When Court Can Make an Order of Non-Suit

CASE TITLE:       LIMAZA & ORS v. MUHAMMAD & ANOR (2023) LPELR-60201(CA)

JUDGMENT DATE:      3RD APRIL, 2023

JUSTICES:                   ITA GEORGE MBABA, JCA

BOLOUKUROMO MOSES UGO, JCA

USMAN ALHAJI MUSALE, JCA

DIVISION: KANO

PRACTICE AREA:       LAND LAW

FACTS:

This appeal emanated from the judgment of Kano State High Court in Suit No. K/124/2014, delivered on 19th February, 2019 by Hon. Justice Aisha Ya’u.

The trial court granted a restraining order against the appellants, preventing them from trespassing on plots No. 74, 75, 76, and 77, which were recognized as exclusive possessions of the plaintiffs (now respondents).

The plaintiffs sought various reliefs, including a declaration of their rightful ownership of the mentioned plots, the nullification of the defendants’ purported purchase of the plots, a perpetual injunction to protect their peaceful enjoyment and possession of the plots, damages, and any other appropriate relief.

In response, the appellants (defendants) filed a joint statement of defense, presenting a counter-claim. They sought a declaration of their ownership and entitlement to possession of their respective plots, alleging trespass by the plaintiffs, and requested an order declaring the plots of land in dispute as belonging to the defendants. They also sought a perpetual injunction against the plaintiffs’ trespassing and general damages, along with the cost of the action.

After considering the evidence, submissions from both parties, and other relevant factors, the trial court ruled in favor of the plaintiffs. Dissatisfied with the judgment, the appellants filed this appeal.

ISSUES:

The appeal was determined on:

(1) Whether the learned trial Judge was right when he failed to non-suit the parties having found that both parties did not prove their case.

(2) Whether considering the facts of this case and the case of Oyadare Vs Keji (2005) 21 NSCOR 58, relied upon by the learned trial Judge, the learned trial Judge was right by making an order of perpetual injunction against the Appellants.

(3) Whether having regards to the evidence adduced the Appellants proved title to the plots in dispute.

COUNSEL SUBMISSIONS:

​Appellant’s counsel argued that when neither the plaintiff nor the defendant has proven their case, the proper order is to non-suit the parties, preventing the plaintiff from getting a second chance to pursue an unjust outcome. He relied on the cases of Ugbodume & Ors Vs Abiegbe & Ors (1991) LPELR-3316 (SC) and Akinwomoju Vs Kofoworola (2019) All FWLR (Pt. 988) 1093 at 1110-1112. Appellant’s counsel asserted that the appellant had presented credible and unchallenged evidence supporting their claim of title to the disputed plots of land.

Respondent’s counsel argued that the trial judge correctly granted the reliefs related to the restraining order as claimed in the writ of summons and statement of claim. He stated that the respondents inherited the plots of land from their late father, who had been in active possession of the land for many years, and upon his death, the respondents took exclusive possession. Respondent’s counsel contended that there was no dispute or challenge to the respondents’ possession of the plots and cited several cases supporting the proof of title to land, including Jolasun Vs Bamgboye (2011) All FWLR (Pt. 595) 207 and Fagunwa Vs Adibi (2004) All FWLR (Pt. 226) 340.

Respondent’s counsel urged the court to consider the evidence of PW4, the land officer to the local government, who explained the demarcation of the land into plots, supporting the respondents’ case. He urged the Court to resolve the issue in favour of the Respondents.

DECISION/HELD:

In conclusion, the appeal was allowed.

RATIO: JUDGMENT AND ORDER – ORDER OF NON-SUIT: Whether an order of non-suit can be granted where a party fails to establish his root of title in an action for declaration of title to land

“Of course, Appellant Counsel would not be right to urge this Court to non-suit the parties, in the circumstances of his case, as a non-suit cannot even be invoked, where a party fails to establish his root of title. See the case of Odi & amp; Ors Vs Iyala & amp; Ors (2014) LPELR – 2213 SC, where it was held:

“A plaintiff who claims ownership of land must prove his title in any of the five ways enumerated in Idundun v. Okumagba (1976) 9-10 SC 277; (1976) 1 NMLR 200. Where he fails to prove title, the case must be dismissed. He is not entitled to a non-suit to repair his original case. In Gold v. Osaseren (1970) 1 All NLR 125, this Court held that if a party fails to establish his title to land, his action should be dismissed instead of entering a non-suit against him.” Per TOBI, JSC.

It was actually the Respondents who failed to establish their title to the plots, in my opinion, in the light of the evidence before the lower Court, and so the call for order of non-suit cannot apply, as that would amount to giving the Respondents a second chance to repair their failed case.

In the case of Odi Vs Iyala (Supra), the Supreme Court took time to explain when an order for a non-suit can be made, as follows:

“A non-suit is a termination of an action which did not adjudicate all relevant issues on the merit, as where a plaintiff is unable to prove his whole case and it will be unjust to dismiss such case in its entirety or where there was a failure by the trial Judge to make proper and specific findings and an appellate Court can neither do the same on the printed evidence, a re-hearing or non-suit, depending on the circumstances of the particular case may be ordered. See Awote v. Owodunni (No.2) (1987) 2 NWLR (Pt. 57) 366, Chief Olufosoye v. Olorunfemi (1989) 1 NWLR (Pt. 95) 26. Where on the evidence before the Court neither party will be entitled to judgment, the Court can enter a non-suit after giving the parties opportunity to address it on the issue. See Ikoro v. Safrap Nig. Ltd. (1977) 2 SC 123, Craig v. Craig (1966) 1 All NLR 173.” Per TOBI, JSC.

See also Oguzie & Ors Vs Oguzie (2016) LPELR – 41086 CA, where this Court said:

“A Court can only make an order of non-suit where the party (particularly the plaintiff) failed to or is unable to prove his case due to blunders and it will be unjustifiable to dismiss the case, in its entirety or where there was failure by the trial judge to make proper and specific findings and an appellate Court cannot correct the error, based on the printed evidence or where, on the evidence before the Court, neither party will be entitled to judgment…” Per MBABA, J.C.A.