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: