Aare of Iree- Notice of Discontinuance Is Self-Executed By Omiparo Waheed

Aare of Iree- Notice of Discontinuance Is Self-Executed

By Omiparo Waheed

Kingmakers who went to court withdrew the case and commenced a process of selection of a new king. Is anything wrong?

On Aare Chieftaincy, the Kingmakers who went to Court prepared a Notice of discontinuance through their lawyer and the same was accordingly executed. Their lawyer informed the local and state authorities.

The law is clear that when a Notice of discontinuance is filed, the suit stands determined and extinguished immediately. See Hon. Minister of Youth & Sport & Ors. V. Hon. Ibrahim Shehu Gusau (PHD) (2020) Lpelr- 51329 (CA)
Per IDRIS, JCA held at Pp. 30-36, paras. C-E thus:

” *Now what is the effect of this Notice of Discontinuance? In the case of EMGHARA VS. HEALTH MANAGEMENT BOARD IMO STATE (1987) 2 NWLR (PT. 56) 330 AT 339 – 340, it was held that a notice of discontinuance, once it is filed, the whole suit is deemed to have come to an end and does not require to be formally argued as a motion. (Emphasis Mine). The Supreme Court also held in the case of EKUNDANO VS. KEREGBE (2008) 4 NWLR (PT. 1077) 422, that- “A Plaintiff may, without leave of Court, discontinue a Suit against all or any of the defendants, or withdraw any part of his claim before the date fixed for hearing.

In such a situation the notice of withdrawal automatically terminates the proceedings…” I would agree with the Learned Trial Judge that the filing of the Notice of Discontinuance Exhibited in Page 50 of the Record of Appeal puts an automatic end to the action against the Appellants at the High Court of the Federal Capital Territory and any pending processes in the action cannot, in my own view, hinder the termination of the action against the Appellants.

What is left to be done shall be for the High Court of the Federal Capital Territory, Abuja to formally enter an order striking out the action against the Appellants which, in my strong view, is a matter of course or mere formality. Neither the trial Court nor any of the parties can stand in the way of the discontinuance of the action against the Appellants as contained in the said Exhibit in Page 50 of the Record of Appeal. At the stage of filing the Notice of Discontinuance, the duty of the High Court of the Federal Capital Territory is to confirm the action before it died in favour of the Respondent.

So, whenever the action is called before the said Court, its attention may be drawn to the pendency of the Notice of Discontinuance on which it will perform the required hearing of pronouncing the demise of the action against the Appellants by an order striking it out without more. See also the case of EZEONU VS. AGHEZE (1991) 4 NWLR (PT. 187) 631 AT 642 TO 643 wherein the Court held as follows: “Since the real quarrel in this matter started from the notice of discontinuance, I might as well start from it. And that takes me straight to Order 22 of the High Court Rules of Anambra State. Order 22 has eight rules.

The notice of discontinuance was brought under Rule 1. For ease of reference, let me produce verbatim ad literatim the rule: “The plaintiff in an action may without the leave of the Court, discontinue the action, or withdraw any particular claim made by him therein, as against any or all of the defendants at any time not later than the day preceding the day the action is first set down for hearing by filing in the Court registry a notice to that effect. The Registrar shall cause a copy of the notice to be delivered to the defendant as early as possible.” This rule can only be invoked where the matter is not yet set down for hearing. By the rule, if the matter is to come up the following day, the notice could be filed today. That is of course/ the last day that the notice under the rule could be filed.

That is the meaning of the expression “not later than the day preceding the day the action is first set down for hearing.” When the notice of discontinuance is statutorily given by the plaintiff, the next procedure is for the Registrar to cause a copy of the notice to be delivered to the defendant. Although the rule does not specify the time limit within which the notice of discontinuance should be delivered to the defendant, it is my feeling that the rule intends a situation where the defendant receives the notice before the return date of the case or before the date the matter is to come up.

That to me, appears to be the interpretation of the expression “as early as possible.” In my view the rule wants to avoid a situation where a defendant comes to Court only to meet a notice of discontinuance without the plaintiff. The rule will not like the defendant to incur unnecessary expenses in coming to Court. What happens next when the Registrar has caused the notice to be delivered to the defendant? I have partly answered the question, I might as well complete it.

Following the clear intention of the rule, the defendant is not expected to be in Court. He is expected to regard the matter as coming to an end as far as the particular suit is concerned. Of course, the plaintiff cannot in law recall the notice. See Chief Obienu and Others v. Chief Orizu and Others (1972) 2 E.C.S.L.R. 606….” This brings me to the import of a Notice of Discontinuance. ?Discontinuance means the termination of a law suit by the Plaintiff; voluntary dismissal or non-suit. The notice has the effect of the plaintiff removing the suit and put to end the questions sought to be determined at the Trial Court. The Rules of Court provides for Notice of discontinuance with a regime of the order to be made depending on the stage of proceedings. Usually before issues are joined, it requires the filing of a Notice of discontinuance but when issues have been joined or the matter has gone into hearing, then it should be by way of Motion on Notice for discontinuance ? and in such situations, the Court can impose conditionalities for discontinuing the suit.

Generally, a Notice of discontinuance once duly and validly filed cannot be recalled, because the moment it is effectively filed, the suit ceases to exist and is legally discontinued. The Supreme Court in the case of OGUNKUNLE VS. ETERNAL SACRED ORDER, C & S (2001) 12 NWLR (PT. 727) 359 held: “A discontinuance in my view, brings the action or that part of the action as is discontinued to an end against the defendants or such of them whom the action has been discontinued without further intervention from the Court.”

The Applicant has failed to understand the import of the mere filing of the Notice of discontinuance. The situation can be likened to a corpse in the mortuary waiting to be buried on a latter day. It cannot be withdrawn nor can any legal step be taken on the matter except burial formalities and burial ceremonies are not in the interest of the dead but for the health of the society that demands that the dead must be properly buried. The Court must not end the matter formally by an order. The idea of filing an objection to require a hearing is uncalled for. All the defendant needs to do is to demand for conditions to be placed on the withdrawal because the Court cannot take any step in the matter other than those necessary for formally terminating the suit, once the notice is filed.

The Court and the other party cannot force the plaintiff to continue with the suit. The essence of the requirement to either file just a notice or a motion on Notice is dependent on the stage of proceedings and to allow the Court to make certain orders when the matter has gone to a particular stage. It is not to allow a defendant to contest the discontinuance. No, not at all. The Applicant further argued that the suit did not automatically cease, the question is whether in law, the matter was alive? Once the notice is filed, the matter has legally ceased and it would not matter whether the final order was made one year later.”

● Omiparo writes from Bolekaja, Mushin, Lagos.

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