By Amusan Tawfiiq ’Lekan
The popular myth has always been that when disputing parties approach and present court with their case, the court will always find in favour of or against one party, whether in limine or on the merit. This is however not entirely true, as there could still be an instance where, despite the court hearing a matter on the merit (by taking evidence from the parties), the court will still form an opinion that none of the parties is yet deserving of the court’s judgment by making an order of non-suit.
It’s however important to state at this prefatory stage that an order of non-suit is only normally contemplated in civil matter and never in criminal matter— the reason being that criminal trials and civil proceedings are not governed by the same rules. The civil proceedings are governed by the court rules while the criminal trials are governed by ACJA or ACJL/CPL/CPCL of various states. Cases of striking out or dismissal may however happen in criminal trials as well, but focus of this article will mainly be on civil proceedings.
Meaning of the Principle.
An order of non-suit is one which terminates the plaintiff’s case without a decision on the merit. It’s normally ordered where neither the plaintiff nor the defendant is entitled to the judgment of the court. See the case of Omoregbe v. Lawani (1980) LPELR-2655(SC). The order is a final decision, although the matter can still be recommenced without the Plaintiff being estopped in any way. See Kaura v UBA Plc (2005) 8 NWLR (926) Pg. 36.
The order is not employed for affording yet another opportunity to a party who has 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. See Odiete v. Okotie (1972) 6 SC 83 at 55; Yesufu v. A.C.B. (1981) 1 SC 74 at 36.
Before a Non-suit Order Can Be Made!
This section heavily centers on what, as conditions, must pre-exist the decision of any court to make a non-suit order— the absence of which automatically renders the order made null and void and liable to be set aside on appeal.
The first of those requirements which seem like conditions is the statutory empowerment of court in that regard. In other words, for a court to validly make this order, the power to make same must be statutorily conferred on it by its rules. It is not one which is inherent in the court. See the cases of Ibiyemi v FBN Plc  17 NWLR (Pt 848) 201; Kaura v. UBA Plc (supra).
Typical example of this non-suit provision could be found in Order 46 of the National Industrial Court Rules, 2017; Order 21 of the Federal High Court Rules, 2019; Order 38 of the High Court of the FCT Rules, 2018; Order 38 of the High Court of Lagos State Rules, 2019; Order 34 of the High Court of Kano State Rules, 2014 e.t.c.
The second condition which the court must also satisfy itself in complying with before making a non-suit order is the invitation of parties for an address on the propriety or the otherwise of same. See the cases of Bernard Okoebor v. Police Council & 2 Ors (1998) 9 NWLR (Pt. 566) 534; Adebayo v Adusei (2005) ALL FWLR (Pt. 240) Pg. 186.
Can An Appellate Court Make A Non-suit Order?
Even though an appellate court does not strictly mean Court of Appeal upward; it means any court capable of exercising appellate jurisdiction. But for the sake of practical brevity, I’d be craving the indulgence of my readers to momentarily interpret those as courts which by their nature are appeal courts— i.e Court of Appeal and Supreme Court.
These two courts, by virtue of their enabling statutes— section 16 of the Court of Appeal Act (Cap C37 LFN 2004) in the case of Court of Appeal and section 22 of the Supreme Court Act (Cap S15 LFN 2004) in the case of Supreme Court— can as well make an order non-suiting parties whenever they think fit. Those provisions empower them to, in deserving circumstances, step into the shoes of and act just like a trial court.
However, before an appellate court could make an order of non-suit (for the first time), the appellant’s complaint against the judgment of the lower court must have first been upheld. This was the decision of the Court of Appeal in the case of First Bank Of Nig. Plc v Okon  All FWLR [Pt. 546] @ 540 – 5. In fact, in both cases of Ekpere v. Aforije (1972) 1 All NLR (Pt. 1) 220 and Oloriode v. Oyebi (1984) 1 SCNLR, the appeal was allowed before the order of non-suit was made.
The second condition which must happen before this condition could be made for the first time on appeal is that the trial high court where the appeal is coming from must have such statutory empowerment in its rules. See the case of Faleye v Otapo (1995) 3 NWLR (Pt. 381) 1. In other words, and just as held in the recently cited case as well as in Jadesimi v. Okotie-Eboh (1986) 1 NWLR (Pt. 16) 264 @ 276, “If the trial court had no power to order a non-suit, the court of appeal could not do so either”.
When A Non-Suit Order Is To Be Made
Generally, there are no fixed rules which a court may apply in determining whether to non-suit a case or not, and that each case must be decided on its own facts, and at the discretion of the court which, of course, must be judicially and judiciously exercised. Some guiding principles have been laid down by the Supreme Court, viz;
- A non-suit is appropriate where there is no satisfactory evidence enabling the court to give judgment to either of the parties and wrong neither of them. Thus, it must appear on the record of the case taken as a whole that the Plaintiff has not failed intoto and the defendant would not, in any case, be entitled to judgment of the court.
- Where the dismissal of the claim might work injustice to the Plaintiff and no injustice or hardship need result to the defendant from non-suiting the Plaintiff, an order of non-suit would produce the just result.
- An order of non-suit cannot be made where the Plaintiff has failed to establish the case put forward in his pleadings. It should not be made only for the purpose of allowing the Plaintiff who had failed to prove his case to have a second bite at the cherry.
- It is proper to non-suit a Plaintiff whose case has failed on a mere technical ground and not because he has not proved his case on the merit. The interest of justice demands that he be given a second chance of presenting his case.
- Where the issues before a trial court were never properly clarified, and the real issues between the parties cannot be determined, the Plaintiff should be non-suited and the case being dismissed.
- In an appeal court, for a non-suit order to be made, the appellant’s complaint against the judgment of the lower court must have first been upheld.
See the cases of First Bank Of Nig. Plc v Okon  All FWLR [Pt. 546] @ 540 – 54; Ogbechie v Onochie (1988) 1 NWLR (Pt. 70) 370; Okpala & Ors. v Ibeme & Ors (1989) 2 NWLR (Pt. 102) 208; Olagbemiro v Ajagungbade III (1990) 3 NWLR (Pt. 136) 37; Kaura v Uba Plc (2005) 8 NWLR (Pt. 926) pg. 36-37
Non-suit Order Compared With Related Orders
- Order of Striking Out
The law is indeed trite that the effect of an order striking out a cause or application is that it merely suspends the cause or application with the party at liberty to either apply to relist a cause or file another application with a view to remedying the defect on which basis the cause or application was struck out. See Fasakin Foods (Nig) Ltd V. Shosanya (2006) LPELR-1244 (SC).
So, for that effect, a striking-out order is very similar to an order of non-suit because, upon the making of an Order of non-suit as well, the Plaintiff can re-institute the matter without any procedural glitch (except for maybe limitation). The only possible differences between the duo however are the reason for which and the stage at which each of the orders is normally made whenever the need for making such arises.
- Order of Dismissal
On construction of what an Order of dismissal implies, the Court of Appeal aptly held in Ume v. Nigeria Renowned Trad. Co. Ltd.  8 NWLR (Pt. 516) 344 as follows; “If a matter is dismissed on its merits, it cannot be resuscitated. It finally dies, and the plea of res judicata (if a civil matter) or autrefois acquit or autrefois convict (if a criminal matter) will avail the other party.”
Contrary to what an Order of dismissal does, an Order of non-suit still keeps the claim alive. See the case of Ogbechie & Ors v. Onochie & Ors (1988) LPELR-2277(SC). So, apart from that difference in effect, the only other possible difference between the duo rests squarely on the reason for which each of them is normally made whenever the need for making such arises.
This writer strongly feels it won’t be out of place to conclude by opining that an order of non-suit is no more than an equitable remedy which the court normally grants a Plaintiff who shouldn’t suffer a claim’s dismissal yet. But then, just as is always advised by the appellate courts, a great care should, at all time, be exercised before making an Order of non-suit because;
The entry of an order of non-suit means that the plaintiff is being given a second chance to prove his case— another ordeal against the defendant who by the non-suit order will of necessity enter into a second litigation with the Plaintiff. Again, the order could mean an injustice against the plaintiff who could claim to have satisfactorily proved his case yet was being required to once again commence his action anew and go into the ordeal of a new trial.
It’s also my view that the Order aligns more and keys very firmly into the much-popularised mantra flying in and out of our courts of late— I mean, the one that often states “we are now in the era of a substantial justice”.
Amusan Tawfiiq ’Lekan—a Student of Bayero University, Kano— had this as his parting research paper upon the completion of his internship with Oake Legal. He can be reached via email@example.com as well as +2348108012253.