AKERELE V. ATUNRASE & ORS.

• Pages: 180-190

180

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NIGERIAN SUPREME COURT CASES

[1969] N.S.C.C.

of the case and we take the view that they should have their costs in the court

below".

If the reason for the non-suit is in no way the fault of the defendant then he may

be entitled to his costs, but such was not the position here, as the learned trial

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5

Judge had considered that both sides were negligent in failing to produce the judg-

ment of the Benin High Court when both were relying in different ways on proceed-

ings in the lower court whose judgment apparently was reversed by the High Court

as according to counsel at the hearing of the present action in the High Court, the

Benin High Court had ordered a re-trial in these earlier proceedings, but this was

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10

never proved nor were the terms of the order of re-trial nor why it was ordered.

As both sides were therefore at fault we are of the view that the learned trial Judge

was entitled to make the order that he did and require each party to bear it own

costs. Moreover here it was not, as in

Melifonwu v. Adazie (supra),

the position

that the plaintiff had failed to prove his case on its merits because the learned trial

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15

Judge never determined the facts in issue before he took the preliminary point,

without hearing counsel in regard to it, that the failure of both sides to produce the

earlier Benin High Court judgment in the circumstances necessitated a non-suit.

In the result, therefore, we set aside the order of non-suit but not the order of

the learned trial Judge that each party should bear its own costs of the hearing up

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to the 7th of May, 1965, and we order that the action be re-heard

de novo

before

a different Judge of the High Court of the Mid-West State. The appellant is entitled

to his costs of this appeal which we assess at 70 guineas.

Appeal allowed: Retrial ordered.

25

AKERELE V. ATUNRASE & ORS.

30

DR. F. ABIOLA AKERELE

V

1.

A.J. ATUNRASE

2.

B. GBENLE

3.

A.F. TIJANI

4.

F.A.

BALOGUN

5.

J.A. BALOGUN

6.

N.O. ALOWONLE

7.

THE REGISTERED TRUSTEES OF

THE HOPE RISING VOLUNTARY

FUND SOCIETY

APPELLANT

DEFENDANTS/RESPONDENTS

35

40

SUIT NO. SC 190/1967

SUPREME COURT OF NIGERIA

COKER,

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J.S.C.

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45

LEWIS,

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J.S.C.

FATAI-WILLIAMS, J.S.0

18th April, 1969.

Land Law - Land - Sale of family land by member not on behalf of the family

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50

is void not voidable - Estoppel by judgment only if could have joined in

action and did not and this is not the case here - Effort of trial Judge over

who was in undisturbed possession from evidence.