5.4. RESPONSES OF THE DEFENDANTS/RESPONDENTS
5.4.1. CONTENTIONS OF THE 1st, 2nd, 6th AND 7TH RESPONDENTS
As stated earlier, on October 19, 2015, the 1st, 2nd, 6th and 7th Respondents filed a
Motion for extension of time (Document number 11) within which to file their
Counter Affidavit and supporting Written Address(Document number 12) in
opposition to the Plaintiffs/Applicants’ Motion to Withdraw. In their written
Address the said Defendants said
“INTRODUCTION”
“The Respondents received the applicants’ motion on notice and a 24 paragraph
affidavit praying the Honorable Court to withdraw and/or discontinue the suit
which they filed against the respondents. We have filed our counter affidavit of 21
paragraphs and written address praying this Honorable Court to dismiss the suit.”
“ISSUES FOR DETERMINATION”
“Whether the applicants can withdraw and/or discontinue the suit before this
Honorable Court after exchange of pleadings and arguments thereon?”
- 10 “OUR ARGUMENT
“
“It is trite principle of law that innocent errors can be corrected if they be the same
as claimed by the applicants. It would be procedurally defective at this stage for the
applicants to seek withdrawal and/or discontinuance after brief of arguments have
been filed, and prelimi n ary ob jectio n argu men t set do wn fo r ru li ng .”
“In YOUNG SHALL GROW MOTORS LTD V. OKONKWO &ANOR. (2010) 35 s.c. (Pt III) 124, the Supreme Court succinctly made a clear distinction between
the following:”
Withdrawal of a brief before argument, and Withdrawal of a brief after arguments
are settled/exchanged/filed by parties that is “litis contestation.”
“…the principle governing withdrawal of an appeal on the date fixed for
Hearing or any time thereafter, must take a cue from the principle of
Discontinuance of Action at the Trial Court after the action has been fixed for
hearing. In other words, after Briefs of Argument have been exchanged by the
parties whereby issues between them became crystallized “litis contestatio” can be
deemed to have been reached. A withdrawal of an appeal from that point in time