H.r.h. Igwe G.o. Umeonusulu Umeanadu V. Attorney General Of Anambra State & Anor (2008)
LAWGLOBAL HUB Lead Judgment Report
MOHAMMED, J.S.C.
The appellant in this appeal, who was the plaintiff at the Anambra State High Court of Justice sitting at Nnewi, is the Traditional Ruler of Ekwulumili in Nnewi South Local Government Area of Anambra State. In December 1994, he planned to hold a festival called ‘Asala’ during which he arranged to confer chieftaincy titles to deserving indigenes of his domain. The appellant then sought approval of the State Government for the exercise which was duly granted. However, few days to the date of the festival, a letter was delivered to the appellant purporting to have come from the Government House Awka, canceling the festival. The appellant accused the 2nd Respondent Ezeani Adolphus Ibeneme Anyaso, who was the 2nd Defendant at the trial Court, of masterminding the plot resulting in the cancellation of the festival and therefore logged a complaint on the commission of various criminal offences against him to the Anambra State Commissioner of Police who ordered investigation into the matter. On the completion of the Police investigation against the 2nd Respondent, the Police case diary was sent to the State Director of Public Prosecutions for advice. The opinion of the Director of Public Prosecutions that no prima facie case was made up against the 2nd respondent was forwarded to the Police.
Aggrieved by this development, the appellant applied to the Attorney General of the State who was the 1st defendant at the trial Court and 1st respondent in this Court for a fiat to initiate private criminal prosecution against the 2nd respondent. This request was refused by the 1st respondent resulting in the appellant filing an action by Originating Summons against the 1st respondent as defendant/respondent principally for the trial High Court Nnewi to compel the 1st respondent to grant fiat to the appellant to prosecute the 2nd respondent for the alleged offences committed by him in aborting the festival. The 2nd respondent on becoming aware of the appellant’s pending action applied at the trial High Court to be joined and was accordingly joined as 2nd Respondent to the Originating Summons proceedings on 24th November, 1996 which was set down for hearing on 27th January, 1997.
Meanwhile the appellant who was anxious to have the 2nd respondent prosecuted initiated criminal proceedings against him at the Chief Magistrate Court Nnewi. However, in reaction thereto, a motion on notice for stay of proceedings in the criminal prosecution was filed by the learned Counsel to the 2nd respondent at the Chief Magistrate Court. The same Counsel also proceeded and initiated contempt proceedings against the appellant and his Counsel at the High Court where the appellant’s action against the 1st and 2nd respondents was awaiting hearing. In order to secure the step he had already taken in having the 2nd respondent prosecuted at the Chief Magistrate Court, the appellant filed a notice of discontinuance dated 30th April, 1997, at the High Court on 7th May, 1997, to terminate proceedings in the Originating Summons already fixed for hearing on 27th January, 1997.
However, when the motion for committal of the appellants’ and his Counsel came up for hearing at the trial High Court, the appellant’s Counsel raised a number of objections to the hearing of the motion which were duly heard and dismissed by the learned trial Judge on 26th March, 1998. The appellant’s appeal to the Court of Appeal Enugu Division against the dismissal of his preliminary objections by the High Court, was heard and dismissed on 10th July, 2000, hence the present further and final appeal by the appellant to this Court raising the following two issues for determination from the grounds of appeal filed by him. The issues are –
“1. Whether the Court of Appeal was correct in its decision that the non-service of an Originating process (in this case from 5) on the 2nd respondent was a mere irregularity
- Whether the Court-of Appeal was correct in its decision that the learned trial Judge was correct in refusing a discontinuance of the suit as sought by the appellant”
The two issues were adopted in the 1st respondent’s brief of argument though with a slight variation to suit the understanding of the 1st Respondent to the issues. No brief of argument was filed for the 2nd Respondent because he and his learned Counsel have died before the appeal came up for hearing.
In his argument on the first issue, learned Counsel to the appellant cited the case of Madukolu v. Nkemdelim (1962) 2 S.C. N.L.R. 341 and Order 3 Rule 10 of the High Court of Anambra State Civil Procedure Rules 1988 and submitted that the Respondents who had failed to fulfill the condition precedent to the exercise of jurisdiction of the trial High Court in the matter by not complying with the requirements of Rule 10 of Order 3 of the High Court Rules in serving Form 5 on the 2nd respondent, the Court below was wrong to regard this fundamental noncompliance with the rule, as a mere irregularity. Learned Counsel maintained that whether a party joining a suit shall have appeared or not, the issuance and service of Form 5 on such a person is still mandatory, making it a condition precedent to the exercise or assumption of jurisdiction over such person by the Court; that there being no provision for a waiver express or implied in the provision of Order 3 Rule 10 of the Rules, the Court below was in error in reading into the rules exemption clauses which were not contemplated by the law makers, particularly the issue of miscarriage of justice. Learned Counsel concluded that where special statutory provisions are made for filing of a claim, the procedure so laid down ought to be followed as decided by this Court in Oseyomon v. Ojo (1997) 7 S.C.N.J. 367 at 368. (reported as Benin Rubber Producers Ltd. v. Ojo (1997) 9 NWLR (Pt. 521) 388.
For the respondents however, it was argued that Order 3 Rule 10 of the Rules of Court were merely to afford the parties whose interest are manifest in pending suits, opportunity of being heard on joining as parties; that having regard to the affidavit of the 2nd respondent to join the proceedings in the Originating Summons as a party, the 2nd respondent was already fully equipped to defend himself without necessarily waiting for the service of Form 5 on him.
In the judgment of the Court below now on appeal, the same issue on the complaint regarding the non service of Form 5 on the 2nd respondent, was raised and Fabiyi J.C.A. in the lead judgment dealt with it at pages 98 – 99 of the record as follows –
“I should state it here clearly for the avoidance of doubt that where an extraneous legal personality is joined to an existing suit on the application of a party thereto on suo motu by the Court, service of Form 5 on such a new party is sine qua non. In such instance, Form 5 shall be served on him to make him attend the Court. It is only then that the Court will be imbued with jurisdiction. On the contrary, as in this case, where the 2nd Defendant/Respondent applied on his own volition to be joined and he was joined in his presence, further service of FORM 5 on him will merely be a formality. It may amount to an ‘over-kill.’ FORM 5 may be served on him. It is an instance where the word ‘shall’ can be reasonably interpreted to mean ‘may.’ It is not in every case that the word ‘shall’ imports a mandatory meaning into its use. See Welcome Foundation Ltd. v. Lodeka Pharmacy Ltd. & Ors. (supra) at pages 207 – 208.”
I completely agree with the Court below on the interpretation and application of the provisions of Order 3 Rule 10 of the Anambra State High Court Rules. Taking into consideration that the joinder of the 2nd respondent to the appellant’s proceedings in the Originating Summons filed by him, was not at the instance of the appellant or the 1st respondent who were original parties in the action but at the instance of the 2nd respondent on his own application filed by his own Counsel both of whom were present in the Court on 24th October, 1996 when the application for joinder was granted by the trial Court, for the appellant to insist that the respondent must be served with Form 5 before he could have been considered as having joined the action, is to assume responsibility which does not belong to the appellant. respondent having taken the advantage or opportunity provided for his benefit under Order 3 Rule 10 of the Rules, the appellant cannot hide under the same rule to kick out the 2nd respondent from the appellant’s action to which the 2nd Respondent had been rightly joined on the orders of the trial Court. Since the 2nd Respondent is not complaining of the alleged non-service of Form 5 on him, the appellant, in my view, is the least person qualified to complain on his behalf. I therefore agree with the Court below that failure to serve Form 5 on the 2nd Respondent in compliance with Order 3 Rule 10 of the Anambra State High Court Rules in the present case is a mere irregularity which did not occasion any miscarriage of justice liable to have affected the jurisdiction of the trial Court. This takes care of the first issue for determination which I hereby resolve against the appellant.
The second issue for determination is whether the Court of Appeal was correct in its decision that the learned trial Judge was correct in refusing a discontinuance of the suit as sought by the appellant. It was argued in support of this issue by the appellant that following the application filed by the appellant to withdraw his action against the respondents on 12th March, 1997, the matter was adjourned to 28th May, 1997 for mention on which date the respondents told the Court that they were not opposed to the application to withdraw the action but the trial Court gave no reason for not terminating the action as sought. Learned Counsel conceded that although the action was earlier fixed for hearing which supported the requirement of leave of Court for the withdrawal or discontinuance of the action as held in the cases of Akukalia Alfed Aghadiuno & Ors. v. Ekegbo Onubogu (1998) 4 S.C.N.J 8 at 93 and Nwachukwu & Ors. v. David Eze & Ors. (1955) 15 W.A.C.A 36, the situation in the present action which was later adjourned for mention, is quite different particularly when the learned Counsel on the other side were not opposing the application of the appellant. Learned Counsel therefore urged this Court to allow the appeal on this issue, as no valid reason was advanced by the Court below for the refusal by the trial Court to grant the application.
In the 1st respondent’s brief of argument, learned Counsel stressed that the action filed by the appellant was first set down for hearing on 27th January, 1997, while the Notice of discontinuance was filed by the appellant on 7th May, 1997 well after the date set for the hearing of the case. Counsel referred to Order 22 Rule 4(1) of the High Rules of Anambra State, 1991 and submitted that leave of the trial Court was required to give effect to the appellant’s notice of discontinuance relying on a number of cases, such as Giwa v. John Holt & Co. Ltd. 10 N.L.R. 77; Okoro Audu v. Okoromadu (1997) 3 S.C. 21; Nwachukwu v. Eze (1955) 15 W.A.C.A. 36; Akukalia Alfed Aghadiuno & Ors. v. Ekegbo Onubogu (1998) 4 S.C.N.J 8 at 93 and Leonard Eronini & Ors. v. Francis Iheuko (1989) 2 N.W.L.R. (pt. 101) 46 at 56.
I may observe at this stage that the provisions of Order 22 Rule 4(1) of the Anambra State High Court Rules which are in contention in the present case are in pari material with the provisions of Order 47 Rule 1 of the High Court Rules of Eastern Nigeria which came under consideration by this Court in the cases cited and relied upon by the 1st Respondent in support of his argument that leave of the trial Court was required before the Appellant’s notice of discontinuance could take effect. In Nwobu Nwachukwu & Ors. v. David Eze & Ors. (1955) 15 (W.A.C.A.) 36 the West African Court of Appeal interpreting provisions of Order XLIV Rule 1 of the old Supreme Court (Civil Procedure) Rules CAP 211 of the Laws of Nigeria, 1948, had this to say on notice of discontinuance –
“Leave of the Court is necessary to discontinue a suit on or after the date fixed for hearing.”
The correct interpretation and application of the rule therefore is that if notice of discontinuance is filed on or after the date the action was first fixed for hearing, the learned trial Judge has a discretion to grant or refuse the application on terms as the case may be. Coming back home to one of the decisions of this Court in Leonard Eronini & Ors. v. Francis Iheuko (1989) 2 N.W.L.R. (Pt. 101) 46 at 56, Obaseki J.S.C. stated the position of the law on the subject of the interpretation and application of the provisions of Order 47 Rule 1 of the High Court Rules of Eastern Nigeria on notice of discontinuance thus –
“It is clear therefore that a Plaintiff and or a defendant who counter-claims may withdraw his claim or counter-claim at any stage of the proceedings before judgment.these are mainly in circumstances where no date has been fixed for hearing. No leave is required. However, where the case has been fixed for hearing, leave to withdraw is required as the Rule gives power to the Court to allow discontinuance. Leave may be granted on terms as to costs and as to any subsequent suit and otherwise as to the Court may deem just.”See also Aknkalia Alfred Aghadinno & Ors. v. Ekegbo Onuhogn (1998) 5 N.W.L.R. (Pt. 548) 16 at 28 – 29.
In the present case therefore, there is no dispute whatsoever that the appellant’s notice of discontinuance was filed after the appellant’s action had already been fixed for hearing. Thus the appellant not having sought and obtained the leave of the trial Court to discontinue his action against the respondents, that action remains firmly before the trial Court for determination in accordance with the law. The Court below was therefore right in its decision that the trial Judge was correct in refusing or ignoring a discontinuance of the suit as sought by the appellant in the absence of the required leave under the law.
On the whole, there is no merit at all in this appeal. The appeal is accordingly hereby dismissed and the decision of the Court below is affirmed.
There shall be N10,000.00 costs in favour of the respondent.
SC.283/2002
