Union Bank of Nigeria Plc V. Luobai Nigeria Ltd. (2000)
LawGlobal-Hub Lead Judgment Report
OYEBISI F. OMOLEYE, J.C.A.
This is an appeal against the ruling of the FCT High Court delivered on the 28th day of July, 1999 by His Lordship Hon. Justice M. D. Saleh Chief Judge, as he then was.
The brief background facts of this case are that the Respondent as plaintiff in the trial Court claimed against the Appellant as defendant under the undefended procedure the sum of N27,873,957.24 being the value of three Oceanic Bank Cheques lodged by the Respondent into its bank account with the Appellant’s Asaba Branch with instructions that the said account be transferred to the Appellant’s Abuja Branch. It was alleged that the Appellant after clearing the said cheques converted the proceeds for its own use, refused, failed and neglected to transfer the account with the said sum of money of the Respondent to the Abuja Branch of the Appellant. By an order of the trial court, the suit was however, – transferred to the general cause list pursuant to the success of the Appellant’s notice of intention to defend the suit in that regard. Pleadings were filed and exchanged by both parties and trial commenced.
The Respondent after calling two witnesses filed in the trial court, a Notice of Discontinuance. The Respondent’s application to discontinue the suit was granted on 28/7/99 by the trial Court. The case was then struck out with liberty to relist the suit.
Dissatisfied with the ruling, the Appellant appealed to this Court vide its Notice of Appeal on one sole ground. The sole ground of appeal with its particulars is as follows:
“GROUND OF APPEAL
The Learned Trial Judge erred in law when he struck out the respondent’s case with liberty to relist.
PARITCULARS OF ERROR:
- A) The respondent had called two witnesses in the proceedings who were duly cross-examined thereby making the case part-heard
- B) The law is that once a case is part heard and a notice of discontinuance is filed for any reason whatsoever the proper order to make in the circumstance is that of dismissal of the case.”
From the sole ground of appeal, the Appellant formulated one issue for determination. This is:
“The issue for determination in this appeal is whether the Learned Trial Judge was right in Law when he struck out the plaintiff’s case with liberty to relist instead of an order of dismissal having regard to the circumstances of this case.”
The Respondent on its part raised a preliminary objection and formulated one issue for determination of the appeal. These are:
“(A) PRELIMINARY ISSUE/ OBJECTION
Whether the Appellant can raise and argue for the first time on appeal the only ground of Appeal which raises an issue which the Appellant did not raise and canvas at the lower Court, what is the proper order to be made after leave was granted to the Respondent to discontinue the Suit, whether that of striking out or an order for dismissal without first seeking and obtaining leave of this Court.
(B) SUBSTANTIVE ISSUE
Whether the learned Trial Judge was entitled to Strike out the suit with liberty to relist after leave was granted to discontinue same, having regard to the stage of the proceedings, the affidavit evidence in support of the Notice, the provisions of ORDER 29 Rules 3(1) and 4 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure Rules) and the general circumstances of the case.”
On 23/4/07 when the appeal was heard, the learned counsel for the Appellant, Mr. F. O. Akpobasa adopted the Appellant’s Brief of Argument which was deemed filed on 31/10/2002.
On the other hand the learned counsel for the Respondent, Mr. I. U. Ntima adopted the Respondent’s Brief of Argument which was deemed filed on 23/05/2005.
Before proceeding to the sole issue in the appeal, I will first consider the objection of the Respondent to the appeal which has been tagged “Preliminary Issue/Objection”, this was duly incorporated in the Respondent’s Brief of Argument. For ease of reference, I hereunder again reiterate same as follows:
“PRELIMINARY ISSUE/OBJECTION
Whether the Appellant can raise and argue for the first time on appeal the only ground of Appeal which raises an issue which Appellant did not raise and canvas at the lower Court, what is the proper order to be made after leave was granted to the Respondent to discontinue the Suit, whether that of striking out or an order for dismissal without first seeking and obtaining leave of this Court.”
Learned counsel for the Respondent submitted that the question of the proper order to be made after leave was granted to the Respondent to discontinue the suit was neither raised by the Appellant nor canvassed before the trial Court so as to enable the learned trial Judge address same and decide one way or the other.
The only ground of appeal and the sole issue distilled from it is tantamount to raising a fresh and new point on appeal for the first time. In which case, the Appellant ought to seek and obtain the leave of this Court before the issue can be successfully maintained. In the event of the Appellant’s failure to first seek and obtain the necessary leave of court in this regard, the only ground of appeal has been rendered incompetent and must therefore be struck out. On this position learned counsel for the Respondent referred to the cases of:
(1) Oshataba vs. Olujitan (2000) 2 SCNJ p. 159 at p. 172and
(2) Okobia Vs. Ajanya (1998) 5 SCNJ p.95 at p.102.
It was further submitted by learned counsel for the Respondent that since there is only one ground of appeal which is incompetent, the entire appeal has been rendered incompetent and it must fail. He therefore urged the Court to dismiss the appeal.
Replying to the objection, the learned counsel for the Appellant submitted that it was not for counsel to dictate to the court by way of opposition the appropriate order the court ought to make in consequence of the Respondent’s application for leave before that court. Rather, it was a matter exclusively for the court in the due and deliberate exercise of its judicial discretion which naturally and inevitably must entail the weighing of all the circumstances of the case in the interest of justice and balancing of the interest of parties involved. He referred to the case of:
Rodriques & 6 Ors Vs. The Public Trustees (1977) 4 SC p.29 at p. 36. lines 25 – 30.
I have considered the submissions of learned counsel for both parties for and against the preliminary objection. It is patent on the printed record that the leave of the trial Court was duly sought by the Respondent to have the suit under reference discontinued. While I agree that the learned counsel for the Appellant could have indicated to the trial Court the proper order it should make in the given circumstances of the case, his failure to do so cannot constitute a bar to the Appellant’s exercise of its constitutional right of appeal. See Section 242 of the Constitution of the Federal Republic of Nigeria, 1999 which provides that a party in civil proceedings shall have a right of appeal to the Court of Appeal from the decisions of the Federal High Court or the High Court of a State or the High Court of the FCT.
The option open to the Appellant is to appeal the order of the trial Court being dissatisfied with same. In my view, this appeal is not tantamount to canvassing on appeal a fresh point not raised at trial and I hold so. In essence, I hold that the preliminary objection of the Respondent with due respect is misconceived. It fails and I hereby dismiss same accordingly.
I will now proceed to consider the sole issue for determination in the appeal. Although the sole issue as formulated by parties are the same, I will adopt that formulated by the Appellant being better and more properly couched.
SOLE ISSUE
“The issue for determination in this appeal is whether the learned trial Judge was right in law when he struck out the plaintiff’s case with liberty to relist instead of an order of dismissal having regard to the circumstances of this case.”
Learned counsel for the Appellant contended that the learned trial Judge erred in law and did not exercise his discretion judicially and judiciously when His Lordship struck out the Respondent’s suit before the trial Court with liberty to relist the suit consequent upon the Respondent’s motion to discontinue the suit. The leave to discontinue the suit was sought and granted by the trial Court after two witnesses have already testified in support of the Respondent’s case. Reference was made to the provisions of Order 29 rule 3 (1) & (2) of the Civil Procedure Rules of the High Court of the Federal Capital Territory, Abuja, 1990. He submitted that the rationale of rule 3 is that once a certain stage has been reached, a plaintiff in this case the Respondent, is no longer “dominis lities” and cannot be allowed to escape through the back to enter again through another action. A Judge in granting leave to discontinue an action must do so in the exercise of his discretionary power. Learned counsel for the Respondent submitted that such discretion must be exercised judicially and judiciously having regard to the facts and stage of the case. Therefore failure of the trial Court to take the facts and stage of this case into consideration amounts to a wrongful exercise of the Judge’s power of discretion. In which case an appellate Court, can interfere with such decision. He referred to the case of:
University of Lagos & Anor. vs. M. I. Aigoro (1985) 1 NWLR (Pt.1)p. 143at p. 144.
It was canvassed by learned counsel for the Appellant that hearing in the suit commenced on 16/03/98. That day, a witness, PW1 testified after which the case was adjourned to 01/06/98 for continuation. On 01/06/98, the Respondent informed the trial Court of moves by parties to settle out of Court. The case was then adjourned to 25/06/98 for report of settlement. On 25/05/1998 the
Respondent’s counsel did not say anything about the proposed settlement but instead indicated his readiness to call another witness.
Hence, Pw2 testified and some relevant documents Exhibits 1, 2, 3 & 4 were tendered and admitted in evidence through the said Pw2. Thus far, at trial Pw1 & Pw2 properly gave evidence and were cross-examined accordingly. Reference was made to pages 6 & 10 of the record of proceedings.
Learned counsel for the Appellant contended that the failure of the learned trial Judge to take into consideration these facts led His Lordship to errorneously make an order of striking out of the Respondent’s case with the liberty to relist the suit. It was the assertion of the learned counsel for the Appellant that the proper order to make on the discontinuance of an action during hearing is one of dismissal because a position of “litis contestatio” had been reached at that stage. Reference was made to the cases of:
(1) University of Lagos & Anor Vs. M. I. Aigaro Supra;
(2) Eronini & 4 0rs. Vs Iheuko (1989) 2 NWLR (pt. 101) p. 46 at p.61;
(3) Aghadiuno & 2 ors Vs. Onuboqu (1998) 58 LRCN p. 3422 at p. 3444, para. H. and
(4) Omo & 5 Ors vs Amantu & 2 ors (1993) 3NWLR (Pt.280) p.187 at p. 196, paras. A-B.
Learned counsel for the Appellant referred to page 45 of the record where the Appellant’s counsel told the learned trial Chief Judge that they were not aware of settlement moves in response to the claim of the Respondent that there were such moves. It was the contention of learned counsel for the Appellant that the Respondent was on its own when on 01/06/98 its counsel informed the trial Court of a proposed final settlement by parties. Also on 28/07/99 when the learned counsel for the Respondent sought and was granted leave to discontinue the case, the application was made because it became clear to the Respondent that the action was a futile one and that its claim cannot succeed. Learned counsel for the Appellant urged this Court not to allow a situation whereby the Respondent enters again through another action after it had discontinued the earlier suit on 28/07/99 to “explore out of court settlement; as this would occasion an injustice to the Appellant. Learned counsel for the Appellant therefore urged the Court to allow the appeal, set aside the decision of the trial Court and dismiss the Respondent’s suit accordingly.
On the other part, learned counsel for the Respondent submitted that, the Respondent’s application for the discontinuance of its suit before the trial Court was in pursuance of the provisions of Order 29 rule 3(1) Supra. For the application was made outside the period of 14 days of service on it of the Appellant’s Statement of Defence, hence the need for the Respondent to seek the leave of the trial Court for the discontinuance. The leave was rightly sought and obtained by the Respondent pursuant to the said provisions of Order 29 rule 3(1).
Learned counsel for the Respondent contended that a trial Judge faced with an application brought under Order 293(1) has a discretionary power to exercise in granting or refusing the application. That such exercise of discretion must be judicial and judicious after taking into consideration the reason(s) for the application to discontinue the case, the conduct of the parties, and whether the defendant as in the instant case, the Appellant will be prejudiced if the suit is discontinued at the particular stage when the application was brought.
The discretion whether or not to permit the discontinuance of a suit according to learned counsel for the Respondent is entirely that of the trial Judge. The orders to be made in that regard are hereunder catalogued by learned counsel for the Respondent as follows:
(1) to grant leave for the Suit to be withdrawn simply on terms that the same be struck out subject to payment of cost.
(2) or to grant leave for the Suit to be withdrawn subject to the imposition of certain conditions to be fulfiled before a fresh Suit concerning the same subject matter and the same parties may be instituted in the court, or
(3) to refuse such leave in which case the Suit must be dismissed also on terms as to costs if the plaintiff could not proceed.
On the position taken by the learned counsel for the Respondent, reference was made to the case of:
Aghadiuno & 2 ors Vs. Onubogu (1998) Supra
Learned counsel for the Respondent further canvassed that the Appellant did not file a counter affidavit to challenge the averments in the Respondent’s affidavit in support of the application for discontinuance filed by the Respondent. The Appellant neither opposed the application nor asked for cost. In particular, reference was made to the averments in paragraphs 4 and 5 of Respondent’s affidavit in support of the Notice of Discontinuance to the effect that it was after the weighty evidence of Pw2 that the Appellant mounted pressure on the Respondent in furtherance of the earlier letter Exhibit A attached to the Notice and gave assurances that the Respondent’s account will be normalized. The Respondent through its Managing Director gave his words to the Appellant that steps will be initiated to discontinue the suit. This was actualized by the filing of the Notice of Discontinuance by the Respondent.
It was contended by learned counsel for the Respondent that the current posture of the Appellant is tantamount to tricks and intrigues which are not permitted under any judicial system which is based on justice, equity and good conscience. The Appellant’s abandonment of the settlement proposal by the institution of this appeal is meant to foreclose and prejudice the Respondent’s claim. This is unjust, inequitable, against good conscience and a sharp practice which ought to be discouraged by the courts. He referred to the observation of the Supreme Court in the case of:
Shauibu Vs. N.A.B. Ltd (1998) 4 SCNJ p. 109 at p. 123
That justice is not a fencing game in which parties engage themselves in an exercise of out-smarting each other in a whirligig of technicalities.
It was the further contention of the learned counsel for the Respondent that having granted leave to discontinue without objection, the only proper order the trial Court can make at that stage is the order of striking out in fine with the provisions of Order 29 rule 3(1) Supra and the cases of:
(1) Rodriques & Ors. Vs. The Public Trustees & Ors (1977) 4 SC p.29 at pqs. 32, 36 – 37 and
(2) Aghadiuno vs. Onuboqu Supra at p.92.
Having not opposed the application for discontinuance, it is the opinion of learned counsel for the Respondent that it is too late in the day for the Appellant to complain on appeal that the leave ought not have been granted with liberty to relist the action. He referred to the case of:
Okobo vs. Ajanya Supra at p. 104 – 105.
Learned counsel for the Respondent further canvassed that it will also be inequitable to allow the Appellant take advantage of the circumstances which it foisted on the Respondent to defeat the Respondent’s cause of action without a determination of the suit on its merits.
Having recounted the submissions of both counsel with the legal authorities cited by them on the sole issue in this appeal, it becomes pertinent to give due consideration to the relevant and enabling rule guiding the exercise of the discretion of the trial Court at the time the suit in dispute was instituted before it. In this regard, the appropriate rule is Order 29 rule 3 of the High Court of the FCT, Abuja Civil Procedure Rules, 1999. For reasons of ease of reference and good appreciation of the full details and purport of the provisions, I hereunder reproduce same as follows:
“3. (1) Except as provided by rule 2 of this Order, a party may not discontinue an action or counter-claim or withdraw any particular claim made by him therein without leave of the Court and the court hearing an application for the grant of such leave may order the action or counter-claim to be discontinued or any particular claim made therein to be struck out, as against any or all of the parties against whom it is brought or made on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just.
(2) An application for the grant of leave under this rule may be made by summons or motion on notice. ”
(The underlined is mine for emphasis.)
As already stated earlier on in this judgment, the Respondent’s action was initially commenced under the undefended list procedure. However, convinced that the Appellant’s affidavit in support of its notice of intention to defend, disclosed a defence on the merit, the learned trial Chief Judge accordingly transferred the suit to the general cause list of the trial Court.
The first pertinent question to ask in resolving this appeal is: what actually informed the Respondent to file the notice/application for leave to discontinue the suit against the Appellant? The Respondent’s counsel informed the trial Court that there was a move by parties to settle out of Court for the very first time on 01/06/98- see lines 8 – 10 from the bottom at page 45 of the record. Prior to that date, hearing of the case commenced-on 16/03/98 with the taking of the evidence of Pw1. The following day, that is, 17/3/98, the Appellant wrote a letter to the Chairman of the Respondent Company. This is at page 39 of the record. For ease of reference, I hereunder reproduce the said letter as follows:
“RC 6262 UNION BANK OF NIGERIA PLC
Head Office 40 Marina, PM. Bag 2027, Lagos
Telephone 2665439, 2665441, 2665445
Telegrams: UNIONHEAD
Telex: 21222
Fax: 2669873
LEGAL DEPARTMENT
17th March 1998
Mr. Luke Uche Okpuno
Group Chairman
Luobai Nigeria Limited
13 Ibusa Road
- O. Box 607
Asaba – Delta State
WITHOUT PREJUDICE
Dear Sir,
RE”SUIT NO CV/04/9B
LUOBAI NIGERIA LIMITED
VS
UNION BANK OF NIGERIA PLC
We refer to the above pending matter before the Abuja Federal High Court.
Reference is also made to our Okpuno/Azinge discussion on Tuesday 10th March 1998 in respect of same.
You will recall that we extensively dwelt on the need to have a harmonious, cordial and long lasting relationship built on a mutually beneficial business relationship between your company and the Bank.
We trust that you will initiate the discontinuance of this matter in court to enable us continue the already existing cordial relationship.
Yours sincerely,
SIGNED
THEODORA N. AZINGE (MRS)
R/DEPUTY GENERAL MANAGER
(LEGAL SERVICES)
(The underlined is mine for emphasis)
The next time the case came up for hearing after the letter was written by the Appellant to the Respondent was on 01/06/98 when the Respondent informed the learned trial Chief Judge of the proposed out of Court settlement. The case was adjourned to 25/06/98 for report of settlement – see the last line at page 45 of the record. Subsequently the case came up for hearing on 28/07/98, 29/7/98, 05/10/98 and 14/04/99. The evidence of Pw2 was taken on 14/04/99 when the case was further adjourned to 13/5/99 for continuation although the trial Court did not sit until 17/06/00 when the Respondent’s counsel informed the trial Court that the Respondent instructed him the day before that day to discontinue the suit. The Respondent and the Appellant had reached some understanding in the matter. Learned counsel for the Respondent then prayed the trial Court for an adjournment to enable him come properly before the Court by filing the Notice of Discontinuance. The case was then adjourned to 12/07/99 for the hearing of the Respondent’s application.
The trial Court did not reconvene until 28/07/99 when the Notice of Discontinuance dated 05/07/99 but filed on 13/7/99 was granted by the trial Court having been moved by the Respondent’s counsel but not opposed by the Appellant’s counsel. See page 37 – 38 of the Record for the Notice of Discontinuance and the Affidavit in support thereof. Line 5 at page 49 of the Record specifically shows that the Appellant’s counsel did not oppose the application of the Respondent to discontinue the suit against it. It should be noted that although earlier on when the topic was first raised on 01/06/98, the Appellant’s counsel said he was not aware of the reconciliation move, he did not oppose the Respondent’s counsel’s application for an adjournment to enable parties finally settle out of court.
It becomes very clear that the Appellant was actively involved in the out-of-court settlement – see its letter to the Respondent’s Chairman reproduced supra at page 39 of the record.
The next pertinent question, indeed the “gravamen” of this appeal is: given the circumstances of this case, is the order of the learned trial Chief Judge’s striking out the suit with the rider that the suit could be relisted the proper order? Order 3(1) supra is very unambiguous, it provides that the court hearing an application for the grant of its leave to discontinue an action or withdraw any particular claim therein may order the action to be discontinued or struck out on such terms as to costs or the bringing of a subsequent action as it thinks just. As rightly submitted in agreement by counsel for the two parties, the power to grant an application for discontinuance by the court is a discretionary one. The exercise of which like other judicial discretionary powers of court must be done judicially and judiciously in the light of the peculiar circumstances of the case in dispute.
The main grouse of the Appellant in the instant case is that this Court should interfere with the learned trial Judges exercise of discretion.
It is trite law that the discretion of a court no matter how wide should be exercised judiciously and judicially. It is a time-honoured and settled principle of law that appellate Courts do not ordinarily interfere with a lower Court’s exercise of discretion unless the discretion has been exercised in an arbitrary or illegal manner or without due consideration of all relevant issues in the matter. See the cases of:
(1) M. A. Williams Vs. Hope Rising Voluntary Funds Society (1982) 2 SC p.145;
(2) Efetiroroie Vs. Okpalafe II (1991) 5 NWLR (Pt.193) p.519 and
(3) Ere Finance Holdings Ltd vs. Osaqie, Okeke, Oteqbola & Co. (2000) 5 NWLR (Pt.658) p.536.
I have already catalogued the circumstances which led to the Respondent’s application for the discontinuance of the suit in dispute. It is crystal clear from the printed record that it was as a result of the Appellant’s letter (at page 39 of the record of proceedings) to the Respondent that the application for discontinuance of the suit was commenced by the Respondent and granted by the learned trial Chief Judge. Very pertinent also is the motion for discontinuance itself with the Supporting Affidavit at pages 37 and 38 of the record. The Appellant was duly represented in court on 28/7/99 when the motion was moved. He did not oppose the motion. The averments in the Affidavit in support of the motion were not challenged or controverted for no counter-affidavit was filed by the Appellant in that regard. The position of the law is that evidence or averments in an affidavit that are not denied are deemed admitted. The court would act on them especially when they are credible and reliable. See the cases of:
(1) Ajomate Vs. Yaduat (No.2) (1991) 5 NWLR (pt.191) p.266;
(2) Honka Sawmill (Nig.) Ltd vs. Hoff (1994) 2 NWLR (Pt.326) p.252;
(3) Neka B.B.B. Mfq. Co. Ltd Vs. A.C.B. Ltd (2004) 2 NWLR (pt.858) p.521 and
(4) Remawa vs. NACO CFC Ltd (2007) 2 NWLR (pt.1017) p.155
The Appellant is therefore deemed to have admitted all the averments especially those of paragraphs 4 and 5 of the said Affidavit.
The Appellant can not therefore be heard to say that it was not party to the events leading to the filing, hearing and determination of the Respondent’s motion for the discontinuance of the suit in dispute. They can not approbate and reprobate at the same time. I hold without any modicum of doubt that indeed there was a meeting of the minds of the Appellant and the Respondent prior to the hearing of the Motion for Discontinuance. By virtue of section 151 of the Evidence Act, when one person by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true and to act on such belief, neither he nor his representatives in interest shall be allowed in any proceeding between himself and such representative in interest to deny the truth of that thing. See the cases of:
(1) Otto v. Mabamiie (2004) 17 NWLR (Pt, 903) p.489;
(2) Ondo State University Vs. Folayan (1994) 7 NWLR (Pt. 354) p.1 at p. 119, paras. F-H and
(3) Gov. Ekiti State vs. Ojo (2006) 17 NWLR (Pt.1007) p.95
The parties in the instant case especially the Appellant are therefore estopped from resiling from that consensus.
Regarding the propriety of the order of the trial Court being appealed, in the circumstances of this case, can it be said that the learned trial Chief Judge wrongly excised his discretion in granting the Respondent’s application to discontinue the suit against the Appellant by striking out the suit giving the Respondent liberty to cause the suit to be relisted? Upon a close scrutiny of the pleadings Filed and exchanged by parties, it is very evident that very serious issues have been joined by the Respondent and the Appellant. So far, only two witnesses have been called by the Respondent. Although the total number of witnesses the Respondent intends to call is not known, it will appear that if the evidence adduced vide the two witnesses is considered side by side the pleadings of parties especially, the Statement of Claim and the Reply to the Statement of Defence filed by the Respondent, the evidence can not be said to be in full cry of, rather it is a far cry from entitling either party to its claim or counter-claim as the case may be. The evidence led so far by the Respondent in the trial Court if taken alongside the pleadings especially that of the Appellant it cannot be said that the ammunitions of the Appellant have been exposed thereby weakening the Appellant’s position and putting the Appellant at a disadvantage should the proposed out- of – court settlement crumbles thereby necessitating a relisting of the suit by the Respondent.
I have examined and considered all the legal authorities cited by both counsel and found that the common denominator indeed the germane ratio of them all is that: a Court in exercising its judicial discretion as in the instant case, must weigh all the circumstances of each case before it thereby balancing the interest of the parties involved. This is the mind of the Supreme Court in the case of; Aghadiuno Vs. Onuboqgu Supra relied upon by counsel for both parties. see also the case of: Rodrigues & 6 ors. Vs. The Public Trustees also Supra. Where a matter involves the exercise of judicial discretion, only the court exercising the discretion, can limit itself. Such court is not bound to exercise its discretion in a particular way in accordance with an existing judicial decision. In other words, each exercise of judicial discretion by a court must depend on the facts and peculiar circumstances of each case as previous exercise of judicial discretion has no binding effect. See the cases of:
(1) I.C.A.N vs. A.-G., Federation (2004) 3 NWLR (Pt.859) p.186;
(2) Odusote Vs. Odudsote (1971) 1 All NLR p. 219;
(3) Udeze Vs, Ononuju(2001) 3 NWLR (Pt.700) p.216:
(4) Oyekanmi vs. NEPA (2000)15 NWLR (pt. 690) p.414 at Pgs. 113 -114, paras. G-A and
(5) N. H. Int’l S.A v. N.H.H. Ltd (2007)7 NWLR (Pt.1032) 886.
An appellate court will not reverse a discretionary order of a trial court merely because it would have exercised the discretion differently. However, an appellate court has a bounden duty to interfere with the exercise of such discretion where it is shown that the trial court erred by exercising its discretion on wrong principles or that it failed to give weight to matters which it should have had in mind or that its conclusion is one that involved injustice. See the cases of:
(1) I.C.A.N Vs. A.-G., Federation Supra;
(2) University of Lagos vs. Aigoro {1998}1 NWLR (Pt.1) p.143;
(3) Elendu v. Ekwoaba (1998) 12 NWLR (Pt.578) p.320;
(4) Omadibe v. Adajeroh (1976) 12 SC p.87;
(5) Odutola v. Kavode (19942 2 NWLR (pt. 324) p. 1 and
(6) N.H. Int’l S.A. vs. N.H.H. Ltd Supra.
On the whole, the overall interest of justice to all parties based on the stage attained in each peculiar case is the deciding factor that should weigh on the mind of the Court in the exercise of its judicial discretion one way or the other. In the instant case, I do not think the learned trial Chief Judge wrongly exercised his discretion in granting the Order in dispute. He is properly empowered especially in that regard by the combined provisions of Order 29 rules 3(1) and 4. Rule 3(1) reproduced supra is to the effect that leave to discontinue an action will be granted on terms such as, the bringing of a subsequent action or otherwise as it considered just and subject to any of such terms imposed by the Court in granting the leave to discontinue the action, Rule 4 provides as follows:
“4. Subject to any terms imposed by the Court in granting leave under rule 3 of this Order, the fact that a party had discontinued an action or counter-claim or withdrawn a particular claim made by him therein shall not be a defence to a subsequent action for the same, or substantially the same, cause of action. (The underlined is mine for emphasis)
By the provisions of rule 4, the fact that a party had discontinued an action shall not be a defence to a subsequent action for the same or substantially the same cause of action. In his own view, the learned trial Chief Judge used his discretion to strike out the Respondent’s suit against the Appellant with a liberty to relist the suit to cover the exigency of this case in the interest of justice to the parties. This is just and equitable in the given circumstances and bearing in mind the possibility of a break down of negotiations between the parties. In which event it will be desirable and in the interest of justice for the suit to be heard and determined on its merits. I can not disturb the exercise of discretion of the learned trial Chief Judge as the discretion had not been exercised in any arbitrary or illegal manner or without due consideration of all relevant issues in the matter, I do not see any feature to establish a misapplication of discretion on the part of the learned trial Chief Judge.
In the final result, I am of the view that the learned trial Chief Judge properly exercised his discretion in granting the order in dispute. Accordingly, this appeal lacks merit and it is dismissed. The order of the trial Court made on 28/7/99 is hereby affirmed. I make no order as to costs.
Other Citations: (2000)LCN/0886(CA)
