IBE vs. PAN AFRICAN METALS LTD. [1959]DLCA1503

Date	1959-11-09
Suit No.
Citation No.	[1959]DLCA1503

KORSAH C.J

VAN LARE JA

GRANVILLE SHARP J.A.

DR. J. B. DANQUAH FOR THE APPELLANTS.

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT.

[1959]DLCA1503
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													<main id="main" class="content" style="min-height: 60rem" >IBE <o:p></o:p>vs. <o:p></o:p>PAN AFRICAN METALS LTD. <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>[1967] GLR 188<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
9 NOVEMBER
1959.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DR. J. B. DANQUAH FOR THE APPELLANTS.<o:p></o:p>

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

KORSAH C.J., VAN LARE AND GRANVILLE
SHARP JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF KORSAH C.J.<o:p></o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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 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.<o:p></o:p><o:p>&nbsp;</o:p>On appeal
to the Divisional Court, the learned judge gave the following judgment:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“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.”<o:p></o:p><o:p>&nbsp;</o:p>The whole
case hinges upon the interpretation of Order 39, r. 1 which reads:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“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 to discontinue 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.”<o:p></o:p><o:p>&nbsp;</o:p>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 in</main>