“…An order of non-suit, admittedly a discretionary one, should be employed rather sparingly and only in cases in which such an order is clearly justified by the circumstances. Besides, such an order should not be made when counsel on either side has not requested it, and counsel on both sides have not been invited to address the court on the propriety of adopting such a course. In Craig v. Craig (1967) NMLR 52 at p. 55 this Court observed as follows: “It seemed to us, when considering our judgement, that this might be a proper case for a non-suit; but we thought that we ought first to hear learned counsel. And we pause to observe that when the propriety of a non-suit has not been argued, if a trial judge should think of entering a non-suit it is desirable that he should first ask counsel for the parties for their submissions. We invited the learned counsel to state their arguments for and against a non-suit. They referred to Elias v. Disu and Others and to Dawodu v. Gomez. We mean no disrespect when we say “that those cases do not solve the question before us since each case must be considered in the light of its own facts. Inevitably a non-suit means giving the plaintiff a second chance to prove his case. The Court has to consider whether in this case that would be wronging the defendant, and on the other hand whether the dismissal of the suit would be wronging the plaintiffs.”
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