IKE OKADIGBO & ANOR V. EMMANUEL OKADIGBO
(2012)LCN/5426(CA)
In The Court of Appeal of Nigeria
On Thursday, the 31st day of May, 2012
CA/E/117/2007
RATIO
JUDGMENT: NATURE OF NON-SUIT AND CIRCUMSTANCES IT CAN BE GRANTED
Law reports are replete with decisions in which the nature or effect of “non-suit” and circumstances when it can be granted have been stated. See in this regard ODI v. IYALA (2004) SCNJ 35 where the Supreme Court dwelling on “non-suit” per Tobi, JSC; stated at pages 54 – 55 thus: –
“…A non-suit is a termination of an action which did not adjudicate all relevant issues on the merit, as where the plaintiff is unable to prove his whole case and it will be unjust to dismiss the case in its entirety or where there was failure of 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) 325; Chief Olufosoye Basorun 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. Stfrap Nig. Ltd. (1977) 2 SC 123; Craig v. Craig (1966) 1 All NLR 173.”
Still on non-suit is the case of CHIKERE V. OKEGBE (2000) SCNJ 128, where the Supreme Court per Ayoola, JSC; stated at page 139 thus: –
“An order of non-suit implies that although on that particular occasion, the plaintiff has failed to prove his case against the defendant he should in fairness, not be denied an opportunity of relitigating the same case (see Melifonwu v. Adazie (1964) a All NLR 346; Olayioye v. Oso [1969] 1 All NLR 281; Oduola v. Nabhan [1981] NSCC 180).”
What Ayoola, JSC; stated above would appear to have been expressed in different words by Karibi-Whyte, JSC; some years before in the case of OKPALA V. IBEME (1989) 2 NWLR (pt. 102) 208 at 227, when his lordship said thus: –
“The order of non-suit made by a court is an expression that at the conclusion of the trial the plaintiff who brought the action has not established his claim to the satisfaction of the Court to deserve judgment in his favour. At the same time the defendant who has been brought before the court by the plaintiff is similarly not entitled to judgment. This is because although the plaintiff may not be entirety devoid of any right or title as regards the matter in dispute, he has not established any claim as against the defendant. It therefore means that Plaintiff should be able to have a second chance to litigate the issue – See Okpaloka & Ors. v. Umeh (1976) 9 SC 269 … he or those who have rights in respect of the matter should not be permanently shut out in the exercise of their rights against the defendants or any other person. This will be the effect of a dismissal of Plaintiffs claim – See Bozson v. Altrincham UDC (1903) 1 KB 547. Thus justice demands that the court as stated in Craig v. Craig (1967) NMLR 52, 55 (sic) consider whether the order of non-suit would be wronging the defendant, or whether the order of dismissal would be wronging the Plaintiffs. Thus, a non-suit is the appropriate order where there is no satisfactory evidence enabling the Court to give judgment to either of the parties and wronging neither – see Adeyola v. Akinsan (1939) 15 NLR 10; Epi &Anor. V. Aigbedion (1973) 1 NMLR 31.” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUDGMENT: HOW SHOULD THE POWER OF NON-SUIT BE EXERCISED BY COURT
Authorities are also settled that the power of non-suit is not only a discretionary one and which must be specifically conferred on the court by its Rules at least, but also must be exercised judiciously and judicially. See ANYAKWO V. ACB (1976) 2 SC 41; UGESE V. SIKI (2007) 8 NWLR (PT. 1037) 452; and KAURA V. UNITED BANK FOR AFRICA PLC. (2005) 8 NWLR (PT. 926) 24. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
APPEAL: ATTITUDE OF THR APPELLATE COURT TOWARDS RE-EVALUATION OF EVIDENCE DONE BY THE LOWER COURT
This position is fortified by cases which decide to the effect that it is wrong for an appellate court to embark on re-evaluation of evidence when it has not first declared the way the High Court arrived at its order of non-suit as wrong. See OBODO V. EMMANUEL (1987) 2 NWLR (Pt. 54) 1; OKAFOR V. IDIGO (1984) 6 SC 1; ADIMORA V. AJUFO (1988) 3 NWLR (Pt. 801) 1; and AMUSA V. KOSOSI (1986) 4 NWLR (PT. 33) 59. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
1. IKE OKADIGBO
2. OBI OKADIGBO
(For themselves and on behalf of the Family of Christian Odigo Okadigbo) Appellant(s)
AND
EMMANUEL OKADIGBO
(For themselves and on behalf of the Family of James Okadigbo) Respondent(s)
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment delivered on 28/2/2007 by Hon. Justice Amaechina (hereafter simply referred to as “the learned trial Judge”) of the Anambra State High Court of Justice, Onitsha Judicial Division (hereafter simply referred to as the lower court”). The learned trial Judge in the judgment found the case of the plaintiff therein to have succeeded in part and granted reliefs (i) and (ii) claimed by the plaintiff, while reliefs (iii) and (iv) were refused. There were two Plaintiffs on record at the commencement of the action before the lower court. The Respondent in the appeal was the surviving plaintiff as at the date of the delivery of the judgment by the learned trial Judge; while the 1st and 2nd Defendants in the suit before the lower court are the Appellants herein, the 3rd Defendant on record before the said court having also died before the date judgment was delivered.
Parties in the case filed and exchanged pleadings before the lower court. There were two named Plaintiffs on record in the statement of claim dated 15/4/1999 and filed on 20/4/1999 before the lower court. The Plaintiffs on record disclosed that all the parties on record are members of the Melie Osuma family and that the suit was brought by them for themselves and on behalf of the family of James Okadigbo; that they were suing the 1st and 2nd Defendants on record for themselves and as representing the family of Christian Okadigbo; while the 3rd defendant on record is the younger brother of Christian Odigo Okadigbo. The case set up in the statement of claim stated briefly, is that the land in dispute forms part of a larger piece of land known as and called “Ani Melie” and is verged pink in survey Plan No. FALS/AN/DL/8/99. The traditional history in respect of “Ani Melie” and how the land in dispute known as No. 7C Umuikem Road, Onitsha, came to be the property of James Okadigbo (hereafter simply referred to as “James”) under the native law and custom of Onitsha, was pleaded. The Respondent alleged that in 1971, Christian Odigo Okadigbo (hereafter simply referred to as “Odigo”) approached James for permission to build on the land in dispute for the use of all the three brothers, as James had no money to build. This was in the presence of the 3rd Defendant. James consented to the request and the three brothers agreed that a two storey building would be erected on the land in dispute with the ground floor going to James while the remaining floors should go to Odigo and the 3rd Defendant. That it was also agreed that the building plan in respect of the house should be either in the name of James or in the names of all the three brothers. That Odigo duly produced, and handed over to James, a Plan No. EO 1637 reflecting the joint ownership of the proposed building but rather than register this plan, Odigo presented another plan bearing his own name only, for the approval of the Planning Authority and which he duly procured. That James later discovered this when construction commenced and immediately protested by causing a letter to be written to Odigo, by a solicitor. The letter written by the solicitor was copied to some principal members of the family who later intervened in the matter by prevailing on James not to take legal action. This was at a meeting summoned by Alex Melie and the names of some others who attended the meeting were pleaded. That at the meeting, Odigo also pleaded with James to let him continue with the construction of the building and the meeting resolved that the initial agreement concerning the building should stand. That Odigo completed the building about 1980, and moved therein, but did not honour the agreement as he gave only the 3rd Defendant a part thereof and let the remaining part, to rent paying tenants. That James reported the matter to the family and also threatened to seek legal redress but the family prevailed on him not to go to court and the family was still looking into the matter until when James died in 1983. That the 1st and 2nd Defendants on record who are the children of Odigo have refused to let the plaintiffs on record take possession of their fathers (James’) share of building on the land in dispute, hence the institution of the instant action in which they seek for the following: –
“(i) A declaration that the landed property known as No, 7c Umuikem Road, Inland Town, Onitsha which is verged pink in survey plan No. FALS/AN/DL/8/99 together with the improvements thereon is jointly owned by the parties in this suit.
(ii) An order of partition of the said landed property together with the improvements thereon among the plaintiff and the defendants into three equal shares.
(iii) An order for appointment of a receiver to collect rent from all the tenants occupying the said property and to pay the proceeds, after just deductions, into court for distribution among the parties pending the determination of this suit.
(iv) An order of account against the 1st and 2nd defendants of all rents and profits collected from tenants on the said land from January 1987 to the appointment of a receiver in these proceeding and the payment of the amount found due upon taking such account, after just deductions, into court for the benefits of the parties.”
The Appellants on 13/6/2006 filed an amended Statement of Defence in the case. It bears the same date. Therein, the Appellants expressly admitted paragraph 1 of the Statement of Claim. The averment in the said paragraph of the Statement of Claim relates to the fact that all the parties in the case belong to the same family. The Appellants stated to the effect that James was the Diokpa of the Melie Osuma family but that after the Civil War in 1970, James was housed in a rented house by Odigo and that later in 1971; Odigo built the “Iba” where James lived till he died, for him. The Appellants further went on to say to the effect that Odigo was the rightful owner of the property situated at No. 7C Umuikem Road, Onitsha and denied that there was ever an arbitration over the matter of the matter of the house built by Odigo on the land in dispute. It is the stance of the Appellants that Odigo’s occupation and ownership of the property was unchallenged during his life time.
As earlier stated, the first of the plaintiffs on record before the lower court, died in the course of trial, likewise the 3rd Defendant on record. Suffice it to say the Plaintiffs before the lower court adduced evidence through two witnesses in the proof of their case. The Respondent was one or the witnesses. The Appellants likewise called two witnesses in the proof of their case. After parties had closed their respective cases, and having also adopted their respective written addresses on 10/10/2006, the learned trial Judge adjourned the case till 4/12/2006 for judgment. On 4/12/2006, when the case was called, the learned trial Judge did not deliver his judgment but requested the parties to address him “as to whether this is (sic) desirable case for non-suit” and thereafter adjourned the case till 5/2/2007 for judgment. However, it was on 28/2/2007, that the learned trial Judge eventually delivered his judgment and in the judgment he found the case of the Respondent to have succeeded in part and granted the reliefs he considered appropriate.
The Appellants being dissatisfied with the judgment of the lower court lodged an appeal against the same vide their Notice of Appeal dated 13/03/07 and filed on the same date. The Notice of Appeal contains eleven (11) grounds of appeal.
In accordance with the Rules of this court parties filed and exchanged Briefs of Argument. Appellants’ Brief of Argument is dated 16/5/2007 and filed on the same date. Appellants’ Reply Brief is dated 27/10/2007 and filed on the same date. Both Briefs were settled by Chudi Obieze Esq. The Respondent’s Brief of Argument dated 7/10/2007 and filed on 13/10/2007 was settled by B.A. Ogbuli Esq. The appeal was entertained on 7/3/2012, and learned lead counsel for the Appellants – Chudi Obieze, and learned counsel for the Respondent – B.A. Ogbuli respectively, adopted and relied on the Briefs of Argument as hereinbefore identified, in aid of their different positions in the appeal.
In the Brief of Argument of the Appellants, five issues are set out for determination in the appeal. The issues read thus: –
“1. Was the learned trial judge correct, when after calling on counsel on both sides, to address him on the desirability of ordering a non suit, in this case, turned round to hold that the Plaintiff had proved his case?
2. Was the learned trial judge right when he suo motu, formulated an issue that was never canvassed by the parties and proceeded to give judgment on that issue, without calling on Counsel to address him on that?
3. Did the Plaintiff in this case, plead and establish a full customary arbitration in line with decided authorities, and whether the plaintiff proved their case on the preponderance of evidence.
4. Whether the case of the plaintiffs is caught by the equitable doctrine of Laches and acquiescence, as well as, the statute of limitations?
5. Was the learned trial judge right in awarding a relief to the family of Chinyelugo Okadigbo, who did not take part in the proceedings, did not file a defence and whose name was struck off from the suit, as well as, allocating shares in No, 7C Umuikem Road, Onitsha, to the three brothers, a relief sought by none of them?”
In his Brief of Argument the Respondent likewise formulated five issues as arising for determination in the appeal. They read thus: –
“1. Did the learned trial judge formulate any issue not arising from the pleadings of the parties in this case?
2. Was the learned trial judge right in finding for the plaintiff in line with the uncontroverted and unchallenged evidence led at the trial that indeed the family of the parties arbitrated over the issue and decided that the building on the land in dispute be partitioned into three amongst the original parties to the suit?
3. Was the learned trial judge right in holding that the special defences of laches and acquiescence as well as limitation of action raised by the defence lacked merit and accordingly dismissed same?
4. Was the learned trial judge right in the face of the unchallenged and uncontroverted evidence in support of the plaintiff’s case, to have discarded the issue of non-suit in this case?
5. Did the learned trial judge award any relief not arising from the case presented in this suit?”
The appeal will be determined upon the Issues formulated by the Appellants. This because, the Issues for determination as couched by the Respondent are the same purport with those formulated by the Appellants when the Issues are compared.
APPELLANTS’ ISSUE 1.
Dwelling on the Issue, the Appellants stated that after parties had adopted their respective written addresses the lower court adjourned the case to 4/12/2006 for judgment. That on 4/12/2006 the learned trial Judge instead of delivering the judgment in the case, called on learned counsel for the parties, to address him on whether this is a desirable case for non-suit. That the learned trial Judge in this regard said that he was not satisfied with the evidence led on both sides. That learned counsel for the Plaintiffs, B.A. Ogbuli, Esq., in his address, agreed/conceded that the case of the Plaintiffs was not satisfactory; while learned counsel for the Defendants (now Appellants) submitted that the Plaintiff has failed to prove his case and urged the Court to dismiss the suit, instead of making an order of non-suit.
That the learned trial Judge thereafter adjourned the case to 5/2/2007 for judgment. That on 5/2/2007 the learned trial Judge could not deliver his judgment as he was indisposed and the case was further adjourned to 26/2/2007 for judgment. That 26/2/2007, was a dies non and the case came up on 28/2/2007 for judgment. That the learned trial Judge delivered judgment in favour of the Plaintiff granting reliefs 1 and 2, and commenting in the judgment, with respect to the address on non-suit as follows, “On 4th December, 2006, learned Counsel for both parties addressed this court on the desirability or otherwise of entering a non-suit in this case. Since my findings above are in favour of the case of the plaintiff, the issue of non-suit does not arise and cannot apply to this case”.
The Appellants referred to Order 25 Rule 2 of the High Court Rules of Anambra State, 1988, which was in operation as at 4/12/2006 as the provision that provided for non-suit. The Appellants submitted that by the provisions of Order 25 Rule 2 supra, at the stage where the Court invites the parties to address it on non-suit, the court had made up its mind that there was no satisfactory evidence entitling either of the parties to judgment. In other words, that an invitation to address the court on non-suit, amounts to a statement by the court that no satisfactory evidence entitling either of the parties to judgment has been led and the case of Craig v. Craig (1967) NMLR 55 was cited in aid. The Appellants also submitted to the effect that given the stance of the lower court and the concession by counsel to the plaintiff/Respondent, the issue took another dimension, as it became absolutely imperative that the learned trial Judge could legally do only one of two things, namely, to either non-suit the Plaintiff as requested by him, or dismiss the suit as prayed by the Appellants. Flowing from the above, the Appellants submitted that the learned trial Judge was therefore wrong in holding, despite his invitation aforestated and the Plaintiffs concession also aforestated, that the Plaintiff had now proved his case. That the learned trial Judge lacked the prediction to do so, as it amounted to a legal summersault. The Court was therefore urged allow the Appeal based on this Issue.
The Respondent dealt with the issue raised by Appellants’ Issue 1, under this Issue –
The stance of the Respondent is that as the lower court found as a fact that there was merit in his case, the normal course was for the learned trial Judge to have entered judgment in his favour, and that this was what the learned trial Judge did in the instant case.
The Respondent submitted that the operation of order 25 Rule 2 (supra) anticipates a curse to be taken by the lower court when delivering its judgment, and not before delivering judgment. In other words, that the rule comes in application only after the court had pronounced in its judgment and found as a fact that “satisfactory evidence has not been given entitling either party to the judgment of the court”, that the lower court can call on parties to address it on non-suit. That the rule, does not permit a non-suit, before judgment.
That in the circumstances, the lower court rightly discarded the issue of non-suit in its judgment having found that the Respondent was entitled to judgment.
Law reports are replete with decisions in which the nature or effect of “non-suit” and circumstances when it can be granted have been stated. See in this regard ODI v. IYALA (2004) SCNJ 35 where the Supreme Court dwelling on “non-suit” per Tobi, JSC; stated at pages 54 – 55 thus: –
“…A non-suit is a termination of an action which did not adjudicate all relevant issues on the merit, as where the plaintiff is unable to prove his whole case and it will be unjust to dismiss the case in its entirety or where there was failure of 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) 325; Chief Olufosoye Basorun 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. Stfrap Nig. Ltd. (1977) 2 SC 123; Craig v. Craig (1966) 1 All NLR 173.”
Still on non-suit is the case of CHIKERE V. OKEGBE (2000) SCNJ 128, where the Supreme Court per Ayoola, JSC; stated at page 139 thus: –
“An order of non-suit implies that although on that particular occasion, the plaintiff has failed to prove his case against the defendant he should in fairness, not be denied an opportunity of relitigating the same case (see Melifonwu v. Adazie (1964) a All NLR 346; Olayioye v. Oso [1969] 1 All NLR 281; Oduola v. Nabhan [1981] NSCC 180).”
What Ayoola, JSC; stated above would appear to have been expressed in different words by Karibi-Whyte, JSC; some years before in the case of OKPALA V. IBEME (1989) 2 NWLR (pt. 102) 208 at 227, when his lordship said thus: –
“The order of non-suit made by a court is an expression that at the conclusion of the trial the plaintiff who brought the action has not established his claim to the satisfaction of the Court to deserve judgment in his favour. At the same time the defendant who has been brought before the court by the plaintiff is similarly not entitled to judgment. This is because although the plaintiff may not be entirety devoid of any right or title as regards the matter in dispute, he has not established any claim as against the defendant. It therefore means that Plaintiff should be able to have a second chance to litigate the issue – See Okpaloka & Ors. v. Umeh (1976) 9 SC 269 … he or those who have rights in respect of the matter should not be permanently shut out in the exercise of their rights against the defendants or any other person. This will be the effect of a dismissal of Plaintiffs claim – See Bozson v. Altrincham UDC (1903) 1 KB 547. Thus justice demands that the court as stated in Craig v. Craig (1967) NMLR 52, 55 (sic) consider whether the order of non-suit would be wronging the defendant, or whether the order of dismissal would be wronging the Plaintiffs. Thus, a non-suit is the appropriate order where there is no satisfactory evidence enabling the Court to give judgment to either of the parties and wronging neither – see Adeyola v. Akinsan (1939) 15 NLR 10; Epi &Anor. V. Aigbedion (1973) 1 NMLR 31.”
Authorities are also settled that the power of non-suit is not only a discretionary one and which must be specifically conferred on the court by its Rules at least, but also must be exercised judiciously and judicially. See ANYAKWO V. ACB (1976) 2 SC 41; UGESE V. SIKI (2007) 8 NWLR (PT. 1037) 452; and KAURA V. UNITED BANK FOR AFRICA PLC. (2005) 8 NWLR (PT. 926) 24.
Appellants’ Issue 1, under consideration does not call for the consideration of the propriety or correctness of an order of non-suit made in the instant case by the learned trial Judge. It is challenging the non-making of the order, the learned trial Judge having in his wisdom asked to be addressed on the question of the propriety of an order of non-suit in the case.
All the cases cited above, at one that an order of non-suit is the appropriate order to make where a plaintiff has not woefully or in toto failed to prove his case, and where the defendant as well is not entitled to judgment in his favour. The stance of the Respondent given the arguments in his Brief of Argument would appear to be, that it is in the course of delivering its judgment and after having first made a finding therein, that no satisfactory evidence has been given entitling either him or the Appellants to judgment, that the learned trial Judge was to call on parties to address him on the issue of non-suit and thereafter make an order of non-suit. Can this be correct?
Order 25 Rule 2 of the Civil Procedure Rule of the High Court of Anambra State, 1988, in operation as at the time the instant case was determined, by the learned trial Judge clearly empowers him, to enter a non-suit in the instant case. The power of the lower court to enter a non-suit is still preserved by order 34 of the High Court of Anambra State (Civil Procedure) Rules 2006. The provisions relating to the circumstances when the lower court can properly make an order of non-suit are amongst others, to the effect that the lower court can suo motu or on application, make an order of non-suit, where satisfactory evidence is not given entitling the plaintiff or defendant to judgment. The parties however have the right to make submissions about the propriety of making such order. It is clear from the facts of this case that neither the Respondent nor the Appellants made any application to the lower court for an order of non-suit in the instant case. It was the learned trial Judge that called for the addresses of parties on the issue. The most important thing to note however is that, whether an order of non-suit is contemplated by the court, or is to be made on application, it must be as a result of satisfactory evidence having not been given to entitle the plaintiff or defendant to judgment.
It is in my considered view impossible for the learned trial Judge to have contemplated making an order of non-suit in the instant case to the extent that he called on parties to address him on the issue on 4/12/2006, when the case came up for judgment, without his having evaluated the evidence adduced in the case and forming the impression from the said evidence, that the Respondent had not placed satisfactory evidence before the court, entitling him to judgment, and likewise the Appellants, prior to that date, i.e. 4/12/2006. This is because it is clear from the provisions of the Rules of the lower court relating to making an order of non-suit, that the said order can only be made upon the dearth of satisfactory evidence entitling both the Respondent and the Appellants to judgment. In order words, the request by the learned trial Judge, that parties in the instant case should address “as to whether this is (sic: a) desirable case for non-suit”, and which request as stated by him was due to the fact that the issue had just cropped up, clearly depicted the learned trial Judge of having before 4/12/2006, (when he was to have delivered his judgment), evaluated the evidence of the parties in the instant case, and his settled conviction that neither the Respondent nor the Appellants was entitled to judgment.
The invitation of the learned trial Judge to the parties to address him on the issue of non-suit in the instant case, and on the very date he had fixed for judgment was a clear indication that if not for the provision of the Rules of the lower court, that stipulated that parties be heard, he (learned trial Judge) would without further ado had delivered his judgment and which would clearly had been one in which he would not have found the case of the Respondent proved in any respect.
It is clear from the record, that on 4/12/2007, no additional evidence was red by any of the parties. The stance of the Respondent in his address before the lower court on 4/12/2006 in relation to the issue of non-suit was not that he had adduced satisfactory evidence in the proof of his case. It was that if the court is satisfied that there is no satisfactory evidence entitling either party, to judgment the court can order a non-suit. That in that event the court is urged to non-suit instead of dismissal. The Respondent in his address on the issue of non-suit in my considered view, engaged in nothing more than prevarication or beating around the bush as it were. Surely this smacks of conceding that there was no satisfactory evidence before the lower court to enable the learned trial judge find in his favour. On the other hand, the stance of the Appellants in their submission on the issue was that the instant case was one of title to land which the Respondent had not proven. The Appellants accordingly urged the lower court to dismiss the case instead of making an order of non-suit.
Having regard to the submissions of the Respondent that have hereinbefore been highlighted, he would appear to have lost sight of the fact that the only legal reason or basis upon which the learned trial Judge could have based his request for address on the issue of non-suit, was because he must have been convinced before he raised the issue, that there was no satisfactory evidence entitling the Respondent to judgment. The submission that if the court was satisfied, that there was no satisfactory evidence entitling either party to judgment was therefore nothing more than begging the issue. The learned trial Judge having earlier called for addresses on the issue of non-suit on 4/12/2006, and thereafter later resolving the case in favour of the Respondent would likewise appear to have forgotten that as at 4/12/2006 he had held himself out as having evaluated the evidence in the case and that he had concluded that there was no satisfactory evidence entitling either of the parties to judgment. This must be so, because if he had not done this, then he ought to have found for the Respondent or against him straightaway, and there would have been no need for considering the issue of non-suit. The request for addresses on the issue of non-suit was therefore a clear indication by the learned trial Judge that on the evidence before him as at 4/12/2006, when he called for the addresses, judgment could never be entered in favour of the Respondent. The Appellants have submitted that what the learned trial Judge did by entering judgment in favour of the Respondent vis-a-vis the circumstances that led to the request of the learned trial Judge for addresses on the issue of non-suit, against the backdrop of the positions parties took in their respective addresses on the issue was a legal summersault. I must say that I am in total agreement with the submission of the Appellants in this regard. The learned trial Judge having regard to his judgment in which he first resolved the case in favour of the Respondent and thereafter stating that “since my findings above are in favour of the plaintiff, the issue of non-suit does not arise and cannot apply to this case” has clearly put the cart before the horse as it were, and this is in total reversal of the course of his judgment as charted by him on 4/12/2006. The judgment which the learned trial should have entered in the instant case on 28/2/2007, having taken addresses on the issue of non-suit, was clearly not one finding in favour of the Respondent but one non-suiting the Respondent or dismissing the Respondent’s suit if he found the issue of non-suit to be no longer applicable in the case.
Flowing from all that has been said above is that Appellants’ Issue 1 is resolved in their favour.
Now, it would appear obvious that if the learned trial Judge had made the proper order, the position of things would have been for the Respondent to relitigate his case (if he is so minded or disposed); or to have appealed against the order non-suiting him (if he had not conceded to the making of the order) like he did. The Appellants likewise would have taken the order in their strides or could have appealed against the order with a view to having the Respondent’s case dismissed and not for him to have been non-suited.
Whatever they chose to do, they would not and could not have appealed against any decision of the lower court resolving the case in favour of the Respondent. In other words, there is no foundation upon which all the other Issues formulated by the Appellants and which question the correctness of the findings made by the learned trial Judge in the instant case in favour of the Respondent or the resolution of the case in favour of the Respondent, stand. Issues 2 – 5 formulated by the Appellants in the circumstances, have therefore been rendered academic, given the conclusion that the proper order the learned trial Judge ought to have made in the instant case, is one non-suiting the Respondent as what he (learned trial Judge) had unequivocally disclosed by asking for addresses on the issue of non-suit, was that there was no satisfactory evidence entitling the parties to judgment, and not that the Respondent had failed woefully or in toto to prove his case. By the same reasoning, none of the issues formulated by the Respondent can properly be given reasoning, consideration against the backdrop of the fact that the appeal is not against the order non-suiting the Respondent which is the proper order the learned trial Judge should have made.
This position is fortified by cases which decide to the effect that it is wrong for an appellate court to embark on re-evaluation of evidence when it has not first declared the way the High Court arrived at its order of non-suit as wrong. See OBODO V. EMMANUEL (1987) 2 NWLR (Pt. 54) 1; OKAFOR V. IDIGO (1984) 6 SC 1; ADIMORA V. AJUFO (1988) 3 NWLR (Pt. 801) 1; and AMUSA V. KOSOSI (1986) 4 NWLR (PT. 33) 59.
In the final analysis, the appeal is meritorious given the resolution of Appellants’ Issue 1, in their favour and is hereby allowed. The judgment of the lower court delivered on 28/2/2007 entering judgment in favour of the Respondent is set aside. In its place an order non-suiting the Respondent is hereby made.
Costs of N25, 000.00 is awarded in favour of the Appellants and against the Respondent.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I read before now the Judgment just delivered by my learned brother Lokulo-Sodipe, JCA.
I agree with him entirely that the appeal is meritorious, I also allow the appeal. The Judgment of the lower court delivered on 28/2/2007 entering Judgment in favour of the Respondent is set aside. In its place I hereby make an order non-suiting the Respondent.
I abide by the order as to costs.
ADAMU JAURO, J.C.A.: I have read before now the lead judgment as prepared by my learned brother, A.O. Lokulo-Sodipe JCA, and just delivered.
I am in complete agreement with his reasoning and conclusion, which I also adopt as mine. I am at one with my learned brother that the appeal is meritorious and hereby join him in allowing the appeal.
I abide by the consequential orders made, including that of costs.
Appearances
Chudi Obieze with S. Odili and I.C. Okonkwo (Mrs.)For Appellant
AND
B.A. OgbuliFor Respondent
