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.”

PAGE| 2

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:-