CIVIL PROCEDURE — Discontinuance of Action — Dismissal Not Provided For
Ratio Decidendi
Per Tobi, JSC, in Babatunde v. Pan Atlantic Shipping and Transport Agencies Ltd (2007) NLC-123-154-2002(SC) at pp. 30–31; Paras A–C:
"The rule does not provide for dismissal of the suit and a court of law cannot introduce that. Dismissal of an action in limine is the greatest punishment that a plaintiff can suffer in civil litigation and a court can only make such an order if the enabling rules so provides. A court of law cannot make such an order if the enabling law does not provide or is silent on it. Striking out of a suit is quite different from dismissing the suit and this can be gathered from the words 'and such discontinuance or withdrawal as the case may be, shall not be a defence to any subsequent action.'"
Explanation / Scope
The distinction between striking out and dismissal is fundamental in civil procedure. Striking out is a procedural termination that does not bar a fresh action on the same subject matter. Dismissal is a final adjudication that may attract the doctrine of res judicata or operate as a bar to future litigation. When a plaintiff discontinues under rules that expressly state such discontinuance shall not be a defence to any subsequent action, the court cannot substitute dismissal for striking out. To do so would defeat the clear intention of the drafters and punish the plaintiff disproportionately. Courts must interpret procedural rules strictly and cannot introduce penalties not contemplated by the enabling legislation.