Both criminal and civil laws have laid down rules on what is to follow where a party to a suit discontinues, withdraws or abandons the suit. There is a plethora of decided cases, discussions and opinions to be considered while further dissecting the topic, but rather than delve into the details and run into a lengthy academic analysis, the author prefers to limit the focus of this write-up on the end and discuss specifically the relevant statutory provisions as well as the content of a few decided cases.
There are different types of actions a party can take to initiate or defend a claim or a right in court. Firstly, let’s take a look at the easy part before going into the tougher part.
Abandonment of Defence
It is apposite to state that where a defending party abandons, or fails to enter his defence or file his reply to a summons or a petition, it will be taken that such a party is admitting the claims of the adverse party.
For instance, if a claimant initiates an action by way of writ of summons and makes averment in his pleadings against a known defendant and the defendant fails to file his statement of defence, judgment will be entered against such defendant.
However, such judgment will not be entered in favour of the claiming party unless the court is well satisfied that the defending party was given sufficient notice of the pending suit. To prove such, the claiming party must show the court that the defending party was properly served with the originating summons and that proof of service was obtained and placed in the court file. The proof of service is a sworn affidavit deposed to by the bailiff who effected service on the defendant.
Further, the claiming party must also prove that hearing notices of all subsequent adjournments were served on the defending party and proof of such services must also be placed in the court file. Failure to do this may be a valid ground for the defending party to subsequently upturn any judgment given in default of its appearance. Failure to put the other party on notice goes to the fundamental issue of jurisdiction.
However, where the judge gives a judgment in default of appearance of the defending party, the judgment shall be on the merit and shall not be upturned unless other grounds exist such as fraud, or lack of jurisdiction. If no such grounds exist, then the defending party is left with no other option except either to appeal or succumb to the judgment of the court.
Abandonment of Claim
When a person believes that a cause of action has arisen and he therefore takes steps to initiate a court proceeding or any similar action, then he or she is the claiming party. In order to prove his case, such party must provide sufficient evidence to justify his claim. He must also be willing to prosecute the matter to its logical conclusion.
Notwithstanding, no one can be forced to proceed with a cause which he finds not to be beneficial or fulfilling or of advantage to him. Hence a number of times, claiming parties have been seen to abandon their claims very early in the proceedings, midway or even at the nick of the conclusion of the matter. Although the law does not preclude a claiming party from discontinuing, withdrawing or abandoning his case at any time he so wishes to do so, the court in allowing such must consider certain factors before it will grant or allow such abandonment. In other words, a claiming party who chooses to abandon or discontinue his matter may face consequences such as compensation or costs to the other party.
The rationale behind the payment of cost is to forestall the abuse of court process by persons who feel they could use the legal process to intimidate or harass others.
There are different factors the court will consider when a claiming party seeks to withdraw from further prosecuting a claim and they include agreement of both parties, stage of the proceedings and whether or not the defending party has made counter claims. All these will be discussed briefly hereafter.
Legal Effect of Discontinuance
Discontinuance in Criminal Cases
In criminal cases, a person who alleges that a crime has been committed is known as the complainant. Â The role of the complainant is to make an official communication to the police, a magistrate or any other agency that is saddled with the responsibility of investigating and prosecuting the offence allegedly committed. There are general offences which are stated in the Criminal Code Act as well as Special offences which are provided for in different statutes enacted for the definition and punishment of such offences.
A complaint could Sometimes be in form of a tip off or a formal complaint before any of the authorities either in form of a written statement or a petition stating the particulars of the crime and asking the authority to investigate or prosecute the suspect. Upon making such statement, the complainant has initiated legal action against the person who is alleged to have committed the crime and it is the duty of the agency to investigate the crime, effect arrest and or prosecute the suspect. In some criminal cases, the person who made the complainant the complainant is usually required to be in court and may happen to be a witness in the matter. If however the complainant abandons the case either after reporting to the police or where the matter has been charged to court, the court may strike out the charge and discharge the defending party.
The consequence in such cases is that the defending party may institute a proceeding against the complainant for malicious prosecution. If he succeeds, he will be awarded damages.
The rationale behind this is to prevent people from having others arrested and prosecuted where there is no true basis for such. The law should not be used as a vindictive weapon of oppression. To succeed in a claim of malicious prosecution, the claimant has to prove the existence of malice. Thus, not all claims for malicious prosecution will succeed so as not to also prevent people from reporting their suspicions to the police. The onus of prosecuting criminal charges is therefore on the police who is usually required to carry out its investigation and determine whether to proceed or not.
Where however, the complainant or the prosecution abandons or withdraws the case after opening its case or after defence has been entered, the defending party will be discharged and acquitted.
Discontinuance In Civil Cases
A claiming party in a civil suit is free to discontinue or withdraw his matter at any time before judgment. However, the court, once it perceives that the claiming party has abandoned or is seeking to discontinue its case must make a consequential order which will be either to strike out the matter or dismiss the suit. The court will also consider the stage of the matter and if need be, award costs to the defending the party.
Â
Abandonment
Where a party who has filed a suit and at the early stage fails to enter appearance, the court may order that the matter be struck out.
Consent of Both Parties
Sometimes parties to a suit reach an amicable agreement which makes it unnecessary to further prosecute the matter. In such cases, the court may dismiss the suit or where parties have filed terms of settlement, enter such terms as its judgment in the matter.
Withdrawal at the close of pleadings.
Another factor the court will consider before granting an order of discontinuance is whether the parties are litis contestatiothat is whether hearing has commenced in the suit or evidence has been led by both parties. The rules provide that where such is the case, the party seeking to withdraw must obtain the leave of court and must put the other party on notice while doing so. In NWOKEDI V. ROXY TRAVELS AGNENCY LTD & 2 ORS (2002) 6NWLR (Pt. 762) p. 181 the court held that there are three things the court can do where a party seeks the leave of the court to discontinue and those three responses are:
(i)Â Â Â Â Â Â Â Â Â Â Â Â Â Strike out the action and discontinue same against any or all of the Defendants
(ii)Â Â Â Â Â Â Â Â Â Â Â Â Grant the leave sought by dismissing the action against any or all Defendants and in addition award cost to the deserving Party; or
(iii)Â Â Â Â Â Â Â Â Â Â Â Refuse the application for discontinuance and if the Plaintiff refuses to continue, dismiss the action with cost to the deserving Party.
At this stage, the court is left to choose between either striking out of the suit or dismissing of the suit. Where there has not been litis contestation in the matter, then the proper action will be to strike out the suit. When a suit is struck out, the claiming party has the opportunity to subsequently reopen the matter.
However, where there has been litis contestation, the proper order for the court is to dismiss the suit.
The magistrate court rules of Lagos State makes a similar provision. Order 11 (2) provides that where a notice of discontinuance has been given, the court shall on the return day assess the costs incurred by the defendant before the receipt of the notice, or, if the proceedings are not wholly discontinued, the costs incurred before the receipt of the notice in relation to the part discontinued.
