18 Dec APPLICABILITY OF NOTICE OF DISCONTINUANCE/WITHDRAWAL OF A SUIT/APPEAL BY A. S. UHUO, ESQ.
A LECTURE ON THE TOPIC:
- APPLICABILITY OF NOTICE OF DISCONTINUANCE/WITHDRAWAL OF A SUIT/APPEAL.
- CONSENT JUDGMENT – WHEN IT CAN BE CHALLENGED.
PRESENTED BY AMAECHI STEPHEN UHUO ESQ. THIS 9TH DAY OF NOVEMBER, 2018 AS PART OF CONTINUING LEGAL EDUCATION AT THE LAW FIRM OF GRANVILLE ABIBO & CO.
- A person who is aggrieved or alleges that his right has been violated one way or the other can go to court to seek for any form of judicial remedy. The filing of an action in court does not necessarily mean that the parties have irrevocably committed to resolving their dispute by litigation. Having begun an action in court, the parties are still at liberty to discontinue the action at any stage of the proceeding which they have nevertheless begun.
The procedures for such discontinuance are laid down in the respective Rules of Courts. Some of these procedure are available to either the claimant or the defendant alone, or both of them acting together. Each procedure, when correctly followed result in complete or substantial complete settlement of a dispute out of court.
- Often times, litigants or lawyers on their behalf are faced with challenges associated with discontinuance of suits pending in court. The different ways of terminating an action already before the court and the respective procedures to be followed under the Rules constitute the focus of this Paper.
For offering me an opportunity to make a presentation on a topic like this, my utmost appreciation goes to the law firm of Granville Abibo & Co. It is my conviction that this paper will offer as a veritable material as it pertains the practice and procedure of discontinuance of suit/appeal.
- CONTEXTUAL CLARIFICATION
- In the light of usage and practice, a mention of the term discontinuance in this paper would also means withdrawal. Notice of discontinuance/withdrawal are interchangeably used because both refer to one and same practice/method. In the same vein, except where the practice and procedure differs, discussion on discontinuance of Suits in this paper also covers Appeals. More so, within the limit of our discussion on discontinuance of suit and where the context admits, reference to Claimant will also in the same breath covers Appellant; Defendant also to Respondent.
- NOTICE OF DISCONTINUANCE/WITHDRAWAL – MEANING
- WHY DISCONTINUE SUITS?
- Discontinuance of actions pending in court ordinarily arises as a result of many factors. The factors include but not limited to:
- Where the claimant realizes the weakness of his claim in the light of the defence put up by the defendant.
- Where the claimant’s vital witness is not available and will not be so available at any future date.
- Where abandoning the case, the claimant could substantially reduce the high costs that would have otherwise followed after a full scale but unsuccessful litigation.
- To retain the right to re-litigate the claim if necessary, at a more opportune time.
- RELEVANT PROVISIONS OF THE RULES OF COURTS ON NOTICE OF DISCONTINUANCE
- HIGH COURT RULES:
For the purposes of this paper, the Rivers State High Court (Civil Procedure) Rules, 2010 shall be our focus. Order 23 provides for Notice of Discontinuance. The said Order 23 made elaborate provision on the procedure to be followed by a party who desires to discontinue his claim against his adversary. The provision of Order 23 covers both the claimant and defendant.
- COURT OF APPEAL RULES, 2016
Order 11  made elaborate provision for the withdrawal of Appeal. Appeals withdrawn under this Order shall be deemed to have been dismissed. It is important to note that the right of the Respondent under Order 9 is not fettered by the withdrawal of Appeal under Order 11.
- SUPREME COURT RULES, 1999 (AS AMENDED)
Order 8 Rules 6, 7 and 8 made extensive provision on the withdrawal of Appeals pending before it. Where Appeal is withdrawn under this Order, the Appeal is deemed dismissed. However, it is instructive to note that Appeal dismissed under this Order may upon application by the Appellant be restored.
- DISCONTINUANCE WITHOUT LEAVE OF COURT
- The different procedures for discontinuance and or, withdrawal of suits/appeals are provided under the respective Rules of Courts. In the case of Aghadiuno v. Onubogu, the Supreme Court handed down a clear guiding principle as to discontinuance of suit. According to the apex court, where the Claimant has been served with the Defendant’s Statement of Defence, or even after receiving the Statement of Defence he does not take any further step in the matter, then he does not require leave of court to discontinue.
- Where this is the case, the Claimant has a duty to file in Court and serve on the Defendant against whom he seeks to withdraw, a Notice of Discontinuance. Once the Defendant is served, then the suit is discontinued and deemed struck out subject to the Claimant’s liability for cost of the Defendant’s action up to the date of the discontinuance.
- DISCONTINUANCE WITH LEAVE OF COURT
- Where the Claimant has received the Defendant’s Statement of Defence and goes a step further in the matter, he require leave of Court before discontinuing the suit. In this case, the Claimant is duty bound to bring an application by way of motion on notice seeking the leave of the Court to discontinue the suit. At this stage, he can no longer file a notice of discontinuance and in fact, any such notice filed is invalid and should be struck out. The proper order to be made by the court where the Claimant applies for discontinuance when issues have been joined by the parties, where not expressly provided under the Rules, is a matter of judicial discretion.
- WHEN NOTICE OF DICONTINUANCE TAKES EFFECT
- This depend much on the stage the notice of discontinuance is filed. When filed at the appropriate time, the effect of notice of discontinuance is that it ends the suit and the court is entitled to formerly strike out the suit from the cause list. This could be done in the absence of the parties because the suit has been terminated by the filed notice of discontinuance.
- The court has no jurisdiction to refuse the discontinuance of a suit as it is the filing of the notice and not the act of the court that terminates the action. In Emeghara v. Health Management Board, Imo State (Supra), the Defendant brought a motion for the dismissal of the suit after the Claimant had properly filed a notice of discontinuance. It was held that the motion was misconceived, as the suit no longer existed when the motion was brought.
- It is important to note that even though a properly filed notice of discontinuance terminates the suit, it does not also determine altogether the jurisdiction of the court in the suit. Accordingly, the court may after discontinuance make order as may be necessary in the circumstances of the case and as may give effect to the rights of the Defendant during the Course of the proceedings.
- FILED NOTICE OF DISCONTINUANCE – WHETHER CAN BE WITHDRAWN
- A notice of discontinuance once duly filed cannot be withdrawn/recalled. Iguh J. S. C. in the case of The Vessel “Saint Roland” & Anor. v. Adefemi Osinloye (Supra) stated the position of the law thus:
“I think it ought to be noted that a Notice of Discontinuance once duly and validly filed cannot be recalled for the suit ceases to exist the moment it is effectively discontinued.”
- WHAT IS CONSENT JUDGMENT
- Consent judgment arises if either party is willing to consent to a judgment or order against himself or if both parties are agreed as to what the judgment or order ought to be in which case due effect may be given by the Court to such consent. A consent judgment is a judgment, the provisions and terms of which are settled and agreed to by the parties to the action. Consent judgment is made pursuant to terms of settlement mutually agreed to by both parties and filed in Court. Without incorporation of terms of settlement in the judgment of the Court, no such judgment arises.
- WHEN CONSENT JUDGMENT CAN BE CHALLENGED
- Consent judgment as the name suggest presupposes that parties mutually agreed and approved of the terms leading to the judgment. However, consent judgment can be challenged and where cogent grounds exist, can be set aside by the Court.
- A consent Judgment can be set aside for mutual mistake but not for a unilateral mistake, unless the unilateral mistake was induced by fraud and misrepresentation. The Supreme Court in the case of Albert Afegbai v. Attorney-General Edo State stated the position of the law thus:
It is well settled that a consent judgment can only be set aside if the application to do so can establish that there was a unilateral mistake induced by fraud or misrepresentation.
A stranger to the consent judgment can challenged such a judgment on ground of fraud or conspiracy. Consent Judgment does not bind a non-party or stranger to it in any way.
- The proper procedure for impeaching or challenging a consent judgment is by way of substantive action and not by motion, instituted by the affected party or the stranger as the case may be, in a Court of competent jurisdiction. That is to say, a consent judgment could only be set aside by a fresh action or by an appeal with the leave of Court not by a motion on notice.
- Notice of Discontinuance and its applicability is one of such areas in our procedural law that has over the years confronted both litigants and lawyers with some level of challenges. Same also applies to Consent Judgment, with particular focus on when it can be validly challenged and set aside by Court.
- In the light of the foregoing, this paper has made a rewarding attempt at resolving those challenges through a brief but meaningful discuss on the subject of this paper. It is believed that this paper will offer a useful guide to litigants and lawyers alike who are daily confronted with the challenges of the topic of this paper.
Thank you and God bless you all.
 Ibum Olumba & Ors. v. The Registered Trustees of the Brotherhood of the Cross & Star (2012) LPELR – 19713 (CA).
 Just like the claimant, a defendant can also upon application withdraw the whole or any part of his alleged grounds of defence or counter claim. See Order 23 Rule 1 (1) & (5) of the Rivers State High Court (Civil Procedure) Rules, 2010.
 F. Nwadialo, CIVIL PROCEDURE IN NIGERIA, 2nd Edition (Lagos: University of Lagos Press, 2000) P. 486.
 Rivers State High (Court Civil Procedure) Rules, 2010.
 Court of Appeal Rules, 2016.
 Above Note 5, Order 11, Rule 5.
 Above Note 5, Order 11 Rule 6.
 Supreme Court Rules, 1999 (as Amended).
 Above Note 8 , Order 8 Rule 6 (5).
 Above Note 8, Order 8 Rule 8 (4).
 (1998) 5 NWLR (Pt.548) 16
 Above Note 3, p. 487.
 Above Note 11, at 35, para. D.
 Okorodudu v. Okoromadu (1977) 3 SC, 21.
 Ekundayo v. Keregbe (2008) 4 NWLR (pt. 1077), 422., Above Note 1, (P.17, Paras. D – F).
 Emeghara v. Health Management Board, Imo State (1987) 2 NWLR ( pt. 56), 330.
 The Vessel “Saint Roland” & Anor. v. Adefemi Osinloye (1997) LPELR-SC. 101/1995, 4 NWLR (pt. 500) 387., Above Note 16.,
 The Vessel “Saint Roland” & Anor. v. Adefemi Osinloye (Above Note 17)
 Above Note 17 at P. 28 (paras. B – C). See also Ogunkunle v. Eternal Sacred Order, C & S (2001) 12 NWLR (Pt. 727) 359; Obienu v. Orizu & Ors. ( 1972) 2 ECSLR 606.
 Dana Impex Ltd & Anor v. Malcom Awukam & Anor. (2005) LPELR – 5533 (CA). See also Joseph Afolabi & Anor v. John Adukunle & Aor. (1983) 8 SC, 98.
 Woluchem v. Wokoma (1974) 3 SC, 153.
 Mallam Saidu Amori v. Yakubu Iyanda (2007) LPELR-CA/IL/8/2006.
 (2001) 14 NWLR (Pt. 733) 425., (2001) 7 S.C (Pt. II) 1.
 Above Note 20., Ebueku v. Amola (1988) 2 NWLR (Pt. 75) 128.
 Ecobank (Nig.) Ltd. v. Olive Energy Oil & Gas Ltd & Anor (2018) LPELR – 44112 (CA).
 Above Note 25; Dana Impex Ltd. & Anor. v. Malcom Awukam & Anor. (2005) LPELR – 5533 (CA).