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:

1. 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;
2. 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.