Where the statement of claim fails to state a cause of action, the court will dismiss the suit. Secondly, we have seen that at the first hearing, the court may give judgment, in whole or in part, on the basis of the admissions that the parties have made in their pleadings or on the oral examination.


The Civil Procedure Code provides three other devices by which a case may be adjudicated in whole or in part, without a full-scale trial and these will be discussed as follows.


Agreement on Issue


In the above discussion, we have seen how a court will frame an issue. However, some times, parties by themselves may agree as to the question of fact or law to be decided between them. In such a case the civil procedure code Art. 252. says:

Art. 252: - Questions of fact or law may be stated in form of issues

Where the parties agree as to the question of fact or of law to be decided between them, they may state the same in the form of an issue, and enter into an agreement in writing that, upon the finding of the court in the affirmative or the negative of such issue:

(a)    a sum of money specified in the agreement or to be ascertained by the court, or in such manner as the court may direct, shall be paid by one of the parties to the other of them, or that one of them be declared entitled to some right or subject to some liability specified in the agreement: or

(b)   some property specified in the agreement and in dispute in the suit shall be delivered by one of the parties to the other of them, or as that other may direct; or

(c)    one or more of the parties shall do or abstain from doing some particular act specified in the agreement and relating to the matter in dispute.


You have to note here that agreement on an issue plays a great role in facilitating the trial proceeding of the suit. Because, in doing that, parties will have the opportunity to compromise on some issues of the litigation and point out those issues which needs the decision of the court. Normally, Issue can be legal or factual. Sometimes, the issues framed by the parties could only be issue of law. If it is a legal issue, there will be no trial. In such cases, the court may render judgment at the pre trial stage.


Parties Not at Issue


The primary purpose of the pleadings and the first hearing or proceedings prior to trial is to develop the issues for trial. As a result of such proceedings, there do not appear to be any such issues; the court may pronounce judgment at the first hearing. This rule is provided under Art. 254 of the Civil Procedure Code.


As we have said earlier, issues arise when a material proposition forwarded by one party is denied by the other in the suit. So, if plaintiff has forwarded his propositions, which are found to be legally sufficient, the defendant is required to admit or specifically deny the allegations of the plaintiff. If the defendant admits the allegations or the material propositions of the plaintiff, there is no issue to be disposed by the court. In other words, where a party admits the material proposition of the other, the parties are not at issue and the court will, at once, pronounce judgment in favor of plaintiff.


Finally, we would like to remind you that the parties may not be at issue on some points, but may be at issue on others. In such cases, the court has to conduct a trial to decide on matters where the parties are at issue.


Deposition of issues at the First Hearing


Unlike what we have seen above, sometimes parties may be at issue but their issue could be adjudicated without the need for full-scale trial. i.e., it may be easy to dispose the issue at the first hearing. This happens where the court is satisfied that the issues framed for trial can be determined without argument or evidence other than that which the parties can at once produce, and that no injustice would result from proceeding in this manner; the court is authorized under Art. 255 to determine the issues at the first hearing, and pronounce judgment accordingly.


The other opportunity to dispose issue at first hearing is where the issue or issues framed are issues of law. In this case, the court may adjourn the hearing to enable the parties to martial their legal arguments, but it should not set a trial. This is because no evidence will be introduced. The same will be true on issues, which can be resolved entirely based on the documentary evidences, which are already delivered to the court. However the court should be careful to decide on whether the issue is solely dependent on the documentary evidences which are submitted to the court at the first hearing. If there is a need for further evidences, which includes witnesses, the case will necessarily be adjourned to trial.


In general, in determining whether the issue may be resolved at the first hearing, the crucial question is whether all the evidence that both parties can produce on that issue is available at that time. The court should ask the parties whether they have further evidence of other witnesses to be produced at the trial and decide accordingly.


Compromise and withdrawal

The fact that the issue will have been formulated prior to trial may have the effect of persuading a party that he is not likely to prevail if the case comes to trial. The plaintiff might then decide that he wishes to discontinue the suit. Or, the parties might decide to compromise the case. This may happen not only before trial is conducted, but it may also be raised after trial is conducted and before judgment is rendered. Following this we will deal with issues related with Compromise & withdrawal.



Compromise is basically an agreement reached by parties to a dispute. Parties who are involved in dispute could settle it by agreement before taking the case to court or after the case is taken to court and before judgment is rendered.

Art. 3307 of the civil code defines compromise as a contract whereby the parties, through mutual concessions, terminate an existing dispute or prevent a dispute arising in the future.

Art. 274(1) of the civil procedure code also defines compromise as follows:

The parties may by compromise agreement relating to all or some of the matters in issue terminate a dispute with respect to which a suit has been instituted.

This indicates that while the civil code defines compromise broadly; which includes agreement before the institution of the suit, civil Procedure code is restricted only on the compromise that will be made after the suit has been instituted. It does not include compromise that will be made before the institution of the suit.


If the parties have compromised the dispute, and; nonetheless, files a suit, the defendant may assert the compromise as a defense. He can do so by filing a preliminary objection on this ground at the first hearing. In such case, the court will consider whether a valid compromise has been effected in accordance with the civil code, and it if finds that such a compromise has been effected, it should enter a judgment in terms of the compromise. The judgment will be Res Judicata and will prevent a further suit by the plaintiff on the claim.


Valid requirements of compromise agreement: (Art. 276)

  • The name and place of the court in which the suit is pending
  • The title of the action and the number of the suit
  • The name, description, place of residence and address for service of the parties; and
  • The matter to which the agreement relates

It may also settle accessory matters such as costs, damages and execution.


Withdrawal of suit

In the above discussion, we have already seen how parties to the litigation settle their disputes through compromise agreement. In cases where such compromise agreement made out of the court, we have already said that plaintiff must notify the court that he has withdrawn the suit. However, the code did not simply put compromise as the only means of discontinuance of the proceedings of civil litigation. A case may also be discontinued by a party by way of withdrawal or abandon any of his claim against any or all defendants. Following this we are going to discuss on these issues.


Ordinarily, a party may withdraw the suit or abandon any of his claims against any or all defendants. Such withdrawal of suit can be made with the permission of the court or out of court permission. Hence there are two types of withdrawal of suit; namely, withdrawal with leave and withdrawal with out leave.


While the case is pending, the plaintiff may for different reasons decide to withdraw or abandon the suit. In such cases he/she may ask leave of the court to withdraw the suit. In such cases, the court will analyze whether the reason forwarded for withdrawal is satisfactory or not. The criteria for satisfaction of the court to permit the party to withdraw the suit are stated under Art. 278(2)(a)&(b).


These are: if a suit must fail by reason of some formal defect; or that there are other sufficient grounds for allowing the plaintiff to institute a fresh action for the subject matter of a suit or part of a claim, it may grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh action in respect of the subject matter of the suit. Therefore, for the court to permit withdrawal of suit with leave, the exception should be strictly construed. Otherwise if the court simply allows such permission for those who could possibly continue with the proceedings but are interested to initiate the suit in some any other time, which is convenient for them, the other party may be imposed to incur unnecessary expenses and inconveniencies.


However, once the court permits the plaintiff to withdraw or abandon with leave to institute fresh action on the subject matter of the suit, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted.


On the other side space, a party may withdraw a suit without leave for two reasons. The first reason is incase the reason he/she suggested to the court for permission to withdraw fail to satisfy and the party decide to withdraw regardless of the decision of the court on it. The other reason is also if the party simply withdraws the suit without asking any permission to the court on that issue. Therefore, the ultimate outcome of withdrawal without leave to file a fresh suit is clear i.e., he/she cannot institute a fresh suit in respect to the cause of action. However, according to Art. 279 of the civil procedure code, the plaintiff may institute a fresh suit against the defendant on the same subject matter with different claim.