CIVIL PROCEDURE — Discontinuance of Action — Application at Close of Evidence — Discretion Almost Certainly Exercised to Dismiss Suit
Ratio Decidendi
Per Tabai, JSC, in APGA & Anor v. Umeh & Ors (2011) NLC-123-21-2010(SC) at p. 18; Paras C—E:
"If an application for the discontinuance of a suit is made before the actual hearing commences, what I consider to be the appropriate order should be one striking out the suit. But where it is made after some considerable progress in the hearing has been made, leave to discontinue with a mere striking out order would no longer be automatic. The Court would, in the exercise of its discretion consider the competing interests of the parties. Where as in this case, the application is made at the close of evidence and the matter adjourned for judgment, the discretion would almost certainly be exercised to dismiss the suit."
Explanation / Scope
This principle establishes that discontinuance before hearing commences results in striking out, but after considerable progress, leave is not automatic. Where application is made at close of evidence and matter adjourned for judgment, discretion is almost certainly exercised to dismiss. The principle applies where discontinuance is sought late. It ensures that late discontinuance results in dismissal. The principle reflects the need to prevent abuse. It protects the opposing party. The court must consider the stage. The principle provides guidance on late discontinuance.