Robert Osayi (For Himself And On Behalf Of The Elders Of Emulu) V. Ogude Izozo (For Himself And People Of Ogbemudei) (1969)

LawGlobal-Hub Lead Judgment Report

LEWIS, J.S.C.

In Suit No. B/22/62 the plaintiff in the Asana High Court claimed in his writ:- “1. Declaration of title of all that piece or parcel of land forming part of plaintiff’s larger area of land known as Ugbuku land, which land is more particularly described in a plan to be filed in court in this action. 2. £200 being general damages suffered by the plaintiff as a result of the defendant trespassing onto plaintiff’s said piece or parcel of land. 3. Injunction restraining the defendant, their servants and or their agents, from trespassing onto the plaintiff’s said piece or parcel of land with respect to which the plaintiff now seek declaration of title.” PAGE| 2 On the 7th of May, 1965 Izuora Ag. J. gave judgment in the case and entered a non-suit and ordered each side to bear its own costs. Against that decision the defendant has appealed. Mr. Ohiwerei for the appellant first argued together two grounds of appeal namely: “1. The learned trial judge erred in law in entering a non-suit for the plaintiff instead of dismissing his case when the said learned trial judge was satisfied that the plaintiff has failed to prove that his people are the exclusive owners of the land in dispute. 2. The learned trial judge erred in law in non-suiting the plaintiff instead of dismissing his case thereby giving him another chance to come back and prove the northern and the eastern boundaries of the land in dispute which he has failed to prove at the trial.” It was his submission that the learned trial judge should have found that the plaintiff had not proved his case and that he should therefore have dismissed the claims of the plaintiff rather than allow as he did the plaintiff another chance by entering a non-suit.

This Court however pointed out to him and indeed learned counsel himself conceded, that the learned trial judge made no findings on the issues of fact in regard to which evidence was given before him. One of the documentary exhibits produced in the case was admitted as exhibit ‘D’. Although both sides sought in different ways to rely on exhibit ‘D’ which were proceedings on appeal to the High Court Benin from the Agbor Magistrate’s Court sitting on appeal from the Ika Grade B Customary Court, in fact the judgment of the High Court was not tendered by either side In other words the learned trial judge started to review the evidence before him but made no findings before he entered a non-suit. Mr. Ohiwerei conceded this but argued that having regard to the decisions of this Court in a number of cases, as for instance in Craig v. Craig (1967) N.M.L.R. 52 at 55, it was wrong for the learned trial judge to enter a non-suit without allowing counsel on either side to address him on the propriety of so doing and on the consequential orders if he did on matters such as costs. Mr. Iyare for the respondent for his part conceded that the learned trial judge was in error in entering a non-suit. He also conceded that there were no findings of fact made by the learned trial judge but nonetheless urged us to review the evidence ourselves and give judgment for the plaintiff. Mr. Ohiwerei however, asked us to order a re-trial. We have no doubt whatsoever that this appeal shows yet again the importance of a trial judge hearing counsel before entering a non-suit as if that had been done here the present unsatisfactory situation would never have arisen. We think that having regard to this and to the fact that the learned trial judge made no findings of fact that the appellant is entitled to have the matter determined on its merits once he had been brought to court and to ask us therefore for a re-trial, especially having regard to the order that the learned trial judge made as to costs before him.

In regard to costs counsel for the appellant argued a further ground of appeal:- “3. the learned trial judge erred in law in depriving the successful defendant of his legitimate costs by making the order that each party should bear his own costs when there were many appearances by both parties and there was no cross action”, and referred us to Melifonwu v. Adazie [1964] 1 All N. L. R. 346 for his submission that as a non-suit was entered the defendant was entitled to his costs. We do not think that a proper reading of Melifonwu v. Adazie (supra) shows it is authority for the proposition that when a non-suit is entered the defendant is always entitled to his costs. It was there stated by this Court at page 347: “After hearing counsel on all sides, it seems to us inconceivable that if the High Court had properly entered a judgment of non-suit against the respondents of Umuezearoli the court would not have awarded costs against them. They instituted the present proceedings in which they claimed a declaration of title, damages for trespass and an injunction. To say the least the effect of the judgment of non-suit is that they have failed to prove their case against the defendants who are the present appellants. No reasons of any substance have been urged before us to disentitle the appellants to their costs in the circumstances of the case and we take the view that they should have their costs in the court below”. If the reason for the non-suit is in no way the fault of the defendant then he may be entitled to his costs, but such was not the position here as the learned trial judge had considered that both sides were negligent in failing to produce the judgment of the Benin High Court when both were relying in different ways on proceedings in the lower court whose judgment apparently was reversed by the High Court as according to counsel at the hearing of the present action in the High Court, the Benin High Court had ordered a re-trial in these earlier proceedings but this was never proved nor were the terms of the order of re-trial nor why it was ordered.

As both sides were therefore at fault we are of the view that the learned trial judge was entitled to make the order that he did and require each party to bear its own costs.

Moreover here it was not, as in Melifonwu v. Adazie (supra), the position that the plaintiff had failed to prove his case on its merits because the learned trial judge never determined the facts in issue before he took the preliminary point, without hearing counsel in regard to it, that the failure of both sides to produce the earlier Benin High Court judgment in the circum-stances necessitated a non-suit.

In the result, therefore, we set aside the order of non-suit, but not the order of the learned trial judge that each party should bear its own costs of the hearing up to the 7th of May, 1965, and we order that the action be re-heard de novo before a different judge of the High Court of the Mid-West State.

The appellant is entitled to his costs of this appeal which we assess at 70 guineas.

Other Citation: (1969) LCN/1691(SC)