LEGAL PRINCIPLE: APPELLATE PRACTICE – Retrial – When Inappropriate – Plaintiff’s Case Failing In Toto
PRINCIPLE STATEMENT
However, when a plaintiff's case has failed in toto, that is to say, he has not succeeded in discharging the burden on him going by the evidence, a retrial order is inappropriate and will not be made. To make such an order in such circumstances will amount to affording the plaintiff a second chance, which he does not deserve, to prove what he failed to do at first. The proper course to take in that situation, so long as the failure to prove is not due to a technical hitch or some other cause justifying a non-suit, is to make an order dismissing the action.
RATIO DECIDENDI (SOURCE)
Per Uwaifo, JSC, in Eke & Ors v. Okwaranyia & Ors (2001) NLC-151996(SC) at pp. 23–24; Paras D–A.
"However, when a plaintiff's case has failed in toto, that is to say, he has not succeeded in discharging the burden on him going by the evidence, a retrial order is inappropriate and will not be made. To make such an order in such circumstances will amount to affording the plaintiff a second chance, which he does not deserve, to prove what he failed to do at first. The proper course to take in that situation, so long as the failure to prove is not due to a technical hitch or some other cause justifying a non-suit, is to make an order dismissing the action."
EXPLANATION / SCOPE
Retrial is inappropriate when the plaintiff’s case failed entirely—they did not discharge the burden of proof. Ordering retrial in such circumstances gives the plaintiff an undeserved second chance. The proper order is dismissal of the action. Retrial is not a remedy for failure to prove the case. The exception is where failure was due to a technical hitch or other cause justifying non-suit. The principle prevents plaintiffs from relitigating cases they lost on the merits. The appellate court must determine whether the failure was due to insufficient evidence (dismissal) or procedural defect (possible non-suit or retrial). Dismissal is final—plaintiff cannot re-file. The principle promotes finality and prevents endless litigation.
