LEGAL PRINCIPLE: CIVIL PROCEDURE – Non-Suit – Distinction Between Striking Out and Non-Suit – Non-Suit Inappropriate Where Action Incompetent
PRINCIPLE STATEMENT
The simple reason justifying the order for striking out is that respondents' suit is incompetent being wrongly constituted. See Ukatta v. Ndinaeze (1997) 4 NWLR (Pt.499) 251. On the other hand an order of non-suit means giving the plaintiff a second chance to prove his case where there has been an omission detrimental to his case arising from the inadvertence of counsel. See Craig v. Craig (1967) NMLR 52.
RATIO DECIDENDI (SOURCE)
Per Achike, JSC, in Chikere & Ors v. Okegbe & Ors (2000) NLC-261995(SC) at p. 15; Paras C–D.
"The simple reason justifying the order for striking out is that respondents' suit is incompetent being wrongly constituted. See Ukatta v. Ndinaeze (1997) 4 NWLR (Pt.499) 251. On the other hand an order of non-suit means giving the plaintiff a second chance to prove his case where there has been an omission detrimental to his case arising from the inadvertence of counsel. See Craig v. Craig (1967) NMLR 52."
EXPLANATION / SCOPE
Striking out applies where the action is incompetent—wrongly constituted, lacking jurisdiction, or fundamentally defective. Non-suit applies where there is a procedural omission due to counsel’s inadvertence, giving plaintiff a second chance. Striking out terminates the action; non-suit allows re-filing. Incompetence goes to the root of the action and cannot be cured by a second attempt. Non-suit is inappropriate where the action cannot be properly constituted even on re-filing. Courts must correctly distinguish based on whether the defect is fundamental or curable.