MELIFONWU & ORS V. ADAZIE & ORS

• Pages: 247-248

MELIFONWU & ORS V. ADAZIE & ORS

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247

MELIFONWU & ORS V. ADAZIE & ORS

5

R. MELIFONWU & ORS.

V

10 CHUKWUDEBE ADAZIE & ORS.

SUPREME COURT OF NIGERIA

BRETT,



Ag. C.J.N.

COKER,



J.S.C.

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

IDIGBE,



J.S.C.

6th November 1964

APPELLANTS

RESPONDENTS

SUIT NO. FSC 228/1963

Practice - Costs - Non-suit - Order on plaintiff to pay costs.

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ISSUE:

1.

Whether a defendant is entitled to his costs where a non-suit has been entered

against the plaintiff.

FACTS:

The plaintiffs obtained judgment, but on appeal the Supreme Court ordered a

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non-suit to be entered instead. The plaintiffs argued that, as a non-suit meant that

neither side was entitled to judgment, they ought not to be ordered to pay costs of

trial: the defendants argued that, as the plaintiffs had failed to prove their case, the

defendants were entitled to costs in the court below.

HELD:

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As the plaintiffs had failed to prove their case against the defendants, the de-

fendants were entitled to their costs in the court below.

P.O. Balonwu

for the first and second Appellants.

G.C.M.

Onyiuke

(with him

E.O. Araku)

for the third Appellant.

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C.

Ofodile

for the Respondents.

COKER, J.S.C.

(Delivering the Judgment of the Court): When we disposed of

the appeal in this case, we reserved ior further argument the question of costs in

the court below. Our judgment in the appeal is that the proper order to have been

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made in the High Court was one of non-suit against the respondents people of

Umuezearoli who were the plaintiffs in the High Court.

At the resumed hearing, learned cDunsel for the appllants of Isiokwe submitted

that the Isiokwe people are entitled to their costs in the court below in view of the

fact that the case of the people of Urnuezearoli against them had not succeeded

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and also because they did expend some money in the preparation of their defence

and in particular the preparation of a plan filed with their statement of defence.

Learned counsel for the appellants people of lyiawu also submitted that the lyia-

wu people are entitled to costs in the court below as the respondents of Umuezea-

roli clearly failed to proved their case against them and that they had been joined

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in the action by the consent of all parties including the plaintiffs in the High Court.

They too filed a plan in the action. On the other hand, learned counsel for the

people of Umuezearoli contended that no costs should be awarded in respect of

the trial in the High Court inasmush as the judgment of this Court involves that none