APPELLATE PRACTICE — Interlocutory Decision — Striking Out — Effect of Right to Relist
Ratio Decidendi
Per Obaezonu, JCA (as he then was), affirmed by Tabai, JSC, in Alor & Anor v. Ngene & Ors (2007) NLC-123-21-2002(SC) at p. 16; Paras B–C:
"So long as there exists the option to relist the case for hearing in the same court the order striking out the suit is interlocutory. It is interlocutory because the case can still be proceeded with in the same court… Thus, if a proceeding can still be taken on a matter that is struck out, the striking out order is interlocutory but if the striking out order has put an end to the suit that no proceeding can be taken any more on the suit in the same court, the order is final."
Explanation / Scope
This principle establishes that an order striking out a suit is interlocutory where there is an option to relist. The case can still be proceeded with in the same court. If the striking out order puts an end to the suit with no possibility of proceeding, it is final. The principle applies where suits are struck out for procedural defects. It ensures that parties can cure defects and relist. The principle reflects the nature of striking out as distinguished from dismissal. The court must consider whether the parties can return to the same court. The principle promotes access to justice.