IN THE SUPREME COURT OF NIGERIA
ON FRIDAY, THE 11TH DAY OF FEBRUARY, 1972
APPEAL No: SC.236/1969
CITATION: (1972) 2 LLER 1
Before Their Lordships
IAN LEWIS, J.S.C.
UDO UDOMA, J.S.C.
ATANDA FATAYI-WILLIAMS, J.S.C.
MANDILAS & KARABERIS LTD
1. Appeal against exercise of discretion by court non-suiting or dismissing a case; duty on the party alleging wrongful exercise of discretion to prove same
We must first of all reiterate what we have had cause to say in many previous appeals namely that each case must be decided on its own facts in determing whether the action should be non-suited or dismissed. The principle is clear however that in making the determination, it is a discretion of the court and it must accordingly be exercised judiciously, but it is in all cases for the person appealing against the decision of the trial court to show to us that the discretion of that court has been wrongly exercised. Per Lewis J.S.C. READ IN CONTEXT
B. WORDS AND PHRASES
2. Meaning of “non-suit”
In Craig v. Craig (1967) NMLR 52, this court observed at p. 55 as follows:- ‘Inevitably a non-suit means giving the plaintiff a second chance to prove his case. The court has to consider whether in this case that would be wronging the defendant, and on the other hand whether the dismissal of the suit would be wronging the plaintiffs.” Per Lewis J.S.C. READ IN CONTEXT
LEAD JUDGEMENT DELIVERED BY LEWIS, J.S.C.
The short point in this appeal is whether the learned trial Judge was right in entering a non-suit instead of dismissing the plaintiff’s claim.
In Suit LD/414/68 in the Lagos High Court the plaintiff’s writ read:-
“The plaintiff is the Landlord of the defendants in respect of the land and the house at 49, Kofo Abayomi Avenue, Apapa, at an annual rent of 1,000p payable in advance under memorandum of agreement dated the 10th day of April, 1965.
The rent for the period 23rd April, 1968, to 24th April, 1969, was due in April, 1968.
The plaintiff’s claim against defendants is for the sum of 1,000p being one year’s rent due since April, 1968, in respect of the aforesaid land and house at 49, Kofo Abayomi Avenue, Apapa, payable in advance.
Despite repeated demands, the defendants have failed and refused to pay the said amount.”
It was not in dispute that the plaintiff leased the property in question to the defendants for 3 years from the 24th of April, 1965, with an option to renew. This option to renew was never in fact exercised but when the plaintiff wrote to the defendants before the expiration of the lease on the 23rd of April, 1968, asking them if they proposed to exercise the option, they did not reply despite reminders till the 27th of June, 1968, when they said inter alia in their letter (Exhibit 9):-
“The lease of the above premises expired on the 23rd April, 1968, and we do not regard ourselves as being in possession after that date. The premises were sublet to Messrs. Danco (Nigeria) Ltd. who are now in possession. We have been advised that this subletting was in order since there is nothing in the Agreement between us, prohibiting us from subletting.”
The defendants throughout denied that they could be liable to the plaintiff for rent and at the close of the case their counsel submitted that the plaintiff’s claim should be dismissed and not be non-suited.
On the 17th of February, 1969, Adefarasin, J., in his judgment said:-
“The real issue that arises for a decision is whether a tenant of premises whose interest has come to an end is liable for rents after the expiration of his term.”
and went on to find that the lease of the defendants having come to an end, the plaintiff should have sued not for the rent but for compensation for use and occupation as shown by Woodfall on Landlord & Tenant 25th Edition, page 548, paragraph 1283. He then turned to the issue of whether the action should be dismissed or non-suited and said:-
“It was urged upon me by learned counsel for the defence not to non-suit the plaintiff’s action but to dismiss it. The argument of learned counsel proceeded on the basis that the plaintiff has no remedy whatsoever against the defendants. The evidence led before the court has not shown that the plaintiff has no remedy whatsoever against the defendants. As I attempted to show earlier on in this judgment the liability of the defendants to the plaintiff depends on a number of factors whether the defendants had sub-letted the premises to Danco (Nigeria) Ltd., which fact was not established in the instant case; whether the defendants had taken all reasonable steps to get rid of the sub-tenants; and so on. The rights of the Plaintiff would depend on the facts which are presented before the court. It is quite possible for the plaintiff to maintain another action against the defendants. For this reason I will non-suit the present action of the plaintiff with costs which I assess at 15 guineas.”
Chief Williams for the appellants submitted that as the plaintiff pleaded and presented his case on the basis that the defendants were liable to pay rent for the premises to the plaintiff and as the learned trial Judge rejected that claim, ipso facto, he should have dismissed the claim and not non-suited it as he did. In support of his submission he relied on one authority namely the judgment of this court in Nigerian Fishing Company & Ors. v. Western Nigeria Finance Corporation. SC. 327/67 (Unreported) of the 27th of June, 1969, when as to non-suit it was stated:-
“The short point argued raised again the issue to the circumstances in which a court of trial should enter a non-suit. In Craig v. Craig (1967) NMLR 52, this court observed at p. 55 as follows:-
‘Inevitably a non-suit means giving the plaintiff a second chance to prove his case. The court has to consider whether in this case that would be wronging the defendant, and on the other hand whether the dismissal of the suit would be wronging the plaintiffs.’
As shown in Craig’s case, the powers of entering a non-suit should be employed advisedly and never only for the purpose of allowing a plaintiff who had failed to prove his case to have another opportunity of doing so. In the present case the evidence was all one way as the defendants declined to give any oral evidence. The issues canvassed on both sides were fully set out in their respective pleadings and the defence of the defendants was clearly put to the plaintiffs both by the Statement of Defence and in examination during the trial. The plaintiffs did not choose to ask for an amendment of their pleadings and indeed the learned trial Judge in his judgment found it necessary to comment on this point. The findings of the learned trial Judge, which in our view are abundantly supported by the evidence, certainly do not justify the making of an order when the plaintiffs in defiance of the Statement of Defence deliberately insisted on prosecuting to the end a case which was in all respects different from their pleadings. We think that the proper order should have been one of dismissal of the plaintiffs’ case.”
Now we must first of all reiterate what we have had cause to say in many previous appeals namely that each case must be decided on its own facts in determing whether the action should be non-suited or dismissed. The principle is clear however that in making the determination, it is a discretion of the court and it must accordingly be exercised judiciously, but it is in all cases for the person appealing against the decision of the trial court to show to us that the discretion of that court has been wrongly exercised.
The case relied on by Chief Williams namely Nigeria Fishing Company & Ors. v. Western Nigeria Finance Corporation (supra) is quite different to the present case as there, the plaintiff insisted on presenting a case to the court contrary to his pleadings and declined to ask for any amendment, and in no circumstances can a court find for a plaintiff other than in accordance with his final pleadings whatever evidence may have been offered. Here the plaintiff did not deviate from his pleadings whereby he sought rent from the defendants and though the learned trial Judge found that he was in error in so demanding rent (and there has been no cross-appeal against that or indeed against any other of his findings), nonetheless we think the circumstances were such that with the defendants setting up that there was a sub-letting, which the learned trial Judge found not to be proved, on the Judge’s own finding the plaintiff might well have been able to pursue a claim for use and occupation of the premises, which under the Recovery of Premises Act, would be for mesne profits, and we do not think that because he did not seek to amend his pleadings in order to claim for mesne profits in the alternative, he should be debarred from being able to pursue the claim, as may well be the case if we entered an order of dismissal as Chief Williams asked for. We must bear in mind that in exercising his discretion, the Judge was seeking to do justice between the parties.
In the circumstances we are not satisfied that the appellants have discharged the onus placed upon them of showing that the learned trial Judge wrongly exercised his discretion in granting a non-suit. The defendants never established their own claim that there was a sub-letting and they received costs in the lower court and did not see fit to pursue the ground of appeal originally filed complaining that the costs were inadequate so they were compensated for the abortive action. It would be no injustice to them in the particular circumstances of this case to leave the plaintiff the opportunity of bringing a fresh action if he sees fit to do so. The appeal is accordingly dismissed with 10 guineas costs to the respondent as he was not represented and, though present, did not seek to argue his case on the appeal before us.
Chief F.R.A. Williams For the Appelants
Respondent in Person. For the Respondents