APPELLATE PRACTICE — Interlocutory Decision — Striking Out — Effect Where Suit May Be Relisted
Ratio Decidendi
Per Kalgo, JSC, in Alor & Anor v. Ngene & Ors (2007) NLC-123-21-2002(SC) at p. 6; Paras A–B:
"A final order envisages that it is a permanent order made by the court and the parties in respect of whom or against whom the order is made cannot go back to the same court to challenge or change that order. That court, by virtue of the order, is functus officio… But where the rights or claims of the parties in any action have not been looked into and determined by the court, they are still pending and the parties can go back to any court or indeed the court to examine and decide on those rights. Furthermore, the rules of court quoted above empower the appellant whose case was struck out to reapply to the same court to have their case relisted and determined."
Explanation / Scope
This principle establishes that an order striking out a suit is not final where the parties can relist. A final order makes the court functus officio. Where rights have not been determined, they remain pending and the court can relist the case. The principle applies where rules of court allow relisting. It ensures that striking out is not a permanent bar. The principle promotes access to justice. The court must consider whether the rules allow relisting. The principle prevents injustice from technical dismissals. It reflects the distinction between striking out and dismissal.