Yaw Biei & Ors V. Kwame Assah (1953)

LawGlobal Hub Judgment Report – West Africa Court of Appeal

Practice and Procedure—Discontinuance of action by leave of Court—No leave given to sue again—Effect on new suit brought—CivilProcedure Rules, Order 38, rule 1—Where the plaintiffs are not the same as before.

Facts

The above rule provides that a plaintiff may discontinue his action prior to the hearing day but “if in any other case the plaintiff desires to discontinue any suit, such discontinuance . . . may in the discretion of the Court be allowed on such terms as to costs and as to any subsequent suit … as to the Court may seem just”.

In a suit begun in the Land Court, A, as successor to X, sued the above respondent and another in respect of certain land claiming a perpetual injunction. A was referred to the Native Court and began a suit there. That Court made an order substituting B as the plaintiff, still suing as successor to X. The suit was transferred to the Land Court, where B discontinued his action by leave of Court; no order was made giving him liberty to sue again.

In the present case the first appellant also sued as successor to X, and the other appellants alleged that they had been co-purchasers of the land with X; these plaintiffs, also, claimed a perpetual injunction in respect of the same land as in the previous suit (the records of which were put in evidence as exhibits) against the same defendants as before (but one was dismissed from the present suit, hence only one respondent above).

The defendant invoked the previous suit as estopping the plaintiffs from maintaining the present action; the plaintiffs denied that B, who had discontinued the previous suit, was the successor to X, or that they, the present plaintiffs, were privies or otherwise estopped.

The trial Judge, without hearing evidence on these matters, held that in view of B, who had sued as successor to X, discontinuing the suit by leave of Court, the present
plaintiff No. 1, who also sued as successor to X, and his co-plaintiffs were estopped from maintaining their action.

The plaintiffs appealed, arguing:—
(1) That they were not the same plaintiffs as before or privies to the previous plaintiffs and should have been allowed to call evidence to show that the previous
plaintiffs were not the successors to X, and

(2) That unless the Judge giving leave to discontinue expressly prohibits the plaintiff from suing again, he is not estopped from bringing another action.

Held

Under Order 38, rule 1, when a plaintiff has to obtain leave to discontinue, it is only by the discretion of the Judge that he can discontinue with the right of bringing another action; and in certain circumstances the appellants would be estopped from maintaining the present action as no leave to sue again was given in the previous suit; but those circumstances were questions of fact which ought notto have been decided on the records of the earlier litigation only without allowing the appellants to lead evidence.

Appeal allowed: case remitted to be tried de novo.