MUSTAPHA S. B. DAWODU V. SABINA GOMEZ

 There is only one ground of appeal of any substance in this case and it reads as followings:-

“The learned trial Judge was wrong in ordering a dismissal rather than a non-suit as the case of Kodilinye v. Odu, 2 W.A.C.A., page 336, does not apply.”

The relevant facts in this case are that the appellant bought all the right, title and interest of Chief Akinlolu Oloto, Ajayi Oloto and Sanusi S. Oba in the area of land in question.

This land was sold to appellant to satisfy a judgment debt, which on the face of the proceedings was owed by the three persons named. In the course of the case plaintiff's witnesses alleged that (a) this debt had been incurred by the three judgment debtors on behalf of the Oloto family, and (b) the land sold was the property of the Oloto family. The appellant, however, failed to prove that the judgment had been given against the three persons as representing the Oloto family and it is therefore difficult to justify the selling of family land to satisfy the debt. On this ground Counsel for appellant admitted that this claim must fail, but he argues that it should not be dismissed but a non-suit should be entered as it clearly comes within the intention of Order XLV, rule 1, which reads as follows ;-

“The Court may in any suit without the consent of the parties non-suit the plaintiff where satisfactory evidence shall not be given entitling either the plaintiff or defendant to the judgment of the Court.”

Appellant argues that the only fault in the presentation of the appellant’s case was the omission to put in evidence the judgment in question, which would have shown beyond doubt that the three persons in that suit were representing the Oloto family and that judgment had, in fact, been given against the family. He further points out evidence in the record to the effect that the land in question is Oloto family land.

The respondents replies (a) that at the close of the case the evidence was such that the respondent was entitled to judgment; (b) that it is entirely a matter for speculation as far as the Court is concerned whether in fact the judgment was against the Oloto family and (c) that even if the judgment was against the family the fact that a few members or friends of the Olotos stated in evidence that the land in question was Oloto family land, their evidence had failed to satisfy the trial judge.

Order XLV, rule 1. should, in our view, be used with great care for a variety of reasons, not least important being the necessity to bring land actions to some finality.

We have been invited to set out our views as to the proper occasions when a non-suit should be preferred to a dismissal. Obviously, it is quite impossible to lay down a hard and fast rule and each case must be considered on its merits, but we will state that where as in Kodilinye v. Mbanefo Odu (1), a plaintiff sets out to prove his title and fails the fact that the defendant also has no title to the land can never be a sound reason for a non-suit.

There are, however, circumstances which make it possible to distinguish this case from that quoted above and had the learned trial Judge entered a non-suit we would not have disturbed his judgment. The Rule, however, leaves the matter in the discretion of the trial Judge and we are not prepared to hold that he did not exercise his discretion judicially. This is just another example of parties rushing into litigation without the necessary evidence and when it is pointed out in the judgment where their case fails, they ask to be non-suited in order that they may have another bite at the cherry, hoping to do better at their next appearance, a procedure satisfactory perhaps to the particular plaintiff and lawyers generally, but most undesirable from every other standpoint.

The appeal is dismissed with costs assessed at £16 1s. 0d.

Appeal dismissed.