This was a ruling based on preliminary objections against an application brought by the applicants.
The respondents submitted that the applicant’s chamber application was in contravention of Order XXIII r 3 of the Civil Procedure Code, 2002. The court observed that the respondents had cited the provisions wrongly and took reference of the right provision (Order XXIII r 1(3). The court determined the interpretation of this provision and specifically whether the prayers sought in the two applications ‘there is no valid injunction after the expiry of six months’ and ‘the order for temporary injunction granted by this court on 28th June 2012, has expired and be vacated’ were similar.
The court applied the rule that one is barred from instituting a fresh suit after withdrawing a suit without securing leave for instituting the same case. The court also observed that this rule is applicable to suits and applications. The court held that they were similar and in absence of an order to have the formally withdrawn application reinstituted, the present application could not stand.
The second respondent raised another preliminary objection based on s 5 of the Oaths and Statutory Declarations Act, 2002 as read with r 2 of the Oaths and Affirmation Rules, 2002, then withdrew it.
Accordingly, the court found merit in the preliminary objection raised by the respondents and struck out the application with and order as to costs excluding three quarter of the costs incurred by the applicant in respect of the abandoned preliminary objection.
