CIVIL PROCEDURE — Discontinuance of Action — Application after Hearing — Proper Exercise of Discretion
Ratio Decidendi
Per Ogbuagu, JSC, in Abayomi Babatunde v. Pan Atlantic Shipping and Transport Agencies Ltd & Ors (2001) 13 NWLR (Pt. 1050) 113 at 163–164; cited with approval by Tabai, JSC, in APGA & Anor v. Umeh & Ors (2011) NLC-123-21-2010(SC) at pp. 17—18; Paras D—A:
"When an application for discontinuance of an action is made, one of the things to be considered by a trial Court is at what stage the said application is made. If it is made before a hearing date has been fixed, it seems to me that it is now firmly settled that the proper order to make is one of striking out. This is because there is no litis contestatio and a determination of the merit has not been made after hearing evidence of either the whole or some fundamental part of the claim. If the application is made after hearing has commenced, the trial Court must weigh and consider all the case in the interest of justice and thus balance the interest of the parties involved including the balance of convenience and disadvantage which might be suffered by any of the parties concerned."
Explanation / Scope
This principle establishes that when considering an application for discontinuance, the court must consider the stage at which it is made. If made before a hearing date is fixed, the proper order is striking out. If made after hearing has commenced, the court must weigh all interests and balance convenience and disadvantage. The principle applies where discontinuance is sought. It ensures proper exercise of discretion. The principle reflects the importance of the stage of proceedings. The court must consider all interests. The principle provides guidance on discontinuance.