Foster-Sutton, P. This is an appeal from a judgment of Coussey, J., by which he held that the first appellant who sued in this case as successor to one Kwame Ansah and the twenty-two other plaintiffs-appellants were estopped from maintaining the present action as a result of suit No. 195 of 1947, which terminated by the plaintiff in that action, who sued as successor to Kwame Ansah, discontinuing the action with the leave of the Court.
The facts are fully set out in the judgment appealed from. It is, therefore, sufficient to say that it is admitted that the earlier proceedings were commenced in the Land Court by a writ of summons, suit No. 142 of 1947, by which one Kwaku Anobill of Adukrom as successor to Kwame Ansah sued the present respondents claiming a perpetual injunction restraining them from interfering with the plaintiff's possession of the same property as that in dispute in the case now before us.
Acting under the provisions of section 58 of the Native Courts (Colony) Ordinance, 1944, suit No. 142 of 1947 was “referred to the competent Native Court” by the Judge of the Land Court. A copy of those proceedings was tendered in evidence and marked as exhibit “A”.
The plaintiff in suit No. 142 of 1947 then filed a writ of summons in the Native Court “B” of the Akim Abuakwa State Eastern Province, suit No. 195 of 1947, exhibit “B”, by which he claimed, against the defendants in the suit now before us, the same relief as that claimed in the first suit, in respect of the same land, but added a claim for £100 damages for trespass. While the matter was before the Native Court one Oheneba Addo Danquah of Adukrom was, by order of the Court, substituted as plaintiff (still suing as successor to Kwame Ansah) m the place of Kwaku Anobill.
Suit No. 195 of 1947 was then transferred to the Land Court and on the 31st May, 1949, the plaintiff applied for, and was granted, leave to discontinue the action and no order granting him leave to bring a further action was made. Leave to discontinue that action was granted under Order 38, rule 1 of the Civil Procedure Rules.
In the present case the first appellant, Yaw Biei, purports to sue as successor to Kwame Ansah, and the other twenty-two appellants allege that in or about the year 1920 they “joined into company” with Kwame Ansah and purchased the land in dispute. The relief sought is the same as that sought in the two previous actions, that is to say, a perpetual injunction, and, as I have already said, the parties sued are also the same persons. The second defendant was dismissed from the suit, no cause of action having been disclosed against him, and no complaint has been made in that connection. Counsel for the appellants contended, firstly that the plaintiffs-appellants in the present suit were not the same as those in the earlier actions, that there was no evidence before the Court upon which they could be held to be privies, and that the appellants ought to have been allowed to call evidence to show that the plaintiffs in the earlier actions were not the successors to Kwame Ansah, and, secondly, that when leave to discontinue an action is granted under Order 38, rule 1, unless the Judge granting such leave expressly prohibits the plaintiff from bringing a further action he is not estopped from doing so.
Under Order 38, rule 1 of the Civil Procedure Rules a plaintiff may discontinue his action prior to the hearing day, but “if in any other case the plaintiff desires to discontinue any suit, such discontinuance may in the discretion of the Court be allowed on such terms as to costs and as to any subsequent suit as to the Court may seem just”. The provisions of the rule are substantially the same as those contained in the English Order 26, rule 1. The construction to be placed on that rule was decided by the judgment of the Court of Appeal in the case of Fox v. Star Newspaper Company (1), which was subsequently upheld by the House of Lords (2), where it was held that, when the plaintiff has to obtain leave, it is only by the discretion of the Judge that he can discontinue with the right of bringing another action. Chitty, L.J., in his judgment in the Court of Appeal in that case, when discussing the English Order 26, rule 1, said:-
“The principle of the rule is plain. It is that after the proceedings have reached a certain stage the plaintiff, who has brought his adversary into Court, shall not be able to escape by a side door and avoid the contest. He is then no longer dominus litis, and it is for the Judge to say whether the action shall be discontinued or not and upon what terms. I think it would be a great error to construe the rule by reference to the old meaning of the term 'discontinuance’ or any mere technical sense of words. The substance of the provision is that, after a stage of the action has been reached at which the adversaries are meeting face to face, it shall only be in the discretion of the Judge whether the plaintiff shall be allowed to withdraw from the action so as to retain the right of bringing another action for the same subject- matter.”
Suit No. 195 of 1947 was discontinued unconditionally, and if the learned trial Judge was right in holding that the first appellant ,vas suing in the present case in the same interest as the plaintiff in the former case, and that the other twenty- two appellants were privies, they would be estopped from maintaining the present action, by reason of the discontinuance, with the leave of the Court, of the earlier case, no leave to bring a fresh action having been obtained.
The fact that Oheneba Addo Danquah was substituted as plaintiff, “as successor to Kwame Ansah “ in suit No. 195 of 1947, by Order of the Court is, my view, prima facie, evidence that he was the proper person to be so substituted, rebuttable, of course, by evidence to the contrary if accepted by the trial judge. Even if he was not the proper person to be substituted as “Successor”, if it could be shown that the first appellant who now claims to be the “Successor”, was aware of the proceedings and stood by prepared to allow Kwaku Anobill, the original plaintiff in the suit, or Oheneba Addo Danquah to fight the battle for him, he would, in my opinion, be estopped from pursuing the present action. In this connection it is relevant to observe that in the Court low the appellants’ counsel contended that Addo Danquah was not the “Successor” of Kwame Ansah, and it is alleged in the grounds of appeal that Kwaku Anobill was not the “Successor” of Kwame Ansah, the latter being point which does not appear to have been raised before the trial Judge. It seems to me, however, that these matters, and the question whether the twenty-two other appellants should be held to have been privies in the earlier proceedings, are questions of fact, and that the learned trial Judge erred in deciding the matter only on the exhibits without allowing the appellants to lead any further evidence.
I would, therefore, allow this appeal, set aside the judgment appealed from, and remit the case to the Court below to be tried de novo on the present pleadings.
The appellant to have his costs on this appeal, fixed at £31 14s. 0d., the costs the first trial to abide the result of the re-trial.
Wilson, C.J. (Gold Coast). I concur. Windsor-Aubrey, J. I concur.
Appeal allowed: case remitted to be tried de novo,