3PLR – DALFAM NIGERIA LIMITED V. OKAKU INTERNATIONAL LIMITED

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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DALFAM NIGERIA LIMITED

V.

OKAKU INTERNATIONAL LIMITED

COURT OF APPEAL

[ABUJA DIVISION]

CA/A/39/2000

3PLR/2000/65  (CA)

OTHER CITATIONS

15 NWLR (Pt. 735) 203

 

BEFORE THEIR LORDSHIPS:

DAHIRU MUSDAPHER (Presided)

MOHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE

ALBERT GBADEBO ODUYEMI (Delivered the leading judgment)

 

BETWEEEN

DALFAM NIGERIA LIMITED

 

AND

1. OKAKU INTERNATIONAL LIMITED
2. FEDERAL CAPITAL DEVELOPMENT AUTHORITY

 

REPRESENTATION

Mohammed Ibrahim Tola, ESQ., – for the appellant

Samuel Zibiri, ESQ. (with him Illitros Ahmadu) – for the 1st respondent

A.E. Kuyanbana, ESQ., – for the 2nd respondent

 

MAIN ISSUES

PRACTICE AND PROCEDURE – ACTION – Action initiated by a plaintiff – duty of court to prevent him from escaping through side door to avoid the legal contest.

PRACTICE AND PROCEDURE – ACTION – Cause of action – how determined in a suit.

REAL ESTATE – CONVEYANCING – Deed delivered by escrow – definition and operation of.

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – Decision of trial Judge – when based on speculation – duty of appellate court to discountenance same.

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – Judgment of court – duty of court not to grant relief not sought by parties before it.

JURISDICTION – Issues relating to jurisdiction – need for court to first consider and determine same – whether a party who initiated an action is entitled to question the jurisdiction of the court.

JURISDICTION – Jurisdiction of court – proceedings conducted by trial Judge outside its jurisdiction – nullity of.

PRACTICE AND PROCEDURE – Application for leave to discontinue a suit under order 23 rule 3 of Federal Capital Territory (Civil Procedure) Rules – what a trial court must consider to determine whether to grant same.

PRACTICE AND PROCEDURE – Correct decision of trial court – when reasons for the decision are faulted – whether appellate court is bound to uphold same.

PRACTICE AND PROCEDURE – Exercise of judicial discretion – when proper for a trial court to dismiss a suit before it – duty of appellate court to interfere with wrongful exercise of judicial discretion by trial Judge.

INTERPRETATION OF STATUTE – STATUTE – Interpretation of statute – order 29 rule 3 of Federal Capital Territory (Civil Procedure) Rules 1990 – established guidelines laid down by judicial authority for the construction of same.

 

MAIN JUDGEMENT

ALBERT GBADEBO ODUYEMI, JCA (Delivering the leading judgment)

By a writ of summons issued out of the High Court of the Federal Capital Territory, Abuja, as expanded by a statement of claim dated 29th April, 1999 filed in the same court, the plaintiff claimed from the 1st and 2nd defendant the following:

 

(a)     An order of specific performance of the agreement entered into between the plaintiff and the 1st defendant on the 11th November, 1997 and for the perfection of the assignment of plot 697, Garki 11 Abuja and covered by a certificate of occupancy No. FCT/ABU/MISC/3562.

 

(b)     An order of perpetual injunction restraining the 1st defendant, his agent, assignees, or whosoever is claiming through it, from exercising any right on plot 697 Garki II, Abuja and covered by the said certificate of occupancy.

 

(c)     An order directing the 1st and 2nd defendant (sic) to disclose and hand over any benefit derived by the 1st defendant as a result of the purported sub-division carried out by the defendant at the request of the 1st defendant plot 697, Garki II District, Abuja.

 

(d)     A declaration that the purported sub-division approved by the 2nd defendant on the application of the 1st defendant is null, void and of no effect whatsoever.”

 

The printed records show that the 1st defendant duly filed in court a statement of defence and counter-claim dated 2nd August, 1999.

 

1st defendant, by leave of the same court subsequently filed an amended statement of defence and counter-claim dated 24th November, 1999 subsequent to the filing of a reply and defence to counter-claim dated 3rd August, 1999.

 

Trial of the suit began in the lower court on 29th September, 1999. It continued on 30th September, 1999 when plaintiff closed its case. 1st defendant called three witnesses including DW3 its Managing Director and closed its case. The suit was then adjourned for the 2nd defendant to open its case. Before the commencement of the evidence for the 2nd defendant, the plaintiff filed an application on notice dated 31st January, 2000 praying for an order granting leave to the applicant to discontinue the suit for want of jurisdiction. The application was duly argued by all counsel concerned i.e. for the plaintiff, for the 1st defendant and also for the 2nd defendant.

 

Learned trial Judge of the lower court then adjourned to give its ruling. In his considered ruling the learned trial Judge held that it had jurisdiction. Nevertheless, it gave leave for plaintiff /applicant to discontinue the action but dismissed the suit of the plaintiff. It is against that ruling that the plaintiff has now appealed to this court. The plaintiff (hereinafter called the appellant) filed four grounds of appeal.

 

Shorn of their respective particulars the four grounds read as follows:

 

“Ground 1. The learned trial Judge erred in law by dismissing the case instead of striking it out.

 

Ground 2. The learned trial Judge erred in law by failing to consider the evidence adduced in court before dismissing the case.

 

Ground 3. The learned trial Judge erred in law by entertaining jurisdiction over the 2nd respondent.

 

Ground 4. The decision of the trial court is unreasonable, unwarranted and cannot be supported having regards to the weight of evidence.”

 

Appellant duly filed appellant’s brief as well as a reply brief. 1st and 2nd respondents each duly filed a respondent’s brief. At the hearing of the appeal learned counsel for each of the parties simply adopted its own brief. In its brief, the appellant distilled for determination by this court in the appeal two issues thus:

 

2. i. Whether the trial court exercised its discretion judicially and judiciously before dismissing the appellant’s case without having recourse to the evidence adduced during trial (Ground 1,2 and 4).

 

2.ii.    Whether the trial court has jurisdiction to entertain an action against the 2nd respondent, a Federal Government Agency (Ground 3).”

 

For its part, the 1st respondent formulated two issues for determination thus:

 

“2.0.1 Whether the trial court was right in holding that it had jurisdiction over the matter.

 

2.0.2 Whether the trial court was right by dismissing the suit rather than striking out considering the circumstances and stage of the case.”

 

For its own part it would appear that 2nd respondent while repeating in its brief the two issues formulated for determination by the appellant promptly modified each issue in the opening paragraph of its argument on each issue thus:

 

“With respect to issue I – 2nd respondent’s first submission is that “the trial court exercised its discretion judicially and judiciously when it dismissed the suit before the court” while in respect of issue 2 1, it is its first submission that “the question of jurisdiction is so fundamental that a court could inquire into whether or not its jurisdiction is ousted or restricted in any particular set of facts or circumstances.”

 

This observation is intended to take care of the note contained in the opening paragraph of the appellant’s reply brief that the “2nd respondent adopted the issues formulated by the appellant”.

 

I am of the opinion that the two following issues represent a dispassionate formulation of the issues arising for determination out of the four grounds of appeal. They are

 

(i)      Whether in the circumstances of this case, the decision of the trial court to dismiss appellant’s case was a judicial and judicious exercise of its discretion under order 29 rule 3 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 1990.

 

(ii)     Whether in the circumstances of this case, the jurisdiction of the lower court was ousted by the provisions of section 230(1)(q) and (s) of the Constitution of the Federal Republic of Nigeria, 1979 as amended by Decree no. 107 of 1993 now repeated in section 251(l)(p) and (r) of the Constitution of the Federal Republic of Nigeria, 1999.

 

In its brief the appellant has argued in respect of the first issue that the dismissal of the appellant’s case by the trial court was without recourse to the evidence adduced during the trial. In support of this stand, appellant submitted as follows:

 

It is mandatory in this case in which trial has commenced that the plaintiff should seek leave of the trial court for the discontinuance of his claim by virtue of order 29 rules 2 and 6 of the High court of The Federal Capital Territory, Abuja (Civil Procedure) Rules. I should point out straightaway, that the appropriate rule under which appellant correctly applied to the lower court is order 29 rule 3 and not rule 2 or rule 6. It is further submitted in appellant’s brief that the trial court in exercising its discretion as to whether to grant or refuse the application shall consider the evidence adduced before it and see whether the applicant has established a case or whether the applicant’s case has been destroyed by the respondent through cross-examination or counter-evidence before taking a decision to strike out or dismiss the case of the applicant. It is further submitted that such judicial discretion must be exercised judiciously. Appellant contends that in this case the lower court failed, neglected and or refused to exercise his duty as a Judge in evaluating the evidence given by the parties and gave no reason for dismissing the case; nor did it consider the submissions of appellant’s counsel. Appellant also contends that it was mandatory that the learned trial Judge, having held that it had jurisdiction to try the case, ought to have called on the 2nd defendant to open its defence since appellant and 1st defendant had each closed their respective cases. It is also contended that the dismissal of plaintiff’s case on the ground that the case would, after the application for discontinuance end up without a plaintiff, without calling upon the plaintiff to continue with the case, was a breach of the appellant’s right to fair hearing; that this is particularly so when the submission of respondents was that the application for discontinuance be dismissed and the case be heard on its merits.

 

Appellant, while conceding that it is within the discretion of the trial court to dismiss or strike out the case notwithstanding the submissions of counsel to respondents, contends that the discretion must be seen to have been exercised judicially and judiciously based upon the evidence before the court. Appellant contends on a review of the evidence before the court that the documents relating to the transfer of the property were executed by the parties and that the dispute between the parties relate merely to the mode of payment and the period within which development can take place. It is the further submission that the trial court by the application for leave to discontinue the action on the ground of want of jurisdiction was not called upon to determine the controversy between the parties but merely to affirm that on account of the presence of 2nd respondent it had no jurisdiction. However, in spite of this submission appellant still insisted in the brief that having held that it had jurisdiction, it ought to have asked the appellant whether or not it could go on with the case before dismissing appellant’s case.

 

Finally, appellant contends that the lower court having failed to utilise the, materials placed before it, this court in the circumstance can interfere with the exercise of the discretion by the lower court. In respect of this same issue, which the 1st respondent listed as issue No.2 in its own respondent’s brief, it argued and submitted thus:

 

“By the provisions of Order 29 rule 3(l) of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, the lower court is empowered to either strike out the suit or dismiss the same, having regard to the circumstances of the same but must weigh all the circumstances of the case in the interest of justice and balance the interest of the parties involved including the balance of convenience and disadvantages which must be suffered by any of the parties concerned.”

 

Recounting the sequence of events from the issue of the writ, the commencement of trial up to and including the presentation and closing of the cases of the plaintiff and the 1st respondent, the filing of another suit on the same matter in the Federal High Court Abuja in suit No. FHC/ABJ/cs/21/2000 subsequent to which plaintiff brought the application for discontinuance, the 1st defendant respondent opines that the appellant must have become aware that the decision in the case would go against him; hence he sought for ways to truncate the proceedings; that this must have been one of the considerations in the mind of the court in its decision to dismiss appellant’s suit and that such was within the judicious exercise of the judicial discretion of the court.

 

For its own part, the 2nd respondent in its brief of arguments submits that the learned trial Judge exercised its discretion judicially and judiciously on sufficient materials when it dismissed the suit before it in the circumstances of this case which included the dismissal previously, of two applications for interlocutory injunction against the respondents by the same court on the same property on the ground that the acts complained of had been completed and when there has been no appeal against any of the two decisions; the filing of another action in another court of the Federal Capital Territory during court vacation by the plaintiff and as well as an interlocutory application ex-parte which was granted. Also, when the court resumed after vacation, plaintiff had filed another action in the Federal High Court before coming to the trial court to file its application for leave to discontinue the action. It is also the contention of the 2nd respondent that the trial court on the facts of the various activities of the appellant in shopping for a convenient forum, as well as on the basis of the evidence already before the court was in a position to make up its mind on the merits of the case since the court would not force a party to maintain an action if the party decides not to. In its reply brief, the appellant contends that its past activities at “forum shopping” which respondents submit as abuse of process of court could not properly be proper submission in the respective briefs of the respondents without their having filed a respondent’s notice in accordance with order 3 rule 14 of the rules of this court since they have not cross-appealed but wish to contend in this appeal that the decision of the court below be varied or affirmed on grounds other than those relied upon by that court. Since this submission is of the nature of a preliminary objection, I shall deal with it straightaway. The appellant is mistaken in its contention that a respondent’s notice is needed to avail the respondents of their contention. It has been submitted by all concerned, and it is the law that with regard to an application for leave to discontinue under order 29 rule 3, the trial court, and indeed, an appellate court must look into all the circumstances including the evidence on the printed record in order to exercise its judicial mind as to whether to grant the leave on terms as to costs or the bringing of another action judiciously. I need to state that evidence exists on the printed record at least as to those of the processes which I have recounted in this judgment from the briefs of the appellant.

 

Being on the printed record, I hold that they appropriately come within matters which the lower court or this court must consider in the judicial and judicious exercise of the discretion imposed on the court without the need for a respondent’s notice. This, of course, does not mean that the court or an appellate court need give undue weight to that aspect.

 

Before considering the various submissions of counsel in the respective briefs on this issue, it is necessary for me to examine the relevant pleadings of the parties, the evidence available before the lower court as well as the addresses of respective counsel. It is then that one can determine whether the trial court exercised its judicial mind judiciously in its decision on the application. A consideration of the pleadings in this case shows the following averments with regard to the claim of the plaintiff that:

 

(a)     there was a grant of a piece of land by the 2nd respondent to the 1st respondent which was covered by a certificate of occupancy No. FCT/ ABU/MISC/3562 issued on 18th January, 1988;

 

(b)     1st defendant offered the land for sale to plaintiff for a consideration of N28m;

 

(c)     pursuant to the agreement for sale the parties executed a deed of assignment; in addition plaintiff executed in favour of 1st defendant an irrevocable power of attorney and signed an undated letter of application for the consent of the 2nd defendant to the transfer;

 

(d)     following the conclusion of the negotiations plaintiff made a part payment of N2m in respect of the purchase price and has before the commencement of the action made part payments totalling N12m;

 

(e)     in accordance with the agreement during the negotiations it was allowed to go into possession of the land to commence building operations;

 

(f)      in breach of the agreement between plaintiff and 1st defendant, 1st defendant proposed a sub-division of the land in dispute to 2nd defendant sometime in 1998 which 2nd defendant approved despite protests by plaintiff to 1st defendant by letter which was copied to 2nd defendant.

 

The following averments are relevant with regard to the amended statement of defence of 1st defendant – The counter-claim not being relevant for the purposes of this judgment:

 

(a)     That the terms of the offer for sale was that the plaintiff would pay to the 1st defendant the purchase price of N28m in one bulk and complete or substantially complete the developments on the land within 3 months so as to save the certificate of occupancy granted in favour of 1st defendant from revocation by the 2nd respondent;

 

(b)     That in default of the agreement plaintiff had only paid in bits the sum of N12m and neglected or failed to develop the entire land and to pay the balance of the purchase price in spite of several calls to pay the same and for performance;

 

(c)     That in order to save the property from revocation of the certificate of occupancy for failure to develop the land within a stipulated time and protect itself from heavy financial loss, 1st defendant resorted to applying to the 2nd defendant for a sub-division of the land which was approved by 2nd defendant. The physical sub-division of the land had since been completed and an approved plan showing the sub-division drawn up whereupon the land ceased to be covered by certificate No. FCT/ABU/ MISC/3562;

 

(d)     That 1st defendant admits only to signing a deed of assignment and a power of attorney.

 

In evidence, plaintiff testified that neither the undated deed of assignment, undated power of attorney nor undated application for minister’s consent had yet been registered; that the agreement acknowledges the payment of the full purchase price; that he received demand notices for the balance of N26m as well as other notices of demand from 1st defendant after payment of the initial N2m and subsequent instalments. He testified also that he protested the sub-division both to 1st and 2nd defendants but that in spite of the protests, the physical sub-division of land into several plots took place indeed. Plaintiff in evidence in chief also testified both that progress on the development of the land by him was slow up to the time he received a notice to stop work from 2nd defendant. He also testified that under the agreement payment of the purchase price of N28m was to be in bulk after the land had been developed to a stage to safeguard revocation of the certificate of occupation. However, he was only making payments piecemeal on the demand of 1st defendant.

 

Under cross-examination plaintiff admitted that contrary to the contents of the deed of assignment, he had not paid the full purchase price the receipt of which was therein acknowledged by the 1st defendant. He also admitted that the only protection which 1st defendant had against his being estopped from denying that he had received the full purchase price was the non- registration of the transfer documents which he had come to know had not been registered. He also admitted that the 1st defendant was the person recognised by the 2nd defendant as the occupant of the land and the person whose right it is to deal with the 2nd defendant.

 

The 2nd defendant’s witness was the person who was the go between of the plaintiff and 1st defendant. The importance of his testimony is that he acted as stakeholder in regard to the documents signed and sealed by the parties and it was he with whom both parties left the documents of title to keep until both sides have performed their full obligations under the agreement. He therefore refrained from delivery of the transfer documents to plaintiff since plaintiff had not performed construction work to the agreed stage in which revocation of the certificate of occupancy would be avoided or paid the full purchase price of N28m.

 

He knew about the physical sub-division of the land and communicated it to the plaintiff on behalf of the 1st defendant since that was the only way left to avoid a complete loss of the property by the 1st defendant.The evidence of 1st respondent as DW3 was substantially to corroborate the evidence of DW2 in essential particulars. As for the addresses of counsel before the lower court in respect of the application for leave to discontinue.

 

Learned counsel for plaintiff applicant submitted that the application is made by the plaintiff inter alia, by virtue of section 251 (1) of the Constitution and order 29 rules 3 and 6 of the High Court of The Federal Capital Territory Abuja (Civil Procedure) Rules; it prayed for an order granting leave to the plaintiff to discontinue the suit No. FCT/HC/CV/333/98 for want of jurisdiction. The leave is sought because the matter is part heard. The principal ground for the application is that there was an intention by 1st and 2nd defendants to sub-divide a parcel of land granted by 2nd defendant to 1st defendant over which the 1st defendant had entered into a purchase agreement with plaintiffs; that the proposed sub-division would be in breach of the terms of the contract entered into between the 1st defendant and the plaintiff; that 2nd defendant had approved the proposal for sub-division. Hence the present action in the High Court of the Federal Capital Territory in the belief that the court had full jurisdiction to entertain the suit – not only as between the plaintiff and the 1st defendant but also as between the plaintiff and the 2nd defendant who is an agency of the Federal Government.

 

During the course of the proceedings, a judgment of this court indicated that where an action in respect of land in the Federal Capital Territory involves the Federal Government or any of its agencies it is the Federal High Court that has exclusive jurisdiction. Applicant relies on that decision of this court in Joseph Ona & Anor. v. Alhaji Ateada CA/A/54/97 now reported in (2000) 5 NWLR (Pt. 656) p. 244. It was therefore the contention of plaintiff applicant that it was only the Federal High Court that can determine the validity or otherwise of the sub-division or of the letters of allocation issued by the F.C.D.A. even though both the High Court of the Federal Capital Territory Abuja and the Federal High Court Abuja have concurrent jurisdiction over the claim of plaintiff against 1st defendant.

 

Learned counsel for applicant then postulated the question as to whether in view of the fact that the court had jurisdiction over some of the issues involved, the appropriate decision would be to strike out the plaintiff’s case or dismiss it. He answered the question in favour of a striking out even though evidence had been adduced before the court. Counsel declared that he was mindful of the fact that evidence having been adduced before the lower court, it would be suicidal to contend that because a Federal Government agency is involved, the lower court would have no jurisdiction.

 

For the 1st respondent, learned counsel contended that the court had jurisdiction to hear the matter, that plaintiff was in abuse of judicial process. Also that sub-division was not an issue in the case but an account of the benefits derived by 1st defendant as a result of the sub-division carried out by the 2nd defendant and a declaration that the sub-division was null and void. That if the application is granted, 1st defendant would be prejudiced. For the 2nd respondent learned counsel submitted that the action was primarily between two private citizens; that 2nd defendant, an agency of the Federal Government was merely brought in so that any judgment obtained against the 1st defendant might be easily implemented; that the decision of the Court of Appeal in the Ona case is not applicable to this case; that the 2nd defendant not being a party to the agreement between plaintiff and 1st defendant is a total stranger to the suit. Both defendants urged the court to dismiss the application. The issue presently under consideration is whether in the circumstances of this case, the decision of the trial court was arrived at after a judicial and judicious exercise of its discretion under order 29 rule 3 of the High Court of Federal Capital Territory, Abuja (Civil Procedure) Rules.

 

Order 29 rule 3 of the High Court of The Federal Capital Territory, Abuja (Civil Procedure) Rules, 1990 provides thus:

 

“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.”

 

It is paragraph I of the rule that is relevant to this case. This rule replaces order XLIV Rule 1 of the old Supreme Court (Civil Procedure) Rules Cap. 211 Laws of Nigeria, 1948. Together with the former rule, it has been the subject of judicial construction. In the event, guidelines have been established for its construction by judicial authority-

 

1. 1. In such circumstances withdrawal of the suit from court was subject to the leave of court, which may be granted –

 

(a)     on terms as to costs of;

 

(b)     subject to certain conditions which must be fulfilled before a fresh suit concerning the same parties may be instituted again.

 

2. The dismissal of a suit by a trial Judge is considered a proper exercise of judicial discretion, when such Judge weighs all the circumstances of the case in the interest of justice, and balances the interests of the parties involved, including the balance of convenience and disadvantages which might be suffered by any of the parties concerned.

 

3. Leave to withdraw may be refused in which case, the suit must be dismissed on terms as to costs.

 

Rodrigues & Ors. v. The Public Trustee and Ors. (1977) NSCC 148 at pp. 149,151,152.

 

1. In Unilag & Anor. v. Aigoro (1985) 1 NSCC p. 88 it was held that –

 

(a)     “It is well settled that if judicial discretion has been exercised bona fide uninfluenced by irrelevant considerations and not arbitrarily or illegally by the lower court, the general rule is that an appeal court will not ordinarily interfere. But there are exceptions to this rule. The guiding principle is that the discretion, being judicial, must at all times be exercised not only judicially but also judiciously on sufficient materials.

 

(b)     An appeal court may interfere with the exercise of judicial discretion of a lower court where it is shown that there has been a wrongful exercise of the discretion such as where the tribunal acted under a misconception of law or under misapprehension of fact in that it either gave weight to irrelevant or unproved matters or it omitted to take into account matters that are relevant………..and in all other cases where it is in the interest of justice to interfere.”

 

1. In Eronini and Ors. v. Iheuko (1989) 1 NSCC 503 the Supreme Court held –

 

“That where leave to discontinue an action is to be granted, the court should exercise its discretion (as to costs and to the institution of subsequent suit) judicially. That acting judicially imports the consideration of the interest of both sides and weighing them in order to arrive at a just and fair decision.

……………………………………………………………………………………………

That whenever a suit is being discontinued after some evidence has been given, a trial Judge is bound to consider the effect of the evidence so far given before he can correctly arrive at the proper order to make i.e. whether an order of dismissal or an order of striking out ….

 

The word “judicious” means –

 

(a)     proceeding from or showing sound judgment,

(b)     having or exercising sound judgment,

(c)     marked by discretion, wisdom and good sense.”

 

1. “The principle underlying the requirement for leave is that after proceedings have reached a certain stage the plaintiff, who has brought his adversary into court, should not be able to escape by a side door and avoid the contest, since he is no longer dominus litis and it is for the court to say whether the action should be discontinued and upon what terms (per Chitty L.J. in Fox v. Star Newspaper Co. (1898) 1 Q.B. 636 at 639).

 

Nevertheless it is not desirable that a plaintiff should be compelled to litigate against his will; the court will normally grant him leave to discontinue if he wants to, provided no injustice will be caused to the defendant nor will he be deprived of any advantage which he has already gained in the litigation, which so far as possible should be preserved ……………………..……………………………………………………..”

See –

 

The Supreme Court Practice (1999) Vol.1 Note 21/5/10 at p. 402 – which relates to a similar provision in 0. 21 r. 3 of the Rules of the Supreme Court in England. I shall now apply the above guidelines to the evidence adduced before the lower court. One fact remains clear and undisputed. It is that the instrument, exhibit B as well as the irrevocable power of attorney in favour of plaintiff by 1st defendant which intended to transfer the interest of the 1st defendant to the plaintiff, though signed and sealed by 1st defendant, were never delivered. They were left in the hands of DW2 who acted as stakeholder and trustee between the parties to hold until both parties had performed their respective parts of the obligations. In other words, the agreement between 1st defendant and plaintiff was an escrow. At p. 178 of vol. 2 of the 2nd edition of Words and Phrases Legally Defined, the following notes appear in respect of “escrow”.

 

“ESCROW

 

A deed may be delivered as an escrow (or scroll), that is, as a simple writing, not to become the deed of the party expressed to be bound thereby until some condition shall have been performed; for example, not until I the grantee under a deed of conveyance on sale or mortgage or of reconveyance on discharge of a mortgage shall have paid the consideration money, or not until the person to benefit under the deed shall have executed some other deed or document as agreed with the party delivering the escrow. It is not necessary that the delivery of a deed as an escrow should be made in any special form or accompanied with any particular words (11 Halsbury’s Laws (3rd edn.) 348.

 

There are two kinds of delivery recognized by the law in this connection (delivery of a deed), one absolute and the other conditional. If a document is delivered, either to a party to it or to a stranger, with an intimation, to express or implied, that it is not to become effective until some condition has been performed, it is called an escrow. In such a case the deed is inoperative until the condition is performed, but upon performance it takes effect as a deed without further delivery, and relates back to the time when it was delivered as an escrow. A delivery of a deed as an escrow is a final delivery in the sense that it cannot be withdrawn by the grantor before the grantee has had an opportunity to decide whether to fulfil the condition or not. A deed delivered subject to a condition and subject to such a right of withdrawal is not an escrow, but merely an undelivered deed. A common example of delivery as an escrow occurs when a vendor executes a deed of conveyance and gives it to his solicitor for transference to the purchaser upon payment by the latter of the purchase money. Were the rule otherwise the purchaser might keep the legal estate passed to him under the fully executed deed and raise difficulties by refusing to pay the money (Cheshire’s Modern Real Property (10th edn.) 679,680).

“A deed may be delivered on a condition that it is not to be operative until some event happens or some condition is performed. In such a case it is until then an escrow only.”

 

Macedo v. Stroud, (1922) 2 A.C. 330, P.C, per cur., at p. 337.”

 

This explains why the documents have never been registered in favour of the plaintiff. In the absence of registration, it is clear that the plaintiff is not entitled in law to the reliefs which he claimed against the 1st defendant in the action in the lower court. In short, the evidence in court has shown that plaintiff could not establish his claims against the 1st defendant. I shall refrain from finally giving an answer in respect of issue No. 1 until 1 have determined the issue of jurisdiction raised under issue No. 2. This is because, if the lower court had no jurisdiction to entertain the claims of plaintiff against the 2nd defendant, the fact that it could entertain part of the claims in the action which relate to the 1st defendant will not avail.

 

See (i) Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) p.517.

 

(ii)     Ali v. Central Bank of Nigeria (1997) 4 NWLR (Pt. 498) p. 92.

 

Besides, once the court is held for any reason, to have lacked jurisdiction, no matter how well the proceedings might have been conducted, they are void in law. Madukolu v. Nkemdilim (1962) 1 All NLR 587 at pp. 589 and 595. I must therefore turn attention to the second issue as set out in this judgment i.e. whether in the circumstances of this case, the jurisdiction of the lower court was ousted by the provisions of section 230(l)(q) and (s) of the Constitution of The Federal Republic of Nigeria, 1979 as amended by Decree No. 107 of 1993 now repeated in section 251(l)(p) and (r) of the Constitution of The Federal Republic of Nigeria, 1999. In this case, it was the argument of learned counsel for the 2nd defendant before the lower court that the 2nd defendant was not a party to the agreement between the 1st defendant and plaintiff and that the 2nd defendant was a stranger to the suit. In effect he was saying that the mere fact that 2nd defendant, an agency of the Federal Government was named as a defendant in the case does not automatically put into effect the ouster provisions of section 230(l) of the 1979 Constitution applicable to this case. That would, be a correct submission if it can be shown that in fact the plaintiff had no cause of action against the 2nd defendant. It is trite law that to examine whether a plaintiff has a cause of action in a suit the proper document to look to is the statement of claim. The substance of the claim of the plaintiff as founding his claims is the alleged transfer to him of the certificate of occupancy granted to the 1st defendant by the 2nd defendant. But to establish his cause of action, there must be an averment that the efficacy of the transfer has indeed been effected by registration of the instruments of transfer. I have looked into the statement of claim. I can find no averment that the transfer documents have been registered in favour of the plaintiff or that the 2nd defendant has given his consent to the assignment as required by law. It is clear therefore that from the inception of the case, the plaintiff could not establish that he had a cause of action against the 2nd defendant. He had no locus standi to institute the action or to claim the reliefs which he averred in paragraph 22(c) and (d) against the 2nd defendant. There is neither privity of contract nor privity of estate between the plaintiff and the 2nd defendant. Finally, the 2nd respondent is not a necessary party to the action between plaintiff and the 1st respondent. Hence the provisions of section 230(1) of the 1979 Constitution could not have operated to oust the jurisdiction of the lower court, not even at the inception of the action. 2nd defendant could have moved the court to have his name struck out on the ground that plaintiff had no cause of action against him.

 

Furthermore, evidence having been tendered before the application for discontinuance, it has been seen that plaintiff had no rights to enforce against the 2nd respondent both in respect of the agreement or in respect of the issue of sub-division of the land in dispute over which he had no legal right whatsoever. It is now left for me to reproduce the short ruling of the learned trial Judge in respect of the application in the light of my findings in this judgment so as to enable me answer the issues posited for resolution in this appeal. The ruling which is to be found at p. 63 of the printed record reads thus: –

 

“RULING

 

Upon reading the motion papers of the plaintiff /applicant, brought on notice pursuant to order 8, rule 1, and order 29 rules 3 and 6, and order 47, rule 1 of the High Court (Civil Procedure) Rules Cap 511 Laws of the Federation 1990 praying for an order granting leave to the applicant to discontinue suit No. FCT/HC/CV/333/98 for want of jurisdiction, and upon listening to Mohammed Ibrahim Tola of counsel for the applicant while moving the motion, notwithstanding the fact that the defendants opposed the grant of the prayer of the applicant, the fact that this court, contrary to the submissions of Mohammed I. Tola, has jurisdiction to try the matter before it and the fact that the case reached an advanced stage, the justice of the case demands that the matter should be discontinued or else we shall end up without a plaintiff in the case. Hence leave is hereby granted to the applicant to discontinue the case forthwith. The case is therefore hereby dismissed.”

 

In the ruling, the lower court has made the following judicial decisions

 

(a)     That the court has jurisdiction to try the substantive suit;

(b)     That leave is given for the discontinuance of the substantive suit; and

(c)     That the term upon which the leave is granted is that the suit is dismissed.

 

One cannot say that the lower court has given sufficient reason in respect of any of the three decisions contained in the ruling. The absence of a reason for any of the decisions is the subject of the complaint in respect of both issues for determination in this appeal. At pp. 1445 and 1446 of the 4th edition of Strouds Judicial Dictionary vol. 3 it is stated in relation to the definition of the term “judgment” that in a proper use of terms the only judgment given by a court is the order it makes. The reasons for judgment are not themselves judgments though they may furnish the court’s reason for decision and thus form a precedent – R. v. Ireland (1970) 44 ALJR 263; Lake v. Lake (1955) P. 336.

 

Furthermore, it is trite law that a question of jurisdiction is a matter of law which an appellate court is in as good a position as the court of first instance to determine. Courts are expected to expound their jurisdiction; they cannot expand it. It was not one of the questions with respect to which the lower court was asked to exercise its discretion. It had no discretion on the matter being purely a matter of law. It is either that it has jurisdiction in law or that it has no jurisdiction in law. In this judgment I have examined the issues raised with regard to the determination by the lower court that it has jurisdiction to determine the issue of jurisdiction. I have come to the conclusion that the lower court does in fact have jurisdiction to determine the suit before it and that that jurisdiction is not taken away by the provisions of section 230(l) of the 1979 Constitution. That decision of the lower court therefore remains valid notwithstanding the fact that it gave no reason for its decision. In this respect it is the law that an appellate court is mainly concerned with correctness of the decision of a lower court over which it exercises appellate jurisdiction. So long as the lower court has come to a correct decision even though its reasoning in reaching the decision are faulted, nevertheless the decision would be upheld. In the event, with regard to issue No. 2, relating to jurisdiction my ruling is in favour of the respondents.

 

I shall now consider the position in law with regard to the other two decisions of the lower court with regard to which it was called upon to exercise its discretion i.e.

 

(a)     the decision granting leave to discontinue; and

(b)     the terms upon which that leave shall be granted.

 

As earlier stated, the lower court granted leave to discontinue the action. The term upon which the leave was granted was the dismissal of the action but the lower court gave no reason whatsoever for the decision unless the bare statements that since “the case had reached an advanced stage, the justice of the case demands that the matter should be discontinued, or else we shall end up without a plaintiff in the case” without more details can be called a reason in law. In this judgment, I have indicated inter alia, that the dismissal by a trial Judge is considered a proper exercise of judicial discretion, when such Judge weighs all the circumstances of the case in the interest of justice and balances the interests of the parties involved, including the balance of convenience and disadvantage which might be suffered by any of the parties concerned.

 

See Rodrigues & Ors v. The Public Trustee & Ors. (1977) NSCC 148. The Supreme Court has laid it down in Odofin & Ors. v. Mogaji & Ors. (1978) NSCC Vol. 11 p. 275 at p. 277 thus:

 

“Before a Judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decision on the balance of probabilities.”

 

In this case, the trial court has not given what can be regarded as sufficient reason as to how he came to the decision to grant leave for a discontinuance on terms of dismissal. Adequate reasons have not been given by which that decision can be tested under the guidelines for making such decision. It cannot therefore be said that the grant of the leave on terms of dismissal of the suit was a judicious exercise of the judicial discretion which he was called upon to exercise. Where a lower court has made a wrongful exercise of the discretion, an appeal court may interfere with the exercise of the judicial decision. An appeal court is however, not permitted to substitute its own discretion for that of the lower court. In this respect I resolve the first issue relating to the exercise by the lower court of its discretion in favour of the appellant. To that extent, the appeal succeeds in part.

 

Accordingly, having regard to my decision that the lower court had jurisdiction to entertain the suit and that that jurisdiction was in no way fettered by the provisions of S.230(1) of the Constitution of the Federal Republic of Nigeria, 1979 as amended but that the lower court did not make a proper use of the discretion which it was called upon to exercise in the application for discontinuance, I allow the appeal in part. I set aside the ruling of the lower court together with order as to costs. I remit the case to the High Court of the Federal Capital Territory, Abuja for trial de novo by another Judge of the court.

 

I award costs of N5,000 in favour of the appellant.

 

DAHIRU MUSDAPHER, JCA: I have had the honour to read before now, the judgment of my Lord Oduyemi JCA just delivered. Although I agree with the final order to remitting the case back to the trial court and there to be heard de novo by another Judge, with the greatest respect, I am unable to agree with some of the reasonings contained in the aforementioned judgment. I accordingly write my own judgment as follows:

 

In the High Court of the Federal Capital Territory Abuja, holden at Abuja and in suit No. FCT/HC/M/66/98, the appellant herein, Dalfam Nigeria Ltd, claimed against the defendants, the respondents herein in these terms:

 

“(a)    An order of specific performance of the agreement entered into between the plaintiff and the first defendant on the l1th of November, 1997 and for the perfection of the assignment of plot 697 Garki II Abuja and covered by a certificate of occupancy No. FCT/ABU/MISC/3562.

 

(b)     An order of perpetual injunction restraining the 1st defendant, his agent, assignees or whosoever is claiming through it, from exercising any right on plot 697 Garki 11, Abuja and covered by the said certificate of occupancy.

 

(c)     An order directing the 1st and 2nd defendant to disclose and hand over any benefit derived by the 1st defendant as a result of the purported sub-division carried out by the defendant at the request of the 1st defendant at plot 697, Garki 11 District. Abuja.

 

(d)     A declaration that the purported sub-division approved by the 2nd defendant on the application of the 1st defendant is null, void and of no effect whatsoever.”

 

Pleadings were ordered and only the 1st defendant, first respondent herein filed a statement of defence and counter-claim. The 2nd respondent did not file any statement of defence. The trial of the matter commenced and by the 30th of November, 1999, appellant and the first respondent had closed their case and the second respondent asked for an adjournment in order to open its defence.

Before the defence of the second respondent, the appellant filed this application before the trial court. The application was filed on 31/1/2000. It was on these terms:-

 

“MOTION ON NOTICE

 

Brought pursuant to section 251 1999 Constitution of the Federal Republic of Nigeria: orders 8 rule 1, 29, rule 3, 6 and 47 rule 1 of the High Court (Civil Procedure) Rules Cap 511 Laws of the Federation 1990.

 

TAKE NOTICE that this honourable court will be moved on the 9th day of February, 2000 at the hour 9.00 o’clock in the forenoon or soon thereafter as counsel for the plaintiff /applicant may be heard praying the court for the following orders:-

 

(i)      An order granting leave to the applicant to discontinue suit No. FCT/HC/CV.333/98 for want of jurisdiction.

 

(ii)     Any such further or other orders as this honourable court may deem fit to make in the circumstance.”

 

The application was supported with an affidavit and the main reason for the application was that the trial court had no jurisdiction to entertain the suit. In his address to the court, the learned counsel for the appellant, relied on the then recent decision of this court in suit No. CA/A/54/97 Joseph Ona v. Atenda, now reported in (2000) 5 NWLR (Pt.656) 244. It is claimed by the appellant in the court below that based on his claims, the decision in the aforementioned case had rendered the trial court without jurisdiction to continue hearing the matter and that was why he applied the matter to be discontinued. The learned counsel for the 1st respondent countered that the trial court had jurisdiction to entertain the matter and urged the court to dismiss the application to discontinue since the court had the jurisdiction to continue hearing the matter.

The learned counsel for the second respondent also submitted, that the trial court had the jurisdiction to try the matter and urged the court to dismiss the application to discontinue with the matter on the grounds of jurisdiction. The learned trial Judge adjourned the matter for ruling. The ruling delivered on the 12/4/2000 is short and reads as follows: –

 

Ruling

 

“Upon reading the motion papers of the plaintiff/applicants brought on notice pursuant to order 8, rule, and order 29 rule 3 and 6 and order 47 Rule 1 of the High Court (Civil Procedure) Rules Cap 511 LFN 1990 praying for an order granting leave to the applicant to discontinue the suit No. FCT/HC/CV/333/98 for want of jurisdiction and upon listening to Mohammed Ibrahim Tola of counsel for the applicant while moving to motion, notwithstanding the fact that the defendants opposed the grant of the prayer of the applicant, the fact that this court, contrary to the submission of Mohammed I. Tola, has jurisdiction to try the matter before it, and the fact that the matter has reached an advanced stage, the justice of the case demands that the matter should be discontinued or else we shall end up without a plaintiff in the case. Hence leave is hereby granted to the applicant to discontinue the case forthwith. The case is therefore, hereby dismissed.”

 

It is against this ruling that the appellant has now appealed to this court. The notice of appeal contained four grounds of appeal and bereft of their particulars, the grounds of appeal are:-

 

“1.     The learned trial Judge erred in law by dismissing the case instead of striking it out.

 

2. The learned trial Judge erred in law by failing to consider the evidence adduced in court before dismissing the case.

 

3. The learned trial Judge erred in law by entertaining jurisdiction over the 2nd defendant.

 

4. The decision of the trial court is unreasonable, unwarranted and cannot be supported having regards to the weight of evidence.”

 

In pursuance to the provisions of order 6 of the rules of this court, learned counsel filed briefs of arguments. In his brief for the appellant, the learned counsel has identified, formulated and submitted to this court for the determination of the appeal two issues and they read:-

 

“1.     Whether the trial Judge exercised its discretion judicially and judiciously before dismissing the appellant’s case without having recourse to the evidence adduced during trial.

 

2. Whether the trial court has jurisdiction to entertain an action against the 2nd respondent, a Federal Government agency.”

 

The respondents’ counsel formulated issues, which are not dissimilar to the issues formulated by the appellant recited above.

 

Issue 1

 

It is submitted that in an action where leave to discontinue a matter is necessary, the court before exercising its discretion to dismiss the action must at first consider the evidence adduced before it. The discretion of the court either to dismiss or strike out must be exercised in accordance with the established rules. See Rodrigues v. Public Trustee (1977) 11 NSCC P.148 at 149; Unilag v. Aigoro (1965) 16 NSCC P.1 at 88. In Eronini & Ors. v. Ihueko (1989) 20 NSCC P.1at 503, the Supreme Court stressed that where evidence is adduced at a trial and there is an application to discontinue, the trial court should consider the evidence adduced at the trial before deciding to dismiss the same. It is submitted that on the premises of these cases cited above, it cannot be said that the learned trial had exercised his discretion judicially and judiciously in dismissing the appellant’s claims without first appraising the entire evidence adduced. The reasons given by the trial court in dismissing the case that “the case will end up without a plaintiff” was not justified. It is further argued that since the trial court held that it had jurisdiction to adjudicate in the matter, it should have proceeded to consider the evidence adduced before reaching the decision to dismiss vide Trans Nab Ltd v. Joseph (1997) 5 NWLR (Pt.504) 176, Lenas Fibre Glass Ltd v. Fortado (1997) 5 NWLR (Pt.504) 220. It is again argued that the substance of the application before the court was that in view of the decision of the Court of Appeal the Ona’s case (supra) the trial court had no jurisdiction to entertain the matter and the court in its ruling having held that it had jurisdiction, should have allowed the case to proceed, more so, when the appellant and the first respondent has closed their cases.

 

For the first respondent, it is submitted that the learned trial Judge was right in dismissing the appellant’s claims rather than striking the same out under the provisions of order 29 rule 3(l) of the High Court (Civil Procedure) Rules. Under the said rule, the court has the discretion to strike out the case or to dismiss by looking into the circumstances of the case. Learned counsel also referred to the Eronini case supra. It is argued again that no court would have allowed a party who willingly brought a matter before it, prosecuted it until almost at the tail end apply for discontinuance on the ground of lack of jurisdiction of the court without considering the adverse effect of his decision to discontinue on the other parties. The learned counsel for the second respondent argued that the trial court under the circumstances of this case exercised its discretion to dismiss the case properly vide Unilag v. Aigoro (supra). Under the peculiar circumstances of the case, the learned trial Judge acted in accordance with the law when he decided to dismiss the action. See Lenas Fibre Glass case supra. See also Yakubu v. Governor of Kogi State (1977) 7 NWLR (Pt-511) 66.

 

Now, I have earlier in this judgment reproduced the appellant’s application in full. The application was said to be brought pursuant to section 151 of the Constitution dealing with the jurisdiction of the Federal High Court, order 29, dealing with issue of discontinuance and order 47 dealing with miscellaneous provisions, the bottom line in my view is that the application was predicated on the question of the jurisdiction of the trial court to adjudicate the matter. Perhaps the matter is complicated by the invocation of order 29 which in my view is surplusage because, if at all the trial court has no jurisdiction to entertain the matter, the question of discontinuance or withdrawal of the action was unnecessary or irrelevant. The issue of jurisdiction is fundamental. It cannot be assumed where a court exercises jurisdiction on a matter it must be able to show, if challenged, from what law or statute it derives its jurisdiction. Litigants cannot confer jurisdiction on a court where such jurisdiction does not exist. The jurisdiction of a court to adjudicate on a matter is so basic and fundamental and any proceedings conducted, however well, if there was no jurisdiction is a nullity. That is why whenever a question of jurisdiction of any court is raised, that question must be dealt with immediately by the court concerned since it touches on the competence of the court to entertain the matter. See Akinbi v. Mil Gov. of Ondo State (1990) 3 NWLR (Pt.140) 525, Adeyemi v. Olakunrin (1999) 14 NWLR (Pt. 638) 204. The question of the jurisdiction of court or tribunal to adjudicate on a matter can be raised at any time and a plaintiff in an action is not estopped from taking a point of jurisdiction in proceedings at the trial however sour it may sound in his mouth being the one who initiated the suit in the first place. Thus, the motive of the plaintiff in this regard whether ill or not is totally irrelevant in pronouncing in the substantive issue of want of jurisdiction. See Ex-parte Ikoro v. Governor Eastern Nigeria (1962) 1 SCNLR 65; Iyweb v. Uli (1999) 13 NWLR (Pt.634) 189.

 

The fundamental issues as contained in the appellant’s application was the issue of jurisdiction. He argued before that court, because of the recent decision of this court in the Ona’s case, it appeared to him that the trial court had no jurisdiction to continue trying the case. He wanted to discontinue the matter because according to him the trial court had no jurisdiction. The question of discontinuance which is a procedure under the provisions of order 29 of the rules of the trial court was unnecessarily appended to the fundamental question of jurisdiction. In my view, where the learned trial Judge came to the decision that he had the jurisdiction to entertain the matter, what he ought to do was to continue the matter. For the sake of emphasis, the application before the court was for “an order granting leave to the applicant to discontinue xxx for want of jurisdiction” (Italics supplied).

 

The provisions of order 29 permit a party to withdraw a claim or counter-claim in an action with or without leave. The court has the discretion at the end of the day, when leave is required either to agree or to disagree. In the instant case, the court decided to agree to the withdrawal of the action of the appellant even though it disagreed with the fundamental reason for the withdrawal i.e. that the court had no jurisdiction. The learned trial Judge in his ruling reproduced above gave the reasons for the allowing the discontinuance “or else we shall end up without a plaintiff in the case” and dismissed the claim. The issue of the appellant declining to proceed with the matter from the facts, is to say the least, speculative. The issue never arose in the arguments of the appellant. Indeed the respondents counsel merely argued that the court had the jurisdiction in the matter and should continue hearing the matter and dismiss the objection to the jurisdiction raised. By its very nature, the application to discontinue or withdraw a matter by a plaintiff or a defendant has no bearing or any connection with the issue of jurisdiction of the court. If the learned trial Judge had ruled in favour of the objection on his lack of jurisdiction, his option was to strike out the case, because if he had no jurisdiction to entertain the matter, he would have no jurisdiction to dismiss it or to put it another way, he would have no competence to dismiss the action’ or to impose any condition for the relitigating on the matter. If on the other hand, the learned trial Judge reached the decision which he did in the case, though he may be entitled to criticise the conduct of the appellant, the critism of the conduct of the litigant must be confined to the proper matters clearly established which are fundamental and necessary for the determination of points raised. And where a Judge expresses his view on an issue which is not raised by the parties, it will not be clear whether he correctly appreciated the importance of the issue and whether his words are relevant to form the basis of the issues to be determined.

 

See Okonkwo v. Udealor unreported Supreme Court decision in suit No. SC/492/1964, Lahan v. Aremu suit no. SC/570/64 of 6/5/66. As mentioned above, the only reason advanced by the Judge to grant the order to stay proceedings and to dismiss the action was in his opinion the case could not go on with an unwilling plaintiff. There is nothing on the record including the arguments of counsel to suggest that the appellant was not willing to proceed prosecuting the claim if he had lost on the jurisdictional objection. Indeed, as mentioned above, none of the respondents’ applied for the dismissal of the case on the basis of the application, the learned counsel merely argued that the court had jurisdiction and the objection to it should be discountenanced and matter should regularly proceed to continued hearing.

 

The substance of the application before the trial court was that the court had no jurisdiction on the matter in view of the recent decision of the Court of Appeal and as a plaintiff, the appellant had the right and indeed the duty to question the jurisdiction of the court regardless of the fact he was the one who initiated the proceedings, for, it is now beyond dispute, even if he won at the end of the day, it would be an exercise in futility. If the court had no jurisdiction no matter how well the trial is conducted, it would be a nullity. Any judgment however well written, if given without jurisdiction is no judgment at all. Such judgment creates no legal obligation. It does not confer any rights to the parties. See Barclays BANK v. C.B.N, (1976) SC 175. Issue of jurisdiction cannot be waived by the parties or by the court, the competence of a court to adjudicate on a matter is a legal and constitutional prerequisite. See Odofin v. Agu (1992) 3 NWLR (Pt.229) 350. In the instant case, where the learned trial Judge decided on the fundamental issue, his only option was to continue with the matter since the question of the withdrawal of the action or its discontinuance was specifically based on it and not on any issue, and as mentioned above, the issue of withdrawal or discontinuance as contained under order 29 of the rules of court was unnecessarily put there and served no purpose, since if the court had no jurisdiction, it would have no power to order discontinuance. In any event a calm and dispassionate examination will clearly reveal, that the kernel application was on jurisdiction of the court in view of the recent Ona decision.

 

Now, assuming that the learned trial Justice dismissed the case solely on the question of withdrawal or discontinuance of the case by the appellant. There is no doubt, that the learned trial Judge had the discretion to dismiss the action. But it is settled law that discretionary power of a court should be exercised judicially and judiciously. It is settled law that any stage before the hearing of a case, a plaintiff has unqualified right to file a notice of discontinuance of the action against the defendant, at that stage leave of court is not required and the appropriate order is that of striking out. But whereby the rules of court such discontinues may only effect with the leave of court, when leave is granted to discontinue, the court will have to make one or other of two possible consequential orders namely:

 

(i)      striking out the action on conditions such as to costs;

(ii)     outright dismissal of the suit.

 

Whichever order the court will make depends all the circumstances of the case. See Nigerian Properties Co. Ltd. v. Alegbeleye 19 N.L.R., Giwa v. John Holt Co. Ltd (1930) 10 NLR, Eronini case supra, Ajayi v. Odunsi (1959) SCNLR 496.

 

The principle underlying the requirement for leave to discontinue a suit after proceedings have reached a certain stage the plaintiff who has brought his adversary into court should not be allowed escape by the side door and avoid the contest, he is to be no linger Dominus Litis and it is for the Judge to say whether the action should be discontinued and upon what terms.

 

In the case of Rodrigues supra at page 149, the Supreme Court held as follows:-

 

“The dismissal of a suit by a trial Judge is considered a proper exercise of judicial discretion, when such Judge weighs all the circumstances of the case in the interest of justice, and balances the interest of the parties involved, including the balance of convenience.”

 

Thus the discretion exerciseable by the trial court must be exercised judicially and judiciously, all the circumstances and the facts led by the evidence must be considered before the court may dismiss the claim. See Hess v. Labouchere (1898) 11 T.L.R. 350. The trial Judge in such a situation may refuse leave and judgment be entered, after the examination of the evidence, for the defendant. See Fox v. Star Newspapers Co. (1900) A.C. 19. It is now settled law, that an appellate court would not, generally, question the exercise of discretion by the trial Judge merely because it would have exercised this discretion in a different way, if they had been in the position of the trial court. But such an exercise would be questioned and inferred with, if as a result of such an exercise, injustice is meted out to either of the parties or that the trial Judge gave no weight or gave insufficient weight to important considerations. See Solanke v. Ajibola (1968) 1 All NLR 46. Acme Builders Ltd v. K.S.W.B. (1999) 2 N.W.L.R. (Pt.590) 288 SC. In the Aigoro’s case supra at page 143, Bello J. S.C. (as he then was) held as follows:

 

“it is well settled that if judicial discretion is exercised bona fide by a lower court uninfluenced by irrelevant considerations and not arbitrary or illegal the general rule is that an appellate court will not ordinarily interfere.

 

The guiding principle is that discretion being judicial must at all times be exercised not only judicially but also judiciously on sufficient materials. x x x x x An appellate court may interfere with the exercise of judicial discretion if it is shown that there has been a wrongful exercise of the discretion such as where the tribunal acted under misconception of the law or under mis-apprehension of fact. x x x x or it omitted to take into account matters that are relevant. xxxx”

 

Having sounded the caution after a careful consideration of the authoritiesbased on the principles laid down, I come, to the irresistible conclusion that in the instant case, the learned trial Judge had acted under the misconception of the law, because the appellant merely applied to withdraw the matter before the trial court on his belief that the court was without jurisdiction and or competence to deal with the matter and having decided that he had jurisdiction to deal with the matter, he should have proceeded and not to lose sight of the fundamental matter that was placed before him. Similarly, the learned trial Judge was in error on the fact to have opined that the appellant was unwilling to proceed with the matter when he held “or else we shall end up without a plaintiff in the case.” There was nowhere in the entire proceedings where the appellant decided not to continue with the matter. He merely opined perhaps wrongly, that because a Federal Government agency, the 2nd defendant was a party, because of the then recent decision of this court, the court would have no jurisdiction. I am of the firm view, the appellant is entitled to question the jurisdiction of the court even when he was the one who initiated the proceedings in the first place. See Iyweh v. Uli (supra). In the case of Eronini v. Iheuko supra and Transnab Ltd. v. Joseph (supra), the trial court is bound to consider the evidence adduced before deciding whether to strike the action or to dismiss. In the latter case it was held at 195, Opene, Garcia. said:-

 

“In Eronini v. Ihueko supra at page 68, Karibi-Whyte, J.S.C. observed:

 

I sieze this opportunity to state that, on principles, whenever a suit is being discontinued after some evidence has been given, a trial Judge is bound to consider the effect of the evidence so far given before he can correctly arrive at a proper order to make. x x x x”

 

Also in the Lenas Fibre Glass Ltd. v. Furtado supra, Achike, J.C.A. (as he then was) stated the law at page 232 thus:-

 

“x x x x it is the totality of the quantum and quality of the evidence led at any given stage and other materials placed before the court when the application for discontinuance is made that will bear on the judicial mind of the Judge to provide either an order for striking out or dismissal of the case.”

 

That all the relevant materials and the evidence adduced must be considered before the order is made. In the instant case, the learned trial Judge woefully failed to consider the evidence. He also clearly based his decision on a matter that has not been ventilated or argued before him that the appellant was unwilling to continue. In any event, the appellant had closed its case, so did the first respondent. It is also significant, that the 2nd respondent did not file any pleadings, it is not shown on the records that it did so, in my view, the taking of evidence was concluded and that remained was perhaps only the address of counsel. What the learned trial Judge ought to have done having ruled that he had the jurisdiction to continue with the matter was for him to consider the evidence and make his decision on the merits of the case. Clearly the discretion to dismiss the matter under circumstances was not exercised judicially and judiciously, it was an exercise in illegality and arbitrariness. This is matter which an appellate court should interfere. I accordingly hold that the learned trial Judge was in error to have dismissed the case without considering the evidence adduced. The reason he also gave for dismissing the action was not based on any fact or material placed before him.

 

I may also add, that since the crucial application before the court was on jurisdiction, the learned trial Judge failed to consider the arguments of all counsel submitted to him. I have reproduced his ruling above. He did not give any reasons for reaching his decision that he had jurisdiction. The court had the duty to examine and make definitive decision on the arguments canvassed by counsel. The court merely speculated that if it had refused the order to discontinue, the appellant will disappear and this is mere speculation and no court is allowed to speculate. See Oyinloye v. Esinkin (1999) 10 NWLR (Pt. 624) 540 SC.

 

ISSUE NO. 2 Jurisdiction

 

I have shown above that the learned trial Judge has failed to consider the argument of the counsel. In his very short, ruling the learned trial Judge did not demonstrate in full a dispassionate consideration of the issues raised and canvassed and the ruling did not reflect the result of such an exercise. See Ojogbue v. Nnubia (1972) 6 SC 227. A trial is not an investigation, the function of a court is to decide between the parties on the basis of what has been so demonstrated and vancassed. See Ozibe v. Aigbe (1977) 7 SC 15. See also Ajagbe v. Akanni (1974) 11 SC 47 F.N.B. Plc v. Obeya (1998) 2 NWLR (Pt. 537) 205. In the instant case, the learned trial Judge merely said he had jurisdiction to entertain the matter. He gave no reasons for arriving at the decision. He ignored all the arguments put forward by counsel. Ordinarily this would be a proper situation for this court to invoke the provisions of S.16 of the Court of Appeal Act 1976 to properly examine the issue. But in view of the fact that the learned trial Judge had dismissed the case and also in view of the order I shall make, it is not appropriate to deal with the matter at this stage. Equally, I am of the considered view, that it is not appropriate to deal with the adduced evidence at the trial and to make findings of fact, to do that, will foist on the trial court a position of helplessness and would prejudice and pre Judge the issues to be, canvassed there. There are the reasons why, I am unable to accept the reasonings of my Lord Oduyemi J.C.A. in this matter. In the result, I allow this appeal and set aside the decision of the trial court including the order of costs and I remit the case back to the High Court of the Federal Capital Territory Abuja and there to be tried de novo before another Judge.

 

The appellant company is entitled to costs of this appeal which I assess at N5000.00 against each of the respondents.

 

MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, JCA.: I have had the opportunity of reading before now the lead judgment just read and delivered by my learned brother, Oduyemi JCA, and I am in agreement with him that there is merit in this appeal and the same ought to be allowed.

 

My learned brother Albert Gbadebo Oduyemi JCA has exhaustively dealt with facts that gave rise to this appeal. He left no stone unturned vis-a-vis the issues canvassed before us. It will therefore serve no useful purpose for me to re-count them all over again. It will suffice to say that by virtue of the provisions of order 29 rules 3, and 6, and order 47, rule 1 of the High Court (Civil Procedure) Rules Cap. 511 Laws of the Federation 1990, the discontinuance of a suit may or may not be with leave of court depending entirely on the stage of the proceedings in the suit.

 

Before the hearing of the case if the plaintiff wishes to discontinue his suit against all or any of the defendants, such notice of discontinuance must be in writing. After service of such notice of withdrawal on the defendants the plaintiff is not allowed to recall it as such discontinuance automatically terminates the proceedings and the court may strike out the suit. I rely on Soetan v. Total Nigeria Ltd. (1972) 1 All NLR (Pt 1)1; Obienu v. Orizu (1972) EC.SLR 606 and Izieme v. Ndokwu (1976) NMLR.

 

Where, the case was fixed for hearing or where hearing commenced in earnest and the plaintiff closed its case and the defence began to open its case, the plaintiff may discontinue only with leave of the court and subject to conditions that may be imposed by the court, such discontinuance may be made either orally or formally i.e. by application/ motion on notice leave is the discretion of the trial court to grant or refuse. If he decides to grant it may be on terms as to costs. As one of the conditions for the grant the plaintiff may be barred or debarred from bringing another suit founded on the same facts. The court is saddled with un-fettered discretion, which however must be exercised judiciously and judicially, to make any of the following orders

 

(i)      Striking out the action on conditions; or

(ii)     outright dismissal of the suit.

 

It was agreed that which ever order the trial court will make will depend on all the circumstance of the case – see Nigerian Properties Co. Ltd. v. Alegbeleye 19 NLR 101; Giwa v. John Holt Co.Ltd (1930) 10 NLR 77; Eronini v. lheuko (1989) 2 NWLR (Pt 101) 46; Ajayi v. Odunsi (1959) SCNLR 496; and Aghadinuno v. Onubogu (1998)5 NWLR (Pt. 548) 16 at 37-38. In all situations it is to be observed that it is obvious that the plaintiff / applicant that brought the defendant into court why should he be allowed to escape by the side door and avoided the contest hence the need for the Judge before him the application to discontinue was made to decide for himself, upon reasons, whether to impose terms or not, what ever happens the Judge must weigh all the circumstances.

 

It is fast becoming trite that a court of law must not grant to a party ,a relief which he has not sought. If the applicant asked for the striking out the suit, unless circumstances demand the contrary, the court shall so obliged him. The locus classicus on this principle is Ekpenyong v. Nyong (1975) 2 SC 71; Makanjuola v. Balogun; (1989) 2 NWLR (Pt.l08) 152. See also Kalio v. Daniel Kalio (1975) 2 SC 15.

 

The problem in this matter is the attitude of the learned trial Judge. He decided to be un-usually brief. Even though the hearing has gone far, and the parties have filed their pleadings, called witnesses, in that the plaintiff /applicant before that court had already closed its case and one of the defendants also did the same only the 2nd defendant did not open his defence, the learned trial Judge just dismissed the action without evaluating or weighing the evidence so far adduced before him. It is not right, in my view, for the parties to expect this court on appeal to re-evaluate the evidence on behalf of the trial court. It is the duty of that court to weigh all the circumstances and stated sufficiently why he decided the matter one way or the other as directed by the Supreme Court in the case of Odofin & Ors. v. Mogaii & Ors. (1978) NSCC Vol.11 page 275/277. It is believed that the reasons for dismissal were available in the Judges’ judicial mind but never stated in his short ruling. In other words, the Judge kept all the supposed reasons why he dismissed the action within himself. This is not good enough. I therefore agree with his Lordship Oduyemi JCA when he held that…”the lower court did not make a proper use of the discretion which it was called upon to exercise in the application for discontinuance … ..” As mentioned above, while I agree with His Lordship Justice Oduyemi on the final result of this appeal, I do not think that it is proper at this stage to discuss the evidence and make any findings of fact. This is in view of the order for retrial of the matter before another Judge which, I will make. Equally, the main stand of the appellant in the court below was the question of jurisdiction on which the appellant premised his intention to withdraw the case. The trial Judge did not use the opportunity of the argument of counsel in arriving at his decision.

 

It is therefore not appropriate at this stage to reach a decision on whether the trial court was right or wrong in deciding if it had jurisdiction. That is why, I agree more with the reasons for judgment as contained in the judgment of Musdapher JCA.

 

Cases referred to in the judgment

Acme Builders Ltd v. K.S.W.B. (1999) 2 N.W.L.R. (Pt.590) 288 SC

Adeyemi v. Olakunrin (1999) 14 NWLR (Pt. 638) 204

Aghadinuno v. Onubogu (1998)5 NWLR (Pt 548) 16

Ajagbe v. Akanni (1974) 11 SC 47

Ajayi v. Odunsi (1959) SCNLR 496

Akinbi v. Mil Gov. of Ondo State (1990) 3 NWLR (Pt.140) 525

Ali v. Central Bank of Nigeria (1997) 4 NWLR (Pt. 498) 192.

Barclays Bank v. C.B.N, (1976) 6 SC 175.

Ekpenyong v. Nyong (1975) 2 SC 71.

Eronini v. Iheuko (1989) 1 NSCC 503.

Ex-parte Ikoro v. Governor Eastern Nigeria (1962) 1 SCNLR 65

F.N.B. Plc v. Obeya (1998) 2 NWLR (Pt. 537) 205

Fox v. Star Newspapers Co. (1900) A.C. 19

Giwa v. John Holt Co.Ltd (1930) 10 NLR 77

Hess v. Labouchere (1898) 11 T.L.R. 350

Iyweb v. Uli (1999) 13 NWLR (Pt.634) 189

Izieme v. Ndokwu (1976) 1 NMLR 280.

Kalio v. Kalio (1975) 2 SC 15

Lahan v. Aremu suit no. SC/570/64 of 6/5/66

Lake v. Lake (1955) P. 336

Lenas Fibre Glass Ltd v. Fortado (1997) 5 NWLR (Pt.504) 220

Macedo v. Stroud, (1922) 2 A.C. 330

Madukolu v. Nkemdilim (1962) 1 All NLR 587

Makanjuola v. Balogun; (1989) 2 NWLR (Pt l08) 152

Nigerian Properties Co. Ltd. v. Alegbeleye 19 NLR 101

Obienu v. Orizu (1972) EC.SLR 606

Odofin v. Agu (1992) 3 NWLR (Pt.229) 350

Odofin. v. Mogaji (1978) NSCC vol. 11 275

Ojogbue v. Nnubia (1972) 6 SC 227

Okonkwo v. Udealor Unreported SC suit No. SC/492/1964

Ona. v. Atenda (2000) 5 NWLR (Pt. 656) 244.

Oyinloye v. Esinkin (1999) 10 NWLR (Pt. 624) 540 SC

Ozibe v. Aigbe (1977) 7 SC 15.

263. v. Ireland (1970) 44 ALJR 263.

Rodrigues v. Public Trustee (1977) 11 NSCC 148.

Soetan v. Total Nigeria Ltd. (1972) 1 All NLR (Pt 1)1

Solanke v. Ajibola (1968) 1 All NLR 46.

Transnab Ltd v. Joseph (1997) 5 NWLR (Pt.504) 176

Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) 617.

Unilag v. Aigoro (1985) 1 NSCC 88.

Yakubu v. Governor of Kogi State (1977) 7 NWLR (Pt.511) 66.

Statutes referred to in the judgment

Constitution of the Federation Republic of Nigeria 1979; section 230 (1)(q) and (s).

Court of Appeal Act 1976: section 16.

Rules of court referred to in the judgment

Federal Capital Territory Abuja (Civil Procedure) Rules 1990: or 23r.2, 3, 6, Or.29, r.3; Or.29 r. 2 & 6.

Rules of Supreme Court in England: or. 21 r.3

Supreme Court (Civil Procedure) Rules Cap. 211 Laws of the Federation; 1948, or. XLIV rule 1.

Old Supreme Court (Civil Procedure) Rules Cap. 112 Laws of Nigeria: Order XLIV rule 1.

Books referred to in the judgment

Words and phrases legally defined 2nd ed. vol. 2 p. 178.

Halsbury’s laws of England 3rd ed. P. 348.

Cheshires Modern Real Property, 10th ed. 679 at 680.

Strouds Judicial Dictionary Vol.3 4th edition.