SONEKAN V. SMITH

• Pages: 314-317

314

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NIGERIAN SUPREME COURT CASES

[1967j N.S.C.C.

SONEKAN V. SMITH

5

A.F. SONEKAN

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APPELLANT

V.

P.G. SMITH

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RESPONDENT

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10

SUIT NO. SC 687/1965

SUPREME COURT OF NIGERIA

BRETT,

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J.S.C.

LEWIS,

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J.S.C.

MADARIKAN,

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J.S.C.

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15

22nd December, 1967

Civil Action - Appeal to Supreme Court - Unconditional leave to discontinue

action - Judge's exercise of discretion to grant leave reviewed - Supreme

Court (Civil Procedure) Rules, 1945, 0.44, r.1(2).

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ISSUE:

1.

Whether a Judge may exercise his discretion under 0.44, r.1(2) of the Supreme

Court (Civil Procedure) Rules, 1945 to grant leave to discontinue an action to

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a plaintiff with liberty to bring another suit against a defendant for the same

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25

action.

FACTS:

The plaintiff claimed for money received from him by the second defendant in

January 1960 for the assignment to the plaintiff by the first defendant (appellant)

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of a certain plot of land subsequently sold by the first defendant to another per-

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30

son.

In the course of his case, the plaintiff tendered a certified true copy of the reg-

ister of titles showing one S as the registered owner of the land in May 1961. After

the plaintiff closed his case the first defendant testified that he sold the land to S

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and one G. He tendered a letter written to him by the Lagos Executive Develop-

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35

ment Board in 1960, to which he had replied confirming that he had sold the

property to S. and G. He went on to say that he did not remember any discussion

with the second defendant after depositing a certain sum in the latter's account.

At this stage, Plaintiff's counsel, who first appeared after pleadings were de-

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livered applied for leave to discontinue without being barred from bringing an-

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other suit under 0.44, r.1(2) of the Supreme Court (Civil Proceduce) Rules, 1945

He based his application on the reason that the plaintiff's rights far exceeded his

present claim. He further stated that there were others who should in the interests

of justice be joined so as to determine the real issues between the parties, and that

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if their side had seen that letter earlier much time and expense would have been

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saved. He urged that a fresh action against "the right parties" would enable the

court to order rectification of the register.

The trial Judge granted leave to discontinue with liberty to bring another suit.

The first defendant appealed, his counsel arguing that in all the circumstances

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the plaintiff ought not to have been given liberty to institute fresh proceedings for

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the same cause of action He pointed out that when the letter was written by the

L.E.D.B. a copy was endorsed to the solicitor then representing the plaintiff, and

he contended further that the material facts in the letter were contained in the cer-