Guest Columnist Procedural Law Uncategorized

Discontinuance or Withdrawal of a suit by the plaintiff or claimant by M.I. ODEJAYI ESQ.

The court is saddled with the responsibility of protecting itself, where a notice of discontinuance is an abuse of process, it may rightly be set aside or struck out by the court. This is because the court can always appropriate cases under its inherent jurisdiction to protect itself from abuse of its own process.

INTRODUCTION
Meaning of Discontinuance

The word “discontinuance” means the termination of a law suit by the plaintiff; a voluntary dismissal or non-suit. “The notice of discontinuance has the effect of the plaintiff voluntarily removing the suit or questions in the originating summons from determination from the court or trial or refraining from prosecuting or proceeding with action. The order to be made by the learned trial judge will depend on the stage of the proceedings when the notice of discontinuance or withdrawal was filed”.

Can a suit be discontinued or withdrawn?

Pursuant to rules of Court, a Claimant may withdraw a suit with leave of court at the trial stage, before or after defence is entered.
Also, it is pertinent to note that the Federal High Court (Civil Procedure) Rules 2009 by Order 50 Rule 3 and 4 confers a party with the right to withdraw or discontinue a suit. This withdrawal or discontinuance may be done with or without the leave of the Court. For clarity, the Court hearing the application for the grant of this leave may make the following orders:

  1. An order that the suit (or counter-claim as the case may be) be wholly or entirely discontinued;
  2. An order that any particular claim made therein (rather than the entire Claim) be struck out, as against any or all the parties against whom it is brought or made.

The order of Court in this regard may be based on such terms as to costs, the bringing of subsequent action or otherwise as it thinks just.
At this juncture, it is thus clear that the right in question (discontinuance) is that of a plaintiff/claimant or counter-claimant.

Attitude of the court

The right of the plaintiff/claimant to withdraw or discontinue a suit instituted by him is statutory. However, the Court occasionally frowns at this. This is no surprise in view of the frequency of frivolous actions instituted by some claimants. The opposing party must realize that the right of discontinuance is a statutory provision which must be respected.

Meanwhile, an objection may be raised to oppose an application for discontinuance, seeking cost of action (litigation) based on discontinuance, or seeking an order of Court dismissing the suit, where issues have been joined.

Leave of the Court

Under the Lagos State High Court (Civil Procedure) Rules 2019, a Claimant who wishes to discontinue his suit must apply for leave of Court. Without leave, the Court would discountenance such application. Thus, the leave of Court is an essential ingredient in applying for discontinuance.

On the other hand, in the Federal High Court (Civil Procedure) Rules 2009, leave of court is not essential when applying for discontinuance. A party may file an application with or without leave of Court.

Hence, in some cases, leave of court is required for discontinuance, but in certain other circumstances, leave is not required.

Where leave is not required: This is where no date has been fixed for hearing of the suit.

Where leave is required: when the matter has been slated for hearing.

Circumstances where leave may be refused

In The Young Shall Grow Motors Ltd. v. Ambrose O. Okonkwo & Anor. (2010) 15 NWLR (PT. 1217), the Court held that;

The grant or refusal of leave to discontinue a suit is in the discretion of the court. The leave should be refused in the following circumstance;
Where granting it will serve no useful purpose as where the suit ought to be dismissed.
Where if granted, it may work injustice to the defendants. The plaintiff must not be allowed to evade this situation or any device such as amendment or otherwise.
The plaintiff cannot be allowed to use discontinuation to bring about indirectly that which cannot be affected directly.”

Effect of Discontinuance

Overtime, the effect of discontinuance of a suit has generated a wide spectrum of legal arguments and controversies. However, with the aid of case laws (Nigerian Authorities), we would realise that the essential effect of discontinuance is a matter of strict law.
In the case of Aghadiuno V. Onubogu, the Court held that;

when leave to discontinue is granted, the court will have to make one or the order two possible consequential orders; namely:
i. Striking out the action on conditions;
ii. Outright dismissal of the suit.”

Is there any difference between the terms “Striking out” and “Dismissal”?

Legally, there is a huge difference between both terms. Where the former occurs, the suit may still be relisted. Where the latter occurs however, the suit cannot be relisted.

In Habib Bank Nigeria Plc. V LODIGIANI (NIGERIA) LTD the issue was whether a party can withdraw his suit before judgment is entered, and thereafter apply to relist the matter for determination on the merit? It was held thus;

“A plaintiff who has brought his complaint before a court has unfettered right to withdraw same if he so desire before judgment is entered. He may do so by applying to the court to withdraw same”.

Where such an application is granted, the proper order by the Court is one “striking out the suit”, which would indicate that the right of the Claimant has not been determined by the Court, and as a result, the matter was not decided on the merit.
It means also that the parties can apply to relist the matter for the determination of issues on the merit”.
Note however that “a defendant who does not object to an application for discontinuance should not expect the suit to be dismissed in his favour”. See Eronini v Ihuko (supra).

Looking at the decision in Abayomi Babatunde v. Pan Atlantic Shipping and Transport Agencies Ltd & Ors. (2007) LPELR-698 (SC) the court explained that

once a litigant withdraws his action in a situation where no leave of court is required, the trial court has no option but to strike out the suit. This is because a court of law cannot force an unwilling plaintiff to continue with an action. Even if the court insists that he should continue, he may refuse to tender evidence or take any further steps in the action, that same court can do nothing other than to strike out the case or where evidence has been taken to a reasonable level to dismiss the action”. Per Muhammed J.S.C. P. 23,( Paras. B-D)”.

Thus, the effect of filing notice of discontinuance is that once duly and validly filed cannot be recalled, for the suit cease to exit the moment it is effectively discontinued.
Discontinuance of a suit may also lead to dismissal, where parties have joined issues.
In Eronini V. Ihuko(supra), court held that where the point of litis conditio had been reached and there was divergence of evidence led from the facts which were a fundamental issue, and the plaintiff applies for discontinuance of the action, the proper order for the court to make is dismissal”.

Conclusion

It is expedient that the claimant or the plaintiff has the undoubted right to discontinue or withdraw a suit with or without the leave of the court. With the aid of case laws, we have been able to determine the end result and the effect of discontinuance. Which may be a dismissal when issues has been joined by the parties or where the defendant raised an objection, opposing the application, praying to court for dismissal or on the other side, the matter can be stuck out, which by legal implication the claims and the suit can be relisted in the court of law.

Often times, where an application for discontinuance has been filed, the defendant can as well ask for cost of action as a relief. The court is saddled with the responsibility of protectitself, where a notice of discontinuance is an abuse of process, it may rightly be set aside or struck out by the court. This is because the court can always appropriate cases under its inherent jurisdiction to protect itself from abuse of its own process.

List of Authorities

  1. Ibum Olumba & Ors. V. The Registered Trustee of the Brotherhood of Cross & Star (Unreported)
  2. Babatunde v. P.A.S. & T.A LTD (2007) 13 NWLR (PT 1050) 113
  3. The Vessel Saint Roland & Anor V. Adefemi Osinloye. (1997) 4NWLT (PT. 500)387
  4. Eronini v. Ihuko (1989) 2NWLR (PT. 101) Pg. 48.
  5. Ekundano v Keregbe (2008) 4NWLR (PT. 1077) 442
  6. Okorodudu & Anor. V Okorodudu & Anor. (1997) 3S.C. 21 at 29
  7. The Young Shall Grow Motors Ltd. V Ambros .O. Okonkwo & Anor (2010) 15 NWLR (PT. 1217)
  8. Aghadiuno V. Onubogu (1998) 5NWLR PT. 548 Pg. 19
  9. Habib Bank Nigeria Plc. V LODIGIANI (NIGERIA) LTD (2010) LPELR-4228 (CA)
  10. Crown Flour Mills v. Owoduni (2005) ALL FWLR (PT. 257)1553
  11. Abayomi Babatunde v. Pan Atlantic Shipping and Transport Agencies Ltd & Ors. (2007) LPELR-698 (SC)
  12. Obienu V. Orizu (1972) E.C.S.L.R.606
  13. Marcantile Bank Nig. Plc. V IMESCO Enterprises Limited (2016) LPELR-41203 (CA)

Statutory References

High Court of Lagos State (Civil Procedure) Rules 2019
Federal High Court (Civil Procedure) Rules 2009

Michael Ibukun Odejayi Esq.

Guest Columnist

Michael Ibukun Odejayi is a legal practitioner currently serving as an Associate at the law firm of Kunle Ogunba & Associates, Insolvency Forte 1, Ikoyi Lagos. He graduated from Olabisi Onabanjo University. He is passionate about litigation and has special interest in Corporate Law, Real Estate Law, Maritime Law and Constitutional Law. Over the years he has acquired knowledge and experience in legal action. He enjoys researching and reading.

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