IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 5TH DAY OF MARCH 1976
IFI IZIEME AND ORS. .............................................. DEFENDANTS/APPELLANTS
IJEOMA NDOKWU AND ORS ............................................... PLAINTIFFS/RESPONDENTS
BEFORE: Fatayi-Williams, Madarikan and Nasir, JJ.S.C.
The plaintiffs sued in a representative capacity for a declaration of title to land, damages for trespass and an injunction.
Early in the course of the trial, the first plaintiff, who alone out of the five plaintiffs had so far testified in support of their claim, admitted lying under cross-examination; whereupon learned Counsel for the plaintiffs applied for and obtained leave to withdraw the case, and the plaintiffs' claim was accordingly struck out by the trial Judge.
On appeal by the defendants against that order, their counsel contended that by not dismissing the claim the judge erred, because of the unfairness of the order and the resultant hardship and injustice to the defendants.
None of the other plaintiffs had yet indicated whether they would testify; the point of divergence in respect of the matters averred in the parties' pleadings had been reached; it was not, at that stage, possible for the judge to give a decision on the merits without injustice to one of the parties; and counsel was seemingly pressurised by the court into applying to withdraw the case.
(1) Under O.47, r.1 of the High Court Rules of the East Central State, applicable in this case, the trial Judge had a discretion, firstly, as to whether or not to allow the plaintiffs to discontinue or withdraw their claim and secondly, as to whether to dismiss or strike it out; and
(2) in the above-mentioned circumstances, the trial Judge exercised his discretion judicially; and the reasons advanced on appeal for asking that the claims be dismissed were not cogent enough.
Nwachukwu v. Nze 15 W.A.C.A. 36
Soetan v. Total Nigeria Ltd. (1972) 1. ALL N.L.R. (Part 1)1
Fox v. Star Newspaper Co.  1. Q.B. 636, 638
Sonekan v. Smith (1967) ALL N.L.R. 329, 333
Egerton v. Jones  3 ALL. E.R. 889, 891-2
Chike Ofodile for the appellants
G.U. Osuji (Mr G.I. Udom with him) for the respondents.
Fatayi-Williams, J.S.C. (delivering the judgment of the Court)-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
(Italics are ours).
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 WACA 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 P1/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 XL VII 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."
(Italics are ours).
There can be no doubt that, by virtue of the provisions of the second paragraph of that rule, the learned trial Judge has a discretion firstly, as to whether or not to allow the plaintiffs in the case in hand to discontinue or withdraw their claim at that stage in the proceedings, and secondly, as to whether to dismiss it or strike it out as he had done, thus enabling them to bring a similar action at a later date if they are so advised. The main question in this appeal, and indeed the only question, therefore, is whether the learned trial Judge has exercised his second discretion in striking out the case judicially. In considering the manner in which the discretion given to a court should be exercised, we refer, with approval, to the observations of Green, M.R. in Egerton v. Jones  3 ALL E.R. 889 (C.A.) at pages 891-892 which read-
"It is quite certain, on the one hand, that the discretion of the court is not to be fettered by rules. The discretion is given by statute, and must be exercised according to the circumstances of each particular case. On the other hand, it is equally true that, when a matter involving discretion comes before a judge, there must be in every case a number of considerations which he ought to have in mind for the purpose of enabling him to exercise his discretion. If it appears that he has taken into consideration or has omitted to take into consideration something which he ought to have taken into consideration, or if on all the facts the court is satisfied and convinced that the discretion has been wrongly exercised, it is the duty of this Court to interfere".
(Italics are ours).
We have been referred by learned Counsel for the defendants/appellants to a number of decisions in support of his contention. We have examined both the facts and the reasons for the decision in each of these cases and are satisfied that none of them is in pari materia. In Nwachukwu v. David Nze, the claim was dismissed because the application for leave to discontinue having been refused by the learned trial Judge, learned Counsel for the plaintiff declined to proceed with his case. In Soetan v. Total Nigeria Ltd. where, on appeal, an order striking out a claim was substituted for an order of dismissal, the court held, quite rightly, that where a plaintiff exercises his right to discontinue his action without leave before the hearing, it is an error to dismiss the action since there has been no litis contestatio and the determination was not made after hearing evidence of the whole or some fundamental part of the claim. In Fox v. Star Newspaper Company, the argument turned on whether, under the rules existing at the time, a plaintiff could elect to be non-suited. It was held that he could not and that the only way in which an action could be discontinued was by discontinuance under Order 26 rule 1. In Sonekan v. Smith where, after a plaintiff had closed his case, the trial court gave him leave to discontinue the case with liberty to bring another suit, it was held on appeal that, in justice to the first defendant, the plaintiff ought to have been denied the opportunity of instituting a fresh action against the first defendant for the same cause of action.
It will be seen that in each of the above cases to which learned Counsel for the defendants/appellants has referred us, the court's discretion was exercised with due regard to the particular facts and circumstances of the case.
In the case in hand, we must not lose sight of the fact that the defendants/appellants averred in paragraph 5 of their statement of defence that part of the land in dispute is owned communally by both the plaintiffs and some of the defendants. Moreover, there is the fact that the plaintiffs/respondents' claim was brought in a representative capacity and none of the other plaintiffs had testified or had indicated whether or not they were going testify. It is also clear from the answers given by the first plaintiff (2nd P1/W) to the questions so far asked under cross-examination that the point of divergence in respect of the matters averred to in their respective pleadings has not been reached. Undoubtedly, the issues involved in the case have not become so crystallised as to make it possible for the learned trial Judge, at that stage, to give a decision on the merit without injustice to one of the parties. Certainly, an order of dismissal would have had that effect.
Learned Counsel for the defendants/appellants, in the course of his argument, indicated to us the points which he would have urged upon the learned trial Judge if he had been allowed to address the court before the order striking out the claim was made. One of these points is that the order meant opening the door again for the plaintiffs/respondents to come and harass them with the same action. Another is that the hearing had reached a stage when neither party should have been allowed to escape. The third and last point is that the plaintiffs/respondents ought not to have made the application to withdraw the case if they did not consider that the single lie told, and immediately admitted, by the 2nd plaintiff witness was so material to their case.
We have considered all points. Nevertheless, for the reasons which we have set out above, we are of the view that, in the particular circumstances of the case in hand, these points are not cogent enough. We, therefore, think the contention that the learned trial Judge did not exercise his discretion judicially cannot be maintained. In circumstances such as this, each case must be decided on the facts before the court. We cannot, among other things, overlook the undisputed circumstances under which learned Counsel for the plaintiffs/respondents was more or less pressurised by the court to withdraw the claim. The inexplicable nature of the application to withdraw the claim at that stage, as shown in the record of proceedings, seems to lend support to the impression, which we are constrained to hold, that the application to withdraw the claim was not all that voluntary.
All things considered, we think that the learned trial Judge was right in striking out the plaintiffs' claim as he had done, instead of dismissing it. We therefore see no merit in the appeal which is hereby dismissed with costs to the plaintiffs/respondents assessed at