The power of Court to make order is inherent and statutory. One of tThe Court exercises this power in discretionary manners and in doing so is bound to act judiciously.
Meaning of the Order of Non-Suit.
An Order of non-suit is a final decision in the sense that it terminates the proceedings in which it is made.
An Order of Non-Suit based on an issue raised suo motu by the court and decided without hearing parties is not a judicious exercise of the Court’s discretion. See Egbuchu V Continental Merchant Bank Plc(2006) 8 NWLR (PT. 1513) P. 192.
Essence of an Order of Non-Suit and when will be made?
An Order of non-suit is usually made in the interest of justice and not for both parties. It decides nothing in respect of the matter in dispute between the parties.
It merely get rid of the pending action leaving the claimant at liberty to start de novo either in the same or subsequent suit. It is normally made when there is no satisfactory evidence to warrant the court to give judgement to either party. See Ikonne v Ezieme(2011) 11 NWLR. P. 536.
When will An Order of Non-Suit be made?
An Order of Non-suit will be made in the following circumstances:
- Where the Plaintiff has not failed in toto or entirely to prove his case.
- Where the Defendant is not in any event entitled to the Court’s judgment; and
- Where no wrong or injustice to the Defendant would be caused by such order.
Duy of Court to hear Parties before making Order of Non-Suit.
By virtue of Order 37 Rule 1 of the High Court of Lagos State(Civil Procedure) Rules, a trial Judge ought to give the counsel to parties the right to make submission on the propriety of an order of non-suit before the court makes the order.
It is mandatory for the court to hear parties on the propriety of an Order of non-suit before making the Order.