Amen & Co Commercial Chambers

Amen & Co Commercial Chambers Contact information, map and directions, contact form, opening hours, services, ratings, photos, videos and announcements from Amen & Co Commercial Chambers, College & University, AMBROSE ALLI UNIVERSITY, FACULTY OF LAW, Ekpoma.

AMEN & CO. CHAMBERS PROCEDURAL LAW SERIES📚 ⚜️ Topic: DISCONTINUANCEThe word “discontinuance” means the termination of a ...
10/08/2020

AMEN & CO. CHAMBERS PROCEDURAL LAW SERIES📚

⚜️ Topic: DISCONTINUANCE

The word “discontinuance” means the termination of a law suit by the plaintiff; a voluntary dismissal or non-suit. “The notice of discontinuance has the effect of the plaintiff voluntarily removing the suit or questions in the originating summons from determination from the court or trial or refraining from prosecuting or proceeding with action. The order to be made by the learned trial judge will depend on the stage of the proceedings when the notice of discontinuance or withdrawal was filed”.

🔰 CAN A SUIT BE DISCONTINUED OR WITHDRAWN?
Pursuant to rules of Court, a Claimant may withdraw a suit with leave of court at the trial stage, before or after defence is entered.
Also, it is pertinent to note that the Federal High Court (Civil Procedure) Rules 2009 by Order 50 Rule 3 and 4 confers a party with the right to withdraw or discontinue a suit. This withdrawal or discontinuance may be done with or without the leave of the Court. For clarity, the Court hearing the application for the grant of this leave may make the following orders:
✅An order that the suit (or counter-claim as the case may be) be wholly or entirely discontinued;
✅An order that any particular claim made therein (rather than the entire Claim) be struck out, as against any or all the parties against whom it is brought or made.

The order of Court in this regard may be based on such terms as to costs, the bringing of subsequent action or otherwise as it thinks just.
At this juncture, it is thus clear that the right in question (discontinuance) is that of a plaintiff/claimant or counter-claimant.

🔰 ATTITUDE OF THE COURT
The right of the plaintiff/claimant to withdraw or discontinue a suit instituted by him is statutory. However, the Court occasionally frowns at this. This is no surprise in view of the frequency of frivolous actions instituted by some claimants. The opposing party must realize that the right of discontinuance is a statutory provision which must be respected.

Meanwhile, an objection may be raised to oppose an application for discontinuance, seeking cost of action (litigation) based on discontinuance, or seeking an order of Court dismissing the suit, where issues have been joined.

🔰 LEAVE OF THE COURT
Under the Lagos State High Court (Civil Procedure) Rules 2019, a Claimant who wishes to discontinue his suit must apply for leave of Court. Without leave, the Court would discountenance such application. Thus, the leave of Court is an essential ingredient in applying for discontinuance.

On the other hand, in the Federal High Court (Civil Procedure) Rules 2009, leave of court is not essential when applying for discontinuance. A party may file an application with or without leave of Court.

Hence, in some cases, leave of court is required for discontinuance, but in certain other circumstances, leave is not required.
*Where leave is not required: This is where no date has been fixed for hearing of the suit.

Where leave is required: when the matter has been slated for hearing.

🔰 Circumstances where leave may be refused:

In *The Young Shall Grow Motors Ltd. v. Ambrose O. Okonkwo & Anor. (2010) 15 NWLR (PT. 1217),the Court held that;

“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;
Where granting it will serve no useful purpose as where the suit ought to be dismissed.
Where if granted, it may work injustice to the defendants. The plaintiff must not be allowed to evade this situation or any device such as amendment or otherwise.

The plaintiff cannot be allowed to use discontinuation to bring about indirectly that which cannot be affected directly.”

🔰 EFFECT OF DISCONTINUANCE
Overtime, the effect of discontinuance of a suit has generated a wide spectrum of legal arguments and controversies. However, with the aid of case laws (Nigerian Authorities), we would realise that the essential effect of discontinuance is a matter of strict law.
In the case of Aghadiuno V. Onubogu(1998)JELR 45156 SC, the Court held that;
_“when leave to discontinue is granted, the court will have to make one or the order two possible consequential orders; namely:_
I.. Striking out the action on conditions;_
ii. Outright dismissal of the suit.”

🔰 Is there any difference between the terms “Striking out” and “Dismissal”?
Legally, there is a huge difference between both terms. Where the former occurs, the suit may still be relisted. Where the latter occurs however, the suit cannot be relisted.

In Habib Bank Nigeria Plc. V LODIGIANI (NIGERIA) LTD(2010)JELR 54086 CA the issue was whether a party can withdraw his suit before judgment is entered, and thereafter apply to relist the matter for determination on the merit? It was held thus;
"A plaintiff who has brought his complaint before a court has unfettered right to withdraw same if he so desire before judgment is entered. He may do so by applying to the court to withdraw same”.

Where such an application is granted, the proper order by the Court is one “striking out the suit”, which would indicate that the right of the Claimant has not been determined by the Court, and as a result, the matter was not decided on the merit.
It means also that the parties can apply to relist the matter for the determination of issues on the merit”.
Note however that “a defendant who does not object to an application for discontinuance should not expect the suit to be dismissed in his favour”. See Eronini v Ihuko(1989)LPELR SC 139/1986

Looking at the decision in Abayomi Babatunde v. Pan Atlantic Shipping and Transport Agencies Ltd & Ors. (2007) LPELR-698 (SC) the court explained that
once a litigant withdraws his action in a situation where no leave of court is required, the trial court has no option but to strike out the suit. This is because a court of law cannot force an unwilling plaintiff to continue with an action. Even if the court insists that he should continue, he may refuse to tender evidence or take any further steps in the action, that same court can do nothing other than to strike out the case or where evidence has been taken to a reasonable level to dismiss the action”

Thus, the effect of filing notice of discontinuance is that once duly and validly filed cannot be recalled, for the suit cease to exit the moment it is effectively discontinued.
Discontinuance of a suit may also lead to dismissal, where parties have joined issues.
In Eronini V. Ihuko(supra), court held that where the point of litis conditio had been reached and there was divergence of evidence led from the facts which were a fundamental issue, and the plaintiff applies for discontinuance of the action, the proper order for the court to make is dismissal”.

⚖️ COURTESY OF:
THE DIRECTORATE OF LITIGATION, AMEN & CO. COMMERCIAL CAMPUS CHAMBERS, FACULTY OF LAW, AMBROSE ALLI UNIVERSITY, EKPOMA⚖️

20/06/2020

Continuation..
appreciated by the court does not translate to mean that it is readily and recklessly accepted by courts. The court must be satisfied that there is no direct evidence on the point, this is because *_Direct Evidence is Primary Evidence while Circumstantial Evidence is Secondary Evidence_* Consider the following example that illustrates the difference between direct and circumstantial evidence. A hunter is taking a walk in the snowy woods. As he reaches a clearing, he watches a rabbit run into a hollow log. A second hunter enters the clearing and asks the first hunter if a rabbit has come by. The hunter's observation, the rabbit running into the log, is an example of direct evidence.Now let's say that the first hunter, upon reaching the clearing, doesn't see the rabbit, but he does see rabbit-like footprints that lead up to the log. When the second hunter comes along and asks whether a rabbit has come by, the first hunter can only provide circumstantial evidence of the rabbit (the footprints) rather than direct evidence (seeing the rabbit himself).⚖️ *_COURTESY OF:_*
*_THE DIRECTORATE OF LITIGATION, AMEN & CO. COMMERCIAL CAMPUS CHAMBERS, FACULTY OF LAW, AMBROSE ALLI UNIVERSITY, EKPOMA_*⚖️

20/06/2020

*_AMEN & CO. CHAMBERS PROCEDURAL LAW SERIES⚜️ *_Topic:DIRECT AND CIRCUMSTANTIAL EVIDENCE_*
The term *_Direct Evidence_* refers to any piece of evidence that stands alone to prove an assertion. In other words, it provides direct proof of a fact and doesn't require any type of inference. The testimony of an eyewitness is the most common form of direct evidence likely to be presented at a criminal trial. When a witness relates something that he directly observed or experienced, he is offering direct evidence of an event.Evidence can also be drawn from circumstances surrounding a particular matter (Cirmstantial Evidence) *_Circumstantial Evidence_* denotes the evidence of relevant facts from which the existence or non-existence of facts in issue may be inferred. It is evidence that does not directly prove the existence of a fact or happening, but which gives rise to a logical inference that such a fact exists or that the happening occurred, *See the case of _Igabele v. State_ (2005) ALL FWLR (Pt. 285) 568 C.A*. An example of this would be a witness who saw a suspect fleeing the scene of a crime. While the witness didn't actually see a crime being committed, his testimony may be used to create an inference that the suspect was involved in a crime.Note that both Direct Evidence and Circumstantial Evidence are allowed in the court
The rationale for accepting Circumstantial Evidence by the court cannot be impeached. Sometimes, even many a time, the direct witness or direct evidence is hard to find, the court is permitted to infer from Circumstances. In the notorious case of *Ikwunne v. The state (2000) 5 NWLR Pt. 658; 550* Tobi JSC stated the rationale in fine words where he said _"There are valid reasons for accepting Circumstantial Evidence. Firstly, it is not in all cases that Direct Evidence is available. Secondly, a witness may lie but circumstances will never lie, they remain true, constant and stable.However the fact that Circumstantial Evidence is extolled and app

20/06/2020

Continuation..

* the defendant after hearing of the evidence for the prosecution, record a finding of not guilty in respect of the defendant without calling on him to enter his defence and the defendant shall accordingly be discharged. See *S.302 of ACJA 2015*
Finally, No case submission is basically a defence set out to quash a trial on account of the inability of the prosecution to prove his case beyond reasonable doubt. However, understanding the difficulties in proving beyond reasonable doubt, the courts have always cautiously walked on eggshells to make sure that the prosecution is not frustrated out of course. If there exists sufficient reasons to believe in the culpability of the accused, the plea of no case submission cannot operate to extinguish the prosecution's case. See *Onagoruwa v. The State (1993) 7 NWLR (pt 303), Daboh v. The State(1979) 5SC 197*.

⚖️ *_COURTESY OF:_*
*_THE DIRECTORATE OF LITIGATION, AMEN & CO. COMMERCIAL CAMPUS CHAMBERS, FACULTY OF LAW, AMBROSE ALLI UNIVERSITY, EKPOMA_*⚖️

20/06/2020

*_AMEN & CO. CHAMBERS PROCEDURAL LAW SERIES📚_*

*⚜️ _Topic: THE PLEA OF NO CASE SUBMISSION_*

A criminal trial has two basic parts. In the first part, the prosecution presents its case and call its witnesses to the hearing of the court and adduced documentary evidence if any. In the second part, the defence presents its own case and calls its own witnesses. In both parts, the lawyer for the other side can cross examine the witnesses which the party presents to give evidence. When the prosecution finishes presenting its case, if the defence feels that the prosecution has failed to prove its case, then the legal process in Nigeria allows the defence to make an application known as a *no case submission*. See the locus classicus case of *R v. Galbraith (1981) 2 WLR 1039*
When a no case submission is made, it basically means that the defendant is asking the court for an acquittal without it having to present a defence. The defendant is literally saying to the court that there is no case to answer i.e the prosecution has not sufficiently proven the legal threshold to establish the commission of a crime in the court of law.
The defence makes the plea by filing an application either in writing or orally before the court, and if the judge agrees, then the matter is dismissed and the defendant is acquitted without having to present any evidence in their defence. If the judge doesn't accept the submission, the case continues and the defence must present their case. Lack of Prima Facie case made by the prosecution is what necessitates the no case submission by the defence where he has to prove that either the prosecution failed to prove the ingredients of the offence or the ingredients have been so dislodged by the defence during cross examination such that no court can, on the strength of such evidence, convict an accused. See *Aminu Mohammed v. The State(2005)SC 147, COP v. Emmanuel Amuta (2017) LPELR-41386(SC)*. Also, the court may, on its own motion or on application by

20/06/2020

Continuation...
CPA jurisdiction of southern Nigeria, the court proceeds to sentence. In the CPC jurisdiction of northern Nigeria, after an allocutus is made, the prosecution may proceed to produce more evidence of any previous convictions on the convicted person and thereafter, the court shall proceed to sentence. See *Ogbeide v. COP (1964) 2 All NLR 176*
⚖ *_COURTESY OF:_*
*_THE DIRECTORATE OF LITIGATION, AMEN & CO. COMMERCIAL CAMPUS CHAMBERS, FACULTY OF LAW, AMBROSE ALLI UNIVERSITY,EKPOMA⚖_*

20/06/2020

*_AMEN & CO. CHAMBERS PROCEDURAL LAW SERIES_*📚
⚜ *_Topic:THE PLEA OF ALLOCUTUS_*Allocutus is a plea made in criminal trials in order to mitigate the sentence or punishment on an accused person. It is made after the conviction of the accused. However, where the registrar / judge fails to ask the accused to make an allocutus, it cannot invalidate a successful trial but it is advisable for the defence to be given an opportunity to make a plea of allocutus. This is in line with the provision of *Section 247 Criminal Procedure Act*
There is a similar provision in the administration of criminal justice law of Lagos state *Section 277 ACJL*
The northern part of Nigeria which is governed by the criminal procedure code has the plea of allocutus enshrined in it in
*Section 197(1) CPC*.
In foreign jurisdictions like the United states of America, allocutus is known as allocution and it still means the same thing in Nigeria i.e. a statement made to the court by the defendant who has been found guilty prior to being sentenced. For the plea of allocutus to take effect in Nigerian criminal trials, there are certain conditions which must be present viz;
1) The accused must have been convicted by the court
2) The registrar or judge may ask the accused to make an allocutus. The effect of an allocutus in Nigerian criminal trial is to mitigate the sentence of the court. It does not absolve the accused of the punishment. Thus, a plea of allocutus never cancels the sentence or punishment to be given. Like all rules in law, there are exceptions; where the law provides for a minimum or mandatory penalty like death, allocutus has no effect. Furthermore, allocutus is not a stage for counsel to start adducing evidence. The counsel must also draw the attention of the court to the provision of the law where the accused was convicted and state or tell the court the alternative sentence such as a fine which the court could mitigate the offence with. After the plea of allocutus is made in the..

20/06/2020

Continuation..
⚖ *CERTAINTY OF ENFORCEMENT OR VIOLATION:* If there is certainty that the government, administrative authority, or agency will enforce the rule, order, sanction, or take action, or if there's certainty that the complainant is sure to violate the rule, order, or be caught by it and be in risk of the prosecution or penalty, the matter is ripe for legal action
⚖ *HARDSHIP, DILEMMA, IRREPARABLE HARM OR PROSPECT OF IT:* For a matter to be ripe for legal action, there must be hardship, dilemma, irreparable harm, or prospect of it. Hardship or dilemma may follow the policy, decision, pronouncement or action of a government or public authority. See *Gov. of Lagos State v. Ojukwu (1986) 1 NWLR Pt 18, p. 621 SC*.
However, by virtue of *S.46(1) of the 1999 Constitutiion* where a person's right is likely to be contravened, without having to wait for the threatened future act to be implemented and suffer injury before taking legal action. In fact, it is foolish to wait, for by then it may be too late. Irreparable damage may have been done. It is wise to take pre-emptive legal action immediately as was done in *Iffie v. A.G Bensel State(1987) 4 NWLE Pt 67, p. 972* amongst other cases.

⚖ *_COURTESY OF:_*
*_THE DIRECTORATE OF LITIGATION, AMEN & CO. COMMERCIAL CAMPUS CHAMERS, FACULTY OF LAW, AMBROSE ALLI UNIVERSITY, EKPOMA_*

20/06/2020

*_AMEN & CO. CHAMBERS LAW SERIES📚_*

⚜ *_Topic: UNRIPENESS OF THE ISSUE OF LITIGATION: THE DOCTRINE OF RIPENESS_*

Where an issue is unripe for litigation, it will be caught by the doctrine of ripeness, for being brought to court prematurely. An example is where a threat or damage is speculative, uncertain, impossible, or even remote. A matter is ripe for litigation when a right has been, is being or likely to be contravened by any person or body. A matter is ripe for hearing when the facts of the matter have developed sufficiently to permit court to make an intelligent and useful decision thereon. A court of law must not bring itself to ridicule by trying speculative and imaginary issues. A court does not act in vain. Simply put, a matter is ripe for hearing when it is due for litigation or filing of legal action in court. A matter is ripe for hearing when a cause arises,or when there's a cause of action or when there is a breach of right, or the threat of it is imminent. The Nigeria constitution fully and clearly defines when a matter is ripe for litigation, or when there's a cause of action, or a reasonable cause of action, that is, when a matter is justiciable, or gives a right of action. See *S.46(1) of the 1999 constitution*.
Therefore a matter is ripe for hearing when the right of a person has been, is being or likely to be conntravened. See *Adewole v. Jakande & Ors(1981) 1 NCLR 262*

The following are signs that a matter is due, or ripe for legal action
⚖ *FINALITY:* If the government or administrative action sought to be challenged is a final decision of the government. Thus, whenever Government has made a final decision on a matter,even if the decision has not been implemented, the matter is ripe for legal action.
⚖ *LEGAL ISSUE:* If there's a legal issue, right, duty, obligation, question or an issue is present for determination, clarification, resolution, or interpretation, the suit would be justifiable and ripe for hearing.

20/06/2020

Continuation...
9. Counsel would usually present arguments, authorities, witnesses and the other party will cross examine before writing closing submission.
10. The tribunal says very little as we are in a common law jurisdiction except where parties move applications or disagree and a ruling is needed. In civil law backgrounds the tribunal may pose questions to parties.
11. In mediation, parties negotiate a solution while in arbitration parties submit their cases and the tribunal decides based on LAW with Reasons for every decision stated in the award.
12. A good award is enforceable and tells the winner why they won and the loser why they lost.
13. It is IMPOSSIBLE for the tribunal to suggest an expert to parties or any kind of consensual solution.
14. Parties present their issues for determinations and the arbitrator usually gives a reasoned decision that is usually win -lose outcome. more straightforward than mediation which can be complex in getting a win-win outcome.
*COURTESY: DIRECTORATE OF THE ALTERNATIVE DISPUTE RESOLUTION (ADR) DEPARTMENT - AMEN N CO COMMERCIAL CHAMBER.*

20/06/2020

*ALTERNATIVE DISPUTE MECHANISM*
1. Mediation
The goal of mediation is for a neutral third party to help disputants come to a consensus on their own.

Rather than imposing a solution, a professional mediator works with the conflicting sides to explore the interests underlying their positions.
Mediation can be effective at allowing parties to vent their feelings and fully explore their grievances.

Working with parties together and sometimes separately, mediators can try to help them hammer out a resolution that is sustainable, voluntary, and non-binding.
2. *ARBITRATION*
In arbitration, a neutral third party serves as a judge who is responsible for resolving the dispute.

The arbitrator listens as each side argues its case and presents relevant evidence, then renders a binding decision.
The disputants can negotiate virtually any aspect of the arbitration process, including whether lawyers will be present at the time and which standards of evidence will be used.

Arbitrators hand down decisions that are usually confidential and that cannot be appealed in an Award.

Like mediation, arbitration tends to be much less expensive than litigation.
*THE DIFFERENCES BETWEEN ARBITRATION AND MEDIATION*
1. Arbitrators are regarded as private judges.
2. In Arbitration, there is a need to maintain seriousness unlike meditation as it is a formal proceeding.
3. There is no need to assure them of a resolution as the award must statutorily deal with all issues for determination.
4. Arbitration is a quasi-judicial process hence counsel are better suited to present the case of parties
5.The ground rules are similar to courts except more informal.
6. Arbitrators must watch their every statements to avoid issues of challenge to the award based on misconduct, lack of impartiality and independence.
7. It would be good to have the mediation outcome in the recitals, NOTE MATRIMONIAL CAUSES ARE NOT ARBITRABLE.
8. Mandate is strictly the commercial matter of the company.

20/06/2020

Continuation..
whom the act or insult is done or offered._

See also the more recent case of *SHANDE V. STATE (2005) 12 NWLR (PT 939) 301* as well as the case of *AFOSI V. STATE (2013) 13 NWLR (PT 1371) 329,* where it was held that for an accused person to avail himself of the defence of provocation, he has to establish by evidence the following conditions to wit:-
1) that the act of provocation is grave and sudden
2) that the accused lost self-control, actual and reasonable;
3) the degree of retaliation by the accused person must be proportionate to the provocation offered.

If a crime is caused by provocation, it is said to be committed in the heat of passion, under an irresistible urge incited by the provoking events, and without being entirely determined by reason.

See also the cases of *Mati Musa V THE STATE – (2014) LPELR-24026(CA), ADEBIYI FAMAKINWA V. THE STATE (2012) LPELR-9748(CA) and Section 286 of the Criminal Code.*

⚖ *_COURTESY OF:_*
*_THE DIRECTORATE OF LITIGATION,AMEN & CO. COMMERCIAL CAMPUS CHAMBERS,FACULTY OF LAW,AMBROSE ALLI UNIVERSITY,EKPOMA_*

Address

AMBROSE ALLI UNIVERSITY, FACULTY OF LAW
Ekpoma

Telephone

+2348074970084

Website

Alerts

Be the first to know and let us send you an email when Amen & Co Commercial Chambers posts news and promotions. Your email address will not be used for any other purpose, and you can unsubscribe at any time.

Shortcuts

Share

Category