CIVIL PROCEDURE – Non-Suit – Distinction Between Striking Out and Non-Suit – Non-Suit Inappropriate Where Action Incompetent
Ratio Decidendi
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.