Uzonwanne Nwakuche V. Peter N. Azubuike & Anor (1955)

Statement of Claim defective—Variance with evidence—non-suit instead of dismissal of claim.

Facts

This action was dismissed by the Court below. On appeal it was argued that the trial Judge had misdirected himself by taking the view that the plaintiffs evidence was “in complete contrast to the statement of claim.”

The Court took the view that there was a possibility that the statement of claim was defective, and decided that in order to avoid a possible injustice, the plaintiff should be non-suited instead of the action being dismissed.

The Court distinguished between this case and that of Kodilinye and Mbanefo Odu (1) in that in this case the plaintiff’s evidence was disbelieved mainly on the ground that it conflicted with the statement of claim, and the Court considered it likely that the statement of claim failed to set out the case in sufficient detail.

Held

Appeal allowed. Non-suit entered.