Akukalia Alfred Amachukwu Aghadiuno & Ors v. Ekegbo Onubogu (Nwakwo)

Having received all the pleadings and the plaintiffs having seen what the defendants set up as their defence, with the issue of res judicata clearly pleaded, the case having thus been set down for hearing, the withdrawal in the circumstance of this case could attract only dismissal not striking out. Trial Court was therefore right in entering dismissal. The judgment of my learned brother, Ogwuegbu, J.S.C., has amply addressed all the issues just as I would have done and I adopt his reasoning as mine in allowing this appeal. I make the same consequential orders as made by him.

I have had a preview of the judgment of my learned brother Ogwuegbu, J.S.C. just delivered. I agree entirely with him that this appeal be allowed, the judgment of the court below be set aside and the judgment of the trial High Court be restored.
This appeal turns on the proper construction and application of Order XL VII, rule 1 of the High Court Rules of Eastern Nigeria Cap 61 Laws of Eastern Nigeria, 1963 which rules applied at the time of the trial of this action. The facts have been fully set out in the judgment of my learned brother; I need not restate them here again. Suffice it to say that it is not in dispute that the plaintiff’s counsel intimated the trial court on 6th March 1987 when the matter was fixed for hearing that he was withdrawing the action. He sought an adjournment “to file a motion of discontinuance”. What he filed subsequently was a notice

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of discontinuance. On the adjourned date, that is 24th of March 1987, the learned trial Judge treated the notice as an application to discontinue and after hearing arguments from learned counsel as to the consequential order to make, dismissed the action with costs. The plaintiff being dissatisfied with the order of dismissal appealed to the Court of Appeal seeking an order setting aside the order of dismissal and substituting, therefore, an order striking out the action. I may mention that there was also an appeal against the order for costs made by the learned trial Judge. That part of the appeal was, however, not considered by the Court of Appeal and as there has been no appeal to this court on the issue of costs I will only confine myself to the order of striking out appealed against.
The Court of Appeal following Okorodudu & Ors v. Okoromadu & ors. (1977) 3 SC 21 at p. 29 allowed plaintiffs appeal and adjudged as follows:
“This appeal must therefore succeed. The order of the lower court dismissing plaintiffs case including the award of costs is set aside. It is ordered that the case be listed on the Cause List before another Judge of the Anambra State High Court to enable that court proceed in the matter with a (sic) consideration of the notice of discontinuance filed.”
It is against this judgment that the defendant has appealed to this court. The main issue that calls for determination in this appeal, in my respectful view, is as to whether the notice of discontinuance filed by the plaintiff at the trial court was a nullity. Order XL VII rule 1 provided as follows:

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ORDER XLVII. – DISCONTINUANCE Of’ SUITS
1. If before the date fixed for hearing, the plaintiff desires to discontinue any suit against all or any of the defendants, or to withdraw any part of his 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 parte 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 a suit or to withdraw any part of his claim, or if a defendant desires to discontinue his counter-claim, or withdraw any part thereof such discontinuance or withdrawal may be allowed on such terms as to costs, and as to any subsequent suit and otherwise as to the court may seem just.”
This rule in my respect view is in pari materia with Order 28 rule (1) & (2) of the High Court (Civil procedure) Rules of Western Nigeria considered by this court in Okorodudu v. Okoromadu (supra). In the former rule there was provision for both discontinuance before the date of hearing and discontinuance after the date of hearing, In the Western Nigeria rule, the 2 limbs were separated into 2 separate sub-rules (1) & (2). The situation that arose in

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Okorodudu v. Okoromadu fell under sub rule (2) of the Western Nigeria rule. The situation that arose in this case also fell under the 2nd limb of the Eastern Nigeria rule. That appears to be the only resemblance in the case before us now and the case of Okorodudu v. Okoromladu.
In Okorodudu v. Okoromadu, hearing had been fixed for certain dates in June 1974. Before the date fixed for hearing however, a 3rd party applied by way of motion on notice to be joined as co-plaintiff in the case. The motion came before another Judge different to the one that had fixed the case for hearing. The ruling on the motion for joinder was given after the date fixed for hearing, that is, 13th June, 1974. On that date the learned Judge who heard the motion and delivered the ruling fixed 22-23 July, 1974 for hearing of the action. In the meantime, the plaintiffs on 10th July, 1974 applied by motion on notice for leave to amend their writ of summons and statement of claim. On the 18th July 1974 in a ruling delivered by the learned trial Judge, one of the amendments sought was granted but the rest were refused. On 19th July 1974, the plaintiffs filed a notice of discontinuance which reads:
“NOTICE OF DISCONTINUANCE
TAKE NOTICE that the plaintiffs being satisfied that the above suit is not properly constituted and having consequently instituted Suit No. W/117/74, against the defendants intend and do hereby wholly discontinue this suit against all the defendants pursuant to Order 28 rule 1(1) of the High Court (Civil Procedure) Rules 1958, Western Region of Nigeria applicable in the Midwestern State or Nigeria.”

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On the 22nd July 1974 the adjourned date for hearing, the validity of this notice came up for determination. It was contended by the defendants that the notice could not come under Rule 1(1) as it vas filed after the original date for hearing. The court was urged to refuse the discontinuance and to dismiss the case if the plaintiff failed to proceed with the hearing. It was the contention of the defendants in the case that the notice fell under Rule 1 (2). It was contended by the plaintiffs, on the other hand, that as hearing did not proceed on the original date, the adjourned dates should be taken as “the date fixed for hearing” within the meaning of Rule 1(1) and, as the notice was filed before the fresh dates, the plaintiffs were entitled as of right to discontinue under Rule 1(1). It was plaintiffs’ contention that Rule 1(2) was inapplicable as there was no application thereunder before the court. The trial Judge held that “the date fixed for hearing” within the meaning of Rule 1(1) was the original dated and not an adjourned date and that, therefore, the notice of discontinuance filed by the plaintiffs came under rule 1 (2). He treated the notice as an application for leave to discontinue and after considering the pleadings before him he dismissed the action. On appeal to this court, this court agreed with the learned trial Judge that the original date fixed for hearing was “the dates fixed for hearing” within the purview of Rule 1(1) and that the notice of discontinuance was filed after that date, therefore, Rule 1(1) would not avail the plaintiffs. This court, however, held that a notice of discontinuance filed by the plaintiff having been filed after the date of hearing was invalid and that what the trial court should have done would have

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been to strike out the notice and call upon the plaintiff’s to proceed with their case as pleaded and where the plaintiffs failed or declined to proceed the trial court would have been right to dismiss the claim.
Before I proceed with my determination of the issue before us I need to refer yet to another decision of this court on the same subject matter and decided about the same time and by the same panel as in Okorodudu v. Okoromadu. It is Olayinka Rodrigues & ors v. Public Trustees & ors (1977) 4 SC 29. This case was decided under Order XLIV rule (1) of the old Supreme Court (Civil Procedure) Rules Cap 211 of the Laws of Nigeria 1948 which reads:
“1(1) If before the date fixed for hearing, the plaintiff desires to discontinue any suit against all or any of the defendants, or to withdraw any part of his 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 parte 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.
(2) If in any other case the plaintiff desires to discontinue a suit or to withdraw any part of his claim, or if a defendant desires to discontinue his counterclaim, or

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withdraw any part thereof, such discontinuance or withdrawal may be allowed on such terms as to costs, and as to any subsequent suit and otherwise as to the court may seem just.”
When the case came up for hearing after several adjournments, the counsel for the plaintiff applied orally for leave to withdraw the action. The plaintiffs were absent in court on that day but their counsel said that he had their instructions to withdraw the action. Counsel on both sides addressed the court on the oral application. The learned trial Judge after giving consideration to the whole circumstances of the case dismissed the action with costs. On appeal by the plaintiffs to this court, the court treated counsel’s application as coming under sub-rule (2) of Rule 1 above. Sir Udoma, J.S.C. delivering the judgment of this court observed at pages 36 – 37 of the report:
“That being so, leave of the court was necessary in order to be able to withdraw the suit from court. What therefore learned counsel for the appellants in the court below did was to apply for that leave to enable him to withdraw the suit from court in accordance with the instructions given to him by the appellants.
In such circumstances withdrawal of the suit from court could never be nor could it ever have been conceived as of right or automatic. It was not for the learned counsel in the court below to appear to dictate to the court what order to make in consequence of his application for leave. That was a matter exclusively for the court in the due and deliberate exercise of its judicial discretion, which naturally and inevitably must entail the weighing of all the

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circumstances of the case in the interest of justice and the balancing of the interests of the parties involved, including the balance of convenience and disadvantages, which might be suffered by any of the parties concerned. It is after the court shall have given consideration to such matters that it can arrive at what is undeniably a difficult decision, which must appear reasonable in all the circumstances or a particular case. It is then the duty of the court on the principles stated above to decide whether”
(i) to grant leave for the suit to be withdrawn simply on terms that the same be struck out subject to the payment of costs;
(ii) or to grant leave for the suit to be withdrawn subject to the imposition of certain conditions to be fulfilled before a fresh suit concerning the same subject matter and the same parties may be instituted in the court; or
(iii) to refuse such leave in which case the suit must be dismissed also on terms as to costs.”
The case of Nwobu Nwachukwu & ORS V. David Nze & ors. In re: Ofoegbu Nze v.  David Nze (1955) 15 WACA 36 was referred to in the judgment of this court. In the latter case the plaintiff had in the trial court sought to discontinue his action after the date fixed for hearing. The trial Judge refused leave to discontinue the action and on the plaintiff declining to proceed with the case, dismissed the claim. On appeal to the West African Court of Appeal, that court, in a rather short judgment held:
“In our view the construction placed upon Order 44 Rule 1 sub-rules (1) and (2) by the learned trial Judge is correct, that is to say ‘a plaintiff may discontinue without leave at

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any time before the date fixed for hearing …..’ on or after that date, discontinuance ‘may be allowed’, i.e., by the court; the plaintiff may discontinue but only with leave’.
It follows that the learned trial Judge had the power to refuse leave to discontinue as he did in this case, and we are of the opinion that he was right in dismissing the claim when plaintiff’s counsel declined to proceed with his case.”
I now come to the present appeal. The rules applied in RODRIGUES and NZE are in pari materia with the rule under consideration in this appeal, so also is the rule under consideration in Okorodudu. Learned counsel for the plaintiff on 6/3/87 asked for time to file a motion of discontinuance in the matter. Mr. Egonu SAN, learned counsel for the defendant did not object but thought the plaintiff could withdraw the action orally. On Mr. Akpudo for the plaintiff insisting on a date, the matter was adjourned to the 24th of March 1987 for a notice of discontinuance to be filed. In the interval plaintiff filed a notice of discontinuance which reads:
“To the Registrar,
High Court,
ONITSHA.
RE: SUIT NO: 0/389/85
MR. EKEGBO ONUGOGU V. CHIEF ISSAC MBANEFO H
NOTICE OF DISCONTINUANCE PURSUANT TO ORDER XLVII,
RULE 1 OF THE HIGH COURT RULES
TAKE NOTICE that the plaintiff in the above mentioned suit desires and hereby discontinues his said action.

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Dated this 17th day of March, 1987.
Sgd.
MR EKEGBO ONUBOGU (NWAKWO)
For himself and on behalf of Umuamaifeobu family in Okpona Ezeani Quarter in Umuotu Village Obosi.”
On the 24th of March when the matter came up, counsel addressed the court as to the consequential order to make if leave to discontinue were granted. The trial Judge in his short ruling said:
“Pleadings were ordered and exchanged in this case and hearing has been fixed. The plaintiff in asking leave to discontinue did not give any reasons whatsoever for so doing, and court must therefore, presume that the decision to discontinue must have stemmed from the contents of the pleadings filed and exchanged. That being the case the court in the exercise of its discretion sees no point in merely striking out the case.
This case is accordingly dismissed with N2,500.00 costs to the defendant:’ (Italics is mine)
As this court had held in (1) RODRIGUES AND (2) Shonekan v. Smith (1967) 1 All NLR 329 and other similar cases, the trial Judge had discretion in circumstances as in the case on hand whether or not to grant leave to discontinue. In my respectful view it would not matter how the application to discontinue was made; whether it was made by a way of motion of notice or orally or by way of notice as in this case. The rule has not prescribed a particular mode and the words used in the 2nd limb or the rule are” if in any other case the plaintiff desires to discontinue a suit…”
In my respectful view, a plaintiff can discontinue as of

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right before the date for hearing but can only do so with leave of court after the date for hearing. Whichever way leave is sought would in my respectful view, not be material. What is material is that where the plaintiff desires to discontinue after the date fixed for hearing he can only do so with leave of court. In the case on hand the trial Judge considered the matter before him as one seeking his leave. He granted the leave. It does not lie in the mouth of the plaintiff to now say he applied by a wrong procedure. what he can complain about is the consequential order made. The learned trial Judge considered the surrounding circumstances of this case and it being clear to him, from the pleadings, that the matter should never have been brought, in the light of the defendant’s plea of res judicata to which the plaintiff filed no reply, he was right in granting leave to discontinue the action and to dismiss it. The court below allowed itself to be carried away by mere technicality as to the procedure employed by the plaintiff in seeking leave to withdraw the action. Even if I had agreed that the court below was right, I would still have varied the order made by it wherein it asked that at the rehearing of the suit the notice of discontinuance be further considered. Surely if the notice of discontinuance was invalid, as held by them, it would be pointless asking the same notice to be considered by the trial court. The proper order would have been that the plaintiff be asked to proceed with his case and if he declined to do so, for a trial court to make an appropriate order, consequential thereof.
Finally, I, too, like my learned brother Ogwuegbu J.S.C. allow this appeal, set aside the judgment of the court

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below and restore the judgment of the trial High Court. I abide by the Order for costs made in the judgment of my brother Ogwuegwu, J.S.C.

I agree. The decision of the learned trial Judge in dismissing the plaintiff’s claim is a correct exercise of judicial discretion.
The plaintiff had indicated his desire to discontinue with the action and had applied for the leave of the court to do so. The principle underlying the requirement for leave is that after proceedings have reached a certain stage the plaintiff, who has brought his adversary into court, should not be able to escape by a side door and avoid the contest, since he is no longer dominus Litis and it is for the court to say whether the action should be discontinued and upon what terms. See Fox v. Star Newspapers Co. (1898) 1 Q.B. 636-639. Nevertheless it is not desirable that a plaintiff should be compelled to litigate against his will. The court will normally grant him leave to discontinue if he wants to, provided no injustice will be caused to the defendant. The court has a wide discretion as to the terms upon which it may grant leave to a plaintiff or counterclaiming defendant as the case may be, to discontinue or withdraw the whole or part of the action or counterclaim. It may impose terms as to costs, as to the bringing of a subsequent action or otherwise as it thinks just.
In the case in hand, after the learned counsel for the plaintiff had filed a Notice of Discontinuance, the learned trial Judge considered the fact that pleadings had already been filed and, quite rightly, the court presumed that the

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decision to discontinue must have stemmed from the contents of the pleadings. The learned trial Judge, thereafter exercised his discretion and dismissed the action. I agree that the learned trial Judge had acted within his powers under the provisions of Order 47, rule 1 of the High Court Rules, Cap 61 Volume 4, Laws of Eastern Nigeria, 1963 then applicable in Anambra State. The discretion had been exercised both  judicially and judiciously.
For the reasons and the fuller reasons given in the lead judgment, just read by my learned brother, Ogwuegbu, J.S.C., the appeal is allowed. The judgment of the Court of Appeal is set aside. The ruling of the High Court, dismissing the action of the plaintiff, is hereby restored. I award N10,000.00 in favour of the appellant.

 I have had the advantage of reading in draft the leading judgment just delivered by my learned brother. Ogwuegbu, J.S.C. and I am in full agreement with him that there is merit in this appeal and that the same ought to be allowed.
The facts that gave rise to this appeal have been dealt with exhaustively in the leading judgment and no useful propose will be served by my recounting them all over again. It suffices to state that the central issues between the parties in this appeal revolve almost entirely on the validity or otherwise of the Notice of Discontinuance filed in the suit by the plaintiff/respondent on the 17th day of March, 1987, whether the Court of Appeal was right in holding that the decision of this court in Emmaunel Okorodudu and Another v. Erastus Okoromadu and

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Another (1977) 3 SC 21 applied to the facts and circumstances of the present case and whether the Court of Appeal made the correct order by directing that the case be listed on the cause list before another Judge of the Anambra State High Court to enable that court proceed with a consideration of the Notice of Discontinuance filed in the suit. I find it convenient to consider these issues together and I will now proceed to do so.
It is trite that pending suits may be discontinued by the plaintiff as provided by the rules of court. The present suit on appeal emanated from the High Court of Justice of the former Anambra State of Nigeria. The relevant Notice of Discontinuance in the suit was filed by the plaintiff/respondent pursuant to the provisions or Order 47, rule 1 of the High Court Rules, Cap. 6 1, Volume 4, Laws of Eastern Nigeria, 1963, then applicable to the former Anambra State of Nigeria.
These provide as follows –
“1. If before the date fixed for hearing, the plaintiff desires to discontinue any suit against all or any of the defendants, or to withdraw any part of his 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 parte for an order against the plaintiff for the costs incurred before the receipt of such

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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 a suit or to withdraw any part or his claim, or if a defendant desires to discontinue his counter-claim, or withdraw any part thereof, such discontinuance or withdrawal may be allowed on such terms as to costs, and as to any subsequent suit and otherwise as to the court may seem just.”
It is clear from the above provisions of the rules that the discontinuance of a suit may or may not be with the leave of court depending entirely on the stage of the proceedings the suit is being discontinued. A plaintiff may, thereunder, without the leave of the court, discontinue a suit against all or any of the defendants or withdraw any part of this claim before the date fixed for the hearing of the suit. This is covered by the first arm of Order 47, rule 1 aforementioned. Such Notice of Discontinuance, however, must be in writing. But after the receipt of such Notice by the defendant, the plaintiff cannot recall it as such discontinuance or withdrawal automatically terminates the proceedings and a formal order of striking out the suit may be made by the court whether in the presence or absence of the parties and either in open court or in chambers. See Chief C. C. Obienu and others v. Chief K. O. Orizu and others (1972) 2 E.S.L.R. 606.
Where a plaintiff exercises his right to discontinue his action without the leave of the court before the date fixed for the hearing of the case, it is an error to dismiss the action, since at that stage, there would then have been no

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litis contestio and the discontinuance would not have been on the merits. It ought also to be noted that the said first arm of Order 47, rule 1 of the High Court Rules 1963 of former Eastern Nigeria itself enacts that discontinuance thereunder “shall not be a defence to any subsequent suit” It thus clearly envisages an order striking out the suit and not a dismissal thereof at the stage of the proceedings. See Soetan v. Total Nigeria Ltd (1972) 1 All NLR (Pt. 1) 1 at 3, Izieme and others v. Ijeoma Ndokwu and others (1976) NMLR 280. However, from and beyond the stage after the date fixed for the hearing of the suit, the plaintiff may discontinue only with the leave of the court and subject to conditions that may be imposed by the court. See Nigeria Properties Co. Ltd. v. Alegbeleye 19 NLR 101, Abasi Giwa v. John Holt Co. Ltd. (1903) 10 NLR 77 and Eronini v. Ihuko (1989) 2 NLWR (Pt.101) 46 and 65. Such discontinuance with leave is covered by the second arm of Order 47, rule 1, ante, and it may be effected by an oral or formal application on notice. Such leave is at the discretion of the trial judge to grant or refuse and he may grant it on terms as to costs and/or as to whether or not the
However, before trial Judge exercise his discretion to grant or refuse such leave for a plaintiff to discontinue or withdraw his action, he must take into consideration all the circumstance of the case. When leave to discontinue or withdraw a suit is granted, the court will have to make one or the other of two possible consequential orders, namely, that of striking out the action on conditions or of outright dismissal of this suit. Whichever order the court will make under the discontinuance of the suit pursuant to

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the provisions of the second arm of Order 47, rule 1, ibid, will depend on all the circumstances of the case. See Amina Ajayi v. Adudu Odunsi (1959) 4 FRC 189; (1959) SCNLR 496.
Having examined briefly the general principles of law governing Notice of Discontinuance as a court process, I will now apply them to the undisputed facts of the present case. I will firstly deal with the question of the validity or otherwise of the Notice of Discontinuance filed in the suit and whether the decision of this court in Emmanuel Okorodudu and  Another v. Erastus Okoromade, (supra) applied to the present case.
For the appellant, the argument of learned counsel, G.R.I Egonu Esq. SAN was that the Notice of Discontinuance filed in this suit was valid and effective and that the Court of Appeal was in error by holding that the procedural matter raised in the Okorodudu case was identical with that in the present suit thus rendering the said Notice of Discontinuance in question invalid and liable to the struck out.
Learned counsel for the respondent, Chief C Ikeazor, SAN, on the other hand argued that the said Notice of Discontinuance was invalid and ineffective, that the procedural matter that arises in the present case was identical with that raised in the Okorodu case as a result of which the Notice of Discontinuance filed in the latter case was pronounced invalid.
It is not in dispute that on the completion of pleadings the present case was adjourned to the 6th day of March, 1987, for hearing. Both parties are also in agreement that when the case came up for hearing on the 6th day of

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March, 1987, learned counsel for the plaintiff/respondent indicated that his client had decided not to prosecute the case any more and applied for time to file a Notice of Discontinuance in the suit. The case was thereafter adjourned to the 24th March, 1987 for a Notice of Discontinuance to be filed. On the 17th day of March, 1987, the plaintiff/respondent duly filed his Notice of Discontinuance in the suit.
On the 24th day of March, 1987, the suit was called up before the court and learned counsel for the plaintiff/respondent applied to withdraw the suit. In reply, learned counsel for the defendant/appellant applied that in the circumstances of the case, the appropriate order was that of the dismissal of the suit. Relying on the decisions in Izieme and others v. Ijeoma Ndokwu and others (1976) 1 NMLR 280 and Soetan v. Total Nigeria (1972) 1 All NLR (Pt.1) 1 at 3, learned counsel for the plaintiff/respondent submitted that even after the exchange of pleadings but before the hearing of evidence, the court may only strike out and not dismiss a suit after a Notice of Discontinuance has been filed,
The learned trial Judge at the conclusion of arguments dismissed the case with costs. On appeal, however, the Court of Appeal allowed the appeal, set aside the judgment of the High Court and ordered that the case be listed before another Judge of the Anambra State High Court for a consideration of the Notice of Discontinuance which, it held, was invalid, The Court of Appeal stated inter alia as follows:-
“I think that the lower court ought to have simply struck out the invalid notice of discontinuance filed by the

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plaintiff. It would then call on the plaintiff to proceed with the case. It would be right to dismiss the case only after the plaintiff had expressed an inability to proceed with the case.”
Earlier on in its judgment, the court below had also observed –
“It is my humble view that the procedural matter raised here is identical with that in Okorodudu and other v. Okoromadu and other……….”
With the greatest respect to the Court of Appeal, it cannot be correct to state that the Notice of Discontinuance filed in the suit on the 17th March, 1987 was invalid or that the procedural matter raised in the present case is identical with that in the Okorodudu and others v. Okoromadu and others case (supra). In the latter case, the Notice of Discontinuance filed was specifically made under the provisions of Order 28 Rule 1(1) of  the High Court (Civil Procedure) Rules 1958 of the Western Region of Nigeria, applicable to the then Midwestern State of Nigeria. The said order 28 Rules 1 (1) and (2) read thus –
“1 (1) If before the date fixed for hearing the plaintiff desires to discontinue any suit against all or any of the defendants, or to withdraw any part of his 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 parte for an order against the

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plaintiff for the costs incurred before the receipt of such notice and of amending the court to obtain the order. Such discontinuance or withdrawal shall not be a defence to any subsequent suit
(2) If in any other case the plaintiff desires to discontinue a suit or to withdraw any part of his claim, or if a defendant desires to discontinue his counter-claim, or withdraw any part thereof, such discontinuance or withdrawal may be allowed on such terms as to costs, and as to any subsequent suit and otherwise as to the court may seem just.”
Perhaps, I ought to observe at this stage that the provisions of Order 47 rule
There is finally the question whether the Court of Appeal made the correct order by directing that the case be listed before another Judge of the Anambra State High Court to enable that court proceed with a consideration of the Notice of Discontinuance filed in the suit. In this regard, the Court of Appeal after holding that the Notice of Discontinuance filed in the suit was invalid strangely went on to order –
“that the case be listed on the cause list before another Judge of the Anambra State High Court to enable that court proceed in the matter with a consideration of the Notice of discontinuance filed.”
In the first place, and again with respect, the Court of Appeal having held that the Notice of Discontinuance filed by the plaintiff/respondent in the suit was invalid was in error in purporting to remit the case back to the Anambra State High Court to reconsider the same Notice of Discontinuance the court below had pronounced invalid.

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In the second place, the order of the Court of Appeal in this case was clearly contrary to the relief sought by the plaintiff/respondent from that court which in the Notice and Grounds of Appeal read as follows:-
“That the order of dismissal of plaintiff/appellant’s claim made by the learned trial judge be set aside and that the Court of Appeal substitutes the said order with one striking out plaintiff/appellants claim.”
Similarly in the plaintiff/respondent’s brief of argument in the Court of Appeal, the relief sought was stated as follows-
“On the foregoing, the Court of Appeal shall be urged to allow the appeal, set aside the order of dismissal of plaintiff/appellant’s case made by the learned trial judge and substitute same with one striking out plaintiff-appellant’s claim; and also to vary the Order awarding the sum of N2,500.00 (Two thousand, Five Hundred naira) as cost in favour of the defendant-respondent.”
It is thus plain that the said order of the Court of Appeal complained of by the defendant/appellant was contrary to the relief sought by the said plaintiff/respondent and therefore clearly wrong. This is because it is settled law that a court of law must not grant to a party, a relief which he has not sought. See: Ekpenyong v. Nyong (1975) 2 SC 71 at 81 – 82; Kalio v. Daniel-Kalio 91975) 2 SC 15 at 17-19; Makanjuola v. Balogun (1989) 3 NWLR (Pt.108) 192 at 206, Olurotimi v. Ige (1993) 8 NWLR (Pt.311) 257 at 271 etc.
What seems to me more serious is that in making the said order not applied for, the Court of Appeal failed to give the parties, the defendant/appellant, in particular, an

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opportunity to be heard thereon or to address it on the issue. This, in my opinion, is patently wrong. See Ogunlowo v. Ogundare (1993) 7 NWLR (Pt. 307) 610 at 624,
I am finally to observe that where a valid Notice of Discontinuance is filed in a case after the same has been fixed for hearing, it is incumbent on the trial court to take into consideration all the circumstances of the case, including the state or the pleadings in the suit in determining the final order it may make in the action. I think the learned trial Judge in the present case was entitled, as he did, to take all the surrounding circumstances into account in deciding whether to strike out or dismiss the suit. This, in the present case, included various pleas of res judicata raised by the appellant to which the respondent made no answer. I think the learned trial Judge, was right in dismissing the plaintiff/respondent’s action.
It is for the above and the more elaborate reasons contained in the judgment of my learned  brother, Ogwuegbu. J.S.C., that I, too, allow this appeal, set aside the judgment of the court below and restore the decision of the trial court. I abide by the order for costs made in the leading judgment.
Appealed allowed.