KEHINDE V. OGUNBUNMI & ORS.

• Pages: 317-321

KEHINDE V. OGUNBUNMI & ORS.

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317

Mr. Braithwaite in support of his application, we are of the view that the trial judge

exercised his discretion in giving unconditional leave to discontinue on insuffi-

cient grounds, and we consider that in justice to the first defendant the plaintiff

ought to have been denied the opportunity of instituting fresh action against the

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first defendant for the same cause of action.

The result is that this appeal will be allowed; the order made by Alexander, J.,

on the 12th November, 1964, is hereby set aside in so far as it affects the first de-

fendant and the following order is substituted therefor:-

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"It is hereby ordered that the plaintiff be allowed to discontinue this suit upon

the terms that he shall not bring any other action against the first defendant in

respect of the present cause of action."

but the order for payment of 13 guineas costs by the plaintiff to the first defendant

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will remain. The first defendant is awarded costs in this Court assessed at 52

guineas.

Appeal allowed.

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KEHINDE V. OGUNBUNMI & ORS.

25 SANNI KEHINDE (MOGAJI AGUNBIADE)

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APPELLANT

V

AMOLE OGUNBUNMI AND OTHERS

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RESPONDENTS

SUIT NO. SC 65

4

/

1

965

SUPREME COURT OF NIGERIA

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BRETT,

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J.S.C.

LEWIS,

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J.S.C.

MADARIKAN,

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J.S.C.

22nd December, 1967

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Civil Action - Practice and Procedure - Representative action - No requirement

that plaintiffs should (a) appear in person or (b) give evidence

Words and Phrases - 'Appears' in 0.26, r.6 of High Cowl' (Civil Procedure)

Rules (W.N.).

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ISSUES:

1. Whether there is a legal requirement that a plaintiff in a representative action

must attend the proceedings or give evidence as proof of such representative

capacity.

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2. Whether a trial Judge is empowered to strike out a suit

in limine

merely because

he is of the view that a plaintiff's claim will fail unless a particular witness is

called.

3. Whether a plaintiff, who though not present in person, but has instructed a legal

practitioner who appears in person, can be said to have appeared within the

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meaning of Order 26 rule 6 of the High Court (Civil Procedure) Rules.

FACTS:

The

plaintiff sued in the High Court claiming a declaration of title and an injunc-

tion to restrain trespass. The writ described him as suing in a representative ca-

pacity and when the case came up for hearing , he was not present in court but