HIGH COURT, SUNYANI
30 JULY 1974
OSEI-HWERE J
CASES REFERRED TO
(1) Hess v. Labouchere (1898) 14 T.L.R. 350, C.A.
(2) Fox v. Star Newspaper Ltd. [1900] A.C. 19; 69 L.J. Q.B. 117; 81 L.T. 562; 48 W.R. 321; 16 T.L.R. 97; 44 S.J. 116, H.L. affirming [1898] 1 Q.B. 636, C.A. [p.26] of [1975] 1 GLR 25
(3) Nmako Salt Concession; Concession Enquiry No. 1120 (Accra) [1961] G.L.R. 354.
(4) Amoako Atta II v. Osei Kofi II [1962] 1 G.L.R. 384.
(5) Ahenkora II v. Kumah (1963) 1 G.LR. 77.
(6) Pan African Metals Ltd. v. Aaron Ibe, Court of Appeal, Cyclostyled Judgments, July-December 1959, p. 54.
(7) Biei v. Assah (1953) 14 W.A.C.A. 303.
(8) Kronprinz (Cargo Owners) v. Owners of Kronprinz; The Ardandhu (1887) 12 App.Cas. 256; 56 L.J.P. 49; 56 L.T 345; 35 W.R. 783; 6 Asp.M.L.C 124, H.L
(9) In re Agyepong (Decd.); Donkor v. Agyepong [1973] 1 G.L.R. 326, C.A.
NATURE OF PROCEEDINGS
PRELIMINARY ISSUE as to whether the plaintiff who had discontinued a former action by leave of the court was estopped from bringing the present action. The facts are sufficiently set out in the ruling.
COUNSEL
Munufie for the plaintiff.
Oppong for the defendants.
JUDGMENT OF OSEI-HWERE J
This is a preliminary issue, raised in limine, calling on the court to decide whether or not the plaintiff is estopped from instituting this present action. By their affidavit in support of the application the defendants contended in inter alia:
“(7) That the plaintiff in suit No. H.C.24/68 sued Opanin Kwadwo Nyame predecessor of the first defendant and the second defendant seeking a declaration that the appointment of the second defendant Kwabena Sikayena as customary successor of the late Kwadwo Asare by the first defendant Kwadwo Nyame without the consent and concurrence of the Sunyani Branch of the Akontanim Krontire family is null and void.
(8) That in the present action apart from the order for accounts, the plaintiff is claiming a ‘declaration that the appointment of the second defendant as customary successor of the late Kwadwo Asare by Kwadwo Nyame (deceased) to whom the first defendant has succeeded without the consent and concurrence of the members of the Sunyani branch of the Krontire family of Akontanim is null and void.’
(9) That the same plaintiff has sued the same parties about the same subject-matter; the order for accounts flows from the declaration.
(10) That in respect of suit No. HC.24/68, the plaintiff was represented by counsel and on 27 October 1971 the plaintiff acting through his counsel filed a notice of discontinuance a copy of which was served on the solicitor for the defendants on the same day.
[p.27] of [1975] 1 GLR 25
(11) That that cause had been fixed for hearing on 27 October 1971 and the parties and their respective counsel appeared before this honourable court and the plaintiff through his counsel unequivocally discontinued his action against the defendants without liberty. I attach herewith a copy each of the notice of discontinuance and the proceedings of this honourable court marked A and B respectively
The notice of discontinuance filed by the plaintiff’s solicitor in the former suit referred to is in the usual form and it is thus set out: “Please take notice that the plaintiff herein intends to discontinue the present action wholly against the defendants.” Following the above notice the court, in the presence of counsel for both parties, made this order, “Suit struck out. No order as to costs.” The court then proceeded to discharge the injunction it had earlier placed on certain lands relating to that suit.
At the hearing of this application counsel for the plaintiff sought and was granted leave to amend the first claim endorsed on his writ of summons as well as paragraph (30) (a) of his statement of claim. This amendment was effected by merely adding to that original claim the words “in view of the findings of an arbitration of Mabanhene.” Otherwise this claim is the same as in the former suit except that the plaintiff sues here also for “an account to be taken of the proceeds from the farms and other properties had and received as a result of his wrongful appointment as customary successor to the late Kwadwo Asare.” In regard to the parties in both suits the plaintiff and the second defendant remain the same. The first defendant in the former suit is now deceased and his successor had been sued as the first defendant in the present suit. The parties, therefore, remain substantially the same in both suits. I do not think that any amount of the plaintiff’s counsel’s philandering with the amendment as well as with the pleadings can persuade me to deny that the claim endorsed on the writ of the former suit and the first claim endorsed herein are the same. I disagree with the defendant’s counsel, however, that the claim for account only flows from the declaration sought. Each claim endorsed on the writ in this action constitutes a distinct cause of action. If, therefore, it were to be held that the plaintiff by withdrawing his former action is barred from bringing subsequent action because he had not asked the leave of the court to do so that bar will leave unaffected his action for account.
The main deciding factor in the resolution of this preliminary issue is the effect of the discontinuance of the former action which was sought for and was granted to the plaintiff. Order 26, r. 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), regulates, inter alia, the discontinuance of an action by the plaintiff. The rule contemplates two situations, viz.—where the plaintiff can discontinue without leave of the court or a judge and where he can discontinue only with the leave of the court or a judge. Where the conditions prescribed for withdrawing with leave subsist the rule provides that,
“it shall not be competent for the plaintiff to … discontinue the action without leave of the Court or a Judge, but the Court or a Judge may, before, or at, or after the hearing or trial, upon such terms
[p.28] of [1975] 1 GLR 25
as to costs, and as to any other action, and otherwise as may be just, order the action to be discontinued . . .
The court, therefore, has a wide discretion as to the terms upon which it may grant leave to a plaintiff to discontinue the action. The court, for instance, will consider all the circumstances, and, if it seems just, will impose a term that no other action shall be brought: see Hess v. Labouchere (1898) 14 T.L.R. 350, C.A. It may, in like manner, refuse leave to discontinue and give judgment for the defendant: see Fox v. Star Newspaper Ltd. [1898] 1 Q.B. 636, C.A.
It is the contention of the defendants’ counsel that as the plaintiff unequivocally discontinued the former action and was not given the liberty to bring a fresh action he is estopped in bringing the same action here. In support of this proposition he relied on three cases, viz. Nmako Salt Concession [1961] G.L.R. 354; Amoako Atta II v. Osei Kofi II [1962] 1 G.L.R. 384 and Ahenkora II v. Kumah [1963] 1 G.L.R. 77. All these decisions it must be noted, are decisions of the High Court which, although not binding on me, must be accorded the greatest respect. It is, indeed, true that in the Nmako Salt Concession case (supra) the opposer was held by Adumua-Bossman J. (as he then was) to be estopped per rem judicatam from litigating the issue of title in view of the withdrawal by his predecessor of the claim for title in a former case. It becomes quite clear, on reading the judgment, that the opposer’s predecessor in title had by his clear and unequivocal conduct relinquished all claims of ownership to the land in dispute. He did this by withdrawing his claim for ownership of the land which he had made in his writ of summons and sought and obtained amendment of the summons to exclude the claim for ownership of the land. He was minded to withdraw this claim when the then James Town Mantse joined as a co-defendant to contest the claim for ownership. It was not sought to lay down a general principle of law in the Nmako Salt Concession case that once a claim is withdrawn then the party withdrawing will be estopped per rem judicatam from re-litigating that claim. It seems to me that the circumstances of the withdrawal must be taken into account in considering whether estoppel will operate. In effect the merits of each case must be separately considered.
In Amoako Atta II v. Osei Kofi II, Ollennu J. (as he then was) held that as there was no record that the plaintiff had discontinued in a former suit without leave to institute a fresh action the defendant was not entitled to rely on estoppel per rem judicatam to defeat the plaintiff’s present action. Amoako Atta II v. Osei Kofi II seems to me, by itself, to defeat the estoppel pleaded by the defendants’ counsel. In Ahenkora II v. Kumah Apaloo J. (as he then was) held as stated in the headnote:
“(5) By reason of the unconditional withdrawal of the former suit and the fact that the res litiga in that action was the same as the one in the instant suit, the plaintiffs were estopped from maintaining an action in respect of that same debt. An action withdrawn without liberty is, for all purposes, determined.”
[p.29] of [1975] 1 GLR 25
In coming to the above decision Apaloo J. (as he then was) applied the Court of Appeal decision of Pan African Metals Ltd. v. Aaron Ibe, Cyclostyled Judgments, July-December 1959, p. 54, unreported, where the court held that where a party obtains unconditional leave to discontinue or withdraw his action he cannot thereafter in any circumstances bring a fresh action on the same facts. The Pan African Metals case itself was buttressed on the case of Fox v. Star Newspaper Ltd. (supra) which was subsequently approved by the House of Lords in [1900] A.C. 19. There it was held that when the plaintiff has to obtain leave it is only by the discretion of the judge that he can discontinue with the right of bringing another action. Chitty L.J. in his judgment in the Court of Appeal in Fox v. Star Newspaper Ltd. [1898] 1 Q.B. 636 when discussing the English Order 26, r. I which is in pari materia with our Order 26, r. 1 said at p. 639:
“The principle of the rule is plain. It is that after the proceedings have reached a certain stage the plaintiff, who has brought his adversary into court, shall not be able to escape by a side door and avoid the contest. He is then no longer dominus litis, and it is for the judge to say whether the action shall be discontinued or not and upon what terms. I think it would be a great error to construe the rule by reference to the old meaning of the term ‘discontinuance’ or any mere technical sense of words. The substance of the provision 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.”
It is rather unfortunate that our highest courts have given the very harsh interpretation to the construction placed by the Court of Appeal on the rule regulating discontinuance with leave in Fox v. Star Newspaper Ltd. Our courts have interpreted the ruling that it is only by the discretion of the judge that the plaintiff can discontinue with the right to bring another action to mean that where the plaintiff discontinues with the leave of the court and he does not obtain leave to bring a fresh action he will be estopped from doing so: see Biei v. Assah (1953) 14 W.A.C.A. 303 at p. 305. I think that the better interpretation of the construction placed on the rule should be that where the discontinuance is with leave, unless the order giving the leave expressly prohibits the commencement of a fresh action it must be no bar to the plaintiff bringing a fresh action except the nature of the order concludes the matter between the parties. Where the order merely strikes out the action which is discontinued but is silent as to the right of commencing a fresh action it must not operate as a bar to the plaintiff. Where, on the other hand, it dismisses the action and it is silent as to the right to bring a fresh action it must operate as an estoppel. In the Owners of the Cargo of the Kronprinz v. Owners of the Kronprinz; Ardandhu (1887) 12 App.Cas. 256, H.L. it was laid down by Lord Herschell at p. 262 that the judge’s order to discontinue, unless it were made a condition of the discontinuance that no other action should be
[p.30] of [1975] 1 GLR 25
brought, would not operate as a bar. At pp. 259-260 of this same case Lord Halsbury L.C. pointed out the distinction between discountinuance and dismissal thus:
“It would have been easy to have said that ‘this action shall be dismissed;’ and if they had said that, it is admitted that as between these two parties a bar would have been created which would have prevented any further proceeding. But they deliberately (for people must be supposed to intend the reasonable consequences of their acts) adopted language which can only be used if it is the intention of the parties to leave themselves at large so as to reassert their rights if they please.”
And at p. 262 Lord Herschell said, “an order for discontinuance does not of itself operate as a release or an extinguishment of the claims, or in any other way bar further proceedings.”
In the instant case the suit was simply struck out following the application to the court to discontinue and the court made no order as to costs. I am satisfied that from the authority of The Kronprinz (supra) that the plaintiff cannot be barred from instituting this action as the court did not expressly forbid the plaintiff from instituting any fresh action, as it did in Hess v. Labouchere (supra), and the suit was also merely struck out and not dismissed. Indeed the absence of costs awarded against the plaintiff suggests to me that the court did not intend by the striking out that the matter should be concluded as determined between the parties. In Biei v. Assah (supra) the court held that in certain circumstances the plaintiff will be estopped from maintaining a subsequent action where no leave to sue again has been given in the previous suit. The court, however, warned that those circumstances were questions of fact which ought not to have been decided on the records of the earlier litigation only without allowing the plaintiff to lead evidence. Where it is the obvious intention of the parties, for instance, that the withdrawal should not conclude the matter between them it will, in my opinion, be wrong for the court to rule that estoppel will operate simply because the plaintiff did not expressly obtain the leave of the court to bring a fresh action.
Counsel for the plaintiff, undoubtedly, found the decision in Ahenkora II v. Kumah rather irksome (as it was grounded on the authority of our Court of Appeal decision). That is why he sought to show that the res litiga in both cases are not the same—the former seeking a declaration that the appointment is null and void because it was without the consent and concurrence of the branch of the family at Sunyani and the present action asking for a declaration that the appointment is null and void by reason of an earlier arbitration deciding the matter. I have already held that the res litiga in the former case and in the first claim of the present case are substantially the same as both ask for a declaration that the appointment is null and void. However, by reason of the nature of the order made by the court in accepting the plaintiff’s application for discontinuance and by reason of the absence of any record that the plaintiff
[p.31] of [1975] 1 GLR 25
was expressly forbidden to bring any subsequent action on the same matter I cannot hold that the plaintiff is estopped. I come to this conclusion not unmindful of the decision in Pan African Metals Ltd v. Aaron I be (supra) which is after all a pre-1966 decision of the Court of Appeal and which, as recognised, has no binding effect on any court after October 1966: see the dicta of Apaloo J.A. in In re Agyepong (Decd.) [1973] 1 G.L.R. 326 at p. 332, C.A. I accordingly hold that no estoppel can operate against the plaintiff.
DECISION
Order accordingly.
Action to proceed.
J. D.
