procedure involved in those cited cases is entirely different from the procedure of
the ECOWAS Court. Furthermore, oral evidence in proof of the facts contained in
the writs and statements opf claim in the cases cited and relied on had commenced;
in other words, the plaintiffs therein withdrew/discontinued on the realization that
their case as constituted had no merit and threw in the towel without leave. In the
Applicants’ case here, the Applicants are seeking “leave” to discontinue the case
because of lack of proper defendants recognized by the ECOWAS Court,
otherwise the Applicants will not change one punctuation from the originating
processes as presently constituted before the Court.”
“1.0.6. The Applicants firmly stand by their submission before this Honorable
Court with regard to pleadings as to fact and law. The only setback which we have
over flogged is that we, Counsel discovered after the 7th Judicial Retreat of this
Honorable Court that we were wrong concerning proper parties and not on real or
perceived shortcoming on the cause/right of action and the case is not statute
barred. The reality of the said 7th Judicial Retreat and lessons imbibed therefrom
cannot be ignored with the wave of the hand. The retreat took place, Counsel
participated and the issues of improper or wrongly designated parties and
implication formed part of the retreat.”
“1.0.7. It is settled law that there is no dichotomy between error of counsel based
on fact and error of counsel based on law in the long settled principle of not
visiting the sins/inadvertence of counsel on the litigant. The position of the law is
that litigants are masters of facts while counsel is master of the law. It therefore
follows that errors/inadvertence of counsel is more likely to occur in the realm of
law and rules and not of facts as inb this case where we designated the 2 nd
Respondent here as “FEDERAL GOVERNMENT OF NIGERIA” instead of
FEDERAL REPUBLIC OF NIGERIA. We are not ashamed to admit our error as
Counsel and urge this Honorable Court to incline itself to substantial justice and
not visit our errors/inadvertence on the litigants.”
- 22 “The Supreme Court of Nigeria held as follows in the case of LEONARD
ERONINI & ORS. V FRANCIS IHEUKO (1989) LPELR-1161(SC) (P. 13, Paras.
C-F) PER OBASEKI J.S.C.”
"It is clear therefore, that a plaintiff and or a defendant who counterclaims may
withdraw his claim or counter-claim at any stage of the proceedings before
judgment. In some cases (no leave is required), these are mainly in circumstances
where no date has been fixed for hearing. No leave is required.”