JUDGMENT (DELIVERED BY J. O. OGEBE, JCA)

The appellant sued the respondent in the Federal High Court, Lagos seeking a number of declaratory and injunctive reliefs.

The appellant filed a statement of claim along with the writ of summons and the respondent was duly served with the same.

On the 27th of October 2000 the respondent filed a statement of defence out of time and served an advanced copy on the appellant’s counsel. On the 14th of November 2000 the bailiff of the court also served the statement of defence on the appellant’s counsel. On 2nd of November 2000 the respondent’s counsel filed a motion seeking an order for extension of time to file a statement of defence and to deem the statement of defence as properly filed.

On the 16th of November 2002 the trial Judge granted the respondent’s application for extension of time to file its statement of defence and to deem it as properly filed. There was no order made by the trial court deeming the statement of defence as properly served.

On the 27th of November 2000 the appellant filed a notice of discontinuance of Suit No.FHC/CS/884/2000. By an application dated 12th day of January 2001 and filed on the same date, the respondent prayed the lower court to set aside the appellant’s notice of discontinuance on the ground that the leave of the lower court was not obtained before the notice of discontinuance was filed. The appellant opposed the application and on the 18th of July 2002 the trial court granted the respondent’s application.

Dissatisfied with that ruling the appellant appealed to this court and learned counsel for it filed a brief of argument and identified 2 issues for determination as follows:

“i) whether the period within which the plaintiff/ appellant was required to serve a Notice of Discontinuance to enable it exercise its right to Discontinue Suit No.FHC/L/CS/884/2000?

ii) If time did not begin to run from the 30th of October  2000, when then did time begin to run and whether the Notice of Discontinuance dated the 27th of November 2000 and filed on the same date was an abuse of court process?”

“i) Whether under the circumstances the appellant should have sought leave of court before seeking to discontinue the action.

ii) Whether the Notice of Discontinuance filed by the appellant was an abuse of process.”

The appellant filed a reply-brief.

The learned counsel for the appellant submitted that the processes served on him in respect of the respondent’s statement of defence prior to the grant of the respondent’s application for extension of time to file its statement of defence and to deem same as properly filed, on the 16th of November 2000 were of no consequence since that order did not include an order to deem the statement of defence properly served. The learned counsel said that up to date no service of the statement of defence has been effected on him after the court’s order granting extension of time; it follows therefore that the trial court was wrong in holding that the time to discontinue the appellant’s suit without leave of court should start running from the 30th of October 2000 and not the 16th of November 2000 when the statement of defence was deemed properly filed.

He relied on the cases of OLASEINDE V. FHA (1999) 9 NWLR (Pt.19) 448; MINISTER OF WORKS V. TOMAS (NIG.)LTD. (2002) 2 NWLR (Pt.752) 740.

The learned counsel for the respondent submitted that the appellant had advanced notice of the statement of defence, on the 30th of October 2000. Therefore if he wanted to discontinuance the suit without leave of court he should have done so within 14 days of that date as required by the Rules of court.

He said that the trial court properly exercised its decision and this court should not interfere with it. He relied on the case of the UNIVERSITY OF LAGOS V. AIGORO (1985) 1 NWLR (Pt.1) 143.

The sole question that calls for determination in this appeal is the time when the appellant’s notice of discontinuance of the suit began to run to enable it withdrew the suit without leave of court. Order 30 Rule 2(1) of the Federal High Court (Civil Procedure) Rules 2000 provides as follows:

“The plaintiff in an action may without leave of court, discontinue the action or withdraw any particular claim made by him therein, as against any or all of the defendants at any time not later than 14 days after service of the defence on him or if there are two or more defendants of the defence last served by serving a notice to that effect on the defendant concerned.”

By this provision the plaintiff has 14 days from the date of the service of statement of defence on him to discontinue his action without leave of court. It is not disputed that the appellant was served with advanced copy of the statement of defence, on the 20th of October 2000. The bailiff of the court also served the appellant’s counsel with the statement of defence which was still out of time on 14th November 2000. It was not until the 16th of November 2000 that the trial court formally granted an extension of time to file the respondent statement of defence and deemed it as properly filed. There was no prayer in the respondent’s motion that the statement of defence be deemed properly filed and served and no order was made by the trial court in respect of service.

It is beyond dispute that all the processes served on the appellant’s counsel prior to the order of the court granting extension of time were not proper and regular services since the respondent was clearly out of time and no order had been made to regularize the filing of the respondent’s statement of defence out of time. The normal practice of court when such order is made is to deem the process properly filed and served. It is unusual to backdate the deeming as that can complicate matters for the opposing side who may wish to take steps in reaction to the process that has been deemed properly filed and served.

Since no statement of defence was served on the appellant after the trial court had deemed it properly filed on the 16th of November 2000, I agree with the learned counsel for the appellant that up to date there has been no proper service of the statement of defence on the appellant and therefore the court was wrong in holding that time began to run against the appellant from the 30th of October 2000.

The true position is that time has not started to run against appellant with respect to the filing of the notice of discontinuance of the suit. Even if time was deemed to have started running from the 16th of November 2000, then the notice of discontinuance filed on the 27th November 2000 was clearly within 14 days stipulated by the rules for the discontinuance of the action without leave of court. See the case of MINISTER OF WORKS V. TOMAS (NIG.) LTD. (supra). From which ever angle one looks at this matter the trial court was clearly in error in his computation of time and holding that the filing of the notice of discontinuance of the suit was an abuse of the process of the court. It surely was not an abuse of the court’s process. The appellant was exercising the option given to it by the rules of court.

Accordingly, there is merit in the appeal and the appeal is hereby allowed. The ruling of the trial court is set aside. In its place the respondent’s motion to set aside the notice of discontinuance is dismissed. It will be a wasteful exercise to send the case back merely to give effect to the notice of discontinuance. This court is empowered by Section 16 of the Court of Appeal Act to make the appropriate order. Consequently by virtue of the notice of discontinuance filed in lower court, Suit No.FHC/SC/LC/884/2000 is hereby struck out. The respondent shall pay costs of N=7,000.00 to the appellant.