LEGAL PRINCIPLE: CIVIL PROCEDURE — Interlocutory Applications — Consequence of Dismissal on the Merits
PRINCIPLE STATEMENT
Where an application is argued on the merits, the proper order is dismissal. Striking out is appropriate only when the application is withdrawn or counsel is unavailable to argue it.
RATIO DECIDENDI (SOURCE)
Per Kutigi, JSC, in Amusan v. Obideyi (2005) NLC-1702000(SC) at pp. 3–4; Paras E–A.
"Chief Niyi Akintola in his reply to the foregoing submitted that the learned Judge would have made order of striking out if the application was withdrawn, or the appellant's counsel was not available to argue the motion, but where the application was argued on merits the proper order to make was that of dismissal. The view expressed by Chief Akintola represents the time-honoured position of the law."
EXPLANATION / SCOPE
Application argued on merits dismissed, not struck out. Striking out for withdrawal or absence. The principle applies to civil procedure.