Order 61 — Withdrawal or Discontinuance
Rule 1 When party can withdraw or discontinue claim.
(1) Where before the date fixed for hearing or judgment, any party to the proceedings desires to discontinue a claim or withdraw any part thereof, such a party shall give notice of discontinuance or withdrawal in writing to the Court and to the other party. The Court shall upon the discontinuance or withdrawal make such order or orders as may seem just.
(2) Where a Claimant files an Originating process and causes it to be served on the Defendant and Defendant has not filed or joined issues with the Claimant, the Claimant may discontinue the claim or withdraw any part thereof by an application to the Court, and forward same to the defendant, notwithstanding the fact that no date has been fixed for hearing of the matter.
(3) Where a party to a proceeding desires to discontinue a claim or withdraw any part of it before the date fixed for hearing or judgment, such party shall not later than seven (7) days before the date fixed for hearing or judgment, apply by motion on notice supported by an affidavit, stating the grounds for discontinuance of the claim and/or withdrawal of any part of it and the grounds so stated shall be to the satisfaction of the Court.
Provided that where the application is not made within the period stipulated in this rule, such default shall attract a penalty of Five Hundred Naira (N500.00) for each day of continuance of delay after the period has lapsed, until the matter is disposed of.
Rule 2 Claimant may withdraw or discontinue claim before defence.
The Claimant may at any time before receipt of the Defence, by notice in writing duly filed and served, wholly withdraw or discontinue the claim against all or any of the Defendants or withdraw or discontinue any part or parts of the claim. The Claimant shall thereupon pay such Defendant’s costs of the action, or if the action be not wholly withdrawn or discontinued, the costs occasioned by the matter so withdrawn or discontinued.
Rule 3 Withdrawal or discontinuance not defence to subsequent claim.
A withdrawal or discontinuance as the case may be, shall not be a Defence to any subsequent claim.
Rule 4 No filing of the same claim until compliance with Court order.
Where proceedings have been stayed or struck out upon a Claimant’s withdrawal or discontinuance under this Order, no subsequent claim shall be filed by the Claimant on the same or substantially the same facts until the terms imposed on the Claimant by the Court have been fully complied with.
Rule 5 Withdrawal by consent.
When a matter is ready for trial, it may be withdrawn by either the Claimant or Defendant upon producing to the Registrar, a consent in writing signed by the parties and thereupon the Court shall strike out the matter without the necessity of attendance of the parties or their legal Practitioner.
Rule 6 When Claimant withdraws or discontinues before defence.
Where a Claimant withdraws or discontinues any claim or suit or any part of his/her claim before the Defendant files in a defence such suit shall be struck out by the Court.
Rule 7 When Claimant withdraws or discontinues after joining of issues.
Where a Claimant withdraws or discontinues a claim or suit or any part of the claim after the Defendant has joined issues by filing a defence within the time prescribed by these Rules, such suit shall be dismissed by the Court.