Bishop John Noyogiere Edokpolo V. Gabriel I. Asemota (1994)

LawGlobal-Hub Lead Judgment Report

OGUNDERE, J.C.A. 

Before Obi J., at the then Bendel State High Court of Justice holden at Benin the plaintiff now appellant in paragraph 20 of his 5th Amended Statement of Claim sought the following remedies:-
(a) A declaration that the cultivated farmland measuring approximately 460.703 hectares lying situate at Oken Camp in Iguovbiarmwen Village along Ehor Road, in Abudu Judicial Division as shown in the survey plan dated 3rd March, 1986 is the cultivated farmland of the plaintiff and that the plaintiff is thus entitled to a prior right to a grant of certificate of occupancy over the said farm land.
(b) N209,200 (Two hundred and nine thousand, two hundred Naira) being special damages for the defendant’s acts of trespass on the said piece or parcel of land measuring 70.613 hectares.
(c) N324,800 (three hundred and twenty-four thousand, eight hundred Naira) being general damages for the defendant’s acts of trespass on the said piece or parcel of land measuring 202.952 hectares.
(d) A perpetual injunction to restrain the defendant, his servants, agents, privies and assigns from continuing the acts of trespass from the piece or parcel of land.
(e) An order setting aside the purported certificate of occupancy granted to the defendant in respect of the said plaintiff’s farmland.

The case for the plaintiff by his 5th amended Statement of Claim was that he bought a large tract of land from Aghayede Ehiorobo for E115(115 pounds) in 1952 in Iguovbiamwen Village in Orhiomwon Local Government Area of Bendel State. His vendor gave him a receipt dated 14th October 1952. The plaintiff also bought another tract of land from Iyoba for E200(200 pounds) on receipt dated 26/8/53. By a letter dated 30th October 1952 from the Forestry Officer Benin the plaintiff obtained approval of the transfer of the land purchased to him. Later six claimants of the land Omosefe, Alex Okungbowa, J. O. Iyasere and Imafidon reported the plaintiff to the Oba of Benin who advised him to compensate them and he did. Whereupon the Oba executed a conveyance of the land dated 29th October 1953 in his favour. The plaintiff then planted malaysian rubber seedlings on the land in 1953.

In 1980, the defendant broke and entered the land and excised 273.506 hectares from his land, destroyed the rubber plantation there and planted palm trees on 70.613 hectares. He had always exercised maximum acts of ownership on the land of about 460.703 hectares since 1952. In 1958 relations of the defendant Adubu and seven others sued him in Urhokuosa Native Court claiming the land now in dispute and the court found in his favour.

In 1982, Dr. Oboma Asemota the younger brother of the defendant was Commissioner for Agriculture and Natural Resources in Bendel State. That year, workers of that Ministry were seen bulldozing part of plaintiff’s plantation. After a visit to Dr. Asemota he exchanged some letters with that Ministry which wanted to acquire that parcel of land. It is over that same parcel of land that the defendant purported to obtain, by fraud, a customary right of occupancy from Orhionmwon Local Government on 12/10/82.

Sometime in 1984, the defendant again bulldozed another part of his plantation and destroyed about 34,883 rubber trees valued N209,200. The defendant had by then occupied 202.953 hectares on which the plaintiff lost N324,800.00 income whereupon the plaintiff sought the remedy stated above.

The case for the defendant in his 5th Amended Statement of Defence was a denial of averments in the plaintiff’s statement of claim and specifically that the plaintiff does not own 460.703 hectares or at all on the land in question or that he purchased parcels of land from Agbeyedo Ehiorobo or Iyoha who never farmed in the land in dispute. the two names on Forestry maps BC 15/1, BC 13/1/ and BC 16/1 were mis-spelling of Iyoha or Iyokho Asemota his father and the late Pa Ehiorobo respectively. Oba Akenzua II had on 9th May in 1939 granted the defendant’s father permission to plant and did plant permanent crops on the land. The defendant and his predecessors in title only had a boundary with Ehirobo of Oken Camp, and that the disputed land forms part of defendant’s farm, in respect of which disputed land he obtained a customary right of occupancy No.23 of 12th October, 1982 from Orhionmwon Local Government.

The defendant’s farmland including the disputed area was a virgin forest when his father and Ehiorobo farmed in that area which was within the territorial authority of Ugha Village Community and not within Iguovhiahianmwen Village area authority. The defendant’s father obtained the consent or permission of the village Head, elders and people of Ugha Village community in 1930 before embarking on his farming project. The defendant’s father then built houses thereon where he lived with his families and servants until his death. That in proof of consent given his father Odionwhere of Ugha village sent delegates from the village Community and planted “Ikhiniwin” trees thereon which in Bini customs symbolized a grant of farming rights to his father. The defendant also specifically denied destroying 34,833 rubber trees of the plaintiff or at all, liability for the alleged value of N209,200 or that the defendant occupied 202,953 heatares of the plaintiff’s rubber plantation in 1984 or the loss of income of N324,800 to the plaintiff or at all. The defendant also specifically denied that he obtained his customary right of occupancy by fraud and that the plaintiff is not entitled to the remedies he claimed or at all. The defendant averred that at the trial he would show that he was the eldest surviving son of his late father Pa Iyokho Asemota from whom he inherited the disputed farmland and had quiet possession of the disputed land until 1985 when the plaintiff suddenly laid claim to the land in respect of which he lawfully obtained a Customary Right of Occupancy.

Obi J., after taking the evidence of the parties stated the issue in the case thus:-
The real issue that must be determined therefore, is whether plaintiff has established by credible evidence of acquisition of land, known to Bini customary laws. What must be emphasized is the essence of acquisition either through the plot allotment committees in urban city of Benin or through the village Elders in rural areas, is to ensure that the recommending body not only identified the land to be allocated but also, to ensure that the land to be allocated is free from dispute. This is only reasonable and accords with common sense; the Oba as trustee of Bini communal lands when the system existed, had unfettered powers to grant any land to any prospective allotee, but he was not in position, having regard to the vast communal lands of the Binis, to know all the lands let alone vacant and unallotted lands. In the rural areas, he acted through the recommendation of the appropriate Odionwere and elders of the village community.

The lower court then made the following findings: Although the plaintiff tendered receipts Exhibits “C” and “C1” for the price paid to his vendors, there is no pleading and consequently no evidence that the Elders of Iguevbiahiamwen village were party to those transactions as confirmed by the evidence of the plaintiff himself. That was why the elders challenged the plaintiff in the customary court and he was discharged on the tender of those two receipts in the judgment Exhibit ‘D’. Also Exhibit “F” Oba Akenzua II’s grant was based on those two receipts. The learned trial Judge then interpreted Exhibit “F” thus:-
The nature of the grant made to the plaintiff, is quite clear from the content of Exhibit ‘F’. It is no more than occupational right to farm on the land comprised in the grant. It has been submitted that Exhibit ‘F’ is incapable of conveying interest in land known to Bini Customary law. But as stated, Exhibit ‘F’ does not purport to convey any title in land as such being ex-facie, grant for agricultural purpose as the heading shows. Exhibit ‘F’ was also criticised as not having been witnessed by anyone, not even the elders of Iguovbiahiamwen were privy to it. While I agree, having regard to Bini native law and custom already out-lined, that this is a valid criticism of Exhibit ‘F’ I am nevertheless, inclined to the view that Exhibit ‘f’ is capable of granting occupational rights for farming purposes, on the plaintiff.
This is similar to Exhibit “L” granted to the father of the defendant which stated:-
“Permit to plant permanent crops.
Permission is hereby granted to Iyokho Asemota of Okhuo to plant permanent crops on a piece of land two acres in extent situated in Oken – Ugha Village area of Benin Division.
2. This permit is liable to cancellation or amendment if the said area is not planted with permanent crops within twelve months of the date of issue of this permit.
Signed
Oba of Benin”
I am satisfied that Exhibit ‘F’ is a valid permit entitling the plaintiff to occupation and use of the plantations mentioned therein. I accept his case not only that he took effective possession of the various plantations sold to him but also, that he replanted them’ with better economic crops.
On defence side, it has not been seriously denied that plaintiff owned some rubber plantations. What is strongly denied is that he does own the area directly in dispute in this action. In other words, while I accept defence case that his late father settled and farmed in an enclave which later became known as Iyokho Camp in Ugha Village area of Orhinmwon Local Government Area, Bendel State and while agreeing also that late Pa Ehiorobo while alive, was their next door neighbour and boundary person, it seems logical and reasonable that their neighbour’s interest in the area was transferred to the plaintiff, he would become the new neighbour and boundary person. Indeed, plaintiff pleaded and led evidence to show that he is owner in possession of cultivated parcel of land situate at Oken Camp in Iguovbiahianmwen village indicative that the areas he acquired include Oken camp which is common ground, originally belonged to late Pa Ehiorobo. It seems therefore, that the entire case boils down to the narrow but crucial issues as to the extent and location of the rubber plantations which plaintiff purchased from Mr. Aghayedo Ehiorobo (DW1). Plaintiff might have purchased other rubber plantations from other vendors, including one Iyoha, but what is critical to the determination of this action relates to the late Pa Ehiorobo’s plantations which he has purchased from his son, Aghayedo. It is trite law, that the onus lies on the plaintiff to satisfy the court that he is entitled on the evidence adduced by him to the declaration which he seeks.

Whereupon the lower court found that Exhibit “F” was a valid permit entitling the plaintiff to occupy the plantations mentioned therein and he took effective possession of them and planted better economic crops.

The learned trial judge also stated the crucial issue as the extent and location of the rubber plantations which plaintiff purchased from Aghayedo Ehiorobo, the son of Pa Ehirobo and whether he discharged the burden of proof on him on that score. The extent and boundaries of the land claimed by the plaintiff can be seen first from Exhibit “c” paragraph 3 thus:-
“3. That these said plantations are bounded by Oken River, Benin native Authority Forest Reserve, a Ditch which separates the said plantation from one Edia’s cocoa plantation and Eko stream. That with the above boundary is another plantation, belongs to one Mr. Ovbiobo Aideyan of Dawson Street, Benin City.”

The receipt Exhibit C1 also described Iyoha’s grant as:
“1. One Camp.
2. 4 Ruber plantations and also containing coconut and kolanut trees having common boundary with that of Ehiorobo’s camp.
The said sale was after winning the case of trespass of 12 miles along Oken River by 1-1/4 miles deep to the Forest Reserve instituted by the Forestry Department, Benin City.

The learned trial judge then criticised the inadequacy of the evidence of the plaintiff in the Forestry Map Exhibit A1 which showed Iguovbiahiamwen, Oken River, Ehioro plantations, Iyoha plantations, Native Authority Native Reserve but did not show a ditch, UAC Reserve. The plaintiff also did not superimpose the litigation plan Exhibit “A” on “A1” to enable the court to see at what point along Oken River his plantations began and ended. He found further that:
Going by the entire documentary evidence produced and tendered by the plaintiff, it is reasonably clear that he is the owner of rubber plantations situate in Iguovbiahiamwen village area lying between Izekor camp and Iyokho Asemota camp. A ditch separates his plantation from Asemota camp lying 300 feet from the ditch. I am unable however, from the survey plan Exhibit’ A’ put forward by the plaintiff, to know where all these important particulars, essential to the determination of the boundary between plaintiff and defendant’s land, lies and plaintiff has not helped matters by inclusion of Iyokho Asemota camp as part of his land.
Defendant on the other hand, gave evidence which is quite consistent with his pleadings regarding the way and manner, his late father came to establish his camp in Ugha village area and I have no reason to disbelieve the account given by defendant and his witness, representative of Ugha village community who confirmed the farming rights granted to late Pa Iyokho Asemota. I accept defence case. Of course, it is not part of plaintiff’s contention that defendant’s father never established settlement in the area. The real dispute in this case as has been demonstrated above, is as to the exact boundary between the two parties. Defendant gave clear and concise evidence of his boundary with late Ehiorobo’s land supported again by his witness. His survey plan Exhibit ‘K’ shows the various boundary marks including Eze-Neko stream. Plaintiff’s survey plan on the other hand, did not endeavour to show the boundary between Ehiorobo and late Pa Iyokho Asemota. Rather, it shows lands allegedly belonging to Iyoha and Ehiorobo’s land. It is extremely difficult for me to understand how Mr. Iyoha would be in boundary with Ehiorobo, when Exhibit ‘C’ as we have seen stated that Ehiorobo is in boundary with Iyokho camp separated by a ditch 300 feet apart. This is only possible if the boundaries are on different parts of Ehiorobo land. In other words, for both by Iyoha and Iyokho Asemota to be in boundary with Ehiorobo, this must be at different part of Ehiorobo’s land. Significantly enough, the sketch in Exhibit ‘C3’, does not show anywhere in which Iyoha is in boundary with Ehiorobo. Iyoha was not mentioned in Exhibit ‘C3′. No boundary is shown between the area described as Iyokho Asemota camp and the vast area described as forming Iyoha land. To this important extent, it seems to me that Exhibits’ A’, ‘C’ and ‘C1’ are in some conflicts. I prefer the evidence of boundary given by the defence particularly, as marked out in the survey plan Exhibit ‘K’. DW1 Mr. Ehiorobo might have lied when he denied being party to Exhibits ‘C’ and ‘C3′. Nevertheless, it is clear to me that the land he sold does not include the land in dispute.

On the question of trespass, the learned trial judge opined that he could not pin the activities of the Ministry of Agriculture and Natural Resources on the defendant simply because his younger brother Dr. Oboma Asemota was the Commissioner in charge having regard to Exhibit “G1” a reply to plaintiff’s letter Exhibit “G2”. He therefore found the defendant not liable in trespass and consequently in claim for damages in trespass. The learned trial Judge then found that the plaintiff had been unable to establish his claim which he dismissed in its entirely.

Dissatisfied with that judgment the plaintiff appealed on an omnibus ground and later 6 additional grounds totalling 7.
In this Court the parties to this appeal filed and exchanged briefs of arguments which were adopted at the hearing. The issues for determination in the appellant’s brief are:
(i) Was the learned trial Judge right to have dismissed the appellant’s claim to the declaration sought after upholding Exhibit F as evidence of the Occupancy rights of the appellant to the farmland in dispute as described in Exhibits C and C1 and defined in Exhibit A.
(ii) Was the learned trial Judge right in his view that the extent and boundaries of the said farmland had not been proved in this case?
(iii) Are the imprecision or the defects in the plan of the farmland in dispute, Exhibit A, which the learned trial Judge spotlighted such as entail a dismissal of the action and not an order of non-suit?
(iv) Did the learned trial Judge rightly resolve the looming issue of the parties competing title or right to the farmland in dispute in favour of the respondent?
(v) Was the appellant’s consequential claim for damages in trespass rightly dismissed by the learned trial Judge?

On issue (i) founded on appeal grounds 1 and 2, that in proof of paragraph 26(a) of the 5th amended Statement of Claim that the plaintiff was entitled to a declaration that the plaintiff was in occupation over the cultivated farmland in dispute as defined in survey plan Exhibit A, it was submitted that the plaintiff based his occupancy rights on a grant by the Oba of Benin of 1138.397 acres of land on Ehor Road Iguovbiahiamwen villages as witness Exhibit F and purchase receipts Exhibits C and C1. Under Benin customary land law, the Oba’s grant passes possessory and occupational rights to the grantor. Bello v. Eweka (1981) 1 S.C. 101, 129. Further the appellant also relied on his exercise of acts of ownership over long period of time as witness of the Customary Court of Urhokuosa which on 26th May 1958 acquitted him of planting rubber plantation without permission as he proved that he purchased them. The learned trial Judge at pages 66 to 68 of the record quoted above, said inter alia that he was satisfied that Exhibit F was a valid permit which entitled the plaintiff to the occupation and use of the plantations mentioned therein. The lower court was therefore in error to have dismissed the appellant’s claim because he did not prove title having regard to Sections 5(1), 6(1) and 40 of the Land Use Act which provide that title in land in every State is in the Governor and that a person can only be entitled to a right of occupancy thereof. Also Land under Benin Customary Law is held in trust by the Oba who grants farming and other rights on them.

As to issues (ii) and (iii) based on grounds 3 and 4, the learned trial Judge declined to give the plaintiff the declaration sought because he failed to describe in clear terms the extent and boundaries of his rubber plantation. But this was not in accord with the uncontradicted evidence of the plaintiff’s surveyor PW1 who tendered Exhibit A which showed that the plaintiff’s land of 460.703 hectares was edged green and that the land in dispute was contained in the area of farmland verged green in Exhibit A verged pink. The area verged yellow of 70.613 hectares where the plaintiff planted rubber trees was bull-dozed by the defendant who planted palm trees thereon. It was further submitted that Exhibit A1 a Map of the forest reserve tendered by PW 2 showed enclave carved out in the name of Ehiorobo and Iyoha bought by the appellant as witness Exhibits C and C1 which were recited in Exhibit F. The respondent did not join issue with the appellant on the identity of the land. Ezeudu v. Ohiagwu (1986) 3 S.C. 1, 27 – 28; (1986) 2 NWLR (Pt.21), 208. It was then submitted that the lower court erred to hold that the plaintiff did not prove the extent and boundaries of the rubber plantation on which a declaration was sought. Borno Holding Co. v. Bogoco (1971) 1 All NLR 324, 329 – 321. As to the ditch referred to by the lower court, it was not the boundary between the parties and that it erred that Exhibit A lacked essential particulars to determine the boundary between the appellant and the respondent. If even that were so, the plaintiff should be non-suited rather than have his claim dismissed. Darko v. Agviakwa 9 WACA 163, 164 – 166.

On issue (v) appeal ground 7, the learned trial Judge was wrong to dismiss the case for trespass which does not necessarily fail on failure of a claim for a declaration. Oluwi v. Eniola (1967) NMLR 339, 340 – 341. Be it noted that Dr. Oboma Asemota instructed officials of the Ministry of Agriculture to bulldoze appellant’s rubber plantation although the learned trial Judge did not believe that the respondent did it. It was finally submitted that the appeal be allowed.
Two issues were raised in the respondent’s brief. They are:
1. Whether or not the learned trial Judge was right in dismissing the case of the plaintiff.
2. Whether or not the learned trial Judge was, in the circumstances of the case obliged by law to order a non-suit.
On issue (i) it was submitted that the learned trial Judge was right as the appellant pleaded but failed to prove that his farm land was situate at “Oken Camp”. Further Exhibit A did not show “Oken Camp”. PW I said he only showed Oken tower. As to Exhibit F, the title document the appellant relied on in respect of the land in dispute which was said to be situate on Ehor Road (Iguovbiahiamwen village) on Beacon Plan Nos. BC 13/1 and BC 15/1 but he led no evidence on this, nor were those beacons showed in his survey plan Exhibit A. The inference is that the land described in Exhibit F was no where near the farm land in dispute. The appellant’s purchase receipt of rubber trees from Ehiorobo, Exhibit C described the rubber plantation as situate at Oken Camp, bounded by Oken River, Benin Native Authority Forest Reserve and ditch which separated the rubber plantation. No evidence was led on this or shown in the survey plan of the disputed land Exhibit A. The same vice afflicted Exhibit C3 the purchase receipt by Ehiorobo to the appellant which described the appellant’s rubber plantation as about 1-1/4 miles from Oken River to UAC Reserve, and 2 miles from the junction between Iguovbiahiamwen village and Oken River and that that plantation is 200 feet from Izekor’s Camp, and that Iyokho’s, respondent’s camp was 300 feet from the boundary of the rubber plantations of the appellant and that there was a ditch at the said boundary. None of these features was shown in Exhibit A.

As to the claim for damages for trespass neither was proved against the respondent. In contrast, the respondent led evidence in proof of his pleadings as well as his root of title and that the farm land in dispute was in Ugha village not Iguovbiahianmwen village as claimed by the appellant. The learned trial Judge in his findings referred to all the defects in the appellant’s case and concluded that the appellant failed to prove his case and dismissed same as was done in Oghechie v. Onnchie (1988) 1 NWLR (Pt.70) 370, 372; Ekpoke v. Usilo (1978) 6 – 7 S.C. 187, 197, 198; Atuaya v. Onyejekwe (1975) 3 S.C. 161. Further the defendant’s evidence completely discredited that of the plaintiff. The learned trial Judge was therefore right to dismiss plaintiff’s case. Ogundain (Bale of Ijako-Orile) v. Okanlawon (1961) 1 All NLR 350, 361; Iheneweka v. Eghue (1964) 1 WLR 219; and Taiwo v. Ogunsanya (1967) NMLR 375. On respondent’s issue 2 as the plaintiff’s case failed in toto an Appeal Court has always refused to make an order of non-suit. Ayoola v. Adebayo (1969) 1 All NLR 159.

As to the appellant’s issue 1, the appellant failed to relate his Exhibit F to the land in dispute as shown above. The appellant led no evidence on Exhibit C3 or relate it to Exhibit A. On Exhibit F the learned trial Judge said that it was capable of granting occupational rights for farming purposes to the plaintiff and no more which is a correct statement of Customary Law. Folarin v. Durojaiye(1988) 1 NWLR (Pt.70) 351. 352. Besides the learned trial Judge based his judgment not on Exhibit F but that the plaintiff failed to discharge the onus of proof on him, whereas the learned trial Judge accepted and believed the evidence adduced by the defendant/appellant. The order of dismissal of plaintiff’s case was therefore correct. Olayioje v. Oso (1969) 1 All NLR 281, 284; Ekpoke v. Osilo (1978) 6 – 7 S.C. 186, 197, 198.

As to appellant’s issues (ii) and (iii) the learned trial Judge was right to hold that the plaintiff failed to show the extent and boundaries of the farmland claimed as the plaintiff led no evidence to show his boundary men as contained in Exhibit C nor the features in that Exhibit. Also no evidence was led on the features in Exhibit C1, nor of C3. All those features which should have been shown in his survey plan Exhibit A related to another farm land. Further Exhibit A did not elucidate Exhibit A1.

As to appellant’s issue (iv), appeal grounds 5 and 6, it was submitted that from the respondent’s arguments above the learned trial Judge considered carefully the evidence in the case, appraised and evaluated same before reaching the conclusions he reached. As to issue (v) the learned trial Judge rightly dismissed all the claims of the plaintiff since none of them was proved. It was finally submitted that the appeal be dismissed.

I have taken great pains to study the record of proceedings in the trial court, with particular reference to the documentary evidence and with a special scrutiny of the survey plans and Forestry Reserve Map tendered. It goes without saying that the onus is on the plaintiff to prove his case by a preponderance of credible evidence and he can only use the evidence adduced by the defendant in so far as it supports the plaintiff’s case. Section 137 Evidence Act; Kate Enterprises Ltd. v. Daewoo Nig. Ltd. (1985) 2 NWLR (Pt.5) 116, 117; Balogun v. Labiran (1988) 3 NWLR (Pt.80) 66. The sum total of the brief of arguments of the appellant is, we realise we did not prove our case, but we have sufficient Exhibits to show our connection with the land in dispute such that we should only be non-suited. Vide Exhibits A, A1, F, C, C1, C3 and the evidence of PW1 the Surveyor and the plaintiff himself. These arguments were succinctly rebutted in the respondent’s brief. Also the respondent rightly reduced the issues to two. On the question whether the plaintiff proved his case, the respondent in his brief showed that neither the surveyor who produced Exhibit A nor any other plaintiff’s witness linked plaintiff’s evidence on title Exhibits C, C1, C3 and F to the survey plan Exhibit A which was virtually blank as to the surrounding features or boundary men and cannot be and was not related to Exhibit’ A’ the Forestry plan of the area. What is worse, as rightly remarked by the learned trial Judge, it was neither compared with the defendant’s survey plan Exhibit K by PW1 nor super-imposed on it so that the learned trial Judge could see whether the parties were speaking about the same parcel of land. No boundary men were shown in Exhibit A whereas defendant’s survey plan Exhibit K showed all the features he pleaded.

In my humble view, PW1 should be ashamed of the survey plan Exhibit A which he produced unless he knew that the plaintiff was not sincere in his claim. I adopt virtually all the arguments on the two main issues in the respondent’s brief of arguments, the brief is precise and concise as it should be whereas the appellant’s brief was virtually an admission of the failure of the plaintiff to prove his case and a valiant, if rambling effort, to make the best of a bad case. I agree that the respondent led credible evidence in support of his pleadings.

What then is the law regarding non-suit and dismissal of a case. Where a plaintiff fails to prove his case by a preponderance of evidence, or leads no evidence in proof of his pleadings, whether or not the defence is weak or strong, the trial Judge should dismiss the case. Akinola v. Oluwo (1962) 1 SCNLR 352; Kodlinye v. Odu (1935) 2 WACA 336, 337; Imana v. Robinson (1979) 3 – 4 S.C. 1, 8, 9; Oghehie v. Onachie (1988) 1 NWLR (Pt.70) 370. 386. Thus where a plaintiff in a declaratory action of title adduces two competing or conflicting histories of ownership, or his evidence is not credible, his claim should be dismissed. Obiaeri v. Akaheze (1992) 2 NWLR (Pt. 221) 1, 19.
As to non-suit, it is not every time a plaintiff fails to prove his case by a preponderance of evidence that his action is dismissed. Where the evidence both for the plaintiff and the defendant was conflicting and somewhat confused or there was little to choose between the rival traditional stories of the parties, the court should non-suit the plaintiff rather than give judgment to the defendant. Kodlinye v. Odu (1935) 2 WACA 336, 337.

A trial court may also non-suit the plaintiff where he has established by evidence some right or interest in the subject matter in dispute such that to dismiss his action would result in the destruction of the right or interest and thereby occasion a miscarriage of justice. An order of dismissal puts an end to the claim and creates estopel per rem Judicatam against the plaintiff whereas an order of non-suit means giving the plaintiff a second chance to prove his case, commonly called a second bite at the cherry. Ogbechie v. Onochie (supra); Craig v. Craig & Anor. (1966) 1 All NLR 173, 177. The court has to consider whether an order of non-suit would be wronging the defendant, and on the other hand whether the order of dismissal would be wronging the plaintiff. Amobi v. Texaco Africa Ltd. (1972) 3 S.C. 104; Anyaake v. Adi (1986) 3 NWLR (Pt.31) 731, 744 where it was held per Uwais JSC inter alia thus:
The appellants are seeking a declaration of title, the grant of which depended on the discretion of the court. Since they failed to prove that the land verged pink and green in Exhibit A was owned exclusively by them, and the respondents on the other hand had successfully proved that the land in dispute was commonly owned by Ezenifile, an order for non-suit could not have been appropriate.  For to enter a non-suit would have denied the respondents of the judgment that they deserved.

Similarly in this case, the appellant has failed to prove his case as pleaded or at all whereas the respondent successfully proved their defence as pleaded. To enter an order of non-suit would therefore be unjustly depriving, and wronging the respondent of his hard earned victory.

In the circumstances, this appeal fails and is dismissed seriatim and in toto with N1,000.00 costs to be respondent.

Other Citations: (1994)LCN/0199(CA)