ARC. AKIN OLUSOLA & ORS v. TRUSTHOUSE PROPERTIES LTD & ANOR (2010)

ARC. AKIN OLUSOLA & ORS v. TRUSTHOUSE PROPERTIES LTD & ANOR

(2010)LCN/3668(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 30th day of March, 2010

CA/L/823/2006

RATIO

WORDS AND PHRASES: MEANING OF NON-SUIT

The term non-suit, very often than not, also denotes a court’s dismissal (striking out) of case because of the plaintiff’s failure to make out a legal case, or bring forward sufficient evidence to establish (prove) the claim thereof. This is termed involuntary non-suit; compulsory non suit.

According to Geoffrey Radclife & Geoffrey Cross; THE ENLISH LEGAL SYSEM, at 184-

“Non-suit … is equivalent to a demurrer to the evidence in that, even if all facts that plaintiff presents are true, the evidence is not, as a matter of law, sufficient to entitle plaintiff to a judgment. However, a voluntary non-suit, unlike a demurrer or a directed verdict which resolves the action on its merits, may result in another trial of the cause”.

See also BLACKS LAW DICTIONARY, EIGHTH EDITION, 2004 at 1084 – 1085; ODI VS. IYALA (2004) 8 NWLR (pt. 875) 283 at 312 paras. D – F. PER HON. JUSTICE I. M. M. SAULAWA, J.C.A.

APPEAL: HOW CAN A RESPONDENT WHO SEEKS TO SET ASIDE A FINDING WHICH IS FUNDAMENTAL TO THE DETERMINATION OF A CASE DO SO

Instructively, it’s a trite principle of law, that a respondent who seeks to set aside a finding which is crucial and fundamental to the determination of a case, can only do so by way of a notice of cross-appeal. This principle of law is predicated on the fact that the effect of a cross-appeal is a call for the reversal of a decision on the ground that the error complained of is crucial and fundamental. See AFRICAN CONTINENTAL SEAWAYS LTD VS. NIGERIAN RENOWNED TRADING CO. LTD (1990) 1 NWLR (Pt.127) 397; OWNERS OF THE MV ‘ARABELLA’ VS. NAIC (2008) 11 NWLR (Pt.1097) 182 AT 215 paras. A – C; In the case of ESSIEN VS. DIAMOND BANK (NIG) PLC (2009) 17 NWLR (pt. 1171) 466 at 481 – 482, paras. H-B, this court had a cause to postulate on the trite principle regarding cross-appeal, thus:

‘Where a respondent seeks to set aside a decision of a trial court on any crucial or material aspect, he must do so by way of a cross-appeal and not a respondent’s notice’. Per Saulawa, JCA. See also SUMMONU VS. ASHIROTA (1975) 1 NMLR 16; ELLOCHIN (NIG) LTD VS. MBADIWE (1986) 1 NWLR (pt.14) 47; ANYADUBA VS. NIGERIAN RENOWNED TRADING CO LTD (supra) 397; BRIGGS VS. BOB-MANUEL (2003) 7 NWLR (pt. 409) 559, respectively. PER HON. JUSTICE I. M. M. SAULAWA, J.C.A.

APPEAL: WHAT CONSTITUTES A CROSS-APPEAL

a cross-appeal is an independent appeal, having a distinctive life of its own in the appellate process, albeit it could have some affinitive relationship with the main appeal as the Criss-Cross. As authoritatively held by the apex court-

‘There are instances where a decision of the main appeal affects and in fact disposes of the crux or fulcrum of the Cross-appeal. In such situations, it will be merely repetitive and will not serve any useful purpose for an appellate court to go over the arguments raised by the cross-appellant in his brief. In such situations, and in order to avoid repetition and superfluity, an appellate court has the option to dismiss a cross-appeal summarily’. PER HON. JUSTICE I. M. M. SAULAWA, J.C.A.

ACTION: DUTIES OF A JUDGE INTENDING TO MAKE AN ORDER OF NON-SUIT

A judge intending to make an order of non-suit must give the counsel on both sides an opportunity to address him on the propriety of doing so before he makes the order. In Okoebor v Police Council (1998) 9 NWLR (pt. 566) 534 at 544 paras B-C Akintan, J.C.A. (as he then was) observed thus:

‘A trial judge considering whether to make an order of non suit or not is required to call on counsel for the parties to address him on the propriety of making such order in the case before him’.

The learned jurist further at page 544 paras D-F observed as follows:

“An order of non-suit is made where a plaintiff fails to prove his case due to a technical hitch after establishing a right or interest in the subject matter of a dispute to the extent that an order of dismissal would destroy his right or interest and thereby occasion a miscarriage of justice. An order of non-suit would also be made where neither of the parties in a dispute is entitled to the judgment of the trial court.”

The order could be made when a plaintiff fails to prove his case on technical ground, though infact, he has a right or interest in the res of the proceedings which will invariably be destroyed by an order of dismissal and I thereby occasion a miscarriage of justice. In that situation neither of the parties will be entitled to judgment and the trial judge may, only after address by counsel make an order of non-suit to give the parties especially the plaintiff another opportunity of relitigating the same case.

An order of non-suit does not decide anything regarding the pending suit but simply gets rid of the suit from pendency before the court with liberty to the plaintiff to recommence the suit de novo in other words there is neither winner nor loser when an action is non-suited but the plaintiff has a preserved right of another action on the same subject matter in Ugese v Siki (2007) 8 NWLR (pt.1037) 462 paras G-H my learned brother Ndukwe-Anyanwu, J.C.A. observed thus:

‘The Court has a discretion in granting order of non-suit. However, the discretion has to be exercised cautiously, judicially and judiciously. The overriding consideration at all times appears to be that considering the cases of the parties, justice demands that the plaintiff should be given a choice to institute another action on the same issues and should not be shut out for good and that the defendant is not entitled to judgment.” PER HUSSEIN MUKHTAR, J.C.A.

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

Between

1. ARC. AKIN OLUSOLA
T/A ARSEPH ASSOCIATES
2. ENGR. AJIBOLA OGUNDIPE
T/A IWA-OGUNDIPE & PARTNERS
3. MR. KOLA ADEYEMO
T/A COLLINS ASSOCIATES
4. DANIEW ENGINEERING LTD Appellant(s)

AND

1. TRUSTHOUSE PROPERTIES LTD
2. ALLIANCE & GENERAL INSURANCE COMPANY LTD Respondent(s)

HON. JUSTICE I. M. M. SAULAWA, J.C.A. (Delivering the Leading Judgment): The present appeal was brought by the four Appellants against the judgment of the High Court of Lagos State delivered by A. A. Phillips, J on the 27th day of May, 2005.
On 21st April, 1998, the Appellants filed in the court below a writ of summons and a statement of claim of 13 paragraphs against the Respondents in suit No.ID/889/98. By the 14 paragraphed amended statement thereof, dated 21st January, 1999, the Appellants prayed the lower Court for the following relief:-
’14. Whereof the Plaintiffs claim jointly and severally against the defendants as follows:
(i) The sum of 6,862, 705. 06 (six million, Eight Hundred and Sixty two Thousand, Seven Hundred and Five Naira, six kobo) being the total sum payable by the defendant to the plaintiffs for pre-contracts consultancy services rendered by the Corporate Alliance and General Insurance Company Limited, at Plot 5E, Ligali Ayorinde Street, Victoria (sic) Island, Lagos. In accordance with the Federal Government approved scale for consultancy services based on a preliminary project estimate of N64,994,522.00
A. ARCHITECT                – N1,949,856.28
B. STRUCTURAL ENGINEER        – N1,124,917.82
C. MECHANICAL/ELECTRICAL ENGINEER    -N1,541,139.06
D. QUANTITY SURVEYOR          -N1,126,792.00
E. EXTRASERVICES                 -N 500,000.00
F. REIMBURSIBLE EXPENSES     -N 500,000.00
G. PLANNING APPROVAL FEES   -N 120,000.00
TOTAL                    -N6,862,705.06
(ii) Interest at the rate of N21% per annum an the said sum from 2nd October, 1996 until judgment and thereafter at 6% per annum until the entire sum is fully liquidated.”
On their own part, the Respondents filed a 21 paragraphed statement of defence, dated 4th November, 1998 to the effect that-
“The claims of the plaintiffs are frivolous, vexatious, scandalous, an abuse of the process of the court and should be dismissed in their entirety.”
Instructively, the parties filed and exchanged their respective pleadings. The suit proceeded to trial, at the conclusion of which the learned trial judge of the court below delivered a judgment on the said 27th May, 2005 to the effect, inter alia thus:
CONCLUSION:
In conclusion therefore, I find that this action is premature and it is therefore struck out. The parties have to meet with their lawyers in tow to ensure that some agreement as reached in regard to the fees due to the claimants as they are surety entitled, to be paid for their services which they have rendered and at this. I have no doubt in my mind. If no agreement is reached then either party can take the appropriate steps to ensure that they are paid their dues under the oral contract. I make no order as to cost.”
Being dissatisfied with the said judgment, the Appellants filed the notice of appeal thereof on 1st August, 2005. By the said notice of appeal, which was predicated on a total of 14 grounds of appeal, the Appellants have sought the following reliefs:
‘(a) AN ORDER reversing the decision of the trial court striking out the claimants’ claim as premature.
(b) AN ORDER granting judgment to the Claimants/Appellants in terms of the amount claimed by them which the trial court found that they proved but refused to award because the Defendants/Respondents failed to proffer evidence to the contrary, OR
(c) ASSESSMENT by the Honourable Court of Appeal of the amount payable as fees to the claimants for their services to the Defendants on quantum meruit basis using the evidence on record as adduced at the trial, OR
AN ORDER remitting the issue of the amount payable as fees by the Defendants to the claimants for services rendered for determination before another judge of the trial judge’.
The Respondents on their own part deemed it expedient to file a notice of cross-appeal on 20th July, 2006. The notice of cross-appeal is predicated on 3 grounds, thereby praying the court the following four reliefs:
“1. An order of the Court of Appeal allowing the crass appeal and setting aside the judgment of the High Court of Logos State, Ikeja, Judicial Division delivered by Honourable Justice A.A. Philips (Mrs.) on the 27th day of May, 2005.
2. An order setting aside the order of the lower/trial court striking out the suit for being premature.
3. An order (sic) Court of Appeal dismissing the Appeal filed herein.
4. An order of the Court of Appeal giving judgment to the Defendants/Cross appellants against the Claimants/Appellants by dismissing their claims against the Defendants in their entirety.”

When the appeal last came up for hearing on 18/01/10, the learned counsel to the parties adopted the argument contained in their respective briefs of argument, thereby resulting in the appeal being reserved for judgment. Most particularly, the Appellants’ brief was filed on 16th May, 2008. The Appellants’ reply brief was filed on 20th October, 2009. The Respondents’ brief was filed on 15/10/09, but deemed properly filed and served on 19/10/09. Likewise, the Cross-Appellants’ brief was filed on 15/10/09, but deemed properly filed and served on 19/10/09.
The Appellants’ brief spans a total of 52 pages. Five issues were raised at pages 5 & 6 of the brief. On the other hand, the Respondents’ brief covers a total of 13 pages. Only a single issue has so far been raised therein. It is worth mentioning, that a sole issue equally formulated in the cross-Appellants’ brief at page five thereof.
The five issues raised in the Appellants’ brief are to the following effect:
‘(i) Whether, considering the pleadings of the parties and the evidence before the court, the claimants were rightly non suited on the ground that their suit was premature. (Grounds 3.1. 3.2; 3.3; 3.4; 3; 6; and 3.11) of the Amended Notice of Appeal.
(ii) Whether, considering the pleadings of the parties and the evidence respectively adduced by them at the trial, the learned trial judge rightly held that the claimants did not establish their claim for remuneration for services rendered on quantum meruit basis. (Grounds 3.5; 3.7; 3.8; 3.9; 3.10; and 3.14) of the Amended Notice of Appeal.
(iii) Whether the learned trial judge rightly refused the claimants claim for interest on the ground that the situation that would have justified the award of interest was brought about by the claimants themselves. (Ground 3.12 of the Amend Notice of Appeal).
(iv) Whether the directive of the learned trial judge that ‘The parties meet with their lawyers in tow to ensure that some agreement is reached in regard to the fees due to the claimants as they are surely entitled to be paid for their services …
If no agreement is reached then either party can take the appropriate steps to ensure that they are paid their dues…’ is judicial and judicious in the circumstance of this case. (Ground 3.13 of the Amended Notice of Appeal).
(v) Whether the long delay in hearing and determining the suit infringed upon the claimants’ right to fair hearing within a reasonable time and have occasioned a miscarriage of justice against the claimants in the suit. (Grounds 3.13 and 3.15 of the Amended Notice of Appeal).
As alluded to above, the Respondents have raised three issues in the brief thereof. They are as follows:
‘(1) Whether form the facts, circumstances, and evidence before the lower court, the learned trial judge (sic) was right in holding that the suit of the Claimants/Appellants was premature’.
(2) Whether from the facts, circumstances and, evidence before the lower court the learned trial judge was right in holding that the Appellants did not establish their claims for remuneration for services rendered an quantum meruit basis.
(3) Whether the learned trial judge was right when it refused the Appellants claim in the sum claimed.
Regarding the Cross-Appellants’ brief, the Respondents/Cross-Appellants have raised therein a sole issue for determination, to wit-
‘Whether the learned trial judge was right when he struck out the case of the claimants/Respondents to this cross appeal instead of dismissing it having found that the claims of the claimants/Respondents cannot succeed on merit or quantum meruit’.
The Cross-Respondents’ brief is contained at pages 5 – 10 of the Appellants’ reply brief. A sole issue has been formulated at page 8 therein, thus:
‘Whether or not the learned trial judge rightly struck out the Appellants’ claim, rather than dismissing it’.
DETERMINATION OF THE SUBSTANTIVE APPEAL
Having contrasted the submissions of the Appellants and the Respondents, contained in the respective briefs thereof, I am appreciative of the fact that the five issues raised in the Appellant’s brief have been tied down to, or predicated upon, specific grounds of appeal. Contrariwise, however, none of the three issues formulated in the Respondents’ brief was indicated to have been distilled from any of the fifteen amended grounds of appeal of the Appellants. And it’s a trite and settled principle of law, that issues formulated in either the Appellant’s or Respondent’s brief must be related to the grounds of appeal, otherwise they are deemed to be at large, thus liable to be discountenanced. See -In the circumstance, it’s apt for me to proceed to determine the appeal on the basis of the five issues raised by the Appellants in the brief thereof:
ON ISSUE NO.1:
Issue No.1, as alluded to above, raises the vexed question of whether considering the pleadings of the parties and the evidence before the lower court, the claimants were rightly non-suited on the ground that their suit was premature. The issue is predicated on grounds 1, 2, 3, 4, 6 and 11 of the amended grounds of appeal of the Appellants. The concluding part of the judgment of the lower court, at page 165 of the Record, regarding the finding of the learned trial judge, to the effect that the ‘action is premature and its therefore struck out’, was referred to by the learned counsel. Citing order 34 of the High Court of Lagos State (Civil procedure) Rules, 2004, it was contended that the decision of the lower court to non-suit the Plaintiffs is defective and ‘liable to be premptorly set aside’ by this court, on the ground that-
‘The order arose suo motu in the judgment of the court without the learned trial judge affording the parties’ Legal Practitioners the opportunity to make submissions about the propriety or otherwise of making such order’.
For the above propositions of law, the learned counsel cited and relied upon the following authorities: CRAIG VS. CRAIG (1966) 1 ALL NLR 173; OLAFIOYE VS. OSO (1969) 1 ALL NLR 281; OOUOLA VS. COKER (1981) 5 SC 197; GOLD OSASEREN (1970) 1 ALL NLR 125; AIGBE VS. EDEKPOLO RC (1977) 2 SC 1; AKPAPUNA VS. NZEKA(1983) 2 SCNLR 1; ODI VS. IYALA (2004) 8 NWLR (pt. 875) 283; IKORO VS. SAFRAF LTD (1977) 2 SC. 123, respectively.
It was contended, that there are equally weighty reasons for which the decision of the lower court ought not to be allowed to stand. Order 34 (of the High Court Rules) was cited to the effect that the claimants would only be liable to be non-suited if they fail to adduce satisfactory evidence entitling them to judgment on their claim, and that the defendants also fail to adduce satisfactory evidence in proof of their defence as to entitle them to an order dismissing the claim. See ODE VS. TRUSTEES OF IBADAN DIOCESE (1966) 1 ALL NLR 287; EROYOMA VS. DAREGBA (1968) 1 ALL NLR 192; OGUNZOYE VS. DUROSINMI (1975) 12 SC 49.
It was further submitted, on the above score, that the decision whether or not to non-suit the claimants involves the consideration of (i) what is the claim of the claimants vis-a-vis the defence of the defendants, and (ii) what is the evidence adduced on both sides vis-a-vis each party’s entitlement to judgment on their respective claims and defence.
Paragraphs (a) – (f) of the amended statement of claim, at pages 51 – 53 of the Record, and paragraphs (a) – (d) of the statement of defence, at pages 63 – 65 of the Record, were copiously alluded to. According to the learned counsel, issues joined in the pleadings as summarized in paragraphs 4.1.8 to 41.9 of the Appellants’ brief were resolved in the judgment appealed against, at pages 16, lines 22 – 25; 161 lines 18 -22 to page 162 lines 1 – 14; 162 lines 26 – 30; 16 lines 18 – 22; 163 line 6; 163 line 2 to 164 lines, respectively. The issues in question relate to (a) the professional capacities claimed by the claimants; (b) whether there existed a contract between the parties (as against a mere invitation to treat); (c) whether the claimants performed or abandoned the contracted works, and are or are not entitled to be remunerated for their respective works; and (d) whether there was an agreement between the parties that the claimants would be remunerated based on the scale of the fees regulating their profession.
It was contended, that from the decisions of the court below referred to above, the learned trial judge was under the impression that the claimants claimed to have an agreement with the defendants to be remunerated based on the scale of fees applicable to their respective professions. That, it was an erroneous appreciation of the pleadings and evidence adduced at the trial for the learned trial judge to have non-suited the Appellants.
Paragraph 8 of the amended statement of claim, at page 52, and the testimony of the PW1, at pages 94 – 96, of the Record were alluded to. It was argued, that in the absence of an express agreement on rate of remuneration, the claimants rightly ought to be remunerated on quantum meruit basis using exhibit P6 (the approved scale of fees applicable to their different professions) as evidence of what the services were worth.
In conclusion, it was contended, that it’s clear from the foregoing analysis, that the claimants were consistent in their pleadings and in the evidence adduced at the trial, where as the Defendants were inconsistent in both their pleadings and evidence adduced at the trial. Thus, it’s wrongful of the learned trial judge to non-suit the claimants. See EKPENYONG VS. AYI, (1973) 5 SC 169 at 174, per Coker, JSC. That, the order of non-suit is not only bad, and therefore liable to be over turned, but also (because) the evidence clearly entitles the claimants to judgment on their claim, as pleaded. See AIGBE VS. EDEKPOLOR (1977) 2 SC 1 at 15 – 17, per Idigbe, JSC; ADELUSOLA VS. HIUNDE (2004) 12 NWLR (pt 887) 295 at 320 paras E-F, 321 paras D- E, per Niki Tobi, JSC.
The court has been urged upon to resolve issue No.1 in Appellants’ favour, and accordingly set aside the learned trial judge’s decision non suiting the claimants.
The issue No.1 formulated in the Respondents’ brief raises exactly the same vexed question in the Appellants’ issue No.1. The submission of the Respondents on this first issue could be found at pages 5 – 7 of the brief thereof. It was submitted, without much ado, that the learned trial judge was right in holding that the Appellants’ suit was premature. It was contended, that the claim of the Appellants was predicated on the scale of charges which was never agreed upon by both parties.
It was argued, that from the evidence before the court, there existed a previous relationship between the 1st Appellant and the Respondents and that relationship had never been governed by the Federal Government of Nigeria approved scale of fee for such services. That, the evidence before the court shows that whatsoever fees was presented in the past by the 1st Appellant, even though not based on approved scale fee, have always been negotiated and discounted.
According to the learned counsel, from the evidence adduced before the court below, the Respondents invited the Appellants on receipt of the bill for negotiation, but the Appellants refused to attend the meeting. That, both parties having not agreed on the fees to be paid for the services rendered, it would be sheer injustice for the Respondents to accept the unilateral fees charged by the Appellants without the necessary input of, and negotiation with the Respondents. See SGB (NIG) LTD VS. SSCM LTD (1998) 5 NWLR (pt. 548) 168; 175 paras. E- F.
The court has been urged to uphold the findings of the learned trial judge, to the effect that this suit was premature.
The Appellants have reacted to the Respondents’ submission (in the brief thereof) in the Reply brief. It was the submission and agitation of the Appellants learned man, the Respondents having failed to answer or contest in their brief grounds 3.13 and 3.15 of the grounds of appeal and the issues. Nos.4 & 5 of the Appellants, they should be deemed to have conceded the complaints ventilated in those grounds and issues in question. The court has been urged to accordingly to resolve the alleged undisputed grounds and issues in favour of the Appellants.
I have amply considered the nature and circumstances surrounding the issue, the submissions of the learned counsel contained in the respective briefs thereof the authorities cited and relied upon vis-a-vis the record of appeal, as a whole.
It is not in doubt, that in the concluding portion of the judgment of the lower court, most especially at page 165, lines 14 – 21, of the Record, the learned trial judge arrived at the following conclusion:
“In conclusion therefore, I find that this action is therefore (sic) struck out. The parties have to meet with their lawyers in tow to ensure that some agreement is reached in regard to the fees due to the claimants as they are surely entitled to be paid for their services which they have rendered and of this I have no doubt in my mind. If no agreement is reached then either party can take the appropriate steps to ensure that they are paid their dues under the oral contract. I make no order as to cost,”
The above order of non-suit of the Appellants’ claim is undoubtedly the crux of the present appeal. And the Appellants have urged upon us to hold, inter alia, that-
‘The order of non-suit is not only bad and therefore liable to be overturned by this Honourable Court of Appeal because it was arrived at suo-motu by the learned trial judge without affording the parties an opportunity to be heard on its propriety, but also especially because the available evidence clearly entitles the claimants to judgment on their claim as pleaded.’ See page 29 paragraph 4.1.39 of the Appellants’ brief.

The term ‘non-suit’ denotes a plaintiff’s voluntary dismissal of a case or of a defendant, without a decision on the merits. It is trite that voluntary dismissal of a case tantamount, or is equivalent, to a non-suit. It is also termed voluntary discontinuance (of a suit).
The term non-suit, very often than not, also denotes a court’s dismissal (striking out) of case because of the plaintiff’s failure to make out a legal case, or bring forward sufficient evidence to establish (prove) the claim thereof. This is termed involuntary non-suit; compulsory non suit.
According to Geoffrey Radclife & Geoffrey Cross; THE ENLISH LEGAL SYSEM, at 184-
“Non-suit … is equivalent to a demurrer to the evidence in that, even if all facts that plaintiff presents are true, the evidence is not, as a matter of law, sufficient to entitle plaintiff to a judgment. However, a voluntary non-suit, unlike a demurrer or a directed verdict which resolves the action on its merits, may result in another trial of the cause”.
See also BLACKS LAW DICTIONARY, EIGHTH EDITION, 2004 at 1084 – 1085; ODI VS. IYALA (2004) 8 NWLR (pt. 875) 283 at 312 paras. D – F.

Instructively, the powers of the court below to non-suit a claimant in a given suit are traceable to the provisions of the High Court of Lagos State (Civil procedure) Rules, 2004, especially order 34 thereof, which provide thus:
“1. Where satisfactory evidence is not given entitling the claimant or defendant to the judgment of the court, the Judge may suo motu or on application non-suit the claimant, but the parties’ Legal Practitioners shall have the right to make submissions about the propriety or otherwise of making such order.
2. The Judge may upon a motion for a new trial or review of judgment order a non-suit or judgment to be entered, although no leave has been reserved at the trial.”

It is a trite and fundamental principle of law, that he who claims must prove his claim on a preponderance of evidence or balance of probabilities.

It is also a trite principle, that parties are bound by their pleadings, and that any evidence which is contrary to a material averment in the pleading of a party will adversely affect his case. See EHIMARE VS. EMHONYON (1985) 1 NWLR (pt.2) 177; ABAYE VS. OFILI (1986) 1 NWLR (pt. 15) 134; OWOADE VS.OMITOLA (1988) 2 NWLR (pt.77) 413; ODILI VS. IYALA (2004) 8 NWLR (pt. 875) 283 at 309 – 310 paras. G – A.

It should be reiterated, at this point in time, that a case is made in the pleading of a party and not on an appeal. Thus, if pleadings are badly constructed or rendered at the trial stage, a party cannot repair them on appeal to his advantage. See ODI VS. IYALA (supra)at 312 para C.
I have accorded a critical, albeit dispassionate, consideration to the nature and circumstances surrounding the appeal, the submissions of the learned counsel in the respective briefs of argument thereof vis-a-vis the records of appeal, as a whole. As alluded to above, the judgment of the court below is contained at pages 154 to 165 of the record of proceedings. The totality of the reasoning and conclusion reached by the learned trial Judge in the judgment in question is to the effect that the Appellant’s action was premature, thus liable to be struck out. At page 164, lines 5 to 11 of the Record, the learned judge held thus:
‘I accordingly agree with the submissions of learned counsel for the Defendants that this action is premature as the claimants ought to have attended the meeting requested for by the chairman of the 1st Defendant and heard him out first before taking the decision to institute this action, then there would have been a counter offer before this court to assist this court come to a decision’.
The learned judge thereby came to a conclusion at page 165, lines 14 to 22 of the Record thus:
“In conclusion therefore, I find that this action is premature and it is therefore struck out. The parties have meet with their lawyers in tow to ensure that some agreement is reached in regard to the fees due to the claimants as they are surely entitled to be paid for their services which they have rendered and of this I have no doubt in my mind. If no agreement is reached then either party can take the appropriate steps to ensure that they are paid their dues under the oral contract. I make no order as to costs.”
Having critically appraised the entirety of the decision of the court below in question, I have no hesitation whatsoever in upholding the Appellants learned counsel’s contention that-
“The decision of the learned trial Judge was to all intents and purposes an order of non-suit.”
Most unfortunately, however, with utmost respect to the learned trial Judge, the decision to resort to non suit the Appellants, suo motu, without according them the opportunity to address the court on the issue tantamounts to a gross violation of the provision of order 34 Rules 1 & 2 of the High Court of Lagos State (Civil procedure) Rules, 2004 (supra).
By the provisions of Rule 1 of Order 34 of the High Court Rules (supra), where satisfactory evidence is not adduced to entitle either the plaintiff or the defendant to the judgment of the court, the trial judge has the discretionary power to, suo motu, or on an application, non-suit the Claimant; but the legal practitioners to the parties shall have the right to address the court on the propriety or otherwise of making such an order.
In the instant case, there is nowhere throughout the length and breadth of the record it was indicated that the learned trial Judge had invited the learned counsel to the parties to address the court on the propriety or otherwise of the order non-suiting the Appellants. Most undoubtedly, the learned judge has no discretionary power whatsoever to, suo motu, blatantly disregard the well set out and unequivocal provisions of order 34, Rule 1 of the High Court Rules (supra), non-suit the Appellants without inviting the parties’ learned counsel to address the court on the vital issue prior to the delivery of the judgment. This kind of attitudinal disposition vis-a-vis blatant disregard to rule of law is, to say, the least, reprehensible. See COLE VS. MARTINS (1968) ALL NLR 161 at 163, wherein the apex court held per Lewis, JSC, inter alia, thus:
“We have frequently stated in the past, and we must reiterate again now, that it is most describable that if a court considers after hearing argument of counsel that a matter before it can in fact be decided on a technical point on which it has not been addressed by counsel, the Judge should have the matter reopened and give counsel on each side the opportunity to address him on the point which he thinks may decide the matter before he gives judgment in regard to its. It is in our view only after so acting that a court should adjudicate on a technical point taken by the court itself particularly when the defect, if there is one, could be cured if the court, in its discretion, give leave to amend.”
See also REGISTERED TRUSTEES OF APOSTOLIC CHURCH OF LAGOS AREA VS. AKINDELE (1967) NMLR 263 at 264 per Lewis, JSC; TRUTEC INVESTMENTS SERVICE LIMITED VS. MONIPULO LIMITED & 3 ORS: CA/L/L/308M/03, ruling delivered on 181h March, 2010 (unreported), respectively.
It must be reiterated for the avoidance of doubt, that an order for non-suit tantamounts to the termination of a suit or an action, prematurely, without determining all the issues therein on the merits. It’s a well established principle of the rule of law, that an order for non-suit may be made in any of the following circumstances, to wit:
‘(i) Where a plaintiff is unable to prove his whole case and it will be unjustifiable to dismiss such case in the entirety thereof;
(ii) Where there was a failure by the trial judge to make proper and specific findings and an appellate court can do the same on the printed evidence; or
(iii) Where on the evidence before the court neither party will be entitled to judgment’.
However, before the court can order non-suit, it has the mandatory duty to accord the parties the opportunity to address it on the propriety or otherwise of such an order. See AWOTE VS. OWODUNMI (No.2) 1982 NWLR (pt. 95) 26; IKORO VS. SAFRAP (NIG) LTD (1977) 2 SC 123; CRAIG VS. CRAIG (1966) 1 ALL NLR 173; ODI VS. IYALA (2004) 8 NWLR (pt. 875) 283 at 312 paras. D – F, respectively.
The learned trial judge has an onerous duty to, at all time and under whatever circumstances, keep the vision thereof unclouded. By turning a blind eye to the unequivocally mandatory provisions of order 34, Rule 1 of the Lagos State High Court (Civil procedure) Rules, 2004 (supra), the learned judge had most regrettably rendered the entire decision thereof a nullity, thus liable to be set aside. See RE: ENOCH & ZARETSKYBOCK & CO. (1910) 1 KB 327, which was cited with an approval in JONES VS. NATIONAL COLA BOARD (1957) 2 ALL ER 155, wherein Lord Denning, MR, that indomitable, fearless and foremost common law jurist, held, in his notoriously erudite and philosophical characteristics, thus:
“Yes, he must keep his vision unclouded. It is all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth; and the less dust there is about the better. Let the advocates one after the other put the weights into the scales – the ‘nicely calculated less or more’ – but the judge at the end decides which way the balance tilts be it ever so slightly.”
In the instant case, the wrongful exercising of the learned judge’s discretionary power has undoubtedly resulted in breaching the Appellants’ right to fair hearing, as cherishingly enshrined in section 36(1) of the constitution of the Federal Republic of Nigeria, 1999, and order 34 Rule 1 of the High Court of Lagos State (Civil procedure) Rules, 2004 (supra). And I so hold. That wrongful exercise of discretionary power has, in my view, amounted to what the House of Lords disapprovingly termed ‘crooked cord of discretion’ in the case of PETTITT vs. PETTITT (197)) He 777 at 808, thus:
‘To use the language of Coke, this would be to substitute the uncertain and crooked cord of discretion for the golden and straight met wand of the law.” Per Lord Hodson.
Ironically, however, the above rather blunt and unsparing remark of Lord Hodson in PETTITT VS. PETTITT (supra) was a reaction to Lord Denning MR’s dictum radically enunciated in the case of HINE VS. HINE (1962) 1 NLR 1124 at 1127 wherein the learned jurist held, inter alia, thus:
“Its discretion transcends all legal or equitable, and enables the court to make such order as it thinks fit. This means, as I understand it, that the court is entitled to make such order as may be fair and just in all the circumstances of the case.”
Thus, in the light of the above postulations, there is every reasonable cause for me to hold that the answer to issue NO.1 is in the negative, and same is hereby resolved in the favour of the Appellants.
Having resolved issue No. 1 in favour of the Appellants, there is no gainsaying the fact, that to resort to determine the rest of the four issues on the merits would amount to a sheer futile academic exercise. As painstakingly postulated above, the learned trial judge’s blatant failure to invite the parties’ counsel to address the court on the propriety or otherwise to non-suit the Appellants, has undoubtedly and rather uncharitably breached the Appellants’ right to fair hearing, as duly enshrined in section 36 (1) of 1999 constitution (supra) and order 34, Rule 1 of the Lagos State High Court (Civil procedure) Rules, 2004 (supra). Most particularly, the provision of section 36(1) of the 1999 constitution is to the effect that in the determination of his civil rights and obligation, including any question or determination by or against any Government or authority, a person shall be entitled to fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
In the same vein, it’s well settled that the principle of fair hearing is not merely a technical rule. It is obviously a rule of substance. See EKE VS. MILITARY ADMINISTRATOR OF IMO STATE (2007) 13 NWLR (pt. 1052) 531 at 561 paras. C – E, 564 paras C- D, wherein this court held as follows:
‘It is not even the question of whether a party is entitled to be heard before a decision is reached, but whether he had in fact been accorded a opportunity in the case to be heard.’
In the notorious case of BAMAYI VS. THE STATE (2001) 8 NWLR (pt. 715) 270 at 284, it was held by the Supreme Court, per Unwaifo, JSC, thus:
‘Once an appellate court comes to the conclusion that the party was entitled to be heard before a decision was reached but was not given the opportunity of a hearing, the order or judgment thus entered is bound to be set aside’.
See also KOTOYE VS. CBN (1989) NWLR (pt. 98) 419; NTUKIDEM VS. OKO (1986) 5 NWLR (pt. 45) 909.
Hence, having resolved issue No.1 in favour of the Appellants, I have no hesitation whatsoever in coming to the inevitable conclusion that the instant appeal succeeds in part, and same is hereby allowed by me. Consequently, the judgment of the court below delivered on 27/5/05 and the resultant order non-suiting the Appellants, are hereby set aside.
In view of the above resultant resolution of issue No.1 in favour of the Appellants, ‘there is every cogent reason for me to hold that the justice of the case demands that it should be remitted to the trial court for retrial. And I so hold. Accordingly, I hereby order that the case be remitted to the court below for retrial denovo by another judge of the court. The Appellants are entitled to costs of N30,000.00 against the Respondents.
THE CROSS-APPEAL:
As alluded to above, the Respondent had deemed it expedient to file a notice of cross-appeal on 20/7/05, which is anchored on three grounds. I had earlier herein above set out the four relief sought by the Respondents/Cross-Appellants. I do not think it would be out of place to reproduce the said four reliefs thus:
1. An order of the Court of Appeal and allowing the Cross-appeal and setting aside the judgment of the High Court of Lagos State, Ikeja, Judicial Division delivered by Honourable Justice A. A. Philips (Mrs.) on the 27th day of May, 2005.
2. An order setting aside the order of the lower/trial court striking out the suit for being premature.
3. An order of the Court of Appeal dismissing the Appeal filed herein.
4. An order of the Court of Appeal giving judgment to the Defendants/Cross appellants against the Claimants/Appellants by dismissing their claims against their entirety.”
Instructively, it’s a trite principle of law, that a respondent who seeks to set aside a finding which is crucial and fundamental to the determination of a case, can only do so by way of a notice of cross-appeal. This principle of law is predicated on the fact that the effect of a cross-appeal is a call for the reversal of a decision on the ground that the error complained of is crucial and fundamental. See AFRICAN CONTINENTAL SEAWAYS LTD VS. NIGERIAN RENOWNED TRADING CO. LTD (1990) 1 NWLR (Pt.127) 397; OWNERS OF THE MV ‘ARABELLA’ VS. NAIC (2008) 11 NWLR (Pt.1097) 182 AT 215 paras. A – C; In the case of ESSIEN VS. DIAMOND BANK (NIG) PLC (2009) 17 NWLR (pt. 1171) 466 at 481 – 482, paras. H-B, this court had a cause to postulate on the trite principle regarding cross-appeal, thus:
‘Where a respondent seeks to set aside a decision of a trial court on any crucial or material aspect, he must do so by way of a cross-appeal and not a respondent’s notice’. Per Saulawa, JCA. See also SUMMONU VS. ASHIROTA (1975) 1 NMLR 16; ELLOCHIN (NIG) LTD VS. MBADIWE (1986) 1 NWLR (pt.14) 47; ANYADUBA VS. NIGERIAN RENOWNED TRADING CO LTD (supra) 397; BRIGGS VS. BOB-MANUEL (2003) 7 NWLR (pt. 409) 559, respectively.
Flowing from the above postulations, it’s rather obvious that a cross-appeal is an independent appeal, having a distinctive life of its own in the appellate process, albeit it could have some affinitive relationship with the main appeal as the Criss-Cross. As authoritatively held by the apex court-
‘There are instances where a decision of the main appeal affects and in fact disposes of the crux or fulcrum of the Cross-appeal. In such situations, it will be merely repetitive and will not serve any useful purpose for an appellate court to go over the arguments raised by the cross-appellant in his brief. In such situations, and in order to avoid repetition and superfluity, an appellate court has the option to dismiss a cross-appeal summarily’.
In the instant case, in view of the findings in the main appeal, resulting in setting aside of the judgment of the court below, and the consequential order remitting the case thereto for retrial denovo, the cross-appeal has resultantly become disposed off. The option left to this court in the circumstances, is to summarily strike out the cross-appeal.
The instant cross-appeal could be likened to a sea squirt. It is trite, that a sea squirt is a unique creature that characteristically swims around until it finds the perfect rock, where it gets stuck, digests its own brain, and resultantly transforms itself into a plant.
As highlighted above, the findings and resultant orders in the main appeal have undoubtedly effectively resulted in disposing of the Cross-appeal, and is liable to be struck out. The cross-appeal is accordingly hereby struck out.

RAPHAEL CHIKWE AGBO, J.C.A.: I have been privileged to read beforehand the well written lead judgment of my learned brother SAULAWA J.C.A. and I agree not only with the reasoning but conclusions. I agree with appellants’ counsel that the judgment delivered by the trial court even though said to be a striking out in fact amounts to an order of non suit pursuant to Order 34 of the High Court of Lagos State (Civil Procedure) Rules 2004. While I regard as welcome the return of the Order of non-suit to the adjectival laws of Lagos State, it was wrongly applied in the instant case. This is because before a court determines that none of the parties to a civil suit before it has made out his case and therefore must return to the starting block, the parties are entitled to be heard. The none hearing of the parties in such a circumstance is a fundamental error that leads to the avoidance of the whole proceedings. I too on this ground order that the proceedings at the trial court be vacated. The Chief Judge of Lagos State is hereby ordered to reassign Suit No.ID/889/98 to another judge for hearing de novo. I also condemn the respondents to N30,000.00 costs in favour of the appellants.

HUSSEIN MUKHTAR, J.C.A.: I was opportuned to read in advance the judgment of my learned brother Saulawa, J.C.A. and entirely agree with him that the appeal is meritorious and ought to be allowed.
It is however, pertinent to observe that the five issues for determination raised by the appellants in their brief boils down to one bottom line issue as to whether the order of non-suit which was raised and determined by the court below suo motu without giving the parties an opportunity to address it in respect thereof was proper.
The cross appellants’ contention, on the other hand, is that the appellants’ case ought to have been dismissed instead of merely being struck out, and urges this court to substitute the order striking out the suit with an order for dismissal. A judge intending to make an order of non-suit must give the counsel on both sides an opportunity to address him on the propriety of doing so before he makes the order. In Okoebor v Police Council (1998) 9 NWLR (pt. 566) 534 at 544 paras B-C Akintan, J.C.A. (as he then was) observed thus:
‘A trial judge considering whether to make an order of non suit or not is required to call on counsel for the parties to address him on the propriety of making such order in the case before him’.
The learned jurist further at page 544 paras D-F observed as follows:
“An order of non-suit is made where a plaintiff fails to prove his case due to a technical hitch after establishing a right or interest in the subject matter of a dispute to the extent that an order of dismissal would destroy his right or interest and thereby occasion a miscarriage of justice. An order of non-suit would also be made where neither of the parties in a dispute is entitled to the judgment of the trial court.”
The order could be made when a plaintiff fails to prove his case on technical ground, though infact, he has a right or interest in the res of the proceedings which will invariably be destroyed by an order of dismissal and I thereby occasion a miscarriage of justice. In that situation neither of the parties will be entitled to judgment and the trial judge may, only after address by counsel make an order of non-suit to give the parties especially the plaintiff another opportunity of relitigating the same case.
An order of non-suit does not decide anything regarding the pending suit but simply gets rid of the suit from pendency before the court with liberty to the plaintiff to recommence the suit de novo in other words there is neither winner nor loser when an action is non-suited but the plaintiff has a preserved right of another action on the same subject matter in Ugese v Siki (2007) 8 NWLR (pt.1037) 462 paras G-H my learned brother Ndukwe-Anyanwu, J.C.A. observed thus:
‘The Court has a discretion in granting order of non-suit. However, the discretion has to be exercised cautiously, judicially and judiciously. The overriding consideration at all times appears to be that considering the cases of the parties, justice demands that the plaintiff should be given a choice to institute another action on the same issues and should not be shut out for good and that the defendant is not entitled to judgment.”
Moreover, it is mandatory under order 34 rule 1 of the Lagos State High Court (Civil Procedure) Rules 2004 to give counsel an opportunity of addressing the court on the propriety or otherwise of making an order of non-suit. The said rule provides thus:
“Where satisfactory evidence is not given entitling the claimant or defendant to the judgment of the court, the judge may suo motu or on application non-suit the claimant, but the parties’ Legal Practitioners shall have the right to make submissions about the propriety or otherwise of making such order.”
Failure of the learned trial judge to comply with this provision did not only defeat the propriety of making the order of non-suit by the learned trial judge, but also constituted an infraction on the parties’ right to fair hearing under section 36 of the Constitution of the Federal Republic of Nigeria 1999.
An order of non-suit is meant to save a plaintiff from a technical defeat and has the effect of giving the losing party another opportunity to relitigate the same suit.
The cross appeal which in effect urges the court to substitute the non-suit order with one of dismissal cannot succeed because the suit may only be dismissed on the merits. In the circumstances of the present case an order of dismissal is inappropriate since the suit was not determined on its merits. For the foregoing and other more detailed reasons in the lead judgment of my learned brother Saulawa, J.C.A., I also allow the appeal and dismiss the cross appeal. The order of non-suit made by the learned trial Judge is accordingly hereby set-aside.
The case is remitted back to the Chief Judge of Lagos State to be reassigned to another Judge of that court for trial de novo. I subscribe to all other consequential orders made in the lead judgment inclusive of the one as to costs.