LEONARD ERONINI & ORS. V FRANCIS IHEUKO
CITATION: (1989) LPELR-SC.139/1986
   
new OTHER CITATIONS:
1 Eronini v. Iheuko (1989) NWLR (Pt.101) 46
Nigerian Coat of Arms
In The Supreme Court of Nigeria
On Monday, the 6th day of March, 1989
Suit No: SC.139/1986
 
Before Their Lordships
 
   
ANDREWS OTUTU OBASEKI
....... Justice of the Supreme Court
MUHAMMADU LAWAL UWAIS
....... Justice of the Supreme Court
ADOLPHUS GODWIN KARIBI-WHYTE
....... Justice of the Supreme Court
PHILLIP NNAEMEKA-AGU
....... Justice of the Supreme Court
ABUBAKAR BASHIR WALI
....... Justice of the Supreme Court
 
 
 Between
1. LEONARD ERONINI
2. JACOB IGBOKWERE
3. PHILLIP EKWUJURU
4. JUDE EZURUKE
5. ELSIUS EMECHETA
(For themselves and on behalf of Awo people of Mbieri)
Appellants
 
 
 And
       
FRANCIS IHEUKO
(For himself and on behalf of Umuduru Ojiakpi family of Ebom Mbieri)
Respondents
 
     
  RATIO DECIDENDI  
     
1
ACTION - PLEADINGS: Effect of evidence that is contrary to pleading
 
 
"It is, of course, settled that any evidence which is contrary to the pleading goes to no issue at all at the hearing" PER NNAEMEKA-AGU, J.S.C. (P. 38, Paras. A-B) - read in context
 
     
2
COURT - POWER OF COURT: Power of court to act judicially.
 
 
"Acting judicially imports the consideration of the interest of both sides and weighing them in order to arrive at a just or fair decision. In this regard, several judicial authorities including University of Lagos v. Aigoro (1985) 1 S.C. 265 at 271; Olayinka Rodrigues v. The Public Trustee (supra); Okorodudu & Anor v. Okoromadu & Anor. (supra) Sonekan v. Smith (supra) and Ifi Izieme & Ors. v Ndokwu & Ors. (supra) have settled the guiding principles" Per OBASEKI, J.S.C (P. 22, Paras. A-C) - read in context
 
     
3
EVIDENCE - TRADITIONAL EVIDENCE: Relying on traditional evidence to prove long possession.
 
 
"It appears clear to me from the authorities that where a plaintiff relies on long possession following traditional evidence and fails to prove the tradition upon which the possession is based he cannot get a declaration of title." PER NNAEMEKA AGU, J.S.C. (Pp. 37-38, Paras. F-G) - read in context
 
     
4
PRACTICE AND PROCEDURE - DISCONTINUANCE OF A CLAIM: Whether discretion to grant leave to discontinue is discretionary.
 
 
"It is well settled that a decision to grant leave to discontinue is discretionary. See Okorodudu v Okoromadu (supra); Rodrigues v. The Public Trustee (supra) and the discretion must be exercised not only judicially but judiciously" Per OBASEKI, J.S.C (Pp. 22-23, Paras. G-A) - read in context
 
     
5
PRACTICE AND PROCEDURE - CLAIM: Whether a plaintiff who counterclaims may withdraw his claim
 
 
"It is clear therefore, that a plaintiff and or a defendant who counterclaims may withdraw his claim or counter-claim at any stage of the proceedings before judgment. In some cases (no leave is required), these are mainly in circumstances where no date has been fixed for hearing. No leave is required. However, where the case has been fixed for hearing, leave to withdraw is required as the Rule gives power to the court to allow discontinuance. Leave may be granted on terms as to costs and as to any subsequent suit and otherwise as to the court may deem just. In other words, the court must consider the justice of allowing subsequent suit and otherwise." PER OBASEKI J.S.C. (P. 13, Paras. C-F) - read in context
 
     
6
PRACTICE AND PROCEDURE - APPLICATION FOR DISCONTINUANCE: Effect of failure of a defendant to object to an application for discontinuance.
 
 
"In Sonekan v. Smith (1967) 1 All N.L.R. 329. this Court held that a defendant who does not object to an application for discontinuance should not expect the suit to be dismissed in his favour." PER OBASEKI, J.S.C. (P. 22, Paras. C-D) - read in context
 
     
     
 

OBASEKI, J.S.C. (Delivering the Leading Judgment): The respondent was the plaintiff suing in a representative capacity and the appellants were the defendants sued in a representative capacity in suit No. HOW/75/75 in the High Court East Central State of Nigeria sitting at Owerri on the 12th day of May, 1975. In that suit, the plaintiff claimed:

"(a) declaration of title to all those parts (sic) or pieces of land in Ebom Eburi known as and called Abo-Nkwu, Uhu Ogwugwu, Ukwu-Uzi and Ikpa respectively. The annual value of the lands is estimated at N5.00

(b) N400.00 damages for trespass:

(c) perpetual injunction restraining the defendants their agents, and servants from further trespass to the land in dispute."

The matter came up before Ikpeazu, J. on the 9th of June, 1975 and the writ being served and parties present, he ordered pleadings to be filed and served. This was before the East Central State was split into two smaller states in 1976, named Anambra State and Imo State. On the creation of the two states, the High Court at Owerri became part of the Imo State High Court.

After obtaining orders for enlargement of time to file statement of claim, the statement was filed on the 13th August, 1976. The defendants filed their statement of defence on the 14th day of October, 1976. The pleadings were later amended. An amended statement of claim was filed on 2nd March, 1982 and an amended statement of defence was filed on 26th March, 1982. On the 13th day of April, 1983, the case was listed for hearing before Wachukwu. J. sitting at Owerri. Parties and their counsel were present and the court was prepared to hear the case.

Mr. Nsofor then called the plaintiff, Francis Ihueko to testify. He went into the witness box, was sworn on Bible and began to testify. He was not a very smooth and intelligent witness. He exasperated the learned trial Judge who could not hide his feelings. In the course of his testimony, he said, inter alia. (as recorded in the record of proceedings)

"The lands in dispute belong to Umu Iheuko. We are owners because our father farmed the land and on his death the lands descended to us. The first of my ancestors to brush the virgin forest was Iheuko my late father. I now say that the first of my ancestors to brush the virgin forest was Nwulu. Nwulu begat Iheuko Ugwushie. Okwarauzu was the father of Nwulu. Then Duru Ojiakpi was the father of Okwarauzo."

There the testimony stopped and plaintiff's counsel applied to discontinue. The record then reads:

"At this stage Mr. Nsofor applies to withdraw the case. Mr. Iketuonye does not oppose but asks that the case be dismissed.

Court: At this stage in which Mr. Nsofor has applied to withdraw the suit was when the plaintiff was still testifying in chief. In the circumstances I think the proper order would be to strike out the suit with costs. Case is struck out with N100.00 costs to the defendants."

The defendants were not satisfied with the decision so they appealed to the Court of Appeal. The relief sought from the Court of Appeal set out in the notice of appeal was "set aside the order of the court below and dismiss the claim."

The Court of Appeal dismissed the appeal and affirmed the order of the High Court striking out the suit. Akpata, JCA. delivering the lead judgment (Ogundare and Katsina-Alu, JJCA. concurring) after citing Sonekan v. Smith (1967) 1 All NLR. 329 and Ifi Izieme and Others v. Ijeoma Ndokwu and Others (1976) 1 All NLR (Pt.1) 189 at 194 to 195 (1976) 3 Sc. 9 said:

"As in the case of Izieme and Ors. v. Ndokwu and Ors. (Supra) there is the impression that the respondent was pressurised by the court to apply to discontinue his suit. It would be wrong in the circumstances, for a judge who advised a plaintiff to apply to discontinue his suit to turn round to dismiss it after apparently giving the plaintiff a false sense of hope that it would only be struck out. A court of appeal will hardly penalize a plaintiff for obeying a judge unless it can be shown that he was not misled.

In his brief of argument the respondent's counsel claimed that the judge observed that the respondent was dazed in the witness box and giving incoherent answers. This has not been challenged by the appellant's counsel.

It is also relevant to state that the fact that a plaintiff's suit has been struck out on two or more previous occasions and relisted before the application to discontinue his suit is not an issue to be taken into account in considering whether to grant his subsequent application to discontinue or refuse it and dismiss the suit.

There is a presumption that he was absolved from blame in the respective incidents leading to the striking out order by the very fact that the suit was relisted each time it was struck out.

I do not therefore think, that the learned trial Judge Wachukwu, J. did not exercise his discretion judicially. The result is that the appeal fails."

The observation of the learned Justice of the court of Appeal raises the question whether the respondent's counsel was in charge of the conduct of the case of the respondent or judge.

There is however nothing on the record of proceedings to indicate that the application to discontinue was on the prompting of the learned trial Judge. It sounds puerile for a counsel to say that "I discontinued my client's case because the learned trial Judge advised me to do so." I say no more on this issue at this stage.

Ogundare, J.C.A. concurring with the lead judgment, made similar observations and comments when he observed:

"The learned trial Judge, as admitted in the appellants' particulars to their only ground of appeal, advised respondent's counsel to withdraw the case."

He then observed:

"Clearly the evidence given by the respondent so far was at variance with his statement of claim as regards his root of title. But one cannot shut one's eyes to the circumstances as disclosed above that led to his giving that evidence." (that he was dazed)

"In my view, a dismissal of respondent's claim as was urged by appellants' counsel would amount to doing grave injustice." The appellants were not satisfied with the decision and on the 19th day of October, 1985 filed their notice of appeal against the decision on four (4) grounds. Without the particulars, the 4 grounds of appeal read:

"(1) The Court of Appeal erred in law by upholding the order made by the High Court of Owerri Judicial Division striking out instead of dismissing the case of the respondent when a stage had been reached in the proceeding where the evidence of root of title given by the respondent was patently at variance with the facts averred in the sic (statement of claim) Particulars (Omitted)

(2) The Court of Appeal erred in law in upholding the order of striking out made by the court of first instance when in making the order the court of first instance did not act judiciously and judicially.

Particulars

(Omitted)

(3) The learned Justices of the Court of Appeal erred in law by allowing facts not contained in the record of appeal or placed before them on a proper application to lead additional evidence to influence their decision in the appeal before them.

Particulars

(Omitted)

(4) The Court of Appeal erred in law and misdirected itself in its application of the provisions of Order 47 of the High Court Rules, Laws of Eastern Nigeria applicable in Imo State to the facts of the case before it in that the provisions of the said Order do not empower a court to strike out a case when a stage had been reached in the course of the proceedings where the evidence given by a party is in violent conflict in some material particulars, with the facts averred in the pleadings.

Particulars

(Omitted)

Four questions for determination in the appeal were formulated by the appellants' counsel. These are:

(i) whether the Court of Appeal is right in law in upholding the order of striking out made by the court of trial when the said order was made without taking into consideration matters which the court of trial ought to have taken into consideration in a proper exercise of judicial discretion;

(ii) whether the Court of Appeal correctly applied the provisions of Order 47 Rule 1, High Court Rules, Laws of Eastern Nigeria, applicable to Imo State when it upheld the order of striking out made by the court of trial at a point in time when the evidence of root of title given by the respondents was in violent conflict with the facts averred in their statement of claim;

(iii) whether the Court of Appeal is right in law in saying that the order of striking out made by the court of trial is proper because it is alleged that the court of trial advised NOT pressurised the learned Counsel for the respondents to withdraw the case in the prevailing circumstances;

(iv) whether court of trial is right in law to place so great a store on the fact that the learned Counsel for the respondents was advised to withdraw the case when the alleged advice did not form part of the record of proceedings in the court of trial."

I would say that the issues for determination are not more than two although the respondent in his brief adopts the 1st, 2nd and 3rd issues formulated by the appellants' counsel as the issues for determination in this appeal.

The first issue is:

whether at the stage of the proceedings at which leave to discontinue was granted to the respondent, the proper order the learned trial Judge and the Court of Appeal would have made was one of dismissal or striking out.

The second issue is:

whether the Court of Appeal should have allowed its decision to affirm the order of striking out to be influenced by the alleged call on the respondent's counsel by the learned trial Judge to discontinue the proceedings which was not reflected in the record of proceedings.

Even if such advice is reflected in the record of proceedings is it a ground for striking out an action where issues have been joined, which has been fixed for hearing and was actually being heard?

At the hearing, Chief A.B.C. Iketuonye, SAN. learned Counsel for the appellant, urged the court to allow the appeal, set aside the decision of the Court of Appeal and dismiss the plaintiff's action. He adopted the submissions contained in the appellants' brief. He cited as authorities on guidelines in the exercise of judicial discretion:

(1) Donald O. Ikomi & Ors. v. The State (1986) 3 NWLR. (Part 28) 340 at 375;

Olayinka Rodrigues & Ors. v. The Public Trustee & Ors. (1977) 4 SC. 29 at pp. 36-37

University of Lagos & Ors. v. C. I. O. Olaniyan & Ors. (1985) 1 SC. 295

He contended that the learned trial Judge exercised his discretion arbitrarily and injudiciously, an action disapproved of in all the judicial authorities. He then referred to the provisions of Order 47 Rule 1 of the High Court Rules, Laws of Eastern Nigeria applicable in Imo State. This Rule sets out the guidelines which the court should follow in an application for leave to "discontinue an action."

It reads:

"If before the dare 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 at the 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 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 exparte 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 deem just." (Italics mine)

It is clear therefore, that a plaintiff and or a defendant who counterclaims may withdraw his claim or counter-claim at any stage of the proceedings before judgment. In some cases (no leave is required), these are mainly in circumstances where no date has been fixed for hearing. No leave is required. However, where the case has been fixed for hearing, leave to withdraw is required as the Rule gives power to the court to allow discontinuance. Leave may be granted on terms as to costs and as to any subsequent suit and otherwise as to the court may deem just. In other words, the court must consider the justice of allowing subsequent suit and otherwise. It is the second arm of the Rule that is applicable in this case. Learned Counsel for the appellants submitted that the only order that would be just in the circumstance is one granting leave to discontinue and imposing a bar on subsequent suits being brought by the plaintiff against the defendants claiming the same reliefs or remedy. He supported his submissions with dicta in:

(1) Nwobu Nwachukwu & On. v. David Nze & Ors. 15 W.A.C.A. 36

(2) A.A. Ajayi v. Abudu Odunsi 4 FSC. 189

(3) Okorodudu & Anor. v. Okoromadu & Anor. (1977) 3 S.C.21 at 29.

Following the examination of the above authorities, learned Counsel for the defendants/appellants submitted that the plaintiff/respondent failed woefully to prove his root of title. The evidence of the plaintiff was in sharp conflict with the facts pleaded in the amended statement of claim. A plaintiff who has failed to prove his root of title has lost his case.

Learned Counsel for the respondent introduced his argument with a description of what happened in the High Court. He said:

The respondent as plaintiff was the first witness to testify in a land matter instituted against the appellants. In the middle of his evidence, he got dazed and gave incoherent evidence. The plaintiffs solicitor applied to withdraw the case. This was not opposed by the solicitor for the appellants but urged the court to dismiss the action. The court of trial struck out the case with N100.00 costs to the defendants."

Learned Counsel for the respondent, Mr. Nsofor, then submitted that the trial court did not exercise its discretion arbitrarily. He contended that the courts had regard to the facts and circumstances of the case before it when making the order. He contended that the plaintiffs testimony had not touched the vital parts of his case and so his application for discontinuance will not attract the order of dismissal of his claim and bar him from instituting future action to claim the same relief. He agreed that the applicable rule is Order 47 Rule 1 of the High Court Rules Laws of Eastern Nigeria applicable in Imo State. He relied on the interpretation of the Rules in Rodrigues & Ors. v. The Public Trustee & Ors. (supra) and Ifi Izieme & 5 Ors. v Ijeoma Ndakwu & 4 ors. (1976) 3 S.C. 9 and Sonekan v. Smith (1967) 1 All NLR. 329.

On the discretion vested in the courts to grant leave to withdraw, he relied on University of Lagos & ors. v. Olaniyan (supra); Nwabu Nwachukwu & ors. v. David Nze & Ors. 15 W.A.C.A. Okorodudu & Anor. v.  Okoromadu & Anor. (1977) 3 S.C. 21; A.M. Saetan v. Tatal Nigeria Ltd. (1972) 1 All N.L.R. (Pt.1) 1 at 12. Finally, he submitted that the interest of justice demands that both parties be allowed to prosecute their claims in future action.

The short point in this appeal is whether the Court of Appeal and the trial court should have dismissed the claims of the respondent with costs when they allowed the respondent to discontinue or withdraw the action on respondent's application.

It is common ground and I agree with learned Counsel for both parties that the applicable Rule under which a party can discontinue his action is Order 47 Rule 1 of the High Court Rules, Laws of Eastern Nigeria 1977 applicable in Imo State. It is the second arm of the Rule that is apposite to the consideration of what order to make in the instant appeal. It is noteworthy and expressly provided that discontinuance under the first arm or part of the Rule "shall not be a defence to any subsequent suit." The second arm which is relevant to the issues raised in this appeal reads:"

"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 deem just."

In this matter, it is on record that the learned trial Judge, Wachukwu, J. had not only fixed the suit for hearing but had also embarked on the hearing and determination of the action when the application for leave to discontinue the action was made. It is also on record that parties had filed and served pleadings and joined issue before the action was fixed for hearing.

Learned Counsel for the respondent contended that it was because the respondent was dazed and giving incoherent evidence that on the hint from the bench, he applied for leave to discontinue the action.

If that is the reason for the discontinuance, it is an admission of inability to prove or establish the plaintiffs case. However, learned counsel for the appellants contended that the plaintiff's counsel was forced to discontinue because the plaintiff's testimony on vital areas was in conflict with the facts pleaded in the statement of claim.

In particular the genealogy pleaded differed from the one given by the plaintiff in his testimony.

I will therefore examine paragraphs 5, 6 and 7 of the statement of claim which contain the relevant pleading and see whether the testimony is in conflict with or a departure from pleadings. Paragraphs 5, 6 and 7 of the statement of claim read:

"5. The lands the subject matter of the action belong to the plaintiff and his people from time immemorial. The lands have passed from one generation of the plaintiff before the plaintiff to the other until presently they have descended on the plaintiff. The lands are the plaintiff's inheritance in accordance with the native laws and custom.

6. The lands originally belong to Duruojiakpi of Ebom, Mbieri, the predecessor in title of the plaintiff. Duruojiakpi was the great grandfather of the plaintiff. Duruojiakpi begat Nwaulu and Nwankwo. Before his decease, Duruojiakpi shared his lands amongst his children including Nwaulu and Nwankwo. Nwaulu's share included the lands now in dispute. Nwaulu Duruojiakpi begat Iheuko and Ugwushie. Iheuko was the father of the plaintiff. After Nwaulu, the land passed in succession to his issues. They have now passed to the plaintiff who is the present head of the family;

7. The plaintiff as his predecessors in title is in exclusive and peaceable possession of the lands in dispute exercising all the maximum acts of ownership and possession thereon without interference from any body including the defendants."

These paragraphs were specifically denied in paragraphs 4 and 5 of the amended statement of defence and thus demanding their strict proof. The portion of the evidence that disturbed counsel appears to be the last 9 lines of the plaintiffs recorded testimony. They read as follows:

"The lands in dispute belong to "Umu Iheuko." We are owners because our father farmed the land and on his death, the land in dispute descended to us. The first of my ancestors to brush the virgin' orest was Iheuko my late father. I now say that the first of my ancestors to brush the virgin forest was Nwaulu. Nwaulu begat Iheuko Ugwushie. Okwarauzo was the father of Nwaulu. The Duruojiakpi was father to Okwarauzo."

There is no doubt that the evidence is not in line with the facts pleaded in paragraph 6 of the amended statement of claim. Okwarauzo was not pleaded as the father of Nwaulu. It was Duruojiakpi that was pleaded. It was pleaded that the lands amongst others originally belonged to Duruojiakpi and that before his death, he shared the land among his children. This is totally different from the evidence which says that "we are owners because our father farmed on the land and on his death, the land in dispute descended to us." This evidence does not establish or prove the title pleaded. It only shows that the root of title is unknown.

Of greater significance is the issue joined in paragraph 6 of the amended statement of defence. Paragraph 6 of the amended statement of defence reads:

"The defendants deny the averments in paragraph 10, 10(a), 10(b), 10(c) and 10(d) of the amended statement of claim and will at the hearing put the plaintiff to strict proof. In further answer thereto, the defendants aver as follows:

(a) the defendants emphatically deny the statement of the plaintiff that there was never a dispute over the land now in dispute. In 1957 in Mbaitoli Native Court suit No. 71/75 Nwakuba Okereke of Awo Mbieri v. John Nwaiwu & 3 Ors. of Ebom Mbieri the defendants obtained title to the land now in dispute against the plaintiff's people. The plaintiff's mother Nwaohiri Nwachiko testified for the defendants in that Native Court case. The plaintiff on record and Frederick Ugusie in the Native Court case are half brothers.

The plaintiff on record was fully aware of the judgment of Mbaitoli court. The defendants will rely on the said judgment in support of their plea of estoppel per rem judicaram. On appeal to the District Officer's court a plan was ordered and the judgment of the Native Court was confirmed.

(b) In 1964 the defendants again sued Peter Nwaiwu & Ors. in the High Court of Owerri in suit No. HOW/15/64 over the  land now in dispute and obtained judgment against them in the Biafran High Court. Again in 1974 the plaintiff on record and his people of Ebom Mbieri entered the land in dispute and the defendant sued them. The case is still pending in the Magistrates Court Nwarubi."

What then were the facts pleaded in paragraph 10, 10 (a), (b), (c) and (d) of the amended statement of claim. The paragraph as a whole reads:

"10. The fathers of the defendants or any others never before disputed the title or ownership of the land with the predecessors in title of the plaintiff; The defendants only connection with the lands in dispute arose in the following circumstances

(a) During the Nigerian Civil War and whilst the plaintiff was in French Dahomey, the defendants entered the lands to do what the illegal regime of Biafra called "Land Army" It was the policy of that regime that every available land should be cultivated by any people or peoples notwithstanding that they were not legal owners of the land cultivated. The defendants used the land for the "land army."

(b) After the war when the plaintiff returned to Nigeria and to his home in 1977, the plaintiff objected to and protested against the defendants entering into the lands or doing any manner of work therein. The plaintiff led a delegation to the Chairman of Awo people and to the defendants complaining that since the war was over and there was not again "Land Army Scheme" in operation the defendants should desist from trespassing into the lands to cut palm fruits.

(c) when the defendants persisted in their acts of trespass, cutting palms on the land, the plaintiff reported to the police at Iho.

(d) the defendants through their influence and in the abuse of their wealth and position lodged a report against the plaintiff and his people. The plaintiff and his family members were charged to court in charge No. MHO/233C/74 Commissioner of Police versus Francis Ihueko and 4 others with an offence under section 81 of the Criminal Code. The plaintiff was tried and was acquitted and discharged. The plaintiff is in peaceable possession of the lands in dispute."

Having regard to the issues joined, the plea of estoppel per rem judicmam, the dissatisfaction with the evidence expressed or limited by the trial Judge and the quality of the evidence itself, is it a proper exercise of judicial discretion for the learned trial Judge to strike out the action on an application to discontinue at the stage when the taking of evidence was in progress? That is the question for determination in this appeal. In other words, is it a just decision under Order 47 Rule 1 of the High Court Rules Laws of Eastern Nigeria applicable in Imo State simply to strike out the suit without imposing a bar on subsequent suit having regard to the circumstances?

It is my view that if the learned trial Judge had acted judicially, he would have refused the application to discontinue and dismissed the case since the plaintiff was unable to proceed with the proof of his case. Moreover, if he had to grant him leave to discontinue the action, he should exercise his discretion (as to costs and to the institution of subsequent suit) judicially. If he had carried out this judicial exercise, he would have dismissed the action with costs or struck out the suit with costs and impose a bar on subsequent suit by the plaintiff claiming the same reliefs or remedies from the defendants. But he did not act judicially.

Acting judicially imports the consideration of the interest of both sides and weighing them in order to arrive at a just or fair decision. In this regard, several judicial authorities including University of Lagos v. Aigoro (1985) 1 S.C. 265 at 271; Olayinka Rodrigues v. The Public Trustee (supra); Okorodudu & Anor v. Okoromadu & Anor. (supra) Sonekan v. Smith (supra) and Ifi Izieme & Ors. v Ndokwu & Ors. (supra) have settled the guiding principles.

In Sonekan v. Smith (1967) 1 All N.L.R. 329. this Court held that a defendant who does not object to an application for discontinuance should not expect the suit to be dismissed in his favour. Can it be said that there was no objection in the instant appeal? The defence counsel called for a dismissal of the action.

It is my view that the application by the appellants counsel that the suit be dismissed is an objection to the suit being merely struck out without restriction on subsequent suit.

The contention of the respondent's counsel that there was no objection to his application to discontinue therefore cannot be valid. An order of dismissal of the claim would create a bar to subsequent suits and that was what the appellant asked for. That would be a judgment that would operate as estoppel per rem judicatam. It is well settled that a decision to grant leave to discontinue is discretionary. See Okorodudu v Okoromadu (supra); Rodrigues v. The Public Trustee (supra) and the discretion must be exercised not only judicially but judiciously. See University of Lagos v. Aigoro (1985) 1 S.C. 265, 271 University of Lagos v. Olaniyan (1985) 1 S.C. 295.

'Judicial Exercise' has been defined in Vol. 3 Stroud's Judicial Dictionary 4th Edition p. 1449 thus:

"If an arbitrator has a discretion as to costs which must be judicially exercised he must not act capriciously and must, if he is going to exercise his discretion, show a reason connected with the case and one which the court can see is a proper reason - [Lewis v. Haverfordwest R.D.C. (1953) 1 W.L.R. 1486; (1953) 2 All E.R. 1599]"

"Judicious means (1) proceeding from or showing sound judgment; (2) having or exercising sound judgment; (3) marked by discretion, wisdom and good sense.

There is thus great emphasis on sound judgment based on proper reasons connected with the case in the judicial exercise of discretion.

In the instant appeal, the respondent had on the date fixed for hearing been called on to proceed with his case. He commenced his testimony went part of the way embarrassed his counsel and could not proceed intelligently. It is not a question of asking for leave to discontinue before calling evidence. It is a question of the evidence demolishing the case pleaded.

In that case, it is my opinion that an order of dismissal is the proper order. The point of litis contestatio had been reached. There was a divergence of the evidence led from the facts pleaded which were fundamental issue.

In Okorodudu and Anor. v. Okoromadu and Anor. (1977) 3 S.C. 21 cited by both parties to the case although hearing had been fixed it had not started. After the case had been fixed for hearing, and following the court's refusal of some amendments to the statement of claim prayed for by the plaintiffs, the plaintiffs filed a notice of discontinuance three days before the date set down for hearing under Order 28 Rule 1(1) of the High Court (Civil Procedure) Rules, Laws of Western Region applicable in the Midwestern State of Nigeria. He did not ask to be allowed to discontinue. Instead of striking out the notice as being invalid, the learned trial Judge proceeded to consider the case on the pleadings and dismissed the action in its entirety with N200.00 costs to the 1st defendant and N400.00 costs to the 2nd defendant. On appeal to the Supreme Court, the Supreme Court allowing the appeal, held that the learned trial Judge should have struck out the notice of discontinuance and asked the plaintiff to proceed to prove their case and on refusal proceed properly to dismiss the action, It remitted the case to the High Court for retrial before another judge and stayed proceedings in the other suit filed. The instant appeal is distinguishable on the facts. Here the application for leave to discontinue was made after hearing had commenced and some evidence taken from the plaintiff. "The ground of the application was the damage to the plaintiff's case."

The case of Olayinka Rodrigues & Ors. v. The Public Trustee & Ors. (1977) 4 S.C. 29 is almost on all fours with the instant appeal. The only difference is that in that case, no evidence had been taken before the plaintiffs'/appellants' counsel orally applied for leave to withdraw the suit in accordance with plaintiffs'/appellants' instructions.

The judgment of the Supreme Court was delivered by Sir Udo Udoma, J.S.C. vividly recounting the events leading to the dismissal of the action by the trial Judge he said at page 32 of the report:

"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 instructions of the appellants. For the avoidance of misrepresentation, it is necessary to produce that part of the proceedings as recorded by the learned trial Judge. The record reads as follows:

"Mr. Olawole for Mr. Lardner for the plaintiffs Mr. Gomez for the 2nd defendant. Mr. Sotubo for the 3rd defendant, Mr. Samarin for the 1st defendant. All the parties are absent apart from counsel representing 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 arc required in this case are missing and it is too late in the day to being to apply for another (sic) certified true copies. He asked the court to strike out the action. Mr. Samarin does not oppose the application but he asks for costs. He asks for N105.00. Mr. Gomez for the 2nd defendant asks that the matter be dismissed and he asks for N210.00. 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 N210.00." 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."

After setting out the submission of counsel the learned Justice at p. 32 commented as follows:

"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 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 the leave to enable him to withdraw the suit from court in accordance with the instructions given to him by the appellant.

"In such circumstances, withdrawal of the suit from court could never be nor could it ever be 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 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 interest of 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:

(i) to grant leave for the suit to be withdrawn simply on terms that the same be struck out subject to payment of costs;

(ii) or 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.

In conclusion, the learned justice of the Supreme Court at page 42 said (after a thorough review of 4 authorities viz Nwobu Nwachukwu & Ors. v. David Nze & Ors. In re Ofoegbu Nze v. David Nze (1955) 15 W.A.C.A. 36. George Akinwande Jones & Anor. v. H. S. A. Thomas & Ors. (1962) LLR.9. Emmanuel Amoma Okorodudu & Anor v. Erastus M. Okoromadu & Anor. S.C. 363/375 unreported then but now reported in (1977) 3 S.C. 21 and Amour v. Bale (1891) 2 Q.B. 233 he considered bore no relevance to the issues contested) said:

"On a thorough review of the whole of the circumstances in the case on appeal and 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 plaintiff's claim is unimpeachable. It is right. It is the result of a proper discretion judicially exercised."

I cannot say the same of the instant appeal. It appears to me that the judicial discretion conferred on the learned trial Judge has been wrongly exercised, has not been exercised judicially and judiciously and has not been exercised in the interest of justice by the learned trial Judge. The learned trial Judge having failed to exercise his discretion judicially and judiciously and in the interest of justice the Court of Appeal was gravely in error to have affirmed the decision given by the learned trial Judge.

I have set out above the errors of omission and commission made by the learned trial Judge and it is the duty of this court, having observed those errors, to correct them and give the decision that is just and proper in the circumstances of the case. The appeal succeeds and I hereby allow it. The decision of the Court of Appeal together with the decision of the High Court striking out the action is hereby set aside and in its stead, an order dismissing the action with N210.00 costs is hereby substituted.

The appellants are entitled to costs in this appeal fixed at N500.00 in this Court and N300.00 in the Court of Appeal.



UWAIS, J.S.C.: "I have had a preview of the judgment read by my learned brother. Obaseki, J.S.C., I agree that the order of striking-out the case made by the learned trial Judge is not the proper order to be made in the light of the facts and circumstances of this case and the provisions of Order 47 rule 1 of the High Court Rules, Cap.61 of the Laws of Eastern Nigeria, 1963 applicable to Imo State - See Ifi Iziema & Ors. v. Ijeoma Ndokwu & Ors., (1976) 1 All N.L.R. (Part 1) 189 at pp. 193-195 and Olayinka Rodrigues & Ors. v. The Public Trustee & Ors., (1977) 4 S.C.29 at p.35. The Court of Appeal was also in error when it confirmed the order made by the trial court.

I therefore entirely agree that the appeal succeeds. The decision of the Court of Appeal as well as that of the trial court striking-out the action are hereby set-aside. I abide by the orders contained in the said judgment of my learned brother, Obaseki, J.S.C.





KARIBI-WHYTE, J.S.C.: I have read the judgment of my learned brother. Obaseki, J.S.C., in this appeal. I agree entirely with his reasoning and conclusions and have nothing further to add. I also will allow the appeal, and set aside the Order of the High Court striking out the action; and in its stead substitute an order dismissing the action of the plaintiffs/respondents. Appellants are entitled to costs in this appeal fixed at N500 in this Court and N300 in the Court of Appeal.





NNAEMEKA-AGU, J.S.C.: This is an appeal by the defendants against the judgment of the Court of Appeal. Enugu Division, which confirmed the order of Wachukwu, J., who, in an Owerri High Court struck out the plaintiffs case upon his discontinuing the case during the course of hearing. The only contention of the defendants in this appeal is that the case should have been dismissed, not merely struck out.

The facts leading up to the appeal have been amply set out in the judgment of my learned brother, Obaseki J.S.C, in the lead judgment. The plaintiff in 1975 filed an action for title to four contiguous pieces of land called Abo-Nkwu, Uhu Ogwugwu. Ukwu-Uzi and Ekpa. N400.00 damages for trespass to the same and perpetual injunction. The case has had a somewhat chequered history. It had to be struck out for want of prosecution on the 25th of June, 1976. Again on the 28th of June, 1982, after the case which was ripe for hearing had been fixed for hearing for three consecutive days, the learned Counsel for the plaintiff announced that he was not ready to go on. The case was struck out with N100.00 costs. It was, however, later relisted and fixed for hearing for two days. When hearing commenced on the 13th of August, 1983, the plaintiff started to give evidence. As it turned out, he contradicted his pleadings in the capacity in which he sued and also in the traditional history which he pleaded. At that stage the following proceedings were recorded:

"At this stage Mr. Nsofor applies to withdraw the case. Mr. Iketuonye does not oppose but asks that the case be dismissed. Court: At the stage in which Mr. Nsofor has applied to withdraw the suit was when plaintiff was still testifying in Chief. In the circumstance, I think the proper order would be to strike out the suit with costs. Case is struck out with N100.00 costs to the defendants.

(SGD.) NNANNA NWA WACHUKWU

(JUDGE)

15/4/83"

The defendants appealed to the Court of Appeal, Enugu Division which Court dismissed the appeal. The defendants (hereinafter called the appellants) have appealed further to this Court. The issues for determination in the appeal are not strictly in dispute. The central issue is whether the learned Justices of the Court of Appeal were right to have held that an order striking out the appeal was proper in the circumstances of the case.

Before I can deal with this question, it is necessary to advert to a number of incontrovertible facts. namely:

1. Whereas the respondent in paragraph 1 of his amended statement of claim dated the 30th of November, 1981, that he was suing as a representative of Umuduru Ojiakpi Family of Ebom, Mbieri, in his oral testimony, he stated that he was representing Iheuko Family, Mbieri.

2. In paragraphs 5 and 6 of the Amended Statement of Claim, he averred as follows:

"The lands the subject-matters of the action belong to the plaintiff and his people from time immemorial. The lands have passed from one generation of the plaintiff before the plaintiff to the other until presently they have descended on the plaintiff. The lands are the plaintiff's by inheritance in accordance with their native laws and customs.

The lands originally belonged to Duruojiakpi of Ebom, Mbieri the predecessor in title of the plaintiff. Duruojiakpi was the great grand ancestor of the plaintiff. Duruojiakpi begat Nwaulu and

Nwankwo. Before his decease Duruojiakpi shared his lands amongst his children including Nwaulu and Nwankwo. Nwaulu's share included the lands now in dispute. Nwaulu Duruojiakpi begat Iheuko and Ugwushie. Iheuko was the father of the plaintiff. After Nwaulu the lands passed in succession to his issues. They have now passed to the plaintiff who is the present head of the Family."

But in his oral testimony he stated:

"The lands in dispute belong to 'Umu Iheuko' We are owners because our father farmed the land on his death the lands in dispute descended to us. The first of my ancestors to brush the virgin forest was Iheuko my late father. I now say that the first of my ancestors to brush the virgin forest was Nwaulu. Nwaulu begat Iheuko Ugwushie. Okwarauzo was the father of Nwaulu. The Duruojiakpi was father to Okwarauzo."

Thus it is clear that learned Counsel for the respondent applied to withdraw when he did because his client, by his evidence in court, had done incalculable harm to his own case.

Now Order 47 rule 1 of the High Court Rules of Eastern Nigeria, applicable in Imo State, under which the learned counsel for the respondent applied to discontinue the case has two distinct parts, applicable differently when the withdrawal is being made before the case has been fixed for hearing and after it has been fixed for hearing. When the case is being withdrawn after it has been fixed for hearing, leave of court is necessary. Also, while giving leave, the court is supposed to take the circumstances of the case into account to decide whether the correct order should be that of dismissal of the action or of striking out. Even where a striking out order is made the court ought to make an order as to whether or not the plaintiff is at liberty to file a fresh suit on the same cause of action against the same defendant. If, as in this particular case, after an order of striking out, he fails to make an order prohibiting commencement of a fresh suit, a fresh action can be instituted. See The Kronprinz (1887) 12 App. Cas. 256, at p.262. On this procedure it is my view that the learned trial Judge was in error to have failed to consider the order he should have made when the respondent was given leave to withdraw at that stage of the proceedings.

Akpata, J.C.A., in his lead judgment in the Court of Appeal expressed the view that on the authority Nwoba Nwachukwu & Ors. v. David Nze & Ors. (1955) 15 W.A.C.A. 36 and Okorodudu & Ors.. v. Okoromadu & Anor. (1977) 3 S.C. 21 whenever a trial Judge, as was obvious in this case, gives a party leave to withdraw after the date fixed for hearing, the only order the Judge can make is one striking out the case. As he gave leave he could not properly have dismissed it, he held. With greatest respect, I do not agree that that case did decide the issue so restrictively. In my view, the correct position is that what order should be made in such a case is in the discretion of the court; but that the discretion must be exercised judicially having regard to the circumstances of the particular case. I agree with the statement of the law by Fatayi-Williams, J.S.C. (as he then was) in Ifi Izieme & Ors v. Ijeoma Ndokwu & Ors. (1976) 1 All N.L.R. (Pt. 1) 189, at p. 194. "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 arc 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 Egertion v. Jones (1939) 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."

Applying these principles to the instant case, I believe it is an error to say that the only order which a Judge who has given leave to withdraw can make is one striking out the case. He can either dismiss it or strike it out and make an order as to a future suit.

The second reason which he gave was that as civil cases are considered on a preponderance of evidence and the respondent could still have succeeded on the acts of possession pleaded by him as well as on the issues of trespass and injunction, the order striking out the case was correctly made. I believe that this line of reasoning was probably influenced by the decision of this Court, per Ibekwe, J.S.C. (as he then was) in Idundun & Ors. v Okumagba & Ors. (1976) 9 - 10 S.C. 227 at 246, where it was decided that there are five ways of proving title, namely: traditional evidence, acts of possession and ownership, documents of title, long possession and enjoyment of the land, and by proof of possession of adjoining lands under conditions stipulated by section 45 of the Evidence Act. ... But, in my opinion, the law has always taken the view that even where a person relies on acts of possession to establish title to land he must also prove the nature and origin of that possession. Hence in Ado v Wusu 4 W.A.C.A. 96 a possession of land by the defendant for nearly 200 years was held not to be enough, by itself, to establish title in him. Where, on the pleadings, it is shown that the possession of the land within living memory is as a result of long possession from a period beyond living memory, which per se, depends upon evidence of tradition, it is impossible to grant a declaration of title to the land based on the possession in recent times when evidence of tradition as pleaded is unavailing. In the case of Chief Odofin v Isaac Ayoola (1984) 11 S.C. 72, a case in which the plaintiffs pleaded acts of possession after a grant this Court stated at page 116:-

"If a party relies on, and pleads a grant as his root of title, he is under a duty to prove such grant to the satisfaction of the trial court. Other evidence of acts of possession after the grant will merely go to strengthen the grant. But where, as in this case, the proof of the grant is inconclusive, the bottom is knocked out of the plaintiff/appellant's claim. When his root ceases to stand, the stem and branches will fall with the root."

Again, in O.K.O. Mogaji & Ors. v Cadbury Nig. Ltd. & Ors (1985)7 S.C. 59 this Court, per Obaseki, J.S.C., at pp. 158 -160 discussed the principle in the often much misunderstood and misapplied case of Idundun v Okumagba (1976) 9 & 10 S.C. at pages 246 - 250. After adverting to the five ways by which title can be proved, he stated at p. 159 of Mogaji's case (supra):

"Learned Counsel citing Idundun's case contended that the appellants adduced sufficient evidence to entitle them to a declaration of title on the basis of long possession. Long possession is more of a weapon of defence on equitable grounds to defeat claims for declaration of title and trespass than of offence to establish a claim for a declaration of title and damages for trespass against the true owner. A claim for declaration of title is not founded on ownership by prescription under native law and custom. It should not be forgotten that appellants claim a declaration of title based on a grant under Yoruba native law and custom. Unless the origin of title is valid, the length of possession does not ripen invalid title of a trespasser to valid ownership title.

See Thomas v. Holder 12 W.A.C.A. 78 at 80

Jegede & Ors. v. Gbajumo & Ors. (1974) 10 S.C. 183 at 187

Da Costa v. Ikomi (1968) 1 All N.L.R. 394 at 398 - 399."

It appears clear to me from the authorities that where a plaintiff relies on long possession following traditional evidence and fails to prove the tradition upon which the possession is based he cannot get a declaration of title. Such is the case here. From the pleadings and the nature of the evidence which the respondent had given so far before the discontinuance of his suit, it is clear that he had completely destroyed the tradition upon which he relied. For the evidence which he had given is drastically in conflict with his pleading. It is, of course, settled that any evidence which is contrary to the pleading goes to no issue at all at the hearing: see Aniemeka Emegokwe v James Okadigbo (1973) 4 S.C. 113, p. 17; Ogboda v Adulugba (1971) 1 All N.L.R (part 1) 71. The argument that as a civil matter is decided on a preponderance of evidence, the respondent might still have succeeded in his case is, to me, a non-sequitur. All I can say is that taking the nature of the conflicts between the pleading and the evidence into account, it is difficult to say categorically that the respondent would still have succeeded.

Ogundare, J.C.A., in his own judgment placed reliance on the fact that it was the learned trial Judge who advised the respondent to withdraw when he was dazed in the witness box. With respects, quite apart from the fact that it was wrong for the learned trial Judge to appear to aid either side in its conduct of its case, I am of the view that if a plaintiff who is testifying in a case suddenly finds himself unable to continue on medical grounds - there is no clear evidence of this here - the proper course is to apply to adjourn the hearing to a date or time when he can continue his evidence, not to withdraw the case and hope to come again.

It is noteworthy that the learned Justice of Appeal found, as he must on the evidence so far given by the respondent, that:

"Clearly, the evidence given by the respondent so far was at variance with his statement of claim as regards his root of title."

But, unfortunately, he stopped short of considering the effect of that on the whole case, I seize this opportunity to state that, on principle, whenever a suit is being discontinued after some evidence has been given, a trial Judge is bound to consider the effect of the evidence so far given before he can correctly arrive at the proper order to make, if he gives leave for the withdrawal If the learned trial Judge and the Court of Appeal had adopted this course, they would have seen that, for the reasons I have given, the respondent had done an irretrievable damage to his own case before he applied to withdraw. The correct order in such a case would have been one of dismissal. For, although he had not closed his case as did the plaintiff in A, F. Sonekan v P.G Smith (1967) 1 All N.LR. 329, the resultant effect was the same. In Sonekall's case (supra) the plaintiff had closed his case when, because of the nature of the evidence given, he wanted to have a second bile at the cherry. And in this case the plaintiff had destroyed his case before he sought to withdraw, to come again. I believe that this Court stated the principle correctly in Soetan v Total Nig. Ltd. (1972) 1 All N.LR. (Part 1) 1 at p, 3 where it held, per Madarikan, J.S.C., thus:

"We think that the learned Judge was in error in making an order of dismissal in the instant case when there has been no litis contestation and when the determination was not made after hearing evidence of the whole or some fundamental part of the claim."

In my view the rationale of the rule is that once issues have been joined to be tried and the stage set for the conflict, then once a certain stage has been reached the plaintiff is no longer dominis lities and cannot be allowed to escape through the back door to enter again through another action.

For these reasons and the fuller reasons given by my learned brother, Obaseki, J.S.C., in his lead judgment I hold that the proper order is that of dismissal. I therefore also allow the appeal, dismiss the respondent's claim and subscribe to the other orders made in the lead judgment.





WALI, J.S.C.: The appeal is against the Judgment of the Court of Appeal, Enugu Division in which it affirmed the order of the High Court, Enugu Division presided over of Wachukwu wherein he struck out the Plaintiff/Respondent's case instead of dismissing it. Simply put, it is a challenge against the use of the discretionary power by the learned trial Judge as to whether, and on the facts before the Court and the circumstances in which the application by the Plaintiff/Respondent to discontinue with the case was made, he had judiciously and judicially applied his discretion in striking out the case.

The full facts of the case have been fully stated in the lead judgment of my learned brother, Obaseki, J.S.C. He has likewise dealt exhaustively with the issues raised and canvassed in his appeal; I entirely agree with the reasoning and the conclusion he arrived at of allowing the appeal and substituting the order of striking out with the order of dismissal. I hereby adopt these reasons as my own.

The plaintiff, Francis Iheuko, for himself and on behalf of Umuduru Ojiakpi Family of Ebom, Mbieri sued the Defendants in the High Court of the then East Central State of Nigeria, Owerri Judicial Division claiming for

"1(a) Declaration of title to all those parts or pieces of land in Ebom. Mbieri known as and called Abo-Nkwu, Uhu Ogwugwu, Ukwu-Uzi and Ikpa respectively. The annual value of the lands is estimated at N5.00.

(b) N400.00 Damages for Trespass

(c) Perpetual Injunction restraining the defendants, their agents and servants from further trespass to the land in dispute."

The claims were denied by the Defendants. Pleadings were ordered, filed and exchanged and issues joined.

Before the actual trial commenced, the plaintiffs applied and were granted leave to amend their Statement of Claim, and by the said amendment they claimed their root of title to the disputed parcels of land as follows:-

"5. The lands the subject-matter of the action belong to the plaintiff and his people from time immemorial. The lands have passed from one generation of the plaintiff before the plaintiff to the other until presently they have descended on the plaintiff. The lands are the plaintiff's by inheritance in accordance with their native laws and custom.

6. The lands originally belonged to Duruojiakpi of Ebom, Mbieri the predecessor in title of the plaintiff. Duruojiakpi was the great grand ancestor of the plaintiff. Duruojiakpi begat Nwaulu and Nwankwo. Before his decease Duruojiakpi shared his lands amongst his children including Nwaulu and Nwankwo. Nwaulu's share included the lands now in dispute. Nwaulu Duruojiakpi begat Iheuko and Ugwushie. Iheuko was the father of the plaintiff. After Nwaulu the lands passed in succession to his issues. They have now passed to the plaintiff who is the present head of the family."

The Defendants denied the allegation of facts contained in paragraphs 5 and 6 of the Amended Statement of Claim in paragraph 4 of their amended Statement of Defence.

Hearing in the case began on 13/4/83 after protracted adjournments. The first witness for the Plaintiff's case was Francis Iheuko, the Plaintiff and head of Iheuko's Family. In support of paragraphs 5 and 6 of the amended Statement of Claim he gave the following evidence -

"The lands in dispute belong to 'Umu Iheuko'. We are owners because our father farmed the land on his death the lands in dispute descended to us. The first of my ancestors to brush the virgin forest was Iheuko my late father. I now say that the first of my ancestors to brush the virgin forest was Nwaulu. Nwaulu begat Iheuko Ugwushie. Okwarauzo was the father of Nwaulu. Then Duruojiakpi was father to Okwarauzo."

The evidence quoted (supra) was contrary and not in line with the facts pleaded in paragraphs 5 and 6 of the amended Statement of Claim. To save his face, learned counsel for the Plaintiff, Nsofor Esq. came up with the following application-

"...Mr. Nsofor applied to withdraw the case. Mr. Iketuonye does not oppose but asks that the case be dismissed."

The learned trial Judge then ruled-

"At the stage in which Mr. Nsofor has applied to withdraw the suit was when the Plaintiff was still testifying in-Chief. In the circumstance, I think the proper order would be to strike out the suit with costs. Case is struck out with N100,00 costs to the Defendants."

The relevant Order and Rule of trial Court dealing with this type of application is Order 47 Rule 1 of the High Court Rules of East Central Stale, applicable to Imo State. Rule 1 of Order 47 provides-

"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 exparte 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."

From the foregoing, it is clear that the 2nd part of the Rule is the apposite provision and applicable to the present situation as it falls within the category of "any other case" after the "date fixed for hearing." In fact hearing had actually began in the present case; and in a situation like this, the Court has a discretion to grant the Plaintiff leave to withdraw or discontinue with the action on terms. But such a discretion must be judicially and judiciously used and applied, taking into consideration the facts and the circumstances of the case.

At the stage the application to withdraw the case was made and which the learned trial Judge granted, the proper course for him to take, was to consider the evidence so far adduced vis-a-vis the pleadings to enable him make the correct order, which would inevitably be one of dismissal having regard to the Plaintiffs evidence which had completely destroyed his case.

See Olayinka Rodrigues & Ors. v. The Public Trustees & Ors. (1977) 4 S.C. 29 and Ifi Izieme & Ors. v. Ijeoma Ndokwu & Ors. (1976) 1 All N.L.R. (Pt.1) 189.

It is for these and the more detailed reasons in the lead Judgment of my learned brother, Obaseki, J.S.C., that I too will allow this appeal, set aside the order of striking out the suit and substitute it with the one of dismissal. I abide by the order as to costs made in the lead Judgment.



Appeal Allowed.

         
Appearances
             
A.B.C. Iketuonye, S.A.N. (with him, C.A. Ajuyah) For the Appelants
             
E.T. Nsofor For the Respondents