Ifi Izieme & Ors. v. Ijeoma Ndokwu & Ors. (1976)

LawGlobal-Hub Lead Judgment Report

FATAYI-WILLIAMS, J.S.C. 

In the proceedings commenced in the Owerri High Court, the plaintiffs claimed against the defendants in paragraph 31 of their statement of claim, declaration of title to a piece of land known as “Ani Akparukwu” situated in Oguta farm area, Oguta in Owerri Judicial Division. They also claimed N400 as damages for trespass committed on the said land and a perpetual injunction restraining the defendants from committing further acts of trespass on the land.

The plaintiffs explained in paragraph 7 of their statement of claim that “the land Aparukwu is subdivided into four, namely: Ani Utudiogwu, Ani Utuogwugwu, Ani Egweowiriwa and Ani Egwuga”. For their part, the defendants contended in paragraph 5 of their statement of defence that part of the land in dispute is communal land and does not, therefore, belong to the plaintiffs alone. The averment in paragraph 5 of the statement of defence reads:

“5. The defendants admit that part of the land in dispute is called Ani Akparukwu but deny that it belongs to the plaintiffs alone. The said part of Ani Akparukwu in dispute is the communal property of the plaintiffs and the defendants 4—6 who are collectively known as Umunkwu Village, Oguta. The said Ani Akparukwu is made up of the following pieces of land:
Egwega, Egweowiriwa and Utudiogwu (which are contained in the area verged yellow) as also Okpoakuma verged blue”.
At the hearing on 9th April, 1975, the plaintiffs called two witnesses. The first is one Mathias Chukura, the licensed surveyor who did the survey work and produced the plan of the land in dispute (Plan. No. MEC 359/73 – Ex. “A”) for the plaintiffs.
The second witness called by the plaintiffs is Ijeoma Ndokwu who is also the first plaintiff. His testimony started on 9th April, and continued until the following day, that is, 10th April, 1975. At the end of his examination-in-chief on that second day, the cross-examination was started with some innocuous questions about the number of villages in Oguta and also about the relationship between three of these villages. He was also questioned about one Oputa Nduka and whether he was the oldest man (known as Okpara in any village in Oguta) in his village in his lifetime. He confirmed that this was so. The rest of his testimony under cross-examination thereafter reads:

“The village of Umunkwu has no Ofo but it has Ogbommuo. I have told lies to the court when I said that my village of Umunkwu has no Ofo. ”

For some inexplicable reason, learned counsel for the plaintiffs, notwithstanding the fact that this second witness was the only one of the five plaintiffs to testify so far, applied to the court for leave to withdraw the case –

“in view of the fact that the witness i.e. P.W. 2 has confessed to the court that he has lied on a material particular. ”
The learned trial judge thereupon ruled as follows:
“I think this is a very wise application which is granted. The case is struck out with costs to the defendants assessed at N200.”

This appeal is against the second order, that is, the order striking out the case. The complaints of learned counsel for the defendants/ appellants are two fold. Firstly, he complained that, having taken the evidence of the plaintiffs and their surveyor before the plaintiffs’ counsel applied to withdraw the case, the learned trial judge erred in law in striking out the case instead of dismissing it. Secondly, he complained that the learned trial judge erred in law in failing to give reasons for striking out the case and also in not exercising the discretion, which he undoubtedly had in the matter, judicially, since he did not take into consideration all relevant considerations such as the unfairness of the order and the fact that it would result in hardship and injustice to the defendants. Finally, learned counsel submitted that the plaintiffs’ action should have been dismissed in its entirety.

In the course of his submission, we referred to the following cases:

(i) Nwachukwu v. David Nze 15 W ACA 36;
(ii) Soetan v. Total Nigeria Ltd. (1972) 1 ALL N.L.R. (Part 1) 1 at p.3;
(iii) Fox v. Star Newspaper Company (1898) 1 Q.B. 636 at p.638; and
(iv) Sonekan v. Smith (1967) 1 ALL N.L.R. 329 at p.333.

In his reply, learned counsel for the plaintiffs/respondents submitted that none of the authorities referred to by learned counsel for the defendants/appellants is applicable and that in an appeal complaining about the exercise of discretion by a trial judge, every case must be considered and decided on its own merit. Learned counsel then contended that, looking at both the evidence of the 2nd P/W and the statement of defence filed by the defendants/appellants, the plaintiffs/ respondents have a good chance of succeeding in the claim before the court. Learned counsel then informed the court (and this was more or less confirmed, with characteristic candour, if we may say so, by learned counsel for the defendants/appellants) that he applied to withdraw the case as a result of deliberate hints, almost amounting to a direction, given to him by the learned trial judge at that stage of the hearing. Finally, learned counsel contended that, having regard to the circumstances, the learned trial judge exercised his discretion judicially in striking out the claim.

In our view, the learned trial judge, in striking out the plaintiffs’ claim, must have acted under the provisions of Order XLVII rule 1 of the High Court Rules of the East Central State which read:

“Order XLVII – Discontinuance of Suits
2. 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 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 or withdrawal shall not be a defence to any subsequent suit.

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.”