Benin---The Presiding Judge, Benin Judicial Division of the National Industrial Court, His Lordship, Hon. Justice Adunola Adewemimo has refused the application for summary judgment filed by Prince Edobor Izebhigie in a matter brought against Igueben Local Government for lacking merit, granted the Local Government leave to defend the case in the interest of justice.
The Court held that Igueben Local Government has disclosed a triable issue to warrant a proper trial in the suit.
The claimant- Prince Edobor counsel Dickson I. Egbewuare Esq had filed a motion on notice for summary judgment brought pursuant to the Court (Civil Procedure) Rules, 2017, argued that there is no dispute about the indebtedness of the Igueben Local Govt to the claimant and submitted that there are cogent facts before the court that warrants entering summary judgment in favour of the claimant
In opposition, S. I. Aibangbe Esq. of counsel for the Defendant argued that claimant has to prove how he arrived at the sums he is claiming and can only be done during trial, added that the court must be afforded the opportunity to consider the totality of evidence and decide same on merit.
Learned counsel submitted that the suit has been effectively terminated by the Notice of Discontinuance filed by the claimant that the Court lack Jurisdiction to try the matter.
In response, learned claimant’s counsel Dickson I. Egbewuare Esq submitted that the Notice of Discontinuance has been withdrawn that the defendant is only trying to delay and waste the court’s time and urged the court to enter summary judgment in favour of the claimant.
In his ruling, the presiding Judge, Justice Adewemimo held that a Notice of Discontinuance ordinarily effectively terminates a suit upon the filing of the notice, that the system or procedure for withdrawing an action differs and depends on the stage of the proceeding as provided in the Rules of Court.
“It is, therefore, an incompetent process which cannot ordinarily terminate the claimant’s suit, more so, same was withdrawn by the claimant’s counsel in this suit. It is in view of the above that the Defendant/Respondent’s objection is overruled in this regard, I so hold.
“It is in light of this and consideration of the fact that the defendant has filed all necessary processes, i.e. pleadings having been exchanged in this suit, that I am satisfied that the defendant has disclosed a triable issue to warrant a proper trial in this suit.”