[1927] EACA 46

[1927] EACA 46

The court held that the plaintiff was entitled to discontinue the suit because, although a summons had been issued and served on the defendant, the suit had not been set down for hearing by the plaintiff as contemplated by the rules. The court interpreted the relevant provisions to mean that the mere filing of a plaint or issuance of a summons does not amount to 'setting down for hearing' or 'taking any other proceeding.' Therefore, the plaintiff's notice of discontinuance was validly filed under Order XXII, Rule 1. The defendant is entitled to lodge a bill of costs up to and including the receipt of the notice of discontinuance, but must bear the costs of the appearance in court on...

Citation
[1927] EACA 46
Parties
Plaintiff: M. P. Smith and two others; Defendant: Engela Wessels
Court
East African Court of Appeal
Jurisdiction
Uganda
Judgment Date
1 January 1927
Case Number
C.C. 48/1927.
Procedural Posture
Civil Suit / Ruling on Discontinuance of Suit
Outcome
suit discontinued by plaintiff; costs awarded as specified
Judges
Pickering J
Legal Topics
Withdrawal of Suit, Discontinuance, Setting Down for Hearing, Costs Award
Source Language
English
Civil Procedure Withdrawal of Suit Discontinuance Setting Down for Hearing Costs Award

Case Brief

Summary, issues, holding and outcome

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Parties

M. P. Smith and two others

Plaintiff

Engela Wessels

Defendant

Procedural Posture

Civil Suit / Ruling on Discontinuance of Suit

Legal Issues

  1. 1 Whether the plaintiff was entitled to discontinue the suit after summons had been issued and served but before the suit was set down for hearing.
  2. 2 Whether the act of filing a plaint or issuing a summons constitutes 'taking any other proceeding' under Order XXII, Rule 1.
  3. 3 Whether the suit had been 'set down for hearing' within the meaning of Order XXII, Rule 2.

Ratio Decidendi

The court held that the plaintiff was entitled to discontinue the suit because, although a summons had been issued and served on the defendant, the suit had not been set down for hearing by the plaintiff as contemplated by the rules. The court interpreted the relevant provisions to mean that the mere filing of a plaint or issuance of a summons does not amount to 'setting down for hearing' or 'taking any other proceeding.' Therefore, the plaintiff's notice of discontinuance was validly filed under Order XXII, Rule 1. The defendant is entitled to lodge a bill of costs up to and including the receipt of the notice of discontinuance, but must bear the costs of the appearance in court on...

Court Disposition

suit discontinued by plaintiff; costs awarded as specified

Orders

  • The suit is discontinued by the plaintiff as of 20th October.
  • The defendant may lodge his bill of costs up to and including the receipt of the notice of discontinuance.