AROWOOGUN & ANOR. V. OMISORE & ORS.

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292

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NIGERIAN SUPREME COURT CASES

[1968] N.S.C.C.

AROWOOGUN & ANOR. V. OMISORE & ORS.

5

EZEKIEL AROWOOGUN AND ANOTHER

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APPELLANTS

V

RICHARD OMISORE AND OTHERS

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RESPONDENTS

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10

SUIT NO. SC/29/1966

SUPREME COURT OF NIGERIA

ADEMOLA,

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C.J.N.

LEWIS,

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J.S.C.

MADARIKAN,

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J.S.C.

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15

13th December, 1968

Land Law - Declaration of title to land - Injunction - Both parties in possession

of land - No exclusive possession by plaintiffs - Determination of boundary

point - Plaintiffs claim of land at boundary - Reliance

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on earlier judgment

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which neither defendants nor ancestors were party to - No right to exclusive

possession - Issue of non-suit not applicable.

ISSUE:

1. What principles should guide a court in deciding whether to enter a non-suit.

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FACTS:

The dispute between the plaintiffs and the defendants arose over an area of

land which they felt was the boundary between them. The main issue at the trial

was the exact location of their common boundary. The trial judge dismissed the

plaintiffs' claim for declaration and injunction due to lack of adequate proof and

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30

also rejected the defendants' counter-claim. It was clear that even the two judg-

ments relied on by the plaintiffs did not involve the defendants or their ancestors,

and therefore the judgments could not form the basis of an estoppel against the

present defendants.

On appeal, counsel for the appellants contended

inter alia

that an order of non-

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suit should have been made.

HELD:

1.

A non-suit means giving the plaintiff a second chance to prove his case. A

court has to consider in the circumstances of each case whether by so doing

it would be wronging the defendant, and on the other hand whether the dismissal

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of the suit would be wronging the plaintiff. An order of non-suit in this situation

would amount to wronging the defendants and therefore cannot be made.

2.

Both parties to this action have been found to be in long possession of the

disputed land. neither being in exclusive possession.

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CASE REFERRED TO IN JUDGMENT:

1.

Marian Ashabi Craig v. Victor Emmanuel Craig & Anor.

(1967) N.M.L.R. 52

at 55.

Mr. Yinka Ayoola

for the Appellants.

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Mr. C.A. Fajemisin

for the Respondents.