➥ CASE SUMMARY OF:
Mr. Agha Anyina v. Messrs First City Monument Bank Ltd. (NICN/ABK/03/2017, 12th December 2017)
by Branham Chima.
➥ SUBJECT MATTER
Withdrawal of suit to replace with fresh process;
➥ CASE FACT/HISTORY
On 13th September 2017, the Claimant took out an Originating Summons against the Defendant. The Claimant filed a statement of claim, list of witnesses and documents, sworn statements of the witnesses. After service of the originating processes on the Defendant, the Defendant, through its Solicitor, filed a memorandum of appearance, statement of defence and counterclaim and other frontloaded processes on 13th October 2017 together with a motion on notice to regularize the processes. The Defendant’s processes were regularized by order of this Court on 13th October 2017. Thereafter, the case was adjourned by consent of counsel to 3rd November 2017 for trial.
The case was called on 5th December 2017. The Claimant was absent but represented by Counsel. The Defendant was represented by Mr. Omotola Adeyemi, the Employee Service Officer and its Counsel. Learned Counsel to the Claimant, Mr. Okoro, applied orally to withdraw “Suit no. NICN/ABK/03/2017 and to substitute it with the fresh processes dated 29th November 2017 and filed on 4th December 2017.” Learned Counsel to the Defendant, Mr. Oyesanya, opposed the application. He submitted that the application should be by motion. Continuing, learned Counsel submitted that the case was set down for trial today and that his witness is in court and urged the Court to strike out the suit with N100, 000 costs payable within 7 days pursuant to Order 55 rule 7 of National Industrial Court [Civil Procedure] Rules, 2017. In his response, Mr. Okoro submitted that Order 61 rule 1 of the National Industrial Court [Civil Procedure] Rules, 2017 gives the Claimant right to withdraw the process before judgment and urged the Court to discountenance the application of the learned Counsel to the Defendant to strike out the suit. He submitted further that pursuant to Order 23 rules 1 and 2 of National Industrial Court [Civil Procedure] Rules, 2017 leave should be granted to him to adopt the procedure in Order 39 rule 2 of the Ebonyi State High Court [Civil Procedure] Rules 2008 to make the oral application.
➥ ISSUE(S) & RESOLUTION(S)
[RULING: APPLICATION DISMISSED]
I. Whether Learned Counsel can withdraw suit and replace with fresh process?
RESOLUTION: IN RESPONDENT’S FAVOUR.
A. A SUIT CANNOT BE WITHDRAWN AND REPLACED WITH FRESH PROCESS
[‘In addition, what learned Counsel sought to do is unknown to law. Learned Counsel applied to withdraw “Suit no. NICN/ABK/03/2017 and to substitute it with the fresh processes dated 29th November 2017 and filed on 4th December 2017.” An originating process cannot, to my mind, be withdrawn and substituted. It can only be amended to reflect what the party desires. In Chief Ufikairo Monday Efet v. Independent National Electoral Commission & 2 Ors.  LPELR-8109 [SC] at pages 29-30, Muhammad, JSC, aptly describes the effect of a withdrawal. He said “Withdrawal or discontinuance of an action connotes the termination or removal of that action from the cause list of that court. It exists no more before that court. It has slumped down, fainted and ultimately died only waiting for resurrection when there will be one. Thus, where an action has been withdrawn or discontinued, the only remedy provided by law as in Rule 4 of Order 50 of the Federal High Court Rules, is to initiate a fresh or subsequent action to resurrect the dead, wholly or partially and whether of the same or substantially the same cause of action.” I wholly adopt the reasoning of his Lordship and hold that if this suit is withdraw it will cease to exist, it abates and must be struck out.’
‘Similarly, the application to withdraw Suit no. NICN/ABK/03/2017 and to substitute it with the fresh processes dated 29th November 2017 and filed on 4th December 2017 is untenable in law for the reasons stated above and therefore refused. In the same vein, the Defendant’s application to strike out the suit is refused. Learned Counsel to the Claimant is acting under a misapprehension of the law; and the error of Counsel cannot be visited on the Claimant. This is a Court of equity and equity looks to the intent rather than the form. I so hold.’]
‘In the final analysis, the Claimant is at liberty to bring an application for leave to amend the originating processes to bring it in conformity with Order 3 rules 8, 9 and 10 of National Industrial Court [Civil Procedure] Rules, 2017. Ruling is entered accordingly. This case was fixed for trial and the Defendant’s witness was in Court. Consequently, cost of N5,000 is awarded in favour of the Defendant to be paid within 7 days from today.’
➥ FURTHER DICTA:
⦿ TO SATISFY NATIONAL INDUSTRIAL COURT BEFORE ADOPTION OF HIGH COURT PROCEDURE
It is my considered opinion that for Order 23 of the National Industrial Court [Civil Procedure] Rules, 2017 to apply, Counsel must satisfy the Court as to the following: a. That there is no provision made in the Rules as to the practice and procedure sought to be adopted. b. That there is a provision made but it is in adequate. c. That the procedure sought to be adopted will do substantial justice to the parties in the particular circumstance. In my view, learned Counsel has not satisfied these conditions. In addition, what learned Counsel sought to do is unknown to law. — I.G. Nweneka, J.
⦿ APPLICATION TO WITHDRAW SUIT MUST BE IN WRITING
Be that as it may, sufficient provision is made in Order 61 Rule 1 of the National Industrial Court [Civil Procedure] Rules, 2017 for withdrawal or discontinuance of actions. Order 61 Rule 1 of the National Industrial Court [Civil Procedure] Rules, 2017 provides: “Where before the date fixed for hearing or judgment, any party to the proceedings desires to discontinue a claim or withdraw any part thereof, such a party shall give notice of discontinuance or withdrawal in writing to the Court and to the other party. The Court shall upon the discontinuance or withdrawal make such order or orders as may seem just.” Sub-rule 3 provides that the application shall be by motion on notice supported by affidavit and filed 7 days before the date fixed for hearing. Order 17 rule 1 of National Industrial Court [Civil Procedure] Rules, 2017 provides that, “Where by these Rules, any application is authorized to be made to the Court, such application shall be by motion on notice or motion ex-parte and shall state under what Rules of the Court or Act or Law it is brought.” These Rules require that the application must be in writing and served on the other party. — I.G. Nweneka, J.
Mr. Agha Anyina
Messrs First City Monument Bank Ltd.
➥ LEAD JUDGEMENT DELIVERED BY:
Hon. Justice I.G. Nweneka
⦿ FOR THE APPLICANT
Ikechukwu Donatus Okoro Esq.
⦿ FOR THE RESPONDENT
Segun Oyesanya Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)