3PLR – AKERELE V. MABODU

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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M.A. AKERELE

V.

A.L MABODU

FEDERAL SUPREME COURT OF NIGERIA

14TH JULY, 1960.

FSC. 272/1959

3PLR/1960/16 (SC)

OTHER CITATIONS

BEFORE THEIR LORDSHIPS

SIR ADETOKUNBO ADEMOLA, C.J.F. (Presided)

C. NAGEON DE LESTANG, C.J. High Court of Lagos

MYLES JOHN ABBOTT, F.J.

PERCIVAL CYRIL HUBBARD, AG. F.J. (Read the Judgment of the Court)

JOHN IDOWU CONRAD TAYLOR, AG. F.J.

EDITORS

[Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Eleanya Kalu, Eleanya Ugochi Vine]

MAIN ISSUES

PRACTICE AND PRECEDENT – ACTION: Withdrawal of action – Effect on subsequent action.

PRACTICE AND PRECEDENT – JUDICIAL PRECEDENT: Decision in Biei v Assah 14 WA CA 303 at 305 – Effect thereof

PRACTICE AND PROCEDURE – Withdrawal of action – Filing of fresh ac­tion thereafter- Principles applicable.

REPRESENTATION

1. Moore (A.K.I. Makanju with him) -for the Appellant.
2. Ogunsanya for the Respondent.

MAIN JUDGMENT

HUBBARD, AG. F.J.

(Delivering the Judgment of the Court):

This is an appeal from a judgment of the High Court of Lagos striking out the appel­lant’s action on the ground that a previous action brought by him for the same subject matter had been struck out without leave being given to him to bring a fresh action.

Mr. Moore, who appeared for the appellant, argued only one substan­tial ground of appeal, which turned upon the construction put by the West African Court of Appeal in its judgment in Yaw Biei v. Kwame Assah (14 W.A.C.A. 303, at p. 305) upon certain words in the final sentence of the judgment of Chitty, L.J. in Fox v. Star Newspaper Company (1898, 1 Q.B. 636, at p. 639). The final sentence of that judgment reads as follows: “The substance of the provision” (0.16, R..1) “is that, after a stage of the action has been reached at which the adversaries are meeting face to face, it shall only be in the discretion of the Judge whether the plaintiff shall be allowed to withdraw from the action so as to retain the right of bringing another action for the same subject-matter.” The West African Court of Appeal construed the latter part of this sentence as meaning that a plaintiff who withdraws his action with the leave of the Court can only bring a fresh action if the order granting him leave expressly provides that he may, whereas, with respect, I am clearly of opinion that the words “so as to retain the right of bringing another action for the same subject-matter” merely indicate the result in law of an order granting leave “simpliciter.” That this is so is shown by Hess v. Labouchere (1898, 14 T.L.R. 350) where the following passage occurs in the judgment of Smith L.J., reported in “ratio obliqua”: “Generally, in allowing a plaintiff to discontinue his action, the Court would consider whether they should not make it a condition that he should not be at liberty to bring another action.” Chitty, L.J., from whose judgment in Fox v. Star Newspaper Company I have already quoted, delivered judgment in Hess v. Lahouchere to the same effect as the judgment of Smith, L.J. Hess v. Lahouchere was not cited to the West African Court of Appeal in Biei v. Assah.

It is clear from these authorities that unless at the time of granting leave to withdraw it is made a condition that the plaintiff shall not bring a fresh ac­tion, he may do so. The cases cited are cases on the English rule (0. 16, r. 1), but, in my view, the same construction should be put on our own rule, (0.44, r.l(2).)

I am of opinion, therefore, with respect, that the learned Judges of the West African Court of Appeal erred in holding that an order granting leave to withdraw “simpliciter” prevents a plaintiff from bringing a fresh action.

In the instant case the appellant had brought a previous action (suit LD/ 258/57) which, on his application for leave to withdraw it, was struck out on 14th August, 1958. On 27th November, 1958, he commenced a fresh action (LD/352/58) for the same subject matter. The respondent in paragraph 17 of his Statement of Defence pleaded that the appellant was estopped from br­inging his action by reason of the decision in suit LD/258/57. Onyeama J., in his judgment now under appeal, held that he was bound by the judgment of the West African Court of Appeal in Biei v. Assah and struck out the action.

For the reasons which I have given I am of opinion that the appellant was entitled to bring a fresh action, that it should not have been struck out, and I would allow the appeal, set aside the order of the Court below striking out the action, and order that the action be tried. I would allow the appellant thirty-six guineas costs of this appeal.

ADEMOLA, C.J.F.: I concur.

DE LESTANG, C.J., LAGOS:

I concur.

ABBOTT, F.J.: I concur.

TAYLOR, AG. F.J.: I concur.

Appeal Allowed.

Re-trial Ordered.