A.F. Sonekan V P.G. Smith (1967)

LawGlobal-Hub Lead Judgment Report

MADARIKAN, J.S.C.

In Suit No. LD/654/62, the plaintiff’s claim in his writ against the two defendants In the High Court of Lagos is set out hereunder:-“The plaintiff’s claim is for £1,750 payable by the defendants to the plaintiff for money received by the second defendant for the use of the plaintiff.

PARTICULARS

(1) On the 18th of January, 1960, the plaintiff paid £1,750 to the second defendant for the assignment of plot 2634 Apapa by the first defendant to the plaintiff.

(2) The said plot was subsequently sold by the first defendant to another person.”

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Pleadings were ordered and delivered, and after some adjournments, Mr. Burke, learned counsel for the plaintiff sought and obtained leave to withdraw from the case on the 30th June, 1964, Eventually, hearing commenced on the 11th November, 1964, when Mr. Braithwaite appeared for the plaintiff who gave evidence and closed his case after tendering five documents one of which was marked exhibit E. Exhibit E is a certified true copy of the Register of Title No. M01530 relating to plot No. AW2634 at Ladipo Oluwole Road in Apapa District and it bears the name of one Fouad Hussein Shour as the registered proprietor of the lease-hold property on the 15th May, 1961.

The case continued on the 12th November, 1964, when the first defendant opened his defence. He testified, inter alia that he sold plot 2634 to Grizi and Shour and referred to a letter which he received from the Lagos Executive Development Board. On seeking to tender the letter an objection was raised that o.41, r.11 had not been complied with but the objection was overruled and the letter dated the 23rd September, 1960 was admitted in evidence and marked exhibit G. He continued his evidence by saying:

“I replied to the letter and confirmed that I had sold the property to Mr. Grizi and Mr. Shour.

I don’t remember having any discussion with the second defendant since I deposited the £408-8s-0d in his account.

It was at this stage that Mr. Braithwaite sought leave to discontinue the action under 0.44, r.1 (2) for the following reasons:-

“I would like another opportunity to come back, without being barred from bringing another suit. The plaintiff’s rights far exceed what he has claimed in the present suit. There are none” (more?) “parties who should, in the interests of justice, be joined so as to determine the real Issues in controversy between the parties ………… If we had seen exhibit G earlier much time and expense could have been saved.”

He then referred to exhibit E, and submitted that if fresh action is brought against ‘the right parties, “the court could order that the entries in exhibit E be rectified.

In reply, the first defendant’s counsel did not initially oppose Mr. Braithwaite’s application but subsequently, he urged the court to dismiss the action. The second defendant’s counsel did not oppose the application and did not ask for costs. The learned trial Judge’s ruling on the application reads as follows:-

“COURT:- I have listened carefully to what learned counsel for all three parties have said. In view of the reasons given by learned counsel for the plaintiff, I will not dismiss the suit and I will accede to his application to have it discontinued.

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It is ordered that the plaintiff be allowed to discontinue this suit (with liberty to bring another suit) on payment of 13 guineas costs to the first defendant only, the second defendant having waived his right to costs.”

It is against this order that the first defendant has appealed to this court. In his notice of appeal he asked that judgment should be entered in his favour, but it was pointed out that if leave to discontinue was set aside the case would have to be remitted to the High Court so that the hearing might be continued and his counsel, Mr. Lardner, then asked that the leave to discontinue should be made subject to conditions as to the institution of fresh proceedings.

The final contention of Mr. Lardner was that in all the circumstances of the case, in granting the plaintiff leave to discontinue the action, he ought not to have been given liberty to Institute fresh proceedings for the same cause of action. Mr. Lardner pointed out to us that when exhibit G was written on the 23rd September, 1960 by the Lagos Executive Development Board, a copy of it was endorsed to Mr. R. A. Fani-Kayode who was then the plaintiff’s solicitor. He further submitted that the material facts in exhibit G are contained In exhibit E which was tendered in evidence by the plaintiff. The plaintiff could not, in the circumstances, say that he was taken by surprise by the evidence given for the defence.

In reply, Mr. Braithwaite informed us that he came into the case at a late stage and that as the trial proceeded, it became obvious to him that in order to ensure that justice was done to the plaintiff’s case, it would be necessary to discontinue the action and institute fresh action against “the right parties.”

Order 44 of the Supreme Court (Civil Procedure) Rules deals with the discontinuance of suits. Rule 1(1) gives the plaintiff an unconditional right to discontinue at any time before the date fixed for hearing and provides that such discontinuance or withdrawal shall not be a defence to any subsequent suit. Rule 1 (2), under which the order of the High Court was made in this case, deals with discontinuance on or after the date fixed for hearing, and reads-

“If in any other case the plaintiff desires to discontinue a suit or to withdraw any part of his claim, or if a defendant desires to discontinue his counter-claim or withdraw any part thereof, such discontinuance or withdrawal may be allowed on such terms as to costs, and as to any subsequent suit and otherwise as to the court may seem just.”

We appreciate that under this rule, the court has a wide discretion as to the terms to be Imposed when granting leave to discontinue an action, but taking into consideration all the circumstances of this case and the reasons relied upon by Mr. Braithwaite in support of his application, we are of the view that the trial judge exercised his discretion in giving unconditional leave to discontinue on insufficient grounds, and we consider that in justice to the first defendant the plaintiff ought to have been denied the opportunity of instituting fresh action against the first defendant for the same cause of action.

The result is that this appeal will be allowed; the order made by Alexander, J., on the 12th November, 1964, is hereby set aside in so far as it affects the first defendant and the following order is substituted therefore-

“It is hereby ordered that the plaintiff be allowed to discontinue this suit upon the terms that he shall not bring any other action against the first defendant in respect of the present cause of action.”

but the order for payment of 13 guineas costs by the plaintiff to the first defendant will remain. The first defendant is awarded costs in this Court assessed at 52 guineas.

Other Citation: (1967) LCN/1499(SC)