COURT OF APPEAL
DATE: 9 NOVEMBER 1959
BEFORE: KORSAH C.J., VAN LARE AND GRANVILLE SHARP
JJ.A.
CASE REFERRED TOAwortwi v. Hendersons Ltd. (1926) F. C. `26-`29, 139.
NATURE OF PROCEEDINGS
APPEAL against a decision of the Divisional Court, remitting an action for damages for trespass and conversion to a magistrate’s court for hearing and determination.
COUNSEL
Dr. J. B. Danquah for the appellants.
No appearance by or on behalf of the respondent.
JUDGMENT OF KORSAH C.J.
Korsah C.J. delivered the judgment of the court. The plaintiff instituted this action in the district magistrate’s court claiming £G100 damages for trespass and conversion of goods against the defendants.
At the hearing counsel for the defendants raised a preliminary objection indicating that this was the third time the plaintiff had brought this action based on the same facts as disclosed in the writ, against the same defendants. He stated that in the first instance the plaintiff through his counsel asked for and was granted leave to withdraw with liberty to bring a fresh action. The plaintiff instituted a second action based on the same facts. When the matter came for hearing, the plaintiff’s counsel asked for leave of the court for an adjournment in order to re-consider his action. Later the plaintiff through his counsel filed a notice of discontinuance. Relying on Order 39, r. 1 of the Second Schedule to the Courts Ordinance, Cap. 4 (1951 Rev.), counsel for the defendants asked the court to strike out the suit on the ground that no leave to bring a fresh action had been obtained, after the discontinuance of the second suit without leave of the court.
Counsel for the plaintiff did not dispute the above facts, but relying on the same Order 39, r. 1, contended that, “The notice of discontinuance was filed when the matter had not come to court so that on the appointed date of hearing there was no suit between the parties.” To this counsel for the defendants replied, “The second writ was put down for hearing on 25 June 1958. The date of the notice of discontinuance is 30 July 1958 when the case had already been
[p.190] of [1967] GLR 188
called and some arguments had been advanced.” The learned magistrate upheld the objection holding that the plaintiff was estopped from bringing a fresh action and in the circumstances dismissed the suit.
On appeal to the Divisional Court, the learned judge gave the following judgment:
“I hold the view that in this case the discontinuance did not operate as an estoppel to entitle the defendants to plead res judicata. I remit the case to the Senior Magistrate’s Court, Takoradi, for hearing and determination.” The whole case hinges upon the interpretation of Order 39, r. 1 which reads:
“If before the date fixed for the hearing the plaintiff desires to ‘discontinue any suit against all or any of the defendants, or to withdraw any part of his alleged 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 parts 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 todiscontinue any suit or to withdraw any part of his alleged claim, or if a defendant desires to discontinue or withdraw his counterclaim or any part thereof, such discontinuance or withdrawal may in the discretion of the Court be allowed on such terms as to costs and as to any subsequent suit and otherwise as to the Court may seem just.”
The rule is in two parts, the first of which relates to discontinuance before the date fixed for the hearing of the case: “Such discontinuance or withdrawal shall not be a defence to any subsequent suit.” The second part of the same rule begins with the words: “If in any other case the plaintiff desires to discontinue any suit, etc. “ The expression “In any other case” must be intended to relate to matters wherein application for discontinuance or withdrawal is made or filed after the date fixed for hearing. This can mean nothing more than the period after a hearing date has been fixed; which in this case was 25 June 1958. It follows that if the notice of discontinuance was given not before that date, the consequence of part two of the rule will operate
[p.191] of [1967] GLR 188
to preclude the party from bringing a fresh action on the same facts unless he has obtained leave to do so in the exercise of the discretion of the court; but if such 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.
In Awortwi v. Hendersons Ltd. (1926) F. C. ‘26-’29, 139 at p. 145, Michelin J. said: “The provisions contained in this rule, although not identical with, are analogous to the provisions contained in Order 26, rule 1, of the Imperial Rules of the Supreme Court. The construction to be placed on that rule, in the cases where the plaintiff has to obtain the leave of the Court ‘to discontinue’ was definitely decided by the judgment of the Court of Appeal, in the case of Fox v. Star Newspaper Company (1898) L.R. 1 Q.B.D. 636, which was subsequently upheld by the House of Lords (see L. R. (1900) Appeal Cases, 19) where 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 for the same subject matter.” Having regard to the fact that the plaintiff-respondent does not dispute that the cause of action which he seeks to litigate afresh by the issue of the writ of summons in this third suit was in substance the same as that which had been the subject of the two previous suits, the last of which was discontinued without leave to bring a fresh action, the objection was well founded and the plaintiff is estopped from bringing the third action. We therefore uphold the judgment of the district magistrate in dismissing the suit. We are therefore unable to agree with the learned judge, who on appeal from the judgment of the district magistrate, remitted the case to the magistrate’s court for hearing and determination. There is nothing on the record of the proceedings to support the view taken by the learned judge thus: “I hold the view that in this case the discontinuance did not operate as an estoppel to entitle the defendants to plead res judicata. “ The learned judge has not stated any reasons why in his view the discontinuance without leave as in this case did not operate as an estoppel. We allow this appeal with costs for the appellant fixed at £G27 8s. 6d.
DECISION
Appeal allowed.
S.Y.B.B.
