The Lagos State High Court has dismissed a suit filed by Mut-Has Petroleum Limited against United Bank for Africa and Masters Energy Oil and Gas Limited.
Justice B.A. Oke-Lawal dismissed the suit in a January 12, 2022 ruling following an application for discontinuation filed by Mut-Has Petroleum Limited.
The plaintiff had prayed the court to grant it “leave to wholly discontinue this suit against the defendants, parties having agreed to settle the issues in difference before this honourable court.”
But the defendants filed a counter-affidavit, praying the court to dismiss the suit, rather than strike it out.
When a suit is struck out, the plaintiff has the opportunity to refile it in the future but a dismissed suit cannot be refiled.
The defendants contended that since the parties had already joined issues before the plaintiff opted to discontinue the case, the appropriate order for the judge to make was the dismissal of the suit.
Agreeing with the defendants, Justice Oke-Lawal held, “Where an application for discontinuation is made, one of the things to be considered by a trial court is the stage the application is made.
“If it is made before a hearing date has been fixed, the proper order to make is one striking it out. This is because there is no litis contestatio and a determination on the merit has not been made after hearing evidence of either the whole or a fundamental part of the claim.
“If the application is made after hearing has commenced, the trial court must weigh and consider all the circumstances of the case in the interest of the parties involved, including the balance of convenience and disadvantage, which might be suffered by any of the parties concerned.
“Taking into consideration the records of the court, the history of the case, the justice of this case demands that the suit be dismissed.
“The notice of discontinuance is granted and the application of the applicant is granted. The suit is hereby dismissed.”
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