A. M. Soetan v. Total Nigeria Ltd (1972)

LawGlobal-Hub Lead Judgment Report

C. O. MADARIKAN, J.S.C. 

In Suit No. LD/94/69 in the High Court, Lagos, the plaintiff took out a writ of summons on the 25th February, 1969 against the defendants claiming:

“the sum of 2,000 (two thousand pounds) being damages for conversion in that on the 6th February, 1969 the defendants seized, converted to their own use and wrongfully deprived the plaintiff of his lorry (with bulk oil carrying facilities) Registration No. LN 1143. Alternatively the plaintiff claims against the defendants the said sum as damages for trespass to the said vehicle.”

The writ was made returnable for the 17th March, 1969, but before the return date and indeed on the 12th March, 1969, the plaintiff filed a notice of discontinuance in the following terms:

“Take notice that the plaintiff herein hereby wholly discontinues this case against defendant.”

When the case was called on the return date, the parties were represented by counsel and the learned trial judge dismissed the case with costs after making a note on the record that a notice of discontinuance had been filed. It is against the order of dismissal that the plaintiff has now appealed.

The only point canvassed before us was that on the correct interpretation of Order. 44, r.1 (1) of the Supreme Court (Civil Procedure) Rules which are applicable in the High Court of Lagos, the learned judge ought not to have made an order dismissing the case but ought to have struck out the case as by so doing the right to re-litigate the matter would be preserved.

In so far as it is relevant to the point raised in this appeal, Order 44, r.1(1) provides as follows:

“If before the date fixed for hearing, the plaintiff desires to discontinue any suit… he shall give notice in writing of discontinuance.. . to the registrar, and to every defendant as to whom he desires to discontinue.

After the receipt of such notice such defendant shall not be entitled to any further costs with respect to the matter so discontinued… than those incurred up to the receipt of such notice, unless the court shall otherwise order, and such defendant may apply ex parte for an order against the plaintiff for the costs incurred before the receipt of such notice and of attending the court to obtain the order.

Such discontinuance… shall not be a defence to any subsequent suit. ”

The provisions of the rule appear to us to be quite clear and may be conveniently divided into three parts. The first part entitles a plaintiff to discontinue his action before the hearing date without leave by filing a notice of discontinuance and serving a copy thereof on the defendant.

(See Ofoegbu Nze v. David Nze, 15 W.A.C.A. 36). The second part which deals with costs need not be considered as the plaintiff has not complained about the award of 355(pounds) costs. Lastly, the third part provides that the discontinuance of an action under the rule shall not be a defence to any subsequent suit and it was on this part that learned counsel for the plaintiff/appellant, Miss Okunoren, based her argument before us. She contended that as the discontinuance of the action cannot be a defence to any subsequent action, the learned judge ought to have made an order which would not debar the plaintiff from instituting fresh proceedings. She then argued that the learned judge was in error in making an order of dismissal in this case as this would debar the plaintiff from bringing fresh proceedings and that the case ought to have been struck out. We are in no doubt that after an action has been discontinued under 0rder 44, r 1(1), the proper order to make is one striking out the case and not an order of dismissal in as much as the parties should be at liberty to reassert their right in future proceedings if they so wish. We think that the learned judge was in error in making an order of dismissal in the instant case when there has been no litis contestatio and when the determination was not made after hearing evidence of the whole or some fundamental part of the claim.

We however wish to observe in passing that different considerations would apply where a plaintiff intends to discontinue his case after the date fixed for hearing in which case he requires the leave of the court under 0.44, r. 1(2) which provides as follows:

“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 counterclaim, 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.”

The interpretation of Order. 44, r. 1(2) was considered in A. A. Ajayi (Chief Ojora) v. A. L. A. Odunsi (1959) 4 F.S.C. 198. In that case, the plaintiff as Chief Ojora had claimed the recovery of possession of the Ojora palace. A preliminary objection was raised by the defendant on the ground of jurisdiction but the learned judge ruled that he had jurisdiction to entertain the action. After the plaintiff had called four witnesses, he filed a notice of discontinuance in view of a decision in the Federal Supreme Court on the point of jurisdiction of the courts in chieftaincy cases, and after listening to arguments, the learned judge refused to grant the plaintiff leave to discontinue the suit. Learned counsel for the plaintiff then consulted his client and informed the court that his client did not intend to proceed with the case. Thereupon, the learned judge dismissed the case with costs.

On appeal, the Federal Supreme Court observed as follows:

“In the present case, it is clear from the record of proceedings that neither the plaintiff nor the defendant would derive any benefit whatever from the continuation of the case, it being evident to them, and to the learned judge himself that the court had no jurisdiction to have entertained the suit. The matter of jurisdiction was taken up early in the proceedings but the learned judge ruled against lack of jurisdiction on his part. It being clear that the reason for withdrawing the suit was the absence of jurisdiction on the part of the learned judge, it means that the matter should never have been placed before him, and his duty in the circumstances was to grant the application for leave to withdraw the case, and then to strike it out and not to dismiss it.”

The appeal was then allowed and an order striking out the case was substituted for the order of dismissal. (Cf. A. F. Shonekan v. P. G. Smith S.C. 687/65 decided on 22nd December, 1967).

For the foregoing reasons, this appeal must succeed and it is hereby allowed. The order of dismissal made by the learned judge in Suit No. LD 94/1969 on the 17th March, 1969, is hereby set aside and in its stead we substitute an order striking out the case.

We do not propose to interfere with the award of 55(pounds) costs to the defendant in the lower court but we do hereby order the defendant/respondent to pay to the plaintiff/ appellant 47 guineas costs in this Court.

SC.266/1969