LEGAL NUGGETS (Series 104)- ISSUE: WITHDRAWAL OF APPEAL-Whether Parties must Consent to the Withdrawal of an Appeal.- By Adedotun Habeeb Adetunji, LL.M (M.IoD), FCAI

JAJI vs. ALHAJI & ORS.(2019) LPELR-46703(CA)

PRINCIPLE:
The contents of Order 11 Rules 1 and 5 of the Court of Appeal Rules, 2016 which enable an Appellant to withdraw an Appeal are clear, unambiguous and unequivocal. They therefore require no recourse to any fancy rules of interpretation to ascribe further meaning to them.

For ease of reference, Rules 1 and 5 state explicitly as follows:
Rule 1: An Appellant may at any time before the Appeal is called on for hearing, serve on the parties to the appeal and file with the Registrar a notice to the effect that he does not intend to prosecute the appeal any further.

Rule 5: An Appeal which has been withdrawn under this Order, whether with or without an order of the Court, shall be deemed to have been dismissed."(Emphasis supplied).

The Respondents' insistence on moving their Motion on Notice even in the face of the Notice of Withdrawal of the Appeal is hinged on Rule 4 of Order 11 of the Rules which they contend requires their consent to the withdrawal, which they have not given.
The Rules relied upon, inclusive of Rule 3 (which in my view is also relevant), are set out as follows:

2. If all the parties to the appeal consent to the withdrawal of the appeal without an order of the Court, the Appellant may file in the Registry the document or documents signifying such consent and signed by the parties or by their legal representatives and the appeal shall thereupon be deemed to have been withdrawn and shall be struck out of the list of appeals by the Registrar and in such event any sum deposited against costs shall be paid out to the Appellant.

3. The withdrawal of an appeal with the consent of the parties under Rule 2 of this Order shall be a bar to further proceedings on application made by the Respondent under Order 9.

4. If all the parties do not consent to the withdrawal of an appeal as aforesaid, the appeal shall remain on the list, and shall come on for hearing of any issue as to costs or otherwise remaining outstanding between the parties, including any application made by the Respondent under Order 9, and for the making of an order as to the disposal of any sum deposited against cost."(Emphasis supplied)

From the clear wordings of Order 11 Rule 1, an Appellant is permitted, at any time before the Appeal is called on for hearing, to serve on the parties and file with the Registrar, a notice to the effect that he does not intend to prosecute the Appeal.

By Rule 5 of the same Order, an Appeal which has been withdrawn under Rule 1 shall be deemed to have been dismissed, without more. It is expressly spelt out in these Rules that this is effective with or without the order of the Court.

 The added provision in Rule 4 of Order 11, which the 1st to 38th Respondents has relied on, is in my view, totally misconceived. Instead, it is apparent that by a holistic and combined reading of Rules 1 to 5 of Order 11, once the Notice of withdrawal of an Appeal is filed, it is deemed dismissed with or without an Order of the Court.
This is because Order 11 presents two parallel scenarios whereby effect shall be given to the intention of an Appellant to withdraw his Appeal. By Order 11 Rule 2, where the parties consent to the withdrawal, the Appeal will no longer come up before the Court for any reason as it is deemed duly withdrawn; and the Registrar, not the Court, shall take administrative action by striking out the Appeal from the list of Appeals.

However, in a situation where such a withdrawal was not effected with the consent of the Respondent(s), then it remains on the Cause List of the
Court merely for the purpose of the determination of any issue in respect of costs or the like which still needs to be resolved between the parties, or for the purpose of making an order with regard to the disposal of any amount paid into Court by the Appellant as security for the costs of the Appeal.

These are the only issues narrowly circumscribed by Rule 4 above for a hearing by the Court in a situation where the Respondents do not consent to the withdrawal of the Appeal.
No issue, other than those expressly specified in Rule 4 of Order 11 of the Rules of this Court can be attended to by the Court where an Appellant has filed a Notice of withdrawal of the Appeal.
This is more so where the Respondents neither filed a Notice of intention to contend that the Appeal be affirmed on grounds other than those relied on by the Court below (as provided in Order 9), nor did they file a Cross-Appeal.

It is my considered opinion therefore that it is erroneous for the Respondents to contend that a party, to wit: a Respondent to an Appeal, is entitled to oppose the withdrawal of an Appeal by an Appellant who has had second thoughts on contesting the judgment of the Court below vide an Appeal.

Such a position would only lead to an absurdity both in fact and in law. It is for these reasons that, as far back as the year 2000, the Supreme Court in Akuneziri V. Okenwa & Ors. (2000) LPELR-393(SC), when interpreting Order 8 Rules 6 (1) to (5) of the Rules of the Supreme Court, which are impari materia with Order 11 Rules 1 to 5 of the Court of Appeal Rules, 2016 (now under consideration), held as follows at pages 36-37 of the E-Report, per Ayoola, JSC:

"In my judgment, interesting and ingenious as the preliminary objection may appear to be, it lacks merit. There is no provision in the Rules, as they now stand, enjoining a party who wishes to withdraw his appeal to seek the leave of the Court so to do.
Where he withdraws the appeal without the consent of the other parties to the appeal, signified as provided in Rule 6(2), the appeal shall remain on the list as provided for in Rule 6(4), merely for the hearing of any issue as to costs or otherwise remaining outstanding between the parties, and for making an order as to the disposal of any sum lodged in Court as security for the costs of the appeal.

 There is no provision in Rule 6 for hearing of any issue other than those specified. There appears, also, to be no provision in Rule 6 which enables a party to the appeal to oppose the withdrawal of the appeal." The apex Court has reiterated this interpretation of the Rules relating to the rights and responsibilities of the parties and the duty and function of the Court in a situation where an Appellant decides to withdraw his Appeal before it is called upon for hearing.

Specifically, in respect of Order 8 Rule 6(4) of the Rules of the Supreme Court which requires the consent of the parties where an Appellant is withdrawing his Appeal, the Court again expatiated the scope of the
Rule.
 This was in its more recent decision in the case of PDP & Ors. V. Ezeonwuka & Anor. (2017) LPELR-42563(SC) wherein Kekere-Ekun, JSC, taking all the previous decisions of the apex Court on the withdrawal of an Appeal into consideration, similarly held at pages 19-20 of the E-Report as follows:

"Order 8 Rule 6(1) Supreme Court Rules as amended provides for the unilateral withdrawal of an appeal by an appellant. For the rule to apply the following conditions must co-exist:
a) "There must be an appeal by the appellant;
b) There must be a withdrawal of the appeal in the words of Form 19 or 20 or such words indicating that there is no intention to further prosecute the
appeal;
c) The withdrawal may be at any time before the appeal is called on for hearing;
d) The notice of withdrawal must be filed with the registrar."

See: Dingyadi V. INEC (No. 2) (2010) 18 NWLR (Pt. 1224) 154 @ 205-206 H-C; Edozien V. Edozien (1993) 1 NWLR (Pt. 272) 678 @ 699; Adeagbo V. Yusuf (1990) 6 NWLR (Pt. 158 (588).

For the Notice of Withdrawal to be competent under Rule 6(1) above, all parties to the appeal must consent to the withdrawal either by filing documents to that effect directly or, through their legal representatives in which case the appeal is deemed dismissed.

However, Rule 6(4) provides that where all the parties do not consent to the withdrawal, it shall remain on the cause list to abide the discretion of the Court thereafter.
 See: Dingyadi V. INEC (No. 2) (Supra) @ 206 C-E; In Re Nwude (1993) 3 NWLR (Pt. 282) 492; Akuneziri V. Okenwa (2000) 15 NWLR (Pt. 691) 526.

The appeal shall remain on the list for the hearing of any issue as to costs or otherwise outstanding between the parties and for the
making of an order as to the disposal of any sum lodged in Court as security for the costs of appeal. "(Emphasis supplied).

For the avoidance of doubt Order 8 Rule 6(1) to (5) of the Supreme Court Rules considered are impari materia with Order 11 Rule 1 to 5 of the CAR, 2016. See also the following authorities: Ogunkunle V. Eternal Order of the C & S (2011) 12 (NWLR) (Pt. 727) 359) (SC); The Vessel St. Roland V. Osinloye (1997) LPELR-2324(SC).

I agree with these decisions of the Supreme Court, even as I am bound. I am therefore fortified in finding that the consent of the parties to the withdrawal of the Appeal only serves to warrant the Registrar of Court to peremptorily remove the Appeal from the list of cases before the Court without the necessity of the Appeal being brought before the Court.
Where however there is no consent, (as in the instant Appeal), it is the Court that
is clothed with discretion of hearing the Appeal only as it relates to matters of costs or deposits lodged as security for the costs of the Appeal.

In the instant Appeal, the Appellant having proceeded under Order 11 Rule 1 of the CAR, 2016 to withdraw the Appeal, there being no issue of costs of the Appeal raised by the Respondents nor any application by them for an order for the disposal of any sum that may have been lodged in Court as
security for the costs of the Appeal, this Court may properly proceed under Order 11 Rule 5 of the Rules of this Court to dismiss the Appeal without any further ado.
That being the case, the said Motion on Notice filed on 08-02-19 by the 1st to 38th Respondents has necessarily been overtaken by events, to wit the withdrawal of the Appeal.
This is because there is no longer an Appeal upon which the motion can be hinged. See Akpene V. BBN (1977) 1 SC 47 at 59; & MCFOY V. UAC (1962) AC 158.

Accordingly, the Appellant having met all the conditions for the withdrawal of the Appeal as set out under Order 11 Rule 1, this Appeal number CA/S/23/2019 is hereby dismissed pursuant to Order 11 Rule 5 of the Court of Appeal Rules, 2016." Per SANKEY, JCA.(Pp.5-14,Paras.C-C).