CASE SUMMARY OF:
The Young Shall Grow Motors Limited v. Ambros O. Okonkwo & Anor. (2010) - SC
by NSA PaulPipAr
AREA OF LAW
- Dismissal of Appeal case;
- Relisting of appeal case;
- Withdrawal of an appeal case;
The Young Shall Grow Motors Limited
1. Ambros O. Okonkwo;
2. Innocent Onyebuchukwu
LEAD JUDGEMENT DELIVERED BY:
I. T. Muhammad J.S.C
* FOR THE APPELLANT
* FOR THE RESPONDENT
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FACT (as relating to the issues)
At the High Court of Justice of Anambra State, holden at Nnewi [trial court], the plaintiff was claiming damages against the defendants jointly and severally in respect of damages caused to the plaintiff’s Mercedes Benz Lorry 911. After service of the statement of claim, the learned Counsel of the 1st defendant led a notice of motion praying the trial court for the following reliefs:
1. An order dismissing the above named suit in its entirety or striking it out on the ground that it is statute barred.
2. IN THE ALTERNATIVE, an order setting aside the service of the Writ of summons and other processes in the above suit on the first defendant.
3. Striking out the first defendant from the Writ of Summons and other processes in the above suit on the ground that the first defendant is not known to law and therefore, cannot sue nor be sued.
After having considered arguments from learned counsel for the respective parties along with the affidavit evidence, the learned trial judge dismissed the application. Dissatisfied with that ruling, the defendants/applicants appealed to the Court of Appeal, Enugu, Division (court below). On the 9th November, 1999, learned counsel for the appellant at the court below applied to withdraw the appeal. The court below, accordingly, struck out the appeal.
On the 9th of Novemebr, 2001, a motion to relist the appeal struck out on 9th of November, 1999, was filed.
The court below considered the motion of Notice, found no merit in it and dismissed it. This is what brought about this appeal to this court.
1. What circumstances can an appeal struck out be relisted, and whether the court below was right in refusing to relist the appeal struck out by it.
HOLDING & RATIO DECIDENDI
[APPEAL: DISMISSED; with N50,000 cost against the Appellant]
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. I entirely agree with Olagunju, JCA, in his comments as above. I venture to add, that even where an appeal struck out qualifies for relistment, I think the law requires that cogent and convincing materials not porous, must be placed before the court for it to consider whether to grant it or not. Granting such applications not a mere matter of course. On the other hand, where an appeal which is ripe for hearing with briefs of argument settled by the parties, has, for some reasons, been withdrawn by the appellant, it stands to reason to allow the owner of the course, as it were to carry his own corps to wherever he want to deposit it. A court of law cannot compel an unwilling horse to drink water although it might have properly been directed to the river. The court is always loathe in compelling an appellant to prosecute his appeal where he shows reluctance to do so. Even where the court does so, the appellant may refuse to go on. So, the best in such a situation is to struck out the appeal with the consequential effect of debarring the same appellant from relitigating same where, as in the present appeal, briefs were already settled by the parties [paragraph 7 of the affidavit].
ii. By virtue of Order 3 Rule 18(5) of the Court of Appeal Rules 1981 as amended once an appeal is withdrawn under Rule 18 order 3 with or without the consent of the parties, it stands dismissed.
- Order 3 Rule 18, of the Court of Appeal Rules, 1981.
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‘Striking out’, a thing, simplicita, means to remove that thing by drawing a line through it, that is, crossing it out. Striking out a suit/case in its general connotation is the act of discontinuance or termination of the life span of that suit/case either temporarily or permanently. - I.T Muhammad, JSC. Young v. Ambros (2010)
The grant or refusal of leave to discontinue a suit is in the discretion of the court. The leave should be refused in the following circumstance: (a) Where granting it will serve no useful purpose as where the suit ought to be dismissed. (b) Where if granted, it may work injustice to the defendants. The plaintiff must not be allowed to evade this situation of any device such as amendment or otherwise. (c) The plaintiff cannot be allowed to use discontinuation to bring about indirectly that which cannot be affected directly. However, where a suit is discontinued and was struck out, it may afterwards, if circumstances warrant, be relisted where discontinuance meant to suspend the action on certain conditions. Parties may agree that the suit be discontinued. - I.T Muhammad, JSC. Young v. Ambros (2010)
It follows, therefore, that in the absence of any provision in the Court of Appeal Rules on the matter, the principles governing withdrawal of an appeal on the date fixed for hearing or any time, thereafter, must take a cue from the principle of discontinuance of actions at the trial court after the action has been fixed for hearing. In other words, after briefs of argument have been exchanged by the parties whereby issues, between them became crystallized LITIS CONTESTATIO can be deemed to have been reached. A withdrawal of an appeal from that point in time must, as an inflexible rule, lead to the dismissal of the appeal. - I.T Muhammad, JSC. Young v. Ambros (2010)
The end of this brief.
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