Emmanuel Amoma Okorodudu V. Erastus M. Okoromadu (1977)
LawGlobal-Hub Lead Judgment Report
Bello J.S.C
This is an appeal against the order of dismissal of the Plaintiffs’ claim in the High Court, Warri, made by Ekeruche, J., in his ruling of 23rd July, 1974, in Suit No. W/8/73 wherein the Plaintiffs now Appellants claimed against the Defendants, now Respondents:
- A declaration that the deed dated the 26th day of June, 1969, and made between (1) Okun Guoti (now deceased) (2) Erastus M. Okoromadu for themselves and on behalf of Yonwuren and Agbeje families, AND Stephen E. Idugboe, is void as between the parties thereto, and that the said deed be set aside;
- Delivery of the said deed for cancellation.
The circumstances leading to the dismissal of the Suit are as follows:
Pleadings having been ordered and duly filed and delivered, the parties were notified that the case had been fixed for hearing on 3rd to 6th June, 1974. Before the date fixed for hearing, to wit on 3rd May, 1974, the Itsekiri Communal Land Trustees applied by motion on notice to be joined as co-plaintiffs in the case and the application came for hearing before Ekeruche J., on 30th May, 1974. It appears that Ekeruche, J., was not aware that the case had been fixed for hearing for 3rd to 6th June, 1974, by another judge until then.
Consequently, he informed the counsel for the parties that he had to consult the other judge as to which judge would hear the case and adjourned his ruling on the application for joinder to 13th June, 1974. He further informed the counsel that in view of the circumstances the hearing formerly fixed for 3rd to 6th June, 1974, would not proceed on the said dates but that the case would be adjourned to some other dates.
On 13th June, 1974, after having delivered his ruling on the application for joinder, Ekeruche, J., adjourned the case for hearing to 22nd to 24th July, 1974, before him.
On 10th July, 1974, the plaintiffs applied by motion on notice seeking leave to amend their writ of summons and statement of claim. In his ruling of 18th July, 1974, save granting leave to amend the acreage of the land in dispute, the learned Judge refused to allow the amendments.
On 19th July, 1974, the Plaintiffs filed a notice of discontinuance, which reads:-
“NOTICE OF DISCONTINUANCE
TAKE NOTICE that the plaintiffs being satisfied that the above suit is not properly constituted and having consequently instituted Suit No. W/117/74, against the defendants intend and do hereby wholly discontinue this suit against all the defendants pursuant to Order 28 Rule 1(1) of the High Court Civil Procedure Rules 1958, Western Region of Nigeria applicable in the Midwestern State of Nigeria.”
The validity of the notice of discontinuance came for determination on 22nd July, 1974, which was the adjourned date for the hearing of the case. It is necessary at this stage to refer to the relevant provisions of Order 28 under which the notice was filed and determined. Order 28 Rule 1(1) and (2) is in these terms: –
“1. (1)If before the date fixed for hearing, the plaintiff desires to discontinue any suit against all or any of the defendants, or to withdraw any part of his claim, he shall give notice in writing of discontinuance or withdrawal to the registrar, and to every defendant as to whom he desires to discontinue or withdraw. After the receipt of such notice such defendant shall not be entitled to any further costs with respect to the matter so discontinued or withdrawn than those incurred up to the receipt of such notice, unless the court shall otherwise order, and such defendant may apply ex parte 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 or withdrawal shall not be a defence to any subsequent suit.
(2) 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.”
The learned counsel for the defendants in the High Court contended that the notice purported to have been filed under Rule 1(1) was invalid as it had been filed after the original dates, namely 3rd to 6th June, 1974, in which the case had been fixed for hearing. He urged the court to refuse the discontinuance and to dismiss the case if the plaintiffs failed to proceed with the hearing. He submitted that the notice fell within the provisions of Rule 1(2) and that the plaintiffs’ claim should be dismissed. In reply the learned counsel for the plaintiffs, having conceded that the case was originally fixed for hearing on 3rd to 6th June, 1974, submitted that as the case was not heard on the said dates the fresh dates fixed for hearing, to wit 22nd to 24th July, were the “dates fixed for hearing” within the meaning of Rule 1(1) and consequently since the notice was filed before the fresh dates the plaintiffs were entitled as of right to discontinue under rule 1(1). He indicated to the court below that rule 1(2) was inapplicable as there was no application thereunder before the court.
In his ruling the learned Judge held that “the date fixed for hearing” of the case within the meaning of rule 1(1) was 3rd to 6th June 1974 and that the notice was filed after the said date. He then proceeded to treat the notice of discontinuance as if it were an application for leave to discontinue under Rule 1(2). With regard to the exercise of his discretion under the rule, the judge had this to say:
“Turning now to the order to make as regards plaintiffs’ claim, in deciding this it is necessary to examine the claim before this court and the pleadings filed to determine whether the plaintiffs should be just allowed to discontinue and their action just struck out or whether the order of this court should be such as would affect their being able to bring this case again.”
He then proceeded to consider the plaintiff’s pleadings exhaustively and came to the conclusion that the plaintiffs would not succeed in any of their claims. He then posed the following question, which he answered:
“Are the plaintiffs in view of the circumstances set out above entitled to have the door left open for them to sue the defendants again either to get the deed declared void or null and void, or set aside as a voidable deed My view is that they are clearly not so entitled.”
He accordingly dismissed the action in its entirety and awarded N200 costs to the 1st Defendant and N400 to the 2nd Defendant. It is against the order of dismissal that the plaintiffs have now appealed.
In the 1st ground of appeal the learned counsel for the Appellants reiterated his argument in the court below that 22nd to 24th July 1974 was the “date fixed for hearing” within the meaning of rule 1(1) and the plaintiffs were entitled as of right to discontinue before 22nd July 1974. We are unable to accept the contention of the learned counsel. The interpretation put upon the words “the date fixed for hearing” in Rule 1(1) by the learned Judge that 3rd to 6th June 1974 were the dates fixed for the hearing of the case and that 22nd to 24th July 1974 were adjourned dates is correct within the con of the relevant High Court Civil Procedure Rules making general provisions for trial. Order 26 is particularly relevant in this regard. Rule 1(3) of that Order provides:
“Causes shall be taken for hearing in the order in which they stand in the cause list;”
By Order 26 rule 3:
“Any cause on the cause list not disposed of may be adjourned to a further date”
(Underlining is ours)
It appears from the foregoing provisions of the rules that “the date fixed for hearing” a case is the date the case is fixed for hearing on the cause list after the close of pleadings and any subsequent date for hearing is an adjourned date. The learned Judge was therefore right in holding that 3rd to 6th June 1974 was “the date fixed for hearing” of the case within the purview of Rule 1(1) and that the notice of discontinuance was filed after the said date. Consequently, Rule 1(1) would not avail the plaintiffs.
The 2nd ground of appeal complains that the learned Judge erred in treating the notice of discontinuance as an application for leave of the court to discontinue. We think there is substance in this complaint. Having found that the notice had been filed after the date fixed for hearing of the case, the learned Judge ought to have held the notice of discontinuance invalid. That was the view taken in Barclay Davit Co. Ltd. v. Samuel Taylor & Sons Ltd. (1946) 2 All ER 41 where pursuant to Order 26 Rule 1 of the Rules of the Supreme Court of England,1875, now repealed, and which was in similar terms to the relevant rule, a notice of discontinuance was given after the case had reached a stage that the plaintiff could not discontinue without leave of the court. In that case order of discontinuance was made with the consent of the parties.
In the case in hand the notice being invalid, the proper order to make was to strike out the notice and call upon the plaintiffs to proceed with their case as pleaded. The learned Judge would only have been right in dismissing the claims if the plaintiffs had declined to proceed. That was the procedure approved by the West African Court of Appeal in Re-Ofoegbu Nze v. David Nze (1955) 15 WACA 36 wherein the plaintiff had sought to discontinue his suit under Order XLIV Rule 1 of the Supreme Court (Civil Procedure) Rules the provisions of which were similar to the rule under consideration.
In the case on appeal the learned Judge did not invite the plaintiffs to proceed but dismissed their claims without giving them the opportunity to prosecute their claims as pleaded. The appeal therefore must succeed on this ground.
We observe that the learned Judge had made up his mind on the pleadings regarding the verdict on the case though no evidence was adduced before him. We think the proper order to make under the circumstances is to remit the case to the court below with a direction that the hearing of the same be proceeded with before another judge.
There is one aspect of this case which calls for comment. It concerns an abuse of judicial process. Bearing in mind that it has been the practice of this court not to exercise its discretion to take points suo motu unless it thinks in the circumstances of the case that justice demands it: Odiase & Anor. v. Agho & Ors. (1972) 1 All NLR (Part 1) 170, we think an abuse of judicial process calls for the exercise of our discretion.
In the notice of discontinuance it was stated that the plaintiffs wanted to discontinue Suit No. W/8/73, the subject matter of this appeal, because the suit “was not properly constituted” and the plaintiffs had “consequently instituted Suit No. W/117/73 against the defendants”. During his argument at the hearing of the appeal before us the learned counsel for the appellants frankly stated that the plaintiffs found it necessary to discontinue with the hope that the case would be struck out and thereafter to proceed with Suit No. W1/17/73 because they had made several applications to amend their pleadings which the learned Judge had refused to grant.
It appears that the plaintiffs, having failed to secure amendments of their pleadings in Suit No.W/8/73, proceeded to achieve what they had failed to obtain by amendments by filing therein Suit No. W/117/73 against the defendants while Suit No. W/8/73 was still pending in that court. We consider the conduct of the plaintiffs in this regard as a flagrant abuse of judicial process of the court.
In addition to its inherent jurisdiction to stay proceedings which are clearly an abuse of its process, the court below has a duty under Section 16 of the High Court Law, 1964, the Laws of the Midwestern State of Nigeria, 1964 to prevent multiplicity of proceedings between the same parties on the same subject matter. It seems that the learned Judge did not stay Suit No. W/117/73 because, as shown by his ruling, he thought the dismissal of the claims in Suit No. W/8/73 would be a defence to the new suit. In view of our order remitting Suit No. W/8/73 to the court below for hearing, we would follow the course taken in T.O. Oyegbola v. Esso West Africa Inc. (1966) 1 All NLR 170 and stay Suit No. W/117/73 with direction that the stay shall not be removed until after Suit No. W/8/73 has been determined.
Accordingly, it is ordered as follows:-
(1) that the appeal be allowed and the order dismissing the plaintiffs’ claims including the orders as to costs in the ruling dated 23rd July 1974 of Ekeruche, J., be set aside;
(2) that Suit No. W/8/73 be remitted to the court below for hearing before a judge other than Ekeruche, J.;
(3) that Suit No. W/117/73 in the High Court, Warri, be stayed pending the determination of Suit No. W/8/73.
The appellants are entitled to the costs of the proceedings relating to the notice of discontinuance in the court below assessed at N20 and to the costs in this court assessed at N155.
SC.363/75
