isiafor land and lost. Chief J.N. Kodilinye’s appeal to the West African Court of Appeal against the judgment in Suit No.8 of 1932 was dismissed. In 1949, the defendant’s family instituted Suit No. 0/34/1949 against the people of Obosi for damages for trespass and injunction over Isiafor land and got judgment.
- In 1977 some sections of Obosi people, in the effort to over-reach and undermine the judgments in Suits No.8 of 1932 and No. 0/34/1949 and the appeal against the judgment in Suit No.8 of 1932, brought four Suits Nos. 0/157/77, 0/158/77, 0/159/77 and 0/160/77 over portions of the Isiafor land but the four suits were dismissed on a plea of estoppel per rem judicata. The appeal to the Court of Appeal No.FCA/E/91/81 against the judgment in the said suits Nos.0/157/77, 0/158/77, 0/159/77 and 0/160/77 was dismissed.
- The plaintiff is estopped per rem judicata from maintaining or prosecuting the present suit by virtue of the judgment in the various suits and appeal set out in paragraphs 7 and 8 hereinabove. At the hearing of this suit, the defendant will pray the court to dismiss (sic) action in limine on the ground of estoppel per rem judicata.
- The defendant will at the hearing of this suit found and rely on the Records of the proceedings and the Plans of the suits and appeals mentioned in paragraphs 7 and 8 of this statement of defence.”
At the close of pleadings, the case was fixed for hearing on 6-3-87. When the case came before Aneke, J. on that day, the record of appeal shows:-
“Case called. Parties present. Defendant absent. Obi Okpudo (sic) for the plaintiff, G.R.I. Egonu (SAN) with E.C Ayalogu for the defendant, Mr. Akpudo asks for time to file motion of discontinuance in this matter. Mr. Egonu has no objection but thinks plaintiff could withdraw orally.
Akpudo insists on date. Case adjourned to 24th March, 1987 for a notice of discontinuance to be filed.” (Italics is for emphasis).
The Notice was filed on 17-3-87 and it reads:
“To The Registrar,
High Court,
Onitsha.
Re: SUIT NO: 0/389/85
MR. EKEGRO ONUROGU V. CHIEF ISAAC MBANEFO
NOTICE OF DISCONTINUANCE PURSUANTTO ORDER XLVII
RULE 1 OF THE HIGH COURT RULES.
TAKE NOTICE that the plaintiff in the above mentioned suit desire (sic) to and hereby discontinues his said action, Dated this 17th day of March, 1987
Sgd. ——-
MR. EKEGBO ONUBOGU (NW AKWO)
For himself and on behalf of Umuamaircobu family
in Okra na Ezeani Quarter in Umuotu Village Obosi.”
It was also addressed for service on the plaintiff’s counsel as well as the defendant/respondent.
The notice of discontinuance came up for determination on the adjourned date (24-3-87) and after recording the appearances of counsel, the learned trial Judge recorded the following:
“Mr. Akudo says there is a notice of discontinuance dated 17/3/87 filed, Mr. Egonu says the plaintiff filed their Statement of Defence filed to (sic) Statement of Defence and Plan. Says the Statement of Defence cost N22 and the plan cost N3000.00. Says the case was fixed for hearing on 6th March, 1987. Asks for N5,000 cost. Mr. Akpudo says the proper order here is striking out and not dismissal……………………………… Egonu says the Court has a discretion (sic) to whether to dismiss or strike out. Says there are so much previous cases in this land dispute which have estopped the defendants to discontinue this case. Says the proper order is dismissal.”
In a short ruling the learned trial Judge ordered as follows:
“Order of Court:
Pleadings were ordered and exchanged in this case and hearing has been fixed. The plaintiff in asking leave to discontinue did not give reasons whatsoever for so doing, and the court must therefore presume that the decision to with my must have stemmed from the contents of the pleadings filed and exchanged. That being the case the court in the exercise of its discretion sees no point in merely striking out the case. This case is accordingly dismissed with N2,500.00 cost to the defendant.” (Italics is for emphasis).
The plaintiff was dissatisfied with the order dismissing the suit hence the appeal to the Court of Appeal. Enugu Division, the court below allowed the appeal and held as follows
“The appeal must therefore succeed. The order of the lower court dismissing plaintiff’s case including the award of costs is set aside. It is ordered that the case be listed on the cause list before another Judge of the Anambra State High Court to enable that court proceed in the matter with a consideration of the notice of discontinuance filed.”
The defendant was aggrieved by the above decision and has appealed to this court. Briefs of argument were filed and served by the parties. From the grounds of appeal filed, the appellant formulated the following issues for our determination:-
“(a)(i) Was the Court of Appeal right in holding that the decision of the Supreme Court in Emmanuel Amoma Okoromadu & Anor v. Erastus M. Okorodudu & Anor. (1977) 3 SC. 21 applied to the present case and in relying thereon to set aside the decision of the learned trial Judge in the case
(ii)Was the Court of Appeal right in holding that the learned trial Judge was not entitled to take into account the state of the pleadings in determining whether or not to dismiss or to strike out the suit following the Notice of discontinuance
(b) Having held that the Notice of discontinuance was invalid was the Court of Appeal right in ordering that the case be listed on the Cause list before another Judge of the Anambra State High Court to enable that Court proceed in the matter with a consideration of the notice of discontinuance ruled contrary to the relief prayed for by the plaintiff/appellant/respondent and without opportunity to address it on the Order eventually made”
The plaintiff who is the respondent in this court identified the following issues as arising for determination in the appeal:-
“(1) Whether the Court of Appeal correctly applied the decision of this court in Emmanuel Amoma Okorodudu & Anor v. Erasus M. Okoromadu & Anor. (1977) 3 SC. 21 to the facts and circumstances of this case on appeal.
(2) Whether, having regard to the nature of the issues raised in this matter, the Court or Appeal was right in its view that the contents of the pleadings of the parties ought not to determine the orders which the Court would make in the circumstances
(3) Whether, in all the facts and circumstances of this case on appeal, the order of the Court of Appeal that the Notice of Discontinuance (which it held to be invalid) be listed before another Jude of the Anambra State High Court to enable that judge proceed with the matter with a consideration of the Notice of Discontinuance aforesaid was correct and proper”
The two sets of issues for determination are saying the same thing in different words. I will consider the appeal on the issues submitted by the appellant and the resolution of those issues one way or the other will answer the questions contained in the respondent’s briefs.
The mis-application or otherwise of the decision of this Court in Okorodudu & Or. v. Okoromadu & Or. (supra) by the Court of Appeal is the dominant issue in this appeal. Mr. Egonu, S.A.N. submitted in the appellant’s brief that the notice of discontinuance filed in Okorodudu’s case was specifically made under Order 28, rule 1(1) of the High Court (Civil Procedure) rules, 1958. Western Region of Nigeria then applicable to the Mid Western State of Nigeria after the case was fixed for hearing in an attempt to circumvent the order of the trial Judge refusing to grant the plaintiffs in that case, leave to amend their writ of summons and statement of claim and thus enable them to prosecute a new suit which they subsequently instituted against the defendants. He further submitted that the plaintiff in the present proceedings had in the High Court in his notice of appeal and brief of argument as well as oral argument in the court below consistently expressed his intention to terminate his claims against the defendant.
It was his contention that the application was brought under Order 47 rule 1 or the High Court Rules Cap.61, Volume 4, Laws of Eastern Nigeria, 1963 and that the second limb of Order 47, rule 1 applied unlike the case of Okorodudu where the notice of discontinuance was specifically made under Order 28, rule 1(1) or the High Court (Civil Procedure) Rules, 1958, Western Region of Nigeria.
Mr. Egonu submitted that in the present case the plaintiff intended to terminate his claims against the defendant and this was not so in Okorodudu’s case. He further contended that where a valid notice of discontinuance is filed in a case after the same has been fixed for hearing, it is incumbent on the trial Judge to take into account the state of the pleadings in the case before determining whether to strike out or dismiss the action.
Chief Ikeazor, S.A.N. in reply referred us to Order XLVII rule 1 of the High Court Rules Cap. 61, Laws of Eastern Nigeria, 1963 then applicable in Anambra State. It was his submission that the dominant issue before the Court of Appeal was whether the learned trial Judge was right to have dismissed the case following a notice of discontinuance filed by the plaintiff as the date for hearing had been fixed, He further submitted that Order XL VB rule 1 of the High Court Rules of Eastern Nigeria under which the notice of discontinuance was filed has two limbs:
(a) notice of discontinuance of suits before the date fixed for hearing of the suit and.
(b) notice or discontinuance after the case has been fixed for hearing.
It was his contention that the first limb did not apply to the facts and circumstances of this case and that if a plaintiff filed his notice of discontinuance under the first limb of Order 47 rule 1, a court would be in error to dismiss the action at the stage as there would then be no litis contestation and the determination would not have been made after hearing evidence on the whole or some fundamental part of the claim. He cited and relied on the cases of Izieme & ors v. Ndukwe & Ors. (1976) NMLR 280 and Soetan v. Total Nigeria Ltd. (1972) 1 All NLR (Pt.1) 1 at 3.
He further submitted (hat the second limb of Order 47. rule 1 aforesaid is apposite to the instant case, that after a case has been fixed for hearing, the plaintiff can only withdraw his claim or any part thereof with the leave of the court. He cited the case of Eronini v. Ihuko (1989) 2 NWLR (Pt.101) 46 at 65 and argued that the court observe and maintain a difference between notice of discontinuance and an application for leave to discontinue. He submitted that the former is used before the date fixed for hearing and the latter, after the date fixed for hearing and that it would be an error to treat one as the other because they are not used interchangeably. He cited and relied on the case of Okorodudu & Or. v. Okoromadu & Or. (supra). He referred to the case of Giwa v. John Holt 10 NLR 77 where a notice of discontinuance was filed after the date fixed for hearing was held invalid as in Okorodudu’s case. On the first issue, Chief Ikeazor finally submitted that the court below came to a correct decision and that the use which the court below made of Okorodudu’s case, was justified because the circumstances in Okorodudu’s case and the issues that fell for decision in that case were similar to those in the instant appeal.
The submissions of both learned Senior Advocates of Nigeria call for the examination of the provisions of Order XLVII rule 1 Cap. 61. High Court Rules of Eastern Nigeria. 1963 which were then applicable in Anambra State and Order 28, rule 1(1) and (2) of the High Court (Civil Procedure) Rules. 1958. Western Region of Nigeria.
Order XL VII Rule 1 is in these terms:
“If before the date fixed for hearing, the plaintiff desires to discontinue any suit against all or any of the defendants, or to withdraw any part of his claim, he shall give notice in writing of discontinuance or withdrawal to the Registrar and to every defendant as to whom he desires to discontinue or withdraw. After the receipt of such notice such defendant shall not be entitled to any further costs with respect to the matter so discontinued or withdrawn than those incurred up to the receipt of such notice, unless the Court shall otherwise order, and such defendant may apply ex parte for an order against the plaintiff for the costs incurred before the receipt of such notice and of attending the Court to obtain the order. Such discontinuance or withdrawal shall not be a defence to any subsequent suit.
If in any other case the plaintiff desires to discontinue a suit or to withdraw any part of his claim, or if a defendant desires to discontinue his counter-claim or withdraw any part thereof such discontinuance or withdrawal may be allowed on such terms as to costs. and as to any subsequent suit and otherwise as to the Court may seem just.”
The wording of Order XL VII, rule 1 are exactly the same as those of Order 28, rule 1(1) and (2) of the High Court (Civil Procedure) Rules, 1958 of the Western Region of Nigeria. The only point of difference which is also significant is that the first limb of that of Eastern Nigeria is worded like Order 28, rule 1(1) of the Civil Procedure Rules of Western Region of Nigeria, 1958 and the second limb is also worded like Order 28, rule 1(2) of the aforesaid Western Region of Nigeria High Court (Civil Procedure) Rules.
I will now compare and contrast the facts and circumstances of Okorodudu’s case with those of the proceedings leading to this appeal.
In Okorodudu’s case, the plaintiffs had applied by motion on notice seeking leave to amend their writ of summons and statement of claim following a grant of an application to be joined as co-plaintiffs by a group of people. In his ruling on the motion seeking leave to amend, the learned Judge granted leave to amend only the acreage of the land in dispute and refused to allow the amendments. This led to the filing of the notice of discontinuance by the plaintiffs. In their notice of discontinuance, the plaintiffs stated that they were not satisfied that the said suit was not properly constituted and that they had instituted a fresh suit against the same defendants. They gave the reasons for their intention to discontinue the suit even though the appeal was allowed on the invalidity of the notice of discontinuance.
In the instant case, there was an oral application by plaintiffs counsel for adjournment to enable him file a motion to discontinue the action. This oral application for adjournment was made on 6-3-87, the day the case came up for hearing. The oral application went thus:
“Mr. Akpudo asks for time to file a motion of discontinuance in this matter.
Mr. Egonu has no objection but thinks plaintiff could withdraw orally. Akpudo insists on date.” (the Italic is for emphasis).
On the said 6-3-87. Mr. Akpudo in no uncertain terms applied for an adjournment to enable him file a motion to discontinue the suit. The motion was to discontinue the action and that was why the Egonu said that he could withdraw the case orally. This was the type of application made in the case of Rodrigues & Ors. v. The Public Trustee & Ors. (1977) 4 S.C. 29 at page 32. Since Mr. Akpudo insisted on an adjournment, whatever he filed on 17-3-87 meant no more than an application to withdraw the action as the case was adjourned form 6-3-87 to 24-3-87 for that purpose. The learned trial Judge was perfectly right to have treated the notice as an application to withdraw the suit under the second limb of Order XLVII, Rule 1. What was involved at that stage was a question of procedure after counsel had declared his intention to withdraw the action and sought an adjournment to enable him bring a formal application.
How he headed the application in my view is of no consequence. I therefore refuse to accept the contention of Chief Ikeazor, S.A.N. that the applicant was invalid having been brought after the date fixed for hearing. The plaintiff/respondent did not bring his notice of discontinuance under the first limb of Order XLVII Rule 1. If he had done so, the ratio decidendi of Okorodudu’s case would have applied. The substance of the order sought by the plaintiff in the notice he filed on 17-3-87 was an application for leave to discontinue or withdraw his action.
Neither Order 28, rule 1(2) of the High Court (Civil Procedure) Rules, 1958 of Western Region of Nigeria nor Order XLVII rule 1 of the High Court Rules of Eastern Nigeria, 1963 provided any form for an application for leave to discontinue or withdraw an action after the date fixed for hearing hence an oral application was even considered sufficient in the case of Rodrigues.
Having held that the application was valid, what order to make in consequence of the said application of its judicial discretion. He must inevitably take into consideration all the circumstances of the case. see the case of Rodrigues & Ors. v. The Public Trustee & Ors. (supra) at page 36-37. The Court will then decide whether:-
(a) to grant leave for the suit to be withdrawn simply on terms that the same be struck out subject to payment of costs;
(b) or grant leave for the suit to be withdrawn subject to the imposition of certain conditions to be fulfilled before a fresh suit concerning the same subject matter and the same parties may be instituted; or
(c) to refuse such leave in which case the suit must be dismissed also on terms as to costs. See Nwobu Nwachukwu & Ors v. David Nze & Ors. in re Ofoegbu Nze v. David Nze (1995) 15 WACA 36.
In the instant case having weighted all the circumstances of the case in the interest of justice, the learned Judge granted leave and dismissed the suit. The next question is whether the dismissal of the action by the learned Judge was in truth the result of the exercise of judicial discretion within the provisions of Order XLVII, Rule 1 of the High Court Rules of Eastern Nigeria, 1963.
It was contended by Chief Ikeazor, S.A.N. who appeared for the respondents that our rules of evidence, procedure and pleadings are but foundations upon which evidence would be led at trial and cannot be treated as evidence upon which a court can act. He cited the case of Nishizawa Ltd. v. Jethwani (1984) 12 SC. 234 at 263. In that case the plaintiff filed a specially endorsed writ with a Statement of Claim under Order 10, 1 of the High Court of Lagos (Civil Procedure Rules). The defendant entered an appearance but did not file any affidavit disclosing any defence on the merit. After the defendant’s appearance, the plaintiff by motion on notice applied under Order 10, rules 1 and 2 and Order 40, rule 1 of the same Rules for an order empowering him to enter judgment against the defendant/respondent as upon the Writ of Summons and Statement of Claim.
The affidavit in support of the plaintiff’s motion verified the fact pleaded with the Statement of Claim. The defendant did not challenge the facts deposed to in the plaintiff’ affidavit by counter-affidavit. Instead, a Statement of Defence was filed by the defendant’s solicitors and the said defence did not meet directly the facts deposed in the affidavit in support of the plaintiff’s motion. The plaintiff objected to this procedure. He was over-ruled. The trial Judge was of the view that having gone through the Statement of Defence filed, he was satisfied that there were triable issues for which leave to defend ought to be granted. He dismissed the summons for judgment and the appeal by the plaintiff to the Court of Appeal was dismissed.
On a further appeal to this court, it was held amongst other things, that:
“With the guidelines given by Order 10, rule 3(a), (b) and (c) in mind, a statement of defence simpliciter is not a manner of showing cause against a statement of claim verified by affidavit. The only problem is whether the Judge or court can shut its eyes against the statement of defence. The clear answer is that faced with the difficult task of deciding that the defendant has no defence to the action, he cannot shut his eyes against it. This must not be taken as elevating a statement of defence to the requirement of the rule.”
I have gone to this length to bring to the fore that the case concerned a claim filed under Order 10, rule 1 aforementioned followed by a motion for judgment supported by an affidavit verifying the fact pleaded with the Statement of Claim. Even though the defendant should have filed a counter-affidavit under Order 10, rule 3, he filed a statement of defence which was no answer to the facts pleaded by the plaintiff and verified by a supporting affidavit. That not withstanding, the court did not shut its eyes against the Statement of Defence which was filed contrary to the rule.
It is the law that averments contained in pleadings are no evidence but in the special procedure of Order 10, rules, 1, 2, 3, 4 and 5 and Order 40, rule 1 of the High Court of Lagos (Civil Procedure Rules) which are quite strict and could not have accommodated the statement of defence, the court felt bound to look at the said statement of defence which was before it in order to do substantial justice to the parties. In view of the special plea of estoppel per rem judicata raised by the defendant in paragraphs 6, 7, 8, 9 and 10 of his statement of defence, I am unable to come to the conclusion that the learned trial Judge was in error to have taken those averments into consideration when the plaintiff had expressed his intention to discontinue the action. Those averments are peculiar and are the type of circumstances which the learned trial Judge is enjoined to weigh in the interest of Justice.
The principle of Order XLVII is that after proceedings have reached a certain stage the plaintiff who proceedings have reached a certain stage the plaintiff who has brought his adversary into court, should not be allowed to escape by the side door and avoid the contest. At that stage, he is to be no longer dominus litis and it is for the Judge to say whether the action should be discontinued and upon what terms. See: Fox v. Star Newspaper Company (1898) 1 Q.B. 636.
The conclusion I have reached is that the decision of the learned trial Judge in dismissing the plaintiffs claim is right. It is the result of a proper exercise of judicial discretion. The appeal therefore succeeds and it is allowed by me. The first question for determination is answered in the negative. In view of the peculiar nature of the averments in the statement of defence, the learned trial Judge was entitled to look at those averments in deciding whether or not to grant leave to discontinue the action. As to the third question, where the notice is invalid, the court below ought to have remitted the case to the High Court for hearing before another Judge without more. There was no invalidity in the case on appeal.
The defendant/appellant is entitled to costs both in the court below and in this court which I assess at N350.00 and N10,000.00 respectively against the plaintiff/respondent.
SC.204/1991
