CASE TITLE: BENJAMIN & ORS v. APC & ORS (2022) LPELR-59051(CA)
JUDGMENT DATE: 30TH NOVEMBER, 2022
PRACTICE AREA: PRACTICE AND PROCEDURE
LEAD JUDGMENT: ADEMOLA SAMUEL BOLA, J.C.A.
SUMMARY OF JUDGMENT:
INTRODUCTION:
This appeal borders on the withdrawal of a suit under the originating summons procedure.
FACTS:
This is an appeal against the decision of the Federal High Court, Umuahia Judicial Division, presided over by Hon. Justice E. N. Anyadike delivered on the 7th October, 2022 wherein the suit of the Appellants as Plaintiffs before the lower Court was dismissed pursuant to the Notice of Discontinuance filed by the Appellants.
The Plaintiffs filed their Originating Summon on 8th June 2022 in respect of the primary election conducted in the various State Assembly Constituencies in Abia State. The Plaintiffs now Appellants in this appeal participated in the primary elections. The Plaintiffs claimed they won the primary elections in their respective constituencies. It was the contention of the Plaintiff) Appellants that the 1st and 2nd Defendants were unwilling to uphold the outcome of the elections in which they – Plaintiffs emerged winners. This culminated to the suit instituted by the Plaintiffs at the Federal High Court to challenge the action of the 1st and 2nd Respondents.
Parties filed their respective Court processes at the Federal High Court including the Counter-Affidavit of the 1st and 2nd Defendants filed on 15/6/2022.
On 11th November, 2022, the Plaintiffs’ Counsel O. O. Amuzie Esq. applied to discontinue the matter. He adopted the Notice of Discontinuance filed by the Plaintiffs dated 26/7/2022. The 1st and 2nd Defendant did not object to the application but applied that the Plaintiffs’ action be dismissed since issues had been joined. It was the Plaintiffs’ Counsel’s contention that the Plaintiffs had not filed response to the processes filed by the 1st and 2nd Defendants.
Pronouncing on the application, the Federal High Court dismissed the case.
Dissatisfied with the decision, the appellant appealed to the Court of Appeal.
ISSUES:
The Court of Appeal determined the appeal on a lone issue which is:
“Whether the dismissal of the suit by the lower Court was proper in the circumstance of the case?”
DECISION/HELD:
In conclusion, the Court of Appeal dismissed the appeal.
RATIOS:
- ACTION – ORIGINATING SUMMON(S) – Basis on which an originating summons is heard
- PRACTICE AND PROCEDURE – DISCONTINUANCE/WITHDRAWAL OF A SUIT – Position of the law as regards withdrawal of an action
- PRACTICE AND PROCEDURE – DISCONTINUANCE/WITHDRAWAL OF A SUIT – Proper order to be made when a suit is discontinued or withdrawn after issues have been joined
what is the proper order the court has to made for notice of discontinuance?