Mustapha S. B. Dawodu V. Sabina Gomez (1947)

LawGlobal Hub Judgment Report – West African Court of Appeal

Practice and Procedure—Dismissal or Non-Suit–Supreme Court (Civil Procedure) Rules (Nigeria) Order XLV, rule 1—Lacuna in evidence for plaintiff.

Facts

It is impossible to lay down any hard and fast rule as to the proper occasions when a non-suit should be preferred to a dismissal, and each case must be con-sidered on its merits. Where, however, 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.

Held

Order XLV, rule 1 leaves the question, non-suit or dismissal, in the discretion of the trial Judge, and the power to order a non-suit should be used with great care.

Appeal dismissed.