IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
ACCRA - A.D 2018
WISSAM AID LABA - (Plaintiff)
RICHARD N. LABA AND OTHERS - (Defendants)
DATE: 1 TH JUNE, 2018
SUIT NO: CM/BDC/0244/17
JUDGES: HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
EUNAS KOFI ESHUN, ESQ. FOR SAMUEL ADU BOAHEN, ESQ FOR 1ST DEFENDANT/APPLICANT
AUGUSTINE KIDICIL, ESQ FOR PLAINTIFF/RESPONDENT
This is a motion by the 1st Defendant/Applicant seeking an order for the dismissal or a stay of this proceedings on the grounds that the filing of a notice of discontinuance in Suit No CM/BDC/0750/2017 by the Plaintiff/Respondent was improper as to amount to an abuse of the process of the court.
A background to this application as recounted in the affidavit in support of this application will suffice to illume one’s appreciation of the application. In Suit No CM/BDC/0750/2017 between the same parties herein the Plaintiff/Respondent had sought certain reliefs against 1st Defendant/Applicant and the other Defendants in this suit regarding the directorship of 3rd Defendant company as well as a declaration that 1st Defendant/Applicant committed fraud. The court declined an application to dismiss that suit in my ruling dated the 25th of January, 2018, which has since become the subject of an interlocutory appeal before the Court of Appeal.
It is the contention of the 1st Defendant/Applicant that whiles its appeal against my interlocutory ruling as well as a motion for stay of proceedings are pending for determination, the Plaintiff/Respondent has filed a notice of discontinuance with liberty in that suit at the High Court purporting to discontinue the suit for which it is pursuing an appeal at the Court of Appeal seeking for the dismissal of that suit.
And to make matters worse, so claimed 1st Defendant/Applicant, the Plaintiff has commenced another action in this present suit for reliefs which in material particular are not dissimilar to the reliefs sought in CM/BDC/0750. To Applicant, the Plaintiff/Respondent should not be allowed to escape through the back door after making 1st Defendant commit to an appeal only to turn round to render the pursuit of his appeal brutum fulmin and commence another action. To him at the stage at which the suit had gotten to, Plaintiff was no longer a dominus lites to have just filed a notice of discontinuance and that by virtue of the interlocutory appeal, Plaintiff should have sought leave to discontinue the previous action and hence this application to dismiss or stay the current action in this suit.
Plaintiff/Respondent on the other hand has opposed the application seeking to stay or dismiss its suit by claiming that the present application is frivolous as its notice of discontinuance in Suit No CM/BDC/0750/2017 was properly filed according to the rules of court. To Plaintiff/Respondent at the time it discontinued that action, 1st Defendant had only entered appearance to the writ and followed it up with a series of applications that had all been dismissed by the High Court. And that at the time it filed the notice of discontinuance, what was pending was only an interlocutory appeal against a motion for stay of proceedings at the Court of Appeal, which for all intent and purposes, had been abandoned as it had been adjourned sine die without any attempt by 1st Defendant/Applicant to seek a date for the hearing of its interlocutory appeal.
Respondent further contend that Applicant has failed to apply for cost to be assessed in his favour in the discontinued suit and the failure cannot be advanced as a basis to stay proceedings or seek for the dismissal of the current suit. It is stated under Order 17 Rule 2 of the High Court (Civil Procedure) Rules, C. I. 47 as follows:
“(1) Except in the case of an interlocutory application, the plaintiff may at any time before service on the plaintiff of the defendant's defence or after the service of it and before taking other proceeding in the action, by notice in writing wholly discontinue the action against all or any of the defendants or withdraw any part of the alleged cause of action and thereupon the plaintiff shall pay the defendant's costs of the action or if the action is not wholly discontinued, the costs occasioned by the withdrawal.
(2) Such costs shall be taxed, and the discontinuance or withdrawal shall not be a defence to any subsequent action.
(3) Except as provided in this rule, the plaintiff shall not be entitled to withdraw the record or discontinue the action without leave of the Court, but the Court may before, during or after the hearing or trial upon such terms as to costs and as to any other action as may be just, order the action to be discontinued or any part of the alleged cause of action to be struck out”.
It is this provisions supra that Defendant/Applicant in his submissions before the court has contended that the right of discontinuance vested in a Plaintiff to discontinue an action before a defendant files a defence or upon filing a defence before the Plaintiff files a reply, save in the case of an interlocutory application, should be interpreted by the court to also mean interlocutory appeal. And if there is the pendency of interlocutory application, a plaintiff is disabled from discontinuing the action in the Rules, the same should be extended to the pendency of interlocutory appeal as in the two incidents the Defendant would in a way has taken a step that he at least deserves a determination of the process he has put before the court. Defendant/Applicant finds umbrage in the case of TRUST
BANK LTD v G. K. APPIAH (Unreported) J4/51/2010 delivered on 20th April, 2011 that at a certain point in litigation a party should not be allowed to escape through the back door.
The right of a party to discontinue an action subject to the perimeters set down under Order 17 flows from the principle that there are “many weapons in the legal armoury available to litigants seeking justice and no court can dictate what remedy one has to adopt” as per Bamford Addo JSC in the case of REPUBLIC v HIGH COURT, ACCRA; EX PARTE ASAKUM ENGINEERING & CONSTRUCTION LTD. [1993-94] 2 GLR 643. Therefore generally a party who initiates proceedings should have the right to discontinue subject to some limitations. As it is not the function of the court to fan the flames of litigation.
Among the limitations stated under Order 17 of the Rules, for which any discontinuance is subject to is Order 17 Rule 2 where there is one the pendency of an application, two before a defence is filed and sub rule (3) where a defence has been filed before a reply has been delivered. The question that comes to the fore for determination is whether any of the grounds upon which a Plaintiff need leave of the court to discontinue an action has arisen in this suit.
First, there was no application pending in Suit No CM/0750/2017 at the time that the action was continued. Application is defined as a request or petition that comes before the court in the form of a motion. See Black’s law Dictionary, 8th Edition and also Order 19 Rule 2. And interlocutory application as mentioned under order 17 Rule 2 as creating exception for discontinuance without leave is also defined by the Black’s law Dictionary, 8th edition as: “a motion for equitable or legal relief sought before a final decision”. Clearly then whatever appeal that was pending before the Court of Appeal cannot be said to be an interlocutory application. As appeal is defined as:
“a proceeding undertaken to have a decision reconsidered by a higher authorities, especially the submission of a lower court’s or agency’s decision to a higher court for review and possible reverse”.
Interlocutory appeal that Defendant/Applicant had and pending before the Court of Appeal, therefore cannot be the same as interlocutory application and the submission made for interlocutory application to be interpreted as also meaning interlocutory appeal would be rejected by the court. The Defendant/Applicant had also contended that Plaintiff was no longer a dominus lites at the time he purported to have discontinued the action. Dominus in Latin simply means the owner of a thing and dominus lites is simply defined as: “the party who makes the decision as distinguished from the attorney”. See FRANK ABO AMISSAH v ATTORNEY-GENERAL Suit No 7/2000 dated 12th March, 2003. See also OBENG MANU v ATTORNEY- GENERAL.
I am afraid Defendant/Applicant cannot rely on the case of TRUST BANK LTD v G. K. APPIAH supra. If counsel had carefully read that case he would have realised that in that suit the Bank had taken summary judgment and was on the verge of execution when it purported to have discontinued that action only for it to institute a fresh action. And when the new action was instituted it was met with a defence of res judicata. Wood CJ delivering the judgment of the court stated as follows:
“It is thus plain that the court granted leave to discontinue with liberty to institute a fresh action in a case which had travelled well beyond the judgment stage and was at the execution stage… Plainly, the stages at which an action may be discontinued are before, during or after the hearing or trial. After judgment or execution is not included in the stages at which the relief may be applied for. Rules of court which regulate the conduct of legal proceedings must be construed strictly to give full effect to the rules. The language of order 17 rule (2) cannot be strained to include after judgment or execution. The undisputed facts support the appellate court’s view that having regard to the summary judgment, the rights of the parties have been firmly and finally determined and no action exists for discontinuance”.
How does such a case support the view of the Defendant/Applicant when he had not even delivered a statement of defence? The case is actually against the application he has filed before me. The only matter for which the Defendant/Applicant can challenge is to proceed to court in the discontinued case and ask for assessment of cost that it had so far incurred but not to advance its interlocutory appeal as a ground to claim that the Plaintiff is not a dominus lites.
The stage at which the suit was discontinued did not call for leave of the court as Defendant had then not filed a defence neither was any interlocutory application pending before the High Court. The prayer to dismiss this suit or stay same is accordingly dismissed as without merit. I exercise my discretion and make no order as to cost.