IN THE SUPREME COURT OF NIGERIA
On Friday, the 1st day of April, 1977
Before Their Lordships
UDO UDOMA….. Justice, Supreme Court
MOHAMMED BELLO….. Justice, Supreme Court
ANDREWS OTUTU OBASEKI….. Justice, Supreme Court
1. OLAYINKA RODRIGUES
2. TITILOLA ABIRIOLA
3. MODUPE RODRIGUES
4. AKINOLA RODRIGUES
5. OLUSHOLA RODRIGUES
6. C. B. RODRIGUES
7. DORCAS OJO
1. THE PUBLIC TRUSTEE
2. CHIEF ADEBAYO DOHERTY
3. CHIEF T. A. ODUTOLA
This appeal therefore fails. It is dismissed with costs assessed and fixed at N125.00 to the 1st respondent; N125.00 to the 3rd respondent and only N100.00 to the 2nd respondent as represented by the 1st to the 4th respondents, who were substituted for the 2nd respondent by order of this court dated 14/3/77.
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.
Secondly, some vital documents which are required in this case are missing and it is too late in the day to begin to apply for another (sic) certificate true copies. He asks the court to strike (out) the action.
Mr. Somorin does not oppose the application, but he asks for costs. He asks for N105.
Mr. Gomez for the 2nd defendant asks that the matter be dismissed and he asks for N210.
Mr. Sotubo also states that the action be dismissed.
Action filed in 1971.
Pleadings completed, and in this case the action should be dismissed. The action is frivolous, he asks for N210.”
Thereupon the learned trial Judge, after having given consideration to the whole circumstances of the case, dismissed the suit and awarded costs against the appellants.
The appellants are dissatisfied with the order dismissing the suit. Hence the appeal to this court. The gravamen of the complaint of the appellants is that the dismissal of the suit was not the result of a proper exercise of judicial discretion.
On the application of the appellants, learned counsel for the respondent not opposing, before the commencement of the hearing of the appeal, the names of
(1) Edward Akinwunmi Doherty;
(2) Abdu Azees Olayide Duroshola;
(3) Ademola Debayo; and
(4) Olanrewaju Emmanuel –
described as the executors under the Will of Chief Adebayo Doherty (deceased), 2nd respondent herein, were by order of this court substituted for the 2nd respondent, who has since the filing of the appeal died.
Mr. Lardner, learned counsel for the appellants, after having drawn the court’s attention to the various stages of the progress of the suit, submitted in support of his grounds of appeal that in dismissing the suit, the learned trial Judge had failed to exercise his discretion judicially. He contended that in the circumstances of the case on appeal and since the statement by learned counsel for the appellants in the court below that vital documents material to the case were missing was accepted by the learned trial Judge, then the proper order which ought to have been made should have been one striking out the suit, particularly having regard to the provisions of Order XLIV Rule I of the old Supreme Court (Civil Procedure) Rules, Cap. 211, Vol. X, Laws of Nigeria, 1948.
This submission calls for the examination of the provisions of Order XLIV Rule1, which are in the following 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 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.
(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 counterclaim, 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.”
Notice of discontinuance not having been given at all by the appellants, it is clear that the case now on appeal can only be treated as “any other case” and falls squarely for consideration within the ambit of the provisions of Order XLIV Rule 1 (2) as set out above. That being so, leave of the court was necessary in order to be able to withdraw the suit from court. What therefore learned counsel for the appellants in the court below did was to apply for that leave to enable him to withdraw the suit from court in accordance with the instructions given to him by the appellants.
In such circumstances, withdrawal of the suit from court could never be nor could it ever have been conceived as of right or automatic. It was not for the learned counsel in the court below to appear to dictate to the court what order to make in consequence of his application for leave. That was a matter exclusively for the court in the due and deliberate exercise of its judicial discretion, which naturally and inevitably must entail the weighing of all the circumstances of the case in the interest of justice and the balancing of the interests of the parties involved, including the balance of convenience and disadvantages, which might be suffered by any of the parties concerned. It is after the court shall have given consideration to such matters that it can arrive at what is undeniably a difficult decision, which must appear reasonable in all the circumstances of a particular case. It is then the duty of the court on the principles stated above to decide whether:
(i) to grant leave for the suit to be withdrawn simply on terms that the same be struck out subject to the payment of costs; or
(ii) to grant leave for the suit to be withdrawn subject to the imposition of certain conditions to be fulfilled before a fresh suit concerning the same subject matter and the same parties may be instituted in the court; or
(iii) to refuse such leave in which case the suit must be dismissed also on terms as to costs.
That seems to accord with the view long ago expressed, though not so definitively and specifically by the West African Court of Appeal in Nwobu Nwachukwu & Ors. v. David Nze & Ors. In re Ofoegbu Nze v. David Nze (1955) 15 WACA (to which our attention was drawn by Mr. Sofola, learned counsel for the 3rd respondent, in which these same provisions of Order XLIV Rule 1 were considered, construed and applied.
In that case, the West African Court of Appeal took the view that the learned trial Judge was correct when he held that under Order XLIV Rule 1(1) and (2) ” a plaintiff may discontinue without leave at any time before the date fixed for hearing;” and that on or after that date “the plaintiff may discontinue but only with leave” because of the use of the expression “may be allowed” in sub-rule (2) of Rule 1; and that “may be allowed” must mean may be allowed by the court, and therefore the learned trial Judge in that case was right in dismissing the plaintiffs’ claim because the plaintiffs’ counsel had declined to proceed with his case after the court had refused to grant his application for adjournment.
George Akinwande Jones & Anor. v. H. S. A. Thomas & Ors. (1962) LLR 9, in which the High court of Lagos dismissed the claim of the plaintiffs therein presents features almost similar to Nwobu Nwachukwu & Ors. v. David Nze & Ors., (supra) except that in the latter case, the plaintiffs therein were not even present in court. It was only their counsel who appeared.
The circumstances of both these cases are of course distinguishable from those in the case before us on appeal. The ground for dismissing the latter is also stronger. For in the case now on appeal, learned counsel for the appellants in the court below did not even ask for an adjournment which was refused; but had clearly and unambiguously announced in the open court, without prior notice, that his instructions were to withdraw the suit from court, as the plaintiffs would be unable to establish their claim against the respondents because undisclosed vital documents were missing and their principal witness was out of the country.
As the claim of the appellants in the appeal in hand was based almost entirely on a written document, namely, the last Will and Testament of one Charles Americo Rodrigues (deceased) certain clauses whereof the court was called upon to construe and apply, it would have been interesting to know what were the particular mysterious and unprocurable documents which were said to be missing. Learned counsel for the appellants in the court below, as he was entitled to do, did not disclose them to the court. It is of interest to note also in that connection, that according to the Statement of Claim filed by the appellants, Charles Americo Rodrigues died as long ago as 11th July, 1948, and his Will in question was soon thereafter admitted to probate. Furthermore, it was not even mentioned to the court that the absent principal witness would ever again return to the country. The fact that learned counsel for the appellants did not apply for an adjournment could not have failed to weigh with the learned trial Judge in reaching his decision.
In Emmanuel Amoma Okorodudu & Anor. V. Erastus M. Okoromadu & Anor. SC. 363/75 – an unreported judgment of this court delivered on 18th March, 1977 – the provisions of Order XXVIII Rule 1 of the High Court (Civil Procedure) Rules of the former Midwestern, (now Bendel) State, which are similar in all respects to the Rule now under consideration were considered, construed and applied. This court then remitted the suit concerned in the appeal to the High Court of Bendel State with a direction that the same be reheard before another Judge; and that the hearing of a new suit between the same parties concerning the same subject matter filed subsequent to the suit in question be stayed pending the disposal of the suit, the subject matter of the appeal heard by this court.
It was necessary so to direct because the learned trial Judge in the court below instead of inviting the plaintiffs to proceed with their case after having refused their application for adjournment, had himself proceeded to consider exhaustively the averments contained in the pleadings and had treated the same as evidence drawing therefrom inferences which could only properly have been drawn from proven primary facts and had come to the conclusion that the plaintiffs therein in any event would have failed if the suit had proceeded to trial. He thereupon on those grounds dismissed the suit.
The view we took then was that the decision of the learned trial Judge in those circumstances was not in truth the result of the exercise of judicial discretion within the ambit of the provisions of Order XXVIII Rule 1 of the High Court (Civil Procedure) Rules, Bendel State which are similar in all respects to Order XLIV Rule 1 under consideration and therefore erroneous in law. To that extent, our decision in that appeal is different and may be distinguished from our decision in the instant appeal.
It only now remains to state that in our view Amour v. Bate (1891) 2 QB 233 to which our attention was also drawn by Mr. Sofola bears no relevance whatsoever to the issue contested in the present appeal. That was an appeal to the Court of Appeal in England from a judgment which was entered against the plaintiff therein for want of appearance. There was no question of withdrawal of the suit from court.
On a thorough review of the whole of the circumstances in the case on appeal and after having given careful consideration thereto and to the various authorities mentioned herein, we have reached the inflexible conclusion that the order of the learned trial Judge dismissing the plaintiffs’ claim is unimpeachable. It is right. It is the result of a proper discretion judicially exercised. This appeal therefore fails. It is dismissed with costs assessed and fixed at N125.00 to the 1st respondent; N125.00 to the 3rd respondent and only N100.00 to the 2nd respondent as represented by the 1st to the 4th respondents, who were substituted for the 2nd respondent by order of this court dated 14/3/77. Order accordingly.
Mr. H. A. Lardner…..For Appellant
Mr. Fela Young, for the Administrator-General Public Trustee, for the1st Respondent.
Mr. T. Gomez for the 2nd Respondent and Mr. K. Sofola, for Chief T.A. Odutola, 3rd Respondent…..For Respondent