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NMA V. Brawal Shipping (Nig) Ltd (1999) CLR 8 (bb) (CA)

Brief

  • Notice of discontinuance
  • Hearing of a case

Facts

This is an appeal against the Ruling of the Federal High Court delivered on 30th May 1997 in suit No.FHC/L/CS/1336/96. In the court below the appellant as plaintiff claimed against the respondent/Defendant as follows: -

  • "a.
    The sum of US$460,854.42 being the short falls on the amount paid by the defendant in respect of several vessels that berthed at the Tin Can Island Port under the agency of the Defendant between 2/1/93 and 28/3/96 which the plaintiff has demanded for but which the Defendant has failed, neglected and/or refused to pay despite several demands by the plaintiff.
  • 2.
    Interest on the aforesaid sum at the rate of 21% per annum from 28/3/96 up till date of judgement and thereafter at the rate of 15% per annum up till the entire sum is liquidated."
  • 3.
    An order for enlargement of time within which the Applicant may appeal to the Supreme Court against the said rulings delivered by the Court of Appeal on the 10th day of July, 2006 and 7th day of November, 2007 in appeal No.CA/PH/342/05 in terms of the proposed Notice of appeal annexed to the affidavit in support of this application as Exhibit OE6.

On 11-3-97 the defendant/Respondent filed a motion seeking an order to dismiss the action on the ground that the facts as stated by the plaintiff in the statement of claim dated 5-2-79 does not disclose a cause of action against the defendant. The motion was argued by counsel for the two parties on 16-4-97 and ruling was reserved till 20-5-97.

Before the date of delivery of the ruling, the plaintiff/appellant filed a notice of discontinuance of the whole suit against the defendant/respondent in pursuant of order 43 rule 1 of the federal High court civil procedure rules 1976. Counsel to the respondent objected to the validity of the appellant's notice of discontinuance on the ground that leave of court was not obtained before the notice was filed.

The learned trial judge heard argument from counsel for both parties and delivered his ruling on notice of discontinuance on 30/5/97. In the said Ruling the learned trial judge held that the notice of discontinuance filed by the plaintiff/Appellant on 20-5-97, without leave of the court was invalid and the notice was accordingly struck out.

Being dissatisfied with this ruling the appellant has filed a notice appeal

Issues

  • 1.
    Did the proceeding before the learned trial judge on 16/4/97 was argued...
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