Olayinka Rodrigues & Ors V. The Public Trustee & Ors (1977)

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SIR UDO UDOMA, J.S.C. 

The only point raised and argued and for a decision in this appeal is one of practice and procedure. It is important. It concerns the exercise of discretion by a Judge of the High Court under Order XLIV rule 1 of the old Supreme Court (Civil Procedure) Rules, Cap. 211 of the Laws of Nigeria, 1948, and therefore involves the construction and application of the said Rule.

As endorsed on their writ of summons dated 12th January, 1971, the appellants, as plaintiffs, in Suit No.LD/27/71 in the High Court of Lagos State originally claimed against the 1st respondent as the only defendant then, the following:-

“Particulars of Claim:

“(a)  A declaration that on a proper construction the relevant clauses of the Will of Charles Americo Rodrigues (Deceased) the defendant is not entitled to be registered as registered freehold proprietor of Nos. 81, 83, 85, 87 and 89, Lewis Street, Lagos in the Register of Titles.

(b)    Rectification of the Register of Titles by cancellation of all the Freehold Land Certificates in respect of the said premises or any of them showing the defendant as freehold proprietor thereof, alternatively an order expunging from the said Register the name of the defendant as freehold proprietor of the said properties.

(c)    Delivery up to the plaintiffs of such title deeds as are in the possession of the defendant relating to the said properties.”

On 10th May, 1971, and before delivery of pleadings, by an order of court on the application of the appellants, Chief T.A. Doherty and Chief T.A. Odutola, that is, the 2nd and 3rd defendants in the suit.

After the close of pleadings, it appeared that the appellants were not sufficiently diligent in having the suit listed for hearing, the 3rd respondent applied for the accelerated hearing thereof. That application was dated 16th December, 1971.

By a formal order dated 28th February, 1972, under his hand, the suit was transferred by the then Chief Justice of Lagos State to his own court and fixed for 19th and 20th October, 1972 to be there heard and determined by him.

Then on 20th October, 1972, it came before Savage, J. It was adjourned to “30th, 31st January,1973 and 1st February, 1973, for hearing.” It is not clear how the suit suddenly, as it were, found itself in the court of Savage J. without the order of transfer to the court of the Chief Justice having been revoked or without an order transferring the suit to Savage, J. All the same, nothing in this appeal turns on that question since it is not the subject of complaint by any of the parties hereto.

On 30th January, 1973, the suit came up finally for hearing before Savage J. None of the seven appellants appeared before the learned trial Judge. They were, however, represented by counsel, who there and then applied to the court orally for leave to withdraw the suit from court in accordance, according to him, with the instructions of the appellants. For the avoidance of misrepresentation, it is necessary to reproduce that part of the proceedings as recorded by the learned trial Judge. The record reads as follows:-

“Mr. Olawale for Mr. Lardner for the plaintiffs.
Mr. Gomez for the 2nd defendant.
Mr. Somorin for the 1st defendant.
All the parties are absent apart from counsel representing some of them.

Mr. Olawale states that he has instruction to withdraw this action, the reason being that our (sic) “principal witness is out of the country.