Position of the Law Regarding Withdrawal of Appeal Under the Court of Appeal Rules

CASE TITLE: SUNTRUST BANK (NIG) LTD v. EATON ACQUISITIONS LTD & ANOR (2024) LPELR-62753(SC)
JUDGMENT DATE: 21ST JUNE, 2024
PRACTICE AREA: PRACTICE AND PROCEDURE
LEAD JUDGMENT: MOORE ASEIMO ABRAHAM ADUMEIN, J.S.C.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on Civil Procedure.

FACTS:

This is an appeal against the Court of Appeal, Lagos.

The action was commenced by the first respondent against the second respondent in the Federal High Court. The appellant was not party to the action. The Federal High Court entered judgment in the action on the 17th of February, 2021, in favour of the first respondent. Sequel to the entry of judgment, the appellant, as Interested Party/Applicant, filed an application on the 12th of March, 2021, before the Court of Appeal, Lagos Division, praying for an order of the Honorable Court granting it leave to appeal as an Interested Party against the said judgment of the Federal High Court. The first respondent opposed the application and caused a counter affidavit to be filed thereto on the 10th of November, 2021. The second respondent also opposed the application and it caused a counter affidavit to be filed thereto on the 10th of February, 2022.

Thereafter, the appellant, realizing that the three-month period it could appeal against the said judgment of Federal High Court as a right if granted the leave to appeal as an Interested Party by the Court expired on the 17th of May, 2021 and that he needed to seek for and obtain the trinity prayers, filed another motion on notice on the 23rd of March, 2022, incorporating the prayers for leave to appeal as an Interested Party and the trinity prayers to appeal against the judgment of the Federal High Court.

The appellant on the same 22nd of March, 2022 also filed a notice of withdrawal of the earlier motion of 12th March, 2021, with the intention of replacing the motion with the new motion filed. When the applications came up before the Court on the 24th of March, 2022, Counsel to the respondents contested the order to be made by the Court on the appellant’s notice of withdrawal of its earlier motion and consequently on which the Court ordered the parties to file written addresses of arguments thereon. The parties complied with the order for written addresses and they relied upon and adopted their respective addresses before the Court.

The Court acknowledged the inalienable right of the appellant to withdraw its earlier motion, but it proceeded to equate the motion with an appeal and it considered the notice to withdraw the motion under the provisions of Order 11 of the Court of Appeal Rules, 2021 and found that since the respondents had filed counter affidavits to the motion, issues had been joined thereon, and that the proper order to make was one of dismissal. The Court proceeded therefrom to dismiss the motion of the appellant filed on the 12th March, 2021 and it thereby effectively foreclosed the consideration of the new motion filed by the appellant. This appeal is against the order of dismissal of the motion.

ISSUES FOR DETERMINATION:

The appeal was determined based on a sole issue thus;

“Whether the lower Court was right to have dismissed the Appellant’s application filed on 12th March, 2021, when it was obvious that the lower Court had lost the requisite jurisdiction to grant the said application as constituted at the time it was withdrawn?”

DECISION/HELD:

In the final analysis, this appeal was allowed.

RATIOS:

• APPEAL- WITHDRAWAL OF APPEAL- Condition for the operation of the rules under Order 11 of the Court of Appeal Rules, 2021 regarding withdrawal of appeal; instance when same will not apply
• CASE LAW- JUDICIAL PRECEDENT/STARE DECISIS- Whether cases are only authorities for what they decide
• PRACTICE AND PROCEDURE- PRELIMINARY OBJECTION- Purpose of a notice of preliminary objection; whether it can be raised against an issue which relates to arguments advanced in a brief of argument
• PRACTICE AND PROCEDURE- RULES OF COURT/STATUTORY PROVISION- Whether the Courts will dispense with the Rules of Court where compliance with same will do injustice

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