Discontinuance of an Action – A Review of the Practice of Courts in Nigeria

Description

ABSTRACT

Discontinuance of an Action – A Review of the Practice of Courts in Nigeria

 Isdore Ozuo*

A plaintiff may at any time withdraw a suit pending in court. However, the consequences of withdrawing a suit depend on the practice of the court in question and not any settled principle of law. For instance, after the commencement of trial, a discontinuance attracts an order dismissing the suit at the High Court of Rivers State, while such a discontinuance attracts an order striking out the suit at the Federal High Court. In Lagos State, such a discontinuance attracts either a striking-out order or a dismissal. The procedure to be adopted for withdrawing a case equally depends on the court where the discontinuance is to be effected. This article addresses the misconception surrounding the consequences of withdrawing a suit in court as well as examines the procedure and consequences of a notice or motion for discontinuance at trial and appellate courts in Nigeria.

Keywords: Judicial practice, withdrawal, discontinuance of action, effect thereof.

INTRODUCTION
Every plaintiff enjoys the right to withdraw his or her case in court. This is usually achieved by filing a notice of discontinuance or a motion on notice for discontinuance.₁ A discontinuance by the plaintiff may be motivated by several reasons ranging from the settlement of the claim by the parties, mistake or error in the processes filed in court to the case becoming an academic exercise and other reasons. The procedure and consequences of a discontinuance are usually prescribed by the Rules of the respective courts.

In Nigeria, there are different positions expressed in the Rules of the various trial courts regarding the practice and procedure as well as the consequences of discontinuing a matter. Given the disparity in the Rules, principles of law enunciated in case law on the withdrawal of a matter in court have no general applicability. That is, it may not be entirely correct to rely on a case on the discontinuance of a matter decided under the Federal High Court (Civil Procedure) Rules in arguing a matter fought or being fought under the High Court of Rivers State (Civil Procedure) Rules. Similarly, a decision on the withdrawal of a case under the High Court of Lagos State (Civil Procedure) Rules may be irrelevant in deciding a case under the High Court Rules of another state. The implication is that the Rules and practice of the court in question are key in deciding any issue that relates to the withdrawal or discontinuance of a matter by a plaintiff. Having recourse to general principles of law on discontinuance of an action even before considering the provisions of the relevant Rules is usually unhelpful.

*Isdore Ozuo, Founder, V Law Firm, Port Harcourt, Rivers State. The author thanks Innocent Ekpen Esq. for his comments on the first draft of this article. The author equally thanks the two reviewers for their comments and intervention.

1. Imperial Homes Mortgage Bank Ltd v Mount Gilgal Investments Ltd & Ors[2017] LPELR-42711 (CA).
   

THE GRAVITAS REVIEW OF BUSINESS & PROPERTY LAW Vol.14 No.3