ODOGWU & ORS V. ASIWE

• Pages: 230-231

230

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NIGERIAN SUPREME COURT

CASES

[19641 N.S.G.G.

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ODOGWU & ORS V. ASIWE

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5

1.

PHILLIP CDOGWU

2.

JOHN MAMA

3.

OBAMEDO

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(on behalf of themselves

and the people of

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APPELLANTS

Idumuileja Quarter of Umunede

V

ASIWE

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RESPONDENT

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15

SUIT NO. SC 315/1964

SUPREME COURT OF

NIGERIA

BAIRAMIAN,

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J.S.C.

ONYEAMA,

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J.S.C.

AJEGBO,

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J.S.C.

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20

28th October, 1964.

Civil Action - Practice and Procedure - Application to withdraw on hearing date

- Judge dismissed suit instead - Wrong course - Judge should have allowed

application with costs - Appeal allowed.

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ISSUES:

1.

Whether the trial court would be making the proper order in an application to

withdraw a claim by dismissing the case.

2.

What should the Supreme Court decree on appeal in such a situation.

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FACTS:

The plaintiffs' counsel had applied to withdraw the case. The trial Judge looked

at the pleadings and discovered that the parties referred to an earlier suit on the

same subject matter and holding that the plaintiffs were estopped from bringing

an action like this, dismissed the case.

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The plaintiffs appealed to the Supreme Court.

HELD:

1.

The duty of the Supreme Court is to replace what in its opinion should be the

proper decision, i.e. in the instant case - that the case be withdrawn and costs

be awarded against the plaintiffs.

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2.

The trial judge was wrong to dismiss a claim which relates to the pleadings and

accordingly the right order is that leave should be granted to the plaintiffs to

withdraw the claim with costs against the said plaintiffs.

G.C.M.

Onyluke

(with him

Mr.

C.

Obi)

for appellants.

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Mr. F.O. Awogu

for respondent.

BAIRAMIAN, J.S.C.

(Delivering the Judgment of the Court): On the day when

this suit was called on for hearing in the High Court at Benin, the Plaintiffs' counsel

applied to withdraw the claim whereupon defendant's counsel said that the claim

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should be dismissed; and then the Court went on to say, in what looks like a

judgment, that both parties had pleaded the judgment in a certain former suit which

went up on appeal and was upheld; that paragraph 5 of the defence referred, and

that in the circumstances, the plaintiffs were estopped from disputing the