JUDGMENT OF KORSAH C.J.
Korsah C.J. delivered the judgment of the court. The plaintiff instituted this action in the district magistrate's court claiming £G100 damages for trespass and conversion of goods against the defendants. At the hearing counsel for the defendants raised a preliminary objection indicating that this was the third time the plaintiff had brought this action based on the same facts as disclosed in the writ, against the same defendants. He stated that in the first instance the plaintiff through his counsel asked for and was granted leave to withdraw with liberty to bring a fresh action. The plaintiff instituted a second action based on the same facts. When the matter came for hearing, the plaintiff's counsel asked for leave of the court for an adjournment in order to re-consider his action. Later the plaintiff through his counsel filed a notice of discontinuance. Relying on Order 39, r. 1 of the Second Schedule to the Courts Ordinance, Cap. 4 (1951 Rev.), counsel for the defendants asked the court to strike out the suit on the ground that no leave to bring a fresh action had been obtained, after the discontinuance of the second suit without leave of the court.
Counsel for the plaintiff did not dispute the above facts, but relying on the same Order 39, r. 1, contended that, "The notice of discontinuance was filed when the matter had not come to court so that on the appointed date of hearing there was no suit between the parties." To this counsel for the defendants replied, "The second writ was put down for hearing on 25 June 1958. The date of the notice of discontinuance is 30 July 1958 when the case had already been [p.190] called and some arguments had been advanced." The learned magistrate upheld the objection holding that the plaintiff was estopped from bringing a fresh action and in the circumstances dismissed the suit.
On appeal to the Divisional Court, the learned judge gave the following judgment:
"I hold the view that in this case the discontinuance did not operate as an estoppel to entitle the defendants to plead res judicata. I remit the case to the Senior Magistrate's Court, Takoradi, for hearing and determination.”
The whole case hinges upon the interpretation of Order 39, r. 1 which reads:
"If before the date fixed for the hearing the plaintiff desires to 'discontinue any suit against all or any of the defendants, or to withdraw any part of his alleged claim, he shall give notice in writing of discontinuance or withdr
