HIGH COURT, KOFORIDUA
Date: 17 MARCH 1975
QUASHIE-SAM J
NATURE OF PROCEEDINGS
APPEAL from a judgment of the District Court Grade II, Suhum, in which the trial magistrate on his own motion reviewed an order of discontinuance granted to the plaintiffs. The facts are sufficiently stated in the judgment.
COUNSEL
Ayisi for the plaintiffs.
Asante Tannor for the defendants.
JUDGMENT OF QUASHIE-SAM J.
The plaintiffs-appellants (hereafter referred to as the plaintiffs) appeal against the judgment of the District Court Grade II, Suhum, in which they lost to the defendants-respondents (hereafter referred to as the defendants) on their claim for (a) declaration of title to land situate at Mankrong near Asuboi and defined as to its boundaries in the writ of summons, (b) recovery of possession, (c) damages for trespass (d) perpetual injunction and (e) account.
The appeal was heard and allowed on 17 January 1975 by my order, setting aside the judgment of the lower court dated 9 August 1973 together with its order for costs and awarding the plaintiffs 040.00 costs in this court, and reserving my reasons therefor. I now give the reasons for allowing the appeal.
The brief background of the judgment complained of is that on 23 November 1972 the plaintiffs opened their case in the lower court, the second plaintiff giving evidence for himself and on behalf of the first plaintiff. He was cross-examined by the first defendant on behalf of himself and the second defendant and duly re-examined by counsel for the plaintiffs. The case was then adjourned to 27 November 1972 for further hearing, on which date no further hearing took place. It was therefore adjourned to 14 December 1972 still for further hearing. On 14 December 1972, the first plaintiff also gave evidence even though the proceedings on the first hearing showed that the second plaintiff was giving evidence on behalf of both plaintiffs. He was also cross-examined by the first defendant and further hearing adjourned to 16 January 1973 on which date there was no hearing but the court adjourned to 1 February 1973 for
[p.299] of [1975] 1 GLR 297
continuation. On 1 February 1973 the plaintiffs’ first witness gave evidence, was cross-examined by the first defendant and further hearing was adjourned to 15 February 1973 on which date the court adjourned to 8 March 1973 for continuation. On 8 March 1973, the court adjourned further hearing to 29 March 1973 then to 17 May 1973, then to 31 May 1973, then to 18 June 1973. On all these dates there was no further hearing.
Before 18 June 1973, the plaintiffs by their solicitor filed notice of discontinuance on 14 June 1973, discontinuing against the defendants and on 18 June 1973, the trial court made the following order: “Upon notice to discontinue case filed by the plaintiffs’ counsel this case is struck out with costs for defendants assessed at 44.00.”
A month later, on 19 July 1973, the lower court suo motu made and caused to be served on the parties the following order:
“The parties herein are to take notice that this court intends to review its decision made on 18 June 1973 on court’s own motion by virtue of Order 42, rr. 1 and 2 of the Courts Ordinance, Cap. 4 (1951 Rev.). Copies of this order together with hearing notices are to be served on the parties. Adjourned to 9 August 1973.”
On 9 August 1973 the defendants’ and the plaintiffs’ counsel being present the court below proceeded as follows:
“This is an order on court’s own motion to review its decision made on 18 June 1973. The plaintiffs have sued the defendants for title and recovery of possession of the disputed land as described in the writ of summons and also damages for trespass. The plaintiffs have adduced evidence and called two witnesses who testified at the instance of the plaintiffs. The case for the plaintiffs was almost closed when counsel submitted an application asking for leave to discontinue the case. This court has on 18 June 1973, by error of judgment, accepted the application for discontinuation but in the opinion of this court the order was unjustified since the plaintiffs have adduced evidence and called witnesses.
The plaintiffs by their evidence on record failed to establish their claim of title to the disputed land and judgment must in the circumstances be entered in favour of the defendants. And accordingly, I enter judgment in favour of the defendants with costs assessed at 45.95.”
This then is the judgment from which the appeal is brought on three grounds, namely:
“(a) The decision cannot be supported by any rule of law or procedure.
(b) The learned magistrate was wrong in rescinding his decision of 18 June 1973 on his own motion and writing a further judgment in its place.
(c) The learned magistrate acted functus officio when he wrote and delivered his judgment on 9 August 1973.”
[p.300] of [1975] 1 GLR 297
In arguing the appeal, learned counsel for the plaintiffs submitted that the plaintiffs having discontinued their action, the court became functus officio by virtue of its own order of 18 June 1973 wherefore the court acted ultra vires in purporting to exercise review powers under Order 42, rr. 1 and 2 of the Courts Ordinance, Cap. 4 (1951 Rev.), Sched. II without an application by any of the parties. Learned counsel for the defendants rightly conceded to these submissions, and stated that he could not support the judgment of the lower court.
When a plaintiff in litigation decides to discontinue his action and does so as in this case, especially at a time when his case is not closed, the powers of the court are ended as far as further hearing is concerned. The court has no discretion to exercise except in the matter of costs. The court then becomes functus officio. It has no power suo motu to summon the parties to court again and, for any reason, set aside its order of discontinuance and give judgment one way or the other as was done in this case. To do so will give the impression on the face of such a judgment that the matter had been fully contested to conclusion and judgment given on the merits of the case capable of operating as estoppel per rem judicatam when that is not the true position; the correct position in this instant case being that the plaintiffs had not even closed their case for the defence to open and for the issues joined between the parties to be judiciously determined.
When therefore the court below said that it accepted the discontinuance on 18 June 1973 by error of judgment because the plaintiffs’ case was part heard, that was a serious misdirection leading to the erroneous judgment of 9 August 1973.
For these reasons, I allowed the appeal.
DECISION
Appeal allowed.
S. O.
