Ahwedjo Efetiroroje & Ors. V. His Highness Onome Okpalefe II (The Osuivie Of Agbarho) & Ors (1991) LLJR-SC

Ahwedjo Efetiroroje & Ors. V. His Highness Onome Okpalefe II (The Osuivie Of Agbarho) & Ors (1991)

LawGlobal-Hub Lead Judgment Report

G. KARIBI-WHYTE, J.S.C.

This appeal has brought into focus once again the anxieties in the often discussed question of the circumstances enabling an appellate court to set aside the exercise of the discretion by the trial judge to order a non-suit in an action.

On the 23rd August, 1976. Plaintiffs issued a writ of summons claiming from the Defendants (a) A Declaration of title in accordance with Urhobo Customary law to all that piece and parcel of land, lying situate and being at Agbarho within the jurisdiction of the Court, the dimensions of which will be edged/shown on a plan to be filed after pleadings ordered.

Annual value of the land is N10 (ten naira). (b) The sum of N 1,000 (One Thousand naira) being damages for trespass committed by the defendants on the said piece/parcel of land. (c) Injunction restraining the defendants their servants/agents from further entering the said piece/parcel of land or in any way whatsoever dealing in or tampering with/interfering with plaintiffs interests therein.

The claim was tried on the pleadings of the parties and on the evidence of witnesses called by them. Plaintiffs filed a plan which was tendered as “Exhibit “A”. The case was fought on the basis of the traditional evidence of the ownership of the land in dispute given by the parties. They also relied on evidence of acts of possession and ownership.

The learned trial judge after due hearing, considered the evidence on the traditionary history of the ownership of the land in dispute led by both sides and hold that they were of no probative value. Referring to the evidence of traditional history, he held that “it is pointless going into traditional history and Acts of ownership or possession within living memory as there appears to be nothing to choose between the evidence of the warring parties in these regards.”

Again the learned trial judge considered the onus of proof on the plaintiffs with respect to the boundaries of the land in dispute, and held that it was not discharged.

On this issue, he relied on the plan filed, “Exhibit” “A” and the evidence of the 3rd plaintiff. In his evidence before the court, the 3rd plaintiff had testified as follows:-

“I was one of the persons that took the surveyor to the bush to prepare Exhibit A. I showed the Surveyor the features of the land as well as boundaries thereof. I did not show the Surveyor (P.W.1) Agbarho town. I did not show him the traditional Ogwa (Altar of Chiefs) where Chieftaincy title were conferred on people at Agbarho because our land does not extend to that spot or area.”

The learned trial judge commenting on “Exhibit A” ,that is the plan filed, and relied upon by the Plaintiffs, observed that the key for the reading of the plan indicated that the land claimed by the plaintiffs is verged Green, whilst the area trespass upon is verged Pink. The learned judge then found that substantial parts of the northern and north-eastern areas of the land claimed by the plaintiffs as well as the entire area indicated as trespassed upon by the defendants are shown to be outside the land of the plaintiffs. The learned judge was therefore unable to determine the boundary of the Northern part of the land in dispute. He therefore found that the Plan, “Exhibit A “”was to use his expression in violent conflict with the evidence of the 3rd Plaintiff, who was the only plaintiff that testified as to the limit of the land involved in this litigation.

In his evidence in Chief 3rd plaintiff, testified as follows –

“I was one of the persons that took the Surveyor to the bush to prepare Exhibit A. I showed the Surveyor the features of the land as well as boundaries thereof. I did not show the surveyor Agbarho town. I did not show him the traditional Ogwa (Altar of Chiefs )where Chieftaincy title were conferred on people at Agbarho because our land does not extend to that spot or area.”

The learned trial judge evaluated this evidence and came to the following conclusion –

“The bone of contention is that Plaintiffs are saying that part of the land which was indicated in Exhibit A to be in dispute, is no more so, and I am unable to know the extent of the lands of the Plaintiffs, on the northern and north-eastern side of the land shown in “Exhibit A”. In other words, as to actual extent of the land the plaintiffs’ claim, particularly the northern and north-eastern boundaries, I find myself quite unable on the evidence of the 3rd plaintiff, who said he showed the Surveyor the boundaries and features of the land in dispute, to come to the conclusion as to what the boundary is, See the consolidated case of Udofia & anor, v. Afia & ors., Andy etc. v. Akpabio (1940) 6 WACA, 216 where the authority of Baruwa v. Ogunsola & Ors.(I938) 4 WACA, 159 was adopted.”

Relying on these findings and the decided cases cited held that the plaintiffs failed to establish their claim. The learned judge however went on to consider the defence of the Defendants and the Plan “Exhibit D” filed by them. He found that the communal land of the Agbarho people were not indicated in “Exhibit D” and that Defendants and their witnesses did not give evidence of it. He accordingly held that neither the Plaintiffs who had not established the Northern and north-eastern boundaries of the land in dispute, nor indeed the precise area claimed, nor the Defendants who had nor indicated the communal land, the basis of their defence in their plan Exhibit D, was entitled to judgment. He relied on Nwakuche v. Azubuike (1955) 15 WACA. 47 and Karama & Ors. v. Aselemi & Ors. (1938) 4 WACA. 150 and ordered a non-suit rather than dismissal of Plaintiff’s claim. Defendants appealed to the court of Appeal, filing four grounds of appeal. Only one issue for determination was formulated. This is “Whether the lower court was right non-suiting the plaintiffs having regard to the facts and circumstances of the case”.

The Appellants argument in the Court below was that Plaintiffs failed to prove with certainty the boundaries of the land being claimed. They also did not succeed in establishing a better traditional history than the Defendants. Plaintiffs accordingly failed to prove their claim. The trial judge ought to have dismissed their claim.

Respondents conceded that the northern boundary of the land in dispute was unascertainable, but argued that Defendant also had not established any claim to the land. In the circumstances a non-suit was the most appropriate decision. In allowing the appeal and setting aside the order of non-suit of the action and entering a dismissal of Plaintiffs’ action, the court of appeal relied on the well settled principles that in all action for a declaration of title to land, the onus lies on the plaintiff to satisfy the court that he is entitled to the declaration sought on the evidence, and on the strength of his own case and not on the weakness of the case of the Defendant – See Kodilinye v Odu (1935) 2 WACA. 336 Nwokafor & Ors. v. Udegbe & Ors. (1963)1 All NLR. (Pt. 1) 104; (1963) 1 SCNLR 184.

The Respondent conceded the fact that they did not prove the northern and north-eastern boundaries of the land in dispute. The Court of Appeal relied on the well settled principle of law enshrined in a long line of judicial authorities, that in action for declaration of title to land, the boundaries of the land in dispute must be ascertained with certainty. – Rufai v. Ricketts (1934) 2 WACA. 95 Alhaji Elias v. Chief Omo-Bare (1982) 5 SC.25 Kwadzo v. Adjei (1944)10 WACA. 274, Amata v. Modekwe & 2 Ors.(1954) 14 WACA 580 Owudu v. Lawal (1984) 4 SC.145.

It seems to me clear from the principles applied in the cases cited that the Court of Appeal accepted the findings of the trial judge which remain unchallenged on appeal. This is that plaintiffs having failed to prove their claim because there was nothing to choose between the traditional histories given by the parties before the Court, and that plaintiffs failed to prove the boundaries of the land in dispute with certainty, their claim was bound to fail.

The Court of Appeal then referred to the issue of non-suit of the action. The Court of Appeal stated the general principle that the power to order a non-suit is within the discretion of the trial judge. It is also well settled that such discretion must be exercised judicially. The Court of Appeal considered several of the case decided on the issue of the exercise of discretion to order non-suit, such a Nigerian Fishing Co. v. WNFC (1969) NMLR. 164; Feyijimi Aregbe & Ors. v. Sanni Adeoye & Ors. (1924) 5 NLR.56 Philips v. Ogundipe (l967) 1 All NLR.258; Dada v. Ogunremi (1967) NMLR 181, Nwakwuche v. Azubike (1955) 15 WACA. 46; Yesufu v. A.C.B (1981) 1 S.C.74 Craig v. Craig (1966) 1 All NLR. 173 Olayioye v. Oso (1969)1 All NLR 281; George v. U.B.A Ltd. (1972) 8-9 S.C. 264.

In allowing the appeal the Court of Appeal, referred to the above case and expressed their reason as follows-

“Applying the above to the appeal on hand I am of the view that the learned trial judge was wrong in the exercise of his discretion. The Plaintiffs/Respondents having failed to prove the two essential ingredients on which the defendants Appellants predicated their appeal, their case ought to have been dismissed.”

The appeal before us is by the Plaintiff/Respondents against judgment of the Court of Appeal.

There are two grounds of appeal. I do not consider it necessary to reproduce them as the issue for determination adequately cover them. Parties filed and exchanged their briefs of argument. As in the court below, only one issue for determination was formulated from the grounds of appeal filed. It is as follows- Whether the Court of Appeal was right in deciding to interfere in the exercise by the High Court of its discretionary power to enter a non-suit in this action

Mr. Ladi Williams for the Appellants argued both in his Appellant’s brief of argument and in his oral elaboration of same before us in favour of the discretionary nature of the order for non-suit. He submitted quite correctly that the power ought to be exercised judiciously and not capriciously in the overriding interest of justice. Learned counsel submitted that it is no doubt useful to seek guidance in the exercise of this power from previous decided cases. Mr Ladi Williams classified the cases into those.

(i) Where there are reasonable grounds for thinking that dismissing plaintiff’s action will lead to injustice – Yesufu Dele & Family v. Adelalu & Family (1966) 1 NMLR. 105

(ii) Where Plaintiffs claim would fail because evidence of the plaintiff was rejected mainly because it was in conflict with the statement of claim, and the Court is of opinion that it is in the interest of justice that Plaintiff should not be precluded from putting up his claim – Nwakuche v. Awbuike (1955) 15 WACA.46

Learned Counsel concluded his submission by saying that the Court of Appeal ought not to have interferred with the exercise by the trial judge of his discretion, Before argument in this Court Dr. Odje, S.A.N, learned senior counsel to the Respondent withdrew his notice of preliminary objection of the competence of Appellant’s appeal. The notice of preliminary objection was accordingly struck out.

Dr. Odje’s argument supporting the judgment of the court below was founded on two legs. He submitted firstly that Appellants as Plaintiffs failed to show clearly the area and extent of the land claimed by them. Secondly, they failed to discharge the onus of proof on the plaintiff, on the evidence in the case. He submitted that Appellants have not appealed against these findings of facts which remain unchallenged. Counsel therefore argued that in view of the above specific findings, a dismissal of the action was the only appropriate order. Consequently the court below was justified in setting aside the judgment of the learned trial judge and of dismissing the claim in its entirety.

Learned Counsel relied on Baruwa v. Ogunsola & ors. (Supra) and the subsequent cases of Elias v. Omo-Bare (supra) Owuda v. Lawal (1984) 4SC.145 and Odofin v.Ayoola (1984) All SC.72 approving the principle in Baruwa’s Case.

It was forcefully contended that the withdrawal of their cross-appeal in the court below based on their admission as to the uncertainty of the area and extent of the land in dispute are fatal to the claim of Appellants in this appeal.

Learned Counsel relied on Kodilinye v. Odu (1935) 2 WACA. 336 for his submission that having failed to discharge the burden of proof of title sought to be declared, the claim of the Plaintiff must fail.

It was finally submitted relying on Baruwa v. Ogunsola & Ors. (1938) 4 WACA. 159 Kodilinye v. Odu (1935) 2 WACA. 336 Nwokafor & Ors v. Udegbe & Ors (1963)1 All NLR. (Pt.1) 104; (1963) 1 SCNLR 184; sub-nomen Udegbe & Ors v. Nwokafor & Ors that the trial judge cannot in the circumstances of this case order a non-suit of the action, plaintiff having completely failed to prove his claim. I have already stated that the only issue before us is whether the Court of Appeal was right to have set aside the order of non-suit entered by the trial judge and in its stead to dismiss the claim of the Plaintiffs.

It is important for my determination of this appeal to bear in mind that the action which Plaintiff has brought before the Court of trial is an action for declaration of title, trespass and injunction. The law has been well settled since the judgment of Webber C.J. in Kodilinye v. Odu (Supra), and subsequent decisions have followed this principle that the onus on the plaintiff in an action for declaration of title is to satisfy the Court that he is entitled on the evidence brought him by to a declaration of title. And for this purpose he must rely on the strength of his own case and not on the weakness of the case of Defendant. If this onus is not discharged, the weakness of the defendant’s case will not support the case of the Plaintiff – See Elufisoye v. Alabetutu (1963) NMLR 298, Oladimeji v. Oshode (1968) 1 All NLR. 417. However, where the evidence of the defendant tends to establish his title and support his case, the plaintiff is entitled to take advantage of such evidence to establish his title – See Piaro v. Tenalo (1976) 12 SC.31, Egonu v. Egonu (1978) 11/12 S.C. 111 Nkanu v. Onun (1977) 5 S.C. 13, Akinola v. Oluwo (1962) 1 All NLR.224, 225; (1962) 1 SCNLR 352; Idundun v. Okumagba (1976) 9/10 SC.227. On the whole, the onus is on the party claiming title to land to establish the claim. – See Chuku v. Wuche (1976) 9-10 S.C.173.

It seems to me that the proposition in Atuanya v. Onyejekwe that after this onus is discharged, it never shifts, is somewhat overstated and too wide. In Atuanya v. Onyejekwe (1975) 3SC. 161; at P.167, Ibekwe JSC stated such a view with unusual dogmatism, that “This rule of law is now so firmly established that nothing can shake its foundation.” However, under the general rules of evidence of proof in civil cases which is founded on the balance of probabilities, it seems to me that where issues have been joined as to title to land and Plaintiff has adduced evidence to show title the onus shifts onto the Defendant to prove the contrary – See Oronsaye v. Osula (1976) 6 SC.21. It is only if at the conclusion of the evidence the Defendant has not rebutted the evidence of the Plaintiff that it could be said that Plaintiff had established his claim to the declaration of title sought – See Samuel Adenle (Alaota of Oshogbo) v. Oyegbade (1967) NMLR 136, Awomuti v. Salami (1978) 3 SC.105. The position is different where defendant is not claiming title. In that case the question of his proving title does not arise. It seems to me consistent with principle that where the plaintiff has not proved his claim there is nothing for the defendant to defend, and the claim so unsuccessfully made should fail on its merits. This is the position in the instant case at the Court of trial.

In an action for declaration of title, the plaintiff may discharge the onus of proof either by adducing cogent evidence of tradition, or other evidence of positive and numerous acts of ownership demonstrating unequivocal exercise of dominion, over the land.In Baruwa v. Ogunsola & Ors. (1938) 4 WACA 159, the West African Court of Appeal declared,

“Now it is the first duty of a Plaintiff who comes to court to claim a declaration of title to show the court clearly the area of land to which his claim relates” See also Udofia v. Afia 6 WACA. 216. This statement of principle was reinforced in Ate Kwadzo v. Robert Kwasi Adjei (1944) 10 WACA, 274, when the Court said,

“The acid test is whether a Surveyor taking the record could produce a plan showing accurately the land to which title has been given. We are quite certain that no surveyor could do that in this case. The Court has repeatedly pointed out that before a declaration of title should be given the area of land to which it relates must be ascertained with certainty That has not been done here.”

Although a plan is very valuable in the determination of certainty of the land subject matter of declaration, a court can grant a declaration in the absence of a survey plan. The acid test being the ascertainment of the land subject matter of the declaration with “definitive certaincy” so that a surveyor taking the record of proceedings can produce a plan showing accurately the land to which title has been granted. Thus the production of a survey plan is not a sine qua non to an award of declaration of title- See Araba v. Asanlu (1980) 5/7 SC.78 Okpaloka v. Umeh (1976) 9/10 SC.269.

Hence the most important ingredient in an action of declaration of title to land, is to show the court with certainty the area of land in respect of which the claim is made – Epi v.Aigbedion (1972) 10 S.C.53, Alhaji Elias v. Chief Omo-Bare (1982) 5 SC. 25.

In the instant appeal learned counsel to the Appellant has accepted the findings of their failure to establish the two essential preconditions for the grant of a declaration of title. These are that (a) there was nothing in the traditional evidence of the Appellants to render it more preferable to that of the Respondents (b) the extent of the boundaries of the disputed land could not be ascertained with certainty Nevertheless it was contended that the Plaintiffs claim ought not to be dismissed in the interest of justice. It was submitted that Plaintiffs are entitled to a non-suit.

It is well settled law that where a Plaintiff has failed to prove his claim against the Defendant, after trial on the merits the court is entitled to dismiss the action, – See Odum v. Chinwo (1978) 6-7 SC.251. The effect of the dismissal of the action will depend upon the nature of the claim against the defendant, and the nature of the pleadings on which the issues were tried.The expression “Non-suit” is used in civil proceedings to described the judgment of the Court in a variety of circumstances. Generally it is the of discretion to relieve the Plaintiff who has not totally failed to prove his claim, but where it would be unjust and inequitable to dismiss the action. See Dada v. Ogunremi & anor. (1967) NMLR.181. The intention is to enable the Plaintiff to relitigate the claim at subsequent proceedings. The rationale for the exercise of the discretion by the judge is that the defendant suffers no wrong from the opportunity given to the plaintiff to prove his case a second time – See Craig v. Craig (1966) 1 All NLR.173.

In George v. U.B.A Ltd. (1972) 8-9 SC.264 at P.281, Fatayi Williams JSC. expressing the rationale for the order of non-suit and referring to Craig v. Craig (1967) NMLR.52 at P.55 stated it thus,

“…an order of non-suit means giving a plaintiff a second chance to prove his case and the court has to consider whether ,on the one hand, that would be wronging the defendant, or whether on the other hand, an order of dismissal of the suit would be wronging the plaintiffs.”

Hence it has been from the early decision of Aregbe & Ors v. Adeoye and Iyajemi (1924) 1 NLR.56 that non-suit should be ordered where neither of the parties is entitled to judgment in the case; and an outright dismissal of the action would constitute injustice to the plaintiff – Craig v. Craig (supra). However, where the plaintiff has totally failed to prove his claim as here, he is not entitled to a non-suit. The claim should be dismissed – See Kodilinye v. Odu (supra), Rufai v. Ricketts & Ors. (supra). In Dawodu v. Gomez (1947) 13 WACA.151. It was held that where a Plaintiff fails to prove the title he claims, the fact that the defendant has no title does not justify the non-suit.

The 1938 judgment of the West African Court of Appeal in Baruwa v. Ogunsola (1938) 4 WACA.159 Illustrated the two situations. Plaintiff claimed a declaration of title in respect of the piece of land against four defendants. The first two resisted the claim. The 3rd and 4th Defendant did not. The claim was dismissed as against all the Defendants on the ground that the description of the land was of the vaguest nature; plaintiff not having shown clearly the area of land to which the claim relates… On appeal against the first two defendants was dismissed on that ground. But since the 3rd and 4th Defendant did not dispute the claim, the Court ordered a non-suit rather than a dismissal, See also Karama & Wibiko v. Aselemi & Ors. 4 WACA. 150. In Karama & anor. v. Aselemi & Ors. (supra), the West African Court of Appeal in dismissing the appeal and affirming the judgment of the court below stated the ration thus-

“…the learned trial judge was right in refusing to grant a declaration of title to any part of the land in dispute, not only because there was no plan to which the declaration of title could be attached or any other means of determining – the boundaries of the piece of land in respect of which the Plaintiffs claimed a declaration of title, but also because there was no evidence that the plaintiffs had acquired a title to any part thereof.”

Appellants have contended before us that notwithstanding that they failed to prove the title they claim, the award of non-suit being the exercise of a discretionary power, wherever and whenever the overriding interest of justice so required, the Court below should not have interfered with the exercise of discretion of the trial judge to non-suit Plaintiffs. Learned counsel relied on Yesufu Dele & Family v. Adelalu & Family (1966) 1 NMLR 105 and Ume v. Ezechi (1964) 1 WLR.701 for the submission that an order of non-suit is appropriate where there are reasonable grounds for thinking that justice would result from dismissing the plaintiff’s claim. Again where the claim of Plaintiffs will fail on the grounds of rejection of evidence in conflict with the statement of claim, the ends of justice would be met by the order of a non-suit – Nwakuche v. Azubuike (1955) 15 WACA 46.

It seems to me from the above submissions that learned counsel to the Appellant has severely ignored the facts of this case relying entirely on statements of general principles which are hardly applicable to the case before us.

At the expense of repetition, but in the interest of clarity, it is pertinent to restate very summarily the sequence of the reasoning which resulted in the order of non-suit. The learned trial judge held that Plaintiff had failed to establish the extent of the land in dispute, particularly the northern and north-eastern sides of the land claimed by them. He also found the evidence of the 3rd Plaintiff relied upon by the plaintiff’s as to the extent of the limits of the land in dispute as in conflict with the Survey plan – “Exhibit A” relied upon by plaintiffs. Besides, the learned judge did not find the traditional history of the Plaintiffs with respect to the land in dispute, more probable than that of the Defendants. It seems tome that the reason for the non-suit could be found in the conclusion of the learned trial judge, where he stated as follows-

“…It is my view that since none of the warring parties is entitled to judgment, an order of non-suit and not a dismissal is appropriate – See the case of Karama v. Aselemi & Ors. (1938) 4 WACA. 150

The Court of Appeal rightly rejected this formulation of the principle applied by the learned trial judge in the exercise of his discretion to non-suit the plaintiffs in this case.

It seems to me that the learned trial judge in his application of the principle had assumed that the rationale that a non-suit should be ordered, where neither of the parties is entitled to judgment in the case, includes where the Plaintiff has failed to establish his claim against the Defendant. This is not so.

A study of the decided cases on the order of non-suit uncompromisingly disclose that where the Plaintiff has totally failed to establish the claim against the Defendant, his action must fail, and there will be judgment for Defendant. This is because in an action the onus lies on the plaintiff to satisfy the Court that he is entitled on the evidence to The declaration sought. – See Kodilinye v. Odu (1935) 2 WACA, 336, Amobi v. Texaco (1972) 3 S.C. 104. Such a judgment does not even by implication decree title the Defendant who has not sought such a declaration.

Hence when a plaintiff fails to prove his claim as in the instant case, the proper order to make is one for dismissal – See Odunakwe v. Administrator General (1978) 1 SC. 25, Odum v. Chinwo (1978) 6-7 S.C. 251.

The real issue in this case is whether the order of non-suit was a proper exercise of discretion by the learned judge It is conceded thal both The grant of declaratory title and the order of non-suit involve the exercise of discretion. But this is a judicial discretion governed by judicial decisions and not to be exercise capriciously – See Nigerian Fishing Ca. v. W.N.F. Co. (1969) NMLR.164. Hence the power to order a non-suit should be exercised with utmost restraint and in accordance with well settled principles which have been developed around the issues over the period. Accordingly each case being peculiar could be determined on it own facts – See Mandillas & Karaberis v. Oridota (1972) 2 S.C. 47.

There is a welter of decided cases in support of the proposition that an Order of non-suit can, and ought to be made when the plaintiff has not totally failed and where at the same time the defendant is not entitled to the judgment of the Court. Nkanu v. Onun (1977) 5 SC.13. The contention here is not that the Plaintiff’s claim has not failed. That has been conceded.

In this appeal one of the reasons for the failure of the Plaintiff’s claim is the inability of the plaintiff to ascertain the boundaries of the land in dispute. Beside, the extent of the land in dispute owned was not even shown on the evidence. In Epi v. Aigbedion (1972) 10 SC. 53 this court following earlier authorities held that a non-suit may not be granted where a claim for declaration of title to land fails because the boundaries of the land are not ascertained. In the recent decision of this Court in Owuda v. Lawal (1984) 4 S.C. 145, Irikefe JSC stated,

“If an appellant who is a plaintiff in an action for title to land admits that the land subject of the action cannot be ascertained with certaincy, then a court trying the case would be justified in dismissing same”.

Eso, and Aniagolu, JJSC expressed similar opinions. The decision in Yesufu Dele & Family v. Adelalu & Family (supra) relied upon by the Appellants is inapplicable and clearly distinguishable. Although in both cases, the land subject matter for declaration of title is undefined, in the Yesufu Dele & Family Case. Plaintiffs who had tenants on the land had a proprietary interest in undefined area of the land which would be affected by the dismissal of the action. In the instant case Plaintiffs neither established any of the claims made, nor any proprietary interest exclusive to them in any portion of the land, – See Epi v. Aigbedion (1972) 10 SC.53.

Dr. Odje has correctly pointed out that the learned judge found against the Appellant not only on the question of the uncertainty of the area and extent of the land claimed but on the traditional history and other evidence of the parties. It was therefore submitted on the authority of Baruwa v. Ogunsola (supra) and Kodilinye v. Odu (supra), Nwokafor & Ors v. Idegbe & ors. (Supra) Udegbe & Ors v. Uwokafor & Ors (supra) that the proper judgment in the circumstance is one of dismissal of the Appellant’s claim.

Now on what grounds could the learned trial judge be said to have exercised his discretion

This Court in A.C.B V. Yesufu (1980) 1 SC.49 has stated the principle governing the Order for non-suit with clarity. Citing and adopting the dictum of Coker J.S.C. in Odiete & Ors v. Okotie & 3 Ors. (1972) SC.83, where it was held,

“… the order of non-suit is not to be employed for affording yet another opportunity to a party who had failed to discharge the onus of proof which lies on him but only when in the interest of justice the plaintiff has only failed to get judgment on account of a hitch of which the defence is not, in the opinion of the Court, entitled to take advantage…”

Learned Counsel to the Appellant has not suggested, and there is no reason to hold that Appellant’s case failed on the ground of a technical hitch without which the Plaintiff’s case would have succeeded on its merits, – See Ogunloye v. Durosimi (1975) 12 SC. 49.

In the most recent judgment of this court decided on the 7th June, 1991, SC.2 16/1989 M.Q Akinsuroju & Ors v. Chief Paul Joshua (1991) 4 NWLR (Pt. 187) 542, the well settled principles for ordering a non-suit enunciated in the earlier decisions were restated. These are that, an order of non-suit is to be made in the following situations –

(a) Where the plaintiff has not failed in toto or entirely to prove his case; and

(b) Where the defendant is not in any event entitled to the Court’s judgment; and

(c) Where no wrong or injustice to the defendant would be caused by such order.

See also Olagbemiro v. Ajagungbade III (1990)3 NWLR (Pt. 136) 37, Adelaja v. Fanoki (1990) 2 NWLR. (Pt. 131) 137 SC. There is no doubt that in the instant case the plaintiff having failed completely to prove his claim, the only course open to the learned judge is to dismiss the action. There was clearly no ground for the exercise of a discretion to order a non-suit in the absence of the enabling preconditions. No wrong would be done to the plaintiff for dismissing the action. Rather, it will be unfair to subject the Defendants to the Defence of an action which is largely speculative in character.

The Court of Appeal was therefore right to interfere in the exercise by the learned trial judge to order a non-suit in this case by setting the order of non-suit aside; and in its stead substituting a dismissal of the action.

The appeal of the Appellants is hereby dismissed. The judgment of the court below is accordingly affirmed.

Appellant shall pay costs assessed at N500 to the Respondents.

M. BELLO, C.J.N.: I have had the opportunity of reading the leading judgment of my learned brother Karibi-Whyte, J.S.C. For the reasons stated therein, I also dismiss the appeal and affirm the judgment of the Court of Appeal. I agree with the order as to costs made by my learned brother.

P. NNAEMEKA-AGU, J.S.C: The main issue in this appeal is whether the Court of Appeal was right in deciding to interfere in the manner the High Court exercised its discretionary power to enter a non-suit in this action and substituted one of dismissal of the action.

The ground upon which an appellate court can rightly interfere with the exercise of its discretion by the High Court in its original jurisdiction is pretty well settled. It is that the appellate court must bear in mind the fact that the discretion in question is not its own but that of the court of trial. So, although it can review the exercise of its discretion by the court of trial, it cannot substitute its own discretion for that of that court. It could only have interfered if it was satisfied that the discretion was not exercised judicially and judiciously. In other words if, and only if, it was satisfied that the discretion had been exercised in an arbitrary or illegal manner or without due regard for all necessary considerations or with regard to unnecessary factors or Mala fide. In any of such cases it had a duty to intervene. It could, however, not have done so simply because the course taken by the trial judge was not one which the appellate court might have taken by the discretion were its own: it could not substitute its own discretion. See on these: The Resident Ibadan Province v. Lagunju (1954) 14 W.A.C.A., at P.552; Enekehe v. Enekehe (1964) 1 All N.L.R.102 N.A Williams v. Hope Rising Voluntary Funds Society (1982) 2 S.C.145

The complaint in this case is that it was a wrongful exercise of its powers on appeal for the Court of Appeal to have reversed the discretion of the learned trial judge which, after due consideration ordered a non-suit. The only question is, therefore, whether the learned trial judge based his order of a non-suit on wrong principles so as to have made it lawful for the appellate court to intervene.

Formerly, a plaintiff could elect to be non-suited on opening his case. That order, called the order of non est prosecutus, enabled him to commence the action again upon paying all costs so far awarded against him. In modern practice, however, the judge no longer has the power of non-suiting the plaintiff before hearing evidence.

This is based on the principle that once issues have been joined in the case and the stage set for the real contest, none of the parties will have the liberty to escape, as it were, through the back door only to begin the case afresh: See Fox v. Star Newspaper Co. (1990) A.C.19. He must stay and fight, win or loose. If, after hearing evidence called by both sides, the judge is satisfied that none of the parties is entitled to judgment and that an order of dismissal will lead to injustice, then he has a good ground to order a non-suit: See Yesufu v. African Continental Bank Ltd. (1980) 1-2 SC.74 at P. 60-61. The effect of a non-suit is to enable the plaintiff to relitigate the issues, if he chooses.

In this case, the learned trial judge obviously based his decision to non-suit the plaintiff/appellant on this ground where he stated

“The above consideration (i.e. the lack of certainty as to the area in dispute as discernible from the plan and oral evidence) are sufficient to dispose of the case and it is pointless going into the traditional history and acts of ownership or possession within living memory as there appears to be nothing to choose between the evidence of the Warring parties in these regards”

(parenthesis added by me).

He cited in support Nwakuche v. Azubuike (1955) 15 W.A.CA. 46 and Karama & anor v. Aselemi & Ors. (1938) 4 W.A.C.A. 150. I have no doubt that if the learned trial judge had limited himself to this, the principle was correctly stated. But the problem of the appellants is that before the learned trial judge made the above proposition, he had found as follows:

“From the evidence of the 3rd Plaintiffs, substantial parts of the northern and north-eastern areas of the land claimed by the plaintiffs as well as the entire area indicated as trespassed upon by the defendants, are shown to be outside the land of the Plaintiffs. It is not clear to the court where the boundary of this northern part of the land lies”.

Additionally there was no finding that any particular part of the land claimed in the suit was established to be the property of the appellants. In the face of this situation on the facts, it is doubtful whether the substratum upon which the learned trial judge hosted his conclusion that none of the parties was entitled to win was correct.

By a long line of decided cases, a plaintiff who comes to court in a case of declaration of title, damages for trespass and injunction and in the end succeeds only in showing that he does not know the boundaries of the area he claims, and that the situs of the trespass complained of is outside the area he claims ought to fail completely. For his first duty in a claim for title is to show to the satisfaction of the court the precise area he claims: See Baruwa v. Ogunsola & Ors. (1938) 4 W.A.C.A.159 Alhaji Elias v. Oma-Bare (1982) 5 S.C.25, PP.39-40; Owuda v. Lawal (1984) 4 S.C.146, 148 & 149.

Additionally the appellants succeeded in showing that the alleged trespass did not take place within the area they claim. They could not in such a case expect anything other than a dismissal of their claims for damages and injunction. The above findings by the learned judge made his conclusion that none of the parties was entitled to loose clearly unsupportable. The appellants were entitled to loose; so the Court of Appeal was right to have come to the conclusion that the discretion to order a non-suit was exercised upon wrong principles.

For the above reasons and the fuller reasons contained in the lead judgment of my learned brother, Karibi-Whyte, J.S.C., which I adopt as my own, I also dismiss the appeal and subscribe to the orders made by him.

SC.143/1989