E. A. AJETUNMOBI (APPELLANT)
ISAAC OMOWUNMI (RESPONDENT)
(1961) All N.L.R. 129
Division: High Court of Lagos
Date of Judgment: 24th March, 1961
Case Number: Appeal No. LD/6A/61
Before: De Lestang, C.J.
Appellant, a licensed moneylender, appeared in person in the magistrates' court to recover an alleged loan. He tendered his licence but failed to produce a memorandum as required by section 12(1) Moneylenders' Ordinance, Cap. 124. The Magistrate dismissed the claim on the application of Counsel for the respondent. Appellant appealed on the ground that the proper order should have been non-suit and not dismissal.
(1) Magistrate has discretion to order non-suit or not; but must exercise it judicially and with due regard to the evidence. In deciding which is the proper order to make, the circumstances must be considered to determine whether an order of non-suit or one of dismissal would result in justice to the parties.
(2) It was the duty of the magistrate in this case to help the plaintiff who was an unassisted litigant, by telling him that his claim should be supported by documents; and by ascertaining from him whether he was in possession of the required memorandum of contract.
Appeal allowed. Order of dismissal vacated and order of non-suit substituted therefore.
Case referred to:-
Clack v. Arthurs Engineering Limited (1959) 2 A.E.R. 503; 103 Sol. JO. 471.
Ordinances referred to:-
Moneylenders Ordinance, Cap. 124, section 12(1).
Magistrates' Court (Lagos) Ordinance, Cap. 113, section 46.
Ali Balogun for Appellant.
Bello for Respondent.
De Lestang, C.J.:-The appellant, a licensed moneylender, sued the respondent to recover an alleged loan. At the trial the moneylender, who appeared in person, testified as to the loan, which was apparently denied, and tendered his license. He did not, however, produce any memorandum of contract as required by section 12(1) of the Moneylenders' Ordinance, Cap. 124 although it is alleged in the claim that the respondent executed a promissory note on a date therein given. The respondent did not give evidence and his solicitor asked that the claim be dismissed, which the learned Magistrate did with eight guineas costs. The appellant appeals on the sole ground that the learned Magistrate ought to have non-suited him and not dismissed his suit.
Section 46 of the magistrates' court (Lagos) Ordinance, Cap 113, provides:-
Every Judgment and order of the court shall, except as provided by this or any other Ordinance, or by sections 147 and 148 of the Constitution Order, be final and conclusive between the parties: Provided that a magistrate shall have the power to non-suit the plaintiff in every case in which satisfactory proof shall not be given entitling either the plaintiff or defendant to Judgment.
It is contended for the appellant that the case falls within the proviso of that section and that it was thus a matter for the discretion of the learned Magistrate whether he should non-suit the appellant or whether he should give Judgment for the respondent and that he failed to exercise his discretion judicially having regard to all the circumstances of the case.
In my view this case clearly comes within the proviso since the appellant failed to give satisfactory proof of his claim by not producing any memorandum of contract and the respondent, by giving no evidence at all (as he was entitled to do), failed to prove that he was not indebted. I also agree that the learned Magistrate had an unfettered discretion whether to non-suit or not. This is clear from the wording of the proviso. Moreover the power of the magistrate's court in that regard does not in my view materially differ from that of a County Court in England. The position in England was examined at length recently in Clack v. Arthurs Engineering Limited (1959) 2 A.E.R. 503, where in an appeal against an order of non-suit in a County Court it was held that although the judge had a discretion to non-suit the plaintiff without his consent yet he had not exercised his discretion judicially. The sole question, therefore, in this appeal is whether the learned Magistrate exercised his discretion judicially. In my view, and I do not blame the learned Magistrate for this, he did not exercise his discretion at all. It is obvious from the record that he was asked by the respondent to dismiss the claim and that he did so without ever considering whether a non-suit was not the proper order to make. It is important to bear in mind in the present case that the appellant was not represented by a solicitor and consequently may have failed through ignorance to produce the necessary document. It is significant that a promissory note is stated in the claim to exist and that not one question was put to the appellant either by the court or by the respondent to ascertain whether he had such or any document to support his claim. In the case of an unassisted litigant it is the duty of the court to help him. It was the duty of the learned Magistrate in this case to inform the appellant that his claim had to be supported by documents and to ascertain from him whether he had the alleged promissory note or any other documents to produce. In my view had the learned Magistrate considered whether to non-suit or dismiss the claim, he could not have failed in the circumstances of this case to adopt the former course as otherwise grave injustice might result. I am of the opinion therefore that he did not exercise his discretion judicially in this case and that the appellant is entitled to succeed. The appeal is accordingly allowed, the order of dismissal is set aside and an order of non-suit substituted therefore. The order for costs in the lower court will remain but there will be no order for costs in this appeal.