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Benignus Duru & Anor v. Jonathan Nwosu

Supreme Court of Nigeria

Judgement delivered on Friday, July 7, 1989
Citation: 32 NIPJD [SC. 1989] 150/1987
Suit No. SC.150/1987      Jurisdiction: Nigeria

BEFORE THEIR LORDSHIPS

ANDREWS OTUTU OBASEKI, J.S.C.
ADOLPHUS GODWIN KARIBI-WHYTE, J.S.C.
AUGUSTINE NNAMANI, J.S.C. (Delivering the Lead Judgement)
CHUKWUDIFU AKUNNE OPUTA, J.S.C.
PHILLIP NNAEMEKA-AGU, J.S.C.

This appeal is interesting from several perspectives. First, in substance it is about a case in which two communities are contending about title to a piece of land known as ALA-AMAEKE. Each community claims that the land in dispute formed part of a larger area which had descended to it from its ancestors. Each also claimed that it gave the other community a portion of this land and neither community claimed the portion on which the other community resided. Second, the case has raised once more the perennial question of how a trial court should approach the resolution, in a judgment, of the issues raised before it in a civil suit.

In this Suit which started from the High Court of the East Central State, Gulu Judicial Division, the plaintiffs (respondents herein) suing as representatives of the Umuokwara Onene Umuezeala Ogboko family sued defendants (appellants herein) in their personal capacities for the following reliefs.

“1. Declaration of Title to that piece or parcel of land known as and called “Ala-Amaeke” of the annual value of N10.00 situate at Umuokwara Onene Umuezeala Ogboko, Orlu Division within the Judicial Division more clearly to be shown and delineated on the Plan to be filed with the Statement of Claim.

2. N100 (One hundred Naira) general damages for trespass into the said land.

3. Perpetual injunction to restrain the defendants their servants and/or agents from further acts of trespass to the land.”

Pleadings were ordered, duly filed and exchanged. Because of the relatively narrow issue raised in this appeal, I do not consider it necessary to set down the pleadings of the parties.

At the trial, both parties gave copious evidence and called witnesses. The learned trial Judge, A.K. Uche, J., of blessed memory, reviewed the evidence before him using such terms “as plaintiffs making out a prima facie case, and the defendants having to discredit that case or rebut it” to which I shall fully advert in this judgment. At the end of the exercise, he sustained the case of the plaintiffs and gave them judgment in terms of all the reliefs claimed. In the Court of Appeal, the main issue, which is not dissimilar to what has also been brought before this court, was stated in paragraph 14 of the appellant’s brief in that court. It read:

“As the main thrust of this appeal relates to the learned Judge’s treatment of the burden of proof and on the onus he placed on the appellants to discredit the respondent’s evidence or lose the case, it is submitted that the evidence tendered by both parties is secondary to this main objection…”

The Court (coram: Olatawura, Aikawa and Ogundere, JJ.C.A) after considering the submissions of learned counsel to the appellants not only upheld the approach taken in his judgment by the learned trial Judge, but refused the plea to order a retrial. In the conclusion to his lead judgment, Olatawura, J.C.A., said at page 179 of the record,

“In my view the learned trial Judge is not saying anything new by virtue of the provisions of Sections 134 to 136 of the Evidence Act, See Osawaru v. Ezeiruka (1978) 6 and 7 SC, 135/145. I will reject the submission of the learned Senior Advocate that the Judge’s mind was co loured and was no longer in a position to evaluate the evidence as a result of his approach. On the burden of proof generally in civil cases See Samuel Adenle v. Michael Oyegbade(1967) N.M.LR. 136; Mosalewa Thomas v. Preston Holder (1946) 12 W.A.C.A. 78; Awomuti v. Salami and Ors. (1978) 3 SC.105/115. Bafunke Johnson and Anor. v. Akinola Maja and Ors. (1951) 13 W.A.C.A. 290; Aquad v. Nzimiro and Anor. 10 W.A.C.A. 73.”

The appeal was dismissed hence the appeal to this court.

As already mentioned, the single issue argued in this court related to the approach of the learned trial Judge to the evidence of the parties and the endorsement by the Court of Appeal of this approach. These issues were clearly stated in paragraph 1 of the issues for determination as set down by appellants. That paragraph reads:

“1. Was the Court of Appeal correct in approving the way the learned trial Judge treated the burden of proof in this case and on the burden he placed on the appellants having regard to the principle laid down in Mogaji and Ors. v. Madam Rabiatu Odofin and Ors. (1978) 4 S.C. 91?”

In his own formulation of the issues for determination, learned counsel to the respondents identified the same main issue as issue 2. It was slightly framed in more detailed terms so as to bring out the main bone of contention. It read.

“Whether the court below misdirected itself or erred in law in its approval of approach adopted by the trial court in the issue of burden of proof when the latter held that the plaintiff (hereinafter called the respondent) having at the close of his evidence, established a prima facie case, it was left to the evidence of the defendants (hereinafter called the appellants) to discredit respondent’s evidence, throwing the same in doubt.”

In expatiation of his brief of argument, learned Senior Advocate for the appellants, Chief Onyiuke, submitted that the approach of the learned trial Judge to the consideration of the evidence led in this case ran contrary to the principles set down by this court in MOGAJI (Supra) and subsequent cases. Learned Senior Advocate stated that after reproducing the evidence led by both parties, the learned trial Judge, without dealing with the credibility of witnesses, without making any findings of facts, without considering the balance of probabilities proceeded to hold that the respondents had made out a prima facie case and that it was for the appellants to discredit that case. He said that by this approach, the learned trial Judge overthrew the established principle that the plaintiff has onus in a declaration of title case. He said that the Judge’s consideration of the evidence was coloured by this wrong approach. In his view, the question of prima facie case did not arise in a civil case and was more applicable in criminal trials.

In his own submission, Mr. Munonye, learned counsel to the respondents contended that there was nothing excluding the prima facie concept from civil matters. He thought that the learned trial Judge fully complied with the principles in Mogaji (Supra). He referred to the issues settled by the parties which are on pages 20-21 of the record and contended that the learned trial Judge went through all the evidence and made findings on all those issues. In his view, the learned trial judge was awake to his responsibility as an impartial arbiter.

There is no doubt that this case touches on the manner in which the learned trial Judge approached his judgment in this case. Looking through the records of proceedings, there are portions of the judgment which show that he considered the evidence led by the parties. The question though is, did he do so from the standpoint of the plaintiff having made a prima facie case which the defendant has to discredit if he is not to fail? Did he properly evaluate the evidence? Did he weigh it in the imaginary scale? Did he make findings of fact” Did he place the onus of proof properly? These are the questions that one must resolve in this case.

It is conceded by all sides that there is no set standard or set approach to the writing of judgments. Each Judge appears to have an approach peculiar to him. What is really important is that at the end of the day the judgment contains what a proper judgment ought to contain, and more important, that in writing it, the learned trial Judge must discharge that responsibility which will enable what he produces to be properly called a judgment – A fair and just verdict on the case put up by two or more contending parties. To discharge that responsibility, the learned trial judge has to fully consider the evidence proffered by all the parties before him, ascribe probative value to it, weigh the evidence by both sides in the imaginary scale of justice, make definite findings of fact, apply the relevant law and come to some conclusion on the case before him.

As to this question of different Judges’ approach to judgment writing, Idigbe, J.S.C. of blessed memory observed as follows in Chief Victor Woluchem and Ors. v. Chief Simeon Ors. (1981) 5 S.C. 291 at 294,

“It seems to me that the decision of this court in Mogaji v. Rabiatu Odofin (1978) 4 S.C. 91 has been misunderstood. What this court said in that case on the procedure to be followed in assessing the evidence or rival parties (per Fatayi- Williams, J.S.C. – as he then was) is intended to be taken as a guide to trial courts. Judges, naturally, must differ in the procedure and manner in which the approach their consideration of the entire evidence in any given case; some may prefer to begin with a consideration of the entire evidence led for the defence because they find it more convenient to do so; others may prefer to begin with a consideration of the plaintiffs case. Whichever course is adopted, what is necessary is that they must always bear in mind that the plaintiff has to succeed on a preponderance of evidence on the strength of his own case not on the weakness of the defence; some times however, the weakness of the case for the defence tends to strengthen the case for the plaintiff. The principal question the end of the day is which party’s case, on a preponderance of credible evidence has more weight? It must always be remembered that it is the trial Judge that has to decide on the evidence which is credible.”

In Woluchem, the complaint against the approach of the learned trial Judge related to a portion of his judgment headed “summary” after which he said, “This case is a most interesting one both the facts and the law. As was submitted by Mr. Dappa taking the plaintiffs case as it stands alone there is room for saying that their case having regard to their pleadings and the evidence led in support of their case will not warrant a declaration made in their favour.

The appellants in that case contended that the learned trial Judge after this comment considered, not the case of the plaintiffs, but the case of the defence and was therefore in error. This court rejected this, holding that there was a misconception of what the learned Judge meant. The court also held that both before and after the word Summary in his judgment, the learned trial Judge fully considered and weighed the evidence led by both sides and made substantial findings of fact. It was after that that he entered judgment for the plaintiffs. In my judgment therein at page 306, I set down what I thought ought to be the proper approach of trial courts. I said there as follows inter alia, “Beginning with ground 2 of the additional grounds of appeal argued in this court, it seems to me that the proper procedure or approach in considering the evidence is first that the trial Judge ought to start (against the background of the issues between the parties) by considering the evidence led by the plaintiff and then proceed to consider that led by the defendants. Unless the evidence led by the plaintiffs is so patently unsatisfactory, in which case he does not have to consider the case of the defence at all, he will take the evidence led by both sides and put it in that imaginary scale, weigh it and decide upon the preponderance of credible evidence which has more weight. If the Judge decides the issue after considering the evidence led by the plaintiffs and before proceeding to examine the evidence led by the defence he would clearly be in error. He would have prejudged the issues before he ever considers the case of the defence. His decision must be based on his consideration of the totality of the evidence put before him.”

This court has had occasion in the following years to return to this approach by trial Judges to the evidence led before them. See Magnus Eweka vs Bello (1981) 1 S.C. 101; Adeyeye v Ajiboye (1987) 3 N .WL.R. (Part 61) 432, 451; Stephen v State (1986) 5 N. W.L.R. (Part 46) 978, 1005; Onuoha v State (1988) 3 N.W.L.R. (Part 83) 460, 475-476; Olufosoye vs Olorunfemi (1989) 1 N.W.L.R. (Part 95) 26, 37 and Onwuka v Ediala (1989) 1 N.W.L.R. (Part 96) 182, 208-209.Now what did the learned trial Judge do in the instant case? Some portions of the judgment would give the impression that he weighed the evidence of both parties as learned counsel to the respondents urged this court to hold. For instance, at page 101 the learned trial Judge said,

“Plaintiff has led traditional evidence of long possession and ownership. Defendants have also led evidence of traditional long possession and ownership. The court will not make the declaration sought if a defendant is able to adduce evidence oral or documentary which has the effect of discrediting a plaintiffs evidence. See Ogundare the Bale of Ijako Orile and others vs Ishanyinka Badijoko Okanlawon and Ors F.S.C. 163/1962 decided on 21/2/63 (unreported) (But see 1963 1 All N.L.R. 358). The question then is whether in this case the defendants have by their evidence discredited the evidence of plaintiff. Mr. Ilobi cited in favour of the defendants the authority of Kodilinye v Mbunefo Odu 2 W.A.C.A. 336, saying the plaintiff must rely on the strength of his case and not on the weakness of defendant’s case. I agree.”

Then at page 102 he observed that –

“The court has to evaluate traditional evidence, evidence of possession and ownership on either side on the background of evidence of physical facts on ALA AMAEKE and of boundary witnesses called by either side.”

Then he took the question of physical facts of the land. He reviewed the evidence led by both sides on the juju shrine and on the Nkoro boundary. Then on page 104 be came to the following conclusion, “All it means is that NKORO being the boundary between Ogboko and Omumo as canvassed by the defendants is a deliberate untruth and can be used against them……If as evidence has established there is no NKORO where the defendants have shown it, the court will then accept the evidence for the plaintiff that the land of his people spread on both sides of the footpath and this naturally leads the court to accept the traditional evidence of the plaintiff as to how his ancestors lived and occupied ALA AMAEKE.”

On the contentious issue of which side built a concrete zinc building on the land in dispute, he concluded on the same page 104, “I do not accept the defendant’s evidence as to the challenge Zaria Duru gave to the plaintiff when plaintiff wanted to erect an upstair where he is living. There is evidence that plaintiff and the two members of Nwosu family had built concrete bungalows and Zaria never challenged them. It seems to me if the idea is well borne out it was to prevent erecting in the place a permanent structure. I cannot see in that regard how a concrete bungalow differs from an upstair. I am satisfied with the explanation of the plaintiff that he stopped by himself continuing to build the upstair.”

As I said earlier on some of these passages would appear to show that the learned trial Judge stated the principles governing the resolution of the issues in this sort of case correctly. The impression may also be given that having correctly stated the principles applicable, he proceeded to apply them also correctly. But it has to be stated that shortly after stating the applicable principles, he proceeded to state at page 102,

“I hold in this case that the plaintiff established a prima facie case at the close of his evidence. It was left to the evidence of the defendants to discredit his evidence, throwing it in doubt.”

Before now, from pages 85 to 101 of the record, the learned trial Judge reproduced the evidence proffered by the parties and their witnesses. He had done no evaluation or weighing of that evidence. If at that stage by prima facie evidence he had meant, as I shall show later, that the plaintiffs had shown that there was a basis for proceeding, or that the plaintiffs had shown that there was something warranting an examination of the defence case or that the evidence led by the plaintiffs was not so unreliable or so worthless that there would be no need to consider the evidence led by the defence, I would have said that it was open to him even at that stage. After all he had heard all the witnesses, observed their demeanour and set down all the evidence before him including evidence elicited in cross-examination. But there are passages in the judgment which clearly show that the learned trial Judge’s mind was not working that way.

His prima facie case appears to have amounted in his mind to the plaintiffs having established a strong case entitling them to success unless the defendants can produce or have produced evidence to discredit that case or to rebut it. At page 105 he dealt with the evidence of the 6th witness for the plaintiff, Ibewuba Duru. After accepting his evidence as “cogent and concise, agreeing with the plaintiffs Plan Exhibit A.”, he asked the very pertinent question “How did the defendant rebut this?”

All the attempts at evaluation or weighing of evidence which I had referred to earlier in this judgment came after this statement on prima facie evidence and must be taken to have been done in the context of the learned Judge’s thinking on the burden of proof on both parties. It is difficult, therefore, to resist the submission of Chief Onyiuke that such consideration of the evidence as the learned trial Judge did was coloured by his approach – that the plaintiffs having established their case, it was for the defendants to discredit or rebut it. That this is, so is put beyond any doubt by that passage at page 105 in which the learned trial Judge showed where he thought the burden of proof lay. He said there as follows:-

“In so far as the court has held that the plaintiff at the conclusion of his case had made out a prima facie case, it is for the defendants rebut all primary facts in contention, like boundaries and boundary men. Defendants called no boundary witness from Umoka Anyi of Umuegbu family and so the evidence by the plaintiff that Umuduru Ehughara family are his boundary men to the court has not been discredited.”

Here the learned trial Judge referred to all the primary facts in contention between the parties. Clearly here he was putting the onus of proof on the defendants: In the light of this one cannot give much weight to his conclusion at page 108 where he said,

“For’ all the considerations I have given above I reject the traditional evidence in respect of ALA AMAEKE and evidence of acts of ownership and possession given by the defendants and hereby accept the traditional evidence in respect of ALA AMAEKE and evidence of acts of ownership and possession given by the plaintiff and his witnesses.”

If as has happened here the learned trial Judge has regarded the plaintiffs case as established and to be rebutted by defendants, he could not have properly evaluated the evidence led by the parties nor could he have fairly weighed it on that imaginary scale. Surely there can be no question of considering the evidence led by both sides side by side if, as in this case, the learned trial Judge had accepted one side’s evidence and was only looking for evidence to rebut that evidence by the other side. It is trite now that in an action for declaration of title the burden of proof is on the plaintiff, and although he can take advantage of any weaknesses in the defendant’s case, which support his case generally he is to succeed on the strength of his own case and not on the weakness of the defence. The statement of the law in Ededem Archibong vs Nto Archibong Ita (1954) 14 W.A.C.A. 520, 522 to which Chief Onyiuke made reference that this onus remains throughout on the plaintiff and never shifts is probably too general. There must be circumstances in which notwithstanding this general burden on the plaintiff., the onus would shift to the defendant. Such a situation arose in Awomuti v Salami and Ors. (1978) 3 S.C. 105, 115 in which both parties accepted that radical title resided on a common owner – the Ikate Chieftaincy. There Eso, J.S.C., put it this way,

“There is no doubt that in a claim for declaration of title the onus lies on the plaintiff to prove his title to the land and he succeeds on the strength of his own case. However, where the land in dispute has been accepted by both the plaintiff and the defendant as originally family land, and either party claims title to that land through that family, the plaintiff only has to discharge the onus of proof of title in him and the onus shifts to the defendant, who has also claimed title to the land. The onus is on that defendant, who has also claimed title to that land. The onus is on that defendant to prove his title. Where the defendant fails to discharge that onus, the plaintiff, who has discharged the onus on him succeeds.”

See also Nigerian Maritime Services Ltd. vs Alhaji Bello Afolabi (1979) S.C. 79,84; Osawaru vs Ezeiruka (1978) 3 S.C. 135, 145; Bafunke and 1 Other vs A. Maja and 2 Ors. 13 W.A.C.A. 290, 292.

However, there is no similar situation here. Although both the plaintiffs and defendants claim title to the land in dispute, they do not claim from a common former owner. Each party claims from their ancestors. In such a case, the onus was firmly on the respondents, but what the learned trial Judge, due to his approach to the case, did was in effect to place it on the appellants. This was an error and the Court of Appeal, in supporting this, also erred.

Before concluding this judgment, I must advert to the point made by Chief Onyiuke as to the learned Judge’s use of prima facie. In his submission, this was inappropriate. There is no doubt that the words are more readily associated with criminal trials and the making of no case submission. Section 287(1) of the Criminal Procedure Law applicable to Imo State (Cap.3, Vol.2 Laws of Eastern Nigeria (1963) provides as follows:-

“At the close of the evidence in support of the charge if it appears to the court that a prima facie case is made out against the defendant sufficiently to require him make a defence the court shall call upon him for his defence……………”

What then is a prima facie case? In Stroud’s Judiciary Dictionary Fourth Edition Vol. 4, prima facie evidence is defined as “probably synonymous with sufficient evidence.” It is stated therein for instance that prima facie proof of an objection to the franchise was given “if it is shown to the satisfaction of the revising barrister that there is reasonable ground for believing that the objection is well founded.” See Jenkins v Grocott (1904) 1 K.B. 374. BLACKS LAW DICTIONARY 5th Edition page 1071 defines it as,

“Such as will prevail until contradicted and overcome by other evidence. The courts use concept of prima facie in 2 senses, viz (1) in the sense of plaintiff producing evidence necessary (i.e. sufficient) to render reasonable a conclusion in favour of allegation he asserts, this means plaintiff’s evidence is sufficient to allow his case go to the jury (2) Courts use ‘prima facie’ to mean not only that plaintiffs evidence would reasonably allow conclusion plaintiff, seeks, but also that plaintiffs evidence compels such conclusion if the defendant produces no evidence to rebut it”

Both the appellants’ and respondents’ counsel have in their briefs of argument referred to the case of Ajidagba v. Inspector-General of Police (1958) 3 F.S.C. 5; SCNLR.60 where ABBOTT, F.J., attempted to find a definition. Said the learned Federal Judge at page 6. “We have been at some pains to find a definition of the term “prima facie case.” The term, so far as we can find has not been defined either in English or in the Nigerian Courts. In an Indian case, however, Sher Singh v. Jitendranathsen (1931) 1. L.R. 59 Cale. 275 we find the following dicta:-

“What is meant by a prima facie (case)? It only means that there is ground for proceeding ….. But a prima facie case is not the same as proof which comes later when the court has to find whether the accused is guilty or not guilty” (per Grose, J.) and “the evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused.”

This court also had to find a definition in Ikomi v State (1986) 3 N.W.L.R. (Part 28) 340 at 366. There I said as follows:-

“The question is in all these circumstances, can it be justly said that there is nothing linking the appellants with the offence? I think there is. I hold that there was a prima facie case on the face of those proofs of evidence. Although Queen v Ogucha (1959) 4 F.S.C. 64,65 dealt with the status of evidence at the close of prosecution’s case,I am of the view that as in that case all that is required at the point when a Judge grants consent to prefer information is that there be evidence which requires some explanation.”

More directly, Aniagolu, J.S.C., defined prima facie as “on the face of it.”

It seems to me the simplest definition is that which says that “there is ground for proceeding.” In other words, that something has been produced to make it worthwhile to continue with the proceedings. On the face of it “suggests that the evidence produced so far indicates that there is something worth looking at.” Looked at from that angle, I do not see why prima facie case cannot apply to civil matters. If at the end of the plaintiffs case in a civil matter, the plaintiff has not led evidence on the essential elements of the claim, the trial Judge may well feel that it is pointless continuing with the proceedings. He may at that point dismiss the plaintiffs case. In that case it would mean that the plaintiff did not make out a prima facie case. Once such a prima facie case is taken as made, the learned trial Judge then looks at the evidence led by the plaintiff and defendant, evaluates and weighs it side by side and makes his findings of fact. That prima facie case is not unknown in civil matters has been established by several authorities some of which were brought to our notice by learned counsel to the respondents. These include Aduke v. Aiyelabola 8 W.A.C.A. 43, 45; Aromire & 2 Ors. v. Awoyemi (1972) 1 All N.L.R. (Part 1) 101, 112; Bafunke Johnson (Supra).

In the instant case, no problem would have arisen if the learned trial Judge had treated prima facie evidence as what it really is – something showing that there is something worth looking into. Rather he treated it as if it meant the plaintiffs had established their case and the defendants now had to rebut that case. In some parts of the judgment, he stated the evidence led by the plaintiffs on some aspect of the case and then proceeded to look at the evidence led by the defendants on such matter not in a way to suggest he was weighing them to determine which he should accept, but in a way to find out whether the defendants had displaced what he thought the plaintiffs had established.

That is not the correct approach. Before concluding this judgment on the learned trial Judge’s approach, prima facie case and burden of proof, I must advert to Sections 134 to 136 of the Evidence Act which the Court of Appeal held accords with what the learned trial Judge did. Sections 134 and 135 deal with the general burden of proof on the person who takes a case to court. It is Section 136 which needs examination in this case. It provides that:-

“(1) In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.

(2) If such a party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively until all the issues in the pleadings have been dealt with.”

It seems clear to me that Sub-section 1 deals with the burden on the plaintiff to introduce evidence, what you might call prima facie evidence. Sub-section 2 would on the face of it suggest that once the plaintiff produces evidence to establish the case he is making, the onus shifts to the defendant for it talks of “the party against whom judgment would be given if no more evidence were adduced.” On a close examination of this sub-section, however, it is my view that it does nothing of the sort. I think this subsection deals with the shift in the onus which goes from one side to the other in a civil matter until the end of the proceedings when the case must be decided on the balance of probabilities. This meaning flows from the use of such words at the beginning of the sub-section as “evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established” and at the end, “and so on successively, until all the issues in the pleadings have been dealt with.”

From this standpoint, I am unable to accept the interpretation placed on Section 136 by, on one side Chief Onyiuke for the appellants, and on the other by the Court of Appeal and learned counsel to the respondents. Chief Onyiuke had contended that Section 136 was irrelevant in this case because issues of credibility were concerned, while Mr. Munonye hid behind it as the justification for the learned Judge’s approach i.e. plaintiffs making a prima facie case and defendants having to discredit that case. I have already rejected this approach and this conception of the burden of proof.

Finally, is the question of what order to make in this case. The learned Senior Advocate had, at the Court of Appeal, urged that an order for Retrial be made. The Court of Appeal rejected this and rather dismissed the appeal. Chief Onyiuke has made a similar plea to this court. It would be difficult to refuse. I have in the course of this judgment held the approach of the learned trial Judge to the evaluation of the evidence led by the parties wrong leading to his in effect placing the burden of proof on the defendants/appellants rather than on the plaintiffs/respondents where it belongs; that the learned trial Judge’s error with respect to the proper meaning of prima facie case led him into that error; that what ever evaluation of evidence the learned trial Judge did was coloured by this error in the burden of proof; that he cannot therefore be said to have fairly and justly evaluated the evidence led by the parties and weighed it in that imaginary scale. The result is of course that he has not resolved the main issues between the parties. An example of this is the question of traditional evidence. Both sides claimed that the land in dispute descended to them through their ancestors. They mentioned names of these ancestors. The learned trial Judge never really resolved this crucial issue. Although he eventually rejected the traditional evidence of the appellants it was not based on any evaluation of the traditional history given by both parties. Rather the trial Judge was influenced in his decision on this point by the evidence given by the plaintiffs on boundaries, evidence which I had already criticised having referred to page 105 of the Records. The inescapable conclusion is that there has been no just trial of the issues between these two parties and a retrial will accord with the dictates of justice.

In Okoduwa v State (1988) N.W.L.R. (Part 76) 333, 355 this court accepted one of the tests postulated in Abodundu v The Queen (1959) 4 F.S.C.70 which is that a Court of Appeal ought to order a retrial where there has been such an error in law or an irregularity in procedure which neither renders the trial a nullity nor makes it possible for the appeal court to say there has been no miscarriage of justice. See also Ezeoke v Nwagbo (1988) 1 N.W.L.R. (Part 72) 616, 629Williams v. Williams (1987) 2N.W.L.R. (Part 54) 66..

If the learned trial Judge’s judgment in the instant case was allowed to stand, it would amount to a gross miscarriage of justice. In all these circumstances, this appeal is allowed. The judgments of the High Court of Imo State, Orlu Judicial Division dated 25th August, 1983 and the judgment of the Court of Appeal, Enugu Judicial Division dated 18th December, 1985 are hereby set aside. In their place, larder a retrial of this Suit before a Judge of the High Court of Imo State. Costs are awarded to the appellants and against the respondents as follows: N250 in the Court of Appeal (if it had been paid to the respondents) and N500 in this court. Costs in the High Court will await the result of the retrial.

OBASEKI, J .S.C.: This appeal raises an important issue of the desirability of introducing the concept of “prima facie” case into the decision making process in a land matter. The controversy reared its head when the learned trial Judge, K. Uche, J., in the course of his judgment said:

“I hold in this case that the plaintiff established a prima facie case at the close of his evidence. It was left to the evidence of the defendants to discredit his evidence throwing it in doubt.”

Consequently, the appellant in paragraph 14 of his brief before the Court of Appeal contended:

“As the main thrust of this appeal relates to the learned Judge’s treatment of the burden of proof and on the onus he placed on the appellants to discredit the respondent’s evidence or lose the case, it is submitted that the evidence tendered by both parties is secondary to this main objection”

In this court, the contention of the learned Senior Advocate, Chief Onyiuke, who appeared for the appellants is that the approach of the learned trial Judge to the evidence of the parties and the endorsement by the Court of Appeal has been coloured by the “concept of prima facie case” in its improper dimension.

This issue has been considered exhaustively in the judgment just delivered by my learned brother, Nnamani, J.S.C., the draft of which I had the advantage of reading before now. I agree with all the opinions expressed therein on the issue.

The respondents’ claim before the High Court was for the following reliefs:

1. Declaration of title to that piece or parcel of land known as and called “Ala-Amaeke” of the annual value of N10.00 situate at Umuokwara Onene Umuezeala Ogboko, Orlu Division within  the Judicial Division more clearly to be shown and delineated on the plan to be filed with the statement of claim:

2. N100.00 (one hundred Naira) general damages for trespass into the said land:

3. Perpetual injunction to restrain the defendants, their servants and/or agents from further acts of trespass to the land.

In claims for declaration of title the burden and standard of proof required to be discharged to succeed has been settled in many decisions of this court some of which are:

Eweka v. Bello (1981) 1 S.C. 101
Chief Frank Ebba v. Chief Ogodo (1984) 1 S.C.N.L.R. 372,
Okafor v. Idigo (1984) 1 S.C.NLR. 481.

In all these, the guiding principles laid down in Kodilinye v. Mbanefo Odu 2 W.A.C.A. 336 have been strictly followed.

Introducing the concept of prima facie case (the equivalent of which is the existence of a cause of action in a civil case) in the process of decision making in a land matter only confuses the mind of the trial Judge. More so, when he calls for rebuttal of the evidence led by the plaintiffs. It is true that contrary evidence by the defence witnesses can discredit plaintiffs’ evidence. But so can contrary or conflicting evidence led by plaintiffs’ witnesses. Demeanour itself may render the plaintiffs and their witnesses unworthy of belief.

Therefore, the concept of prima facie case should not and ought not to surface to confuse the mind of the Judge at the stage of judgment writing. As said earlier, my learned brother has given detailed consideration to the issue and I agree with him that the appeal be allowed and the decision of the Court of Appeal and the High Court set aside.

I also agree with him that the case be remitted to the High Court of Imo State for trial de novo.

Accordingly, I hereby allow the appeal and set aside the decision of the Court of Appeal and the High Court. I hereby order the matter to be remitted to the High Court of Imo State for trial de novo.

The appellants are entitled to costs fixed at N500.00 in this court and N250.00 in the Court of Appeal. Costs in the High Court are to await the conclusion of the trial de novo.

KARIBI-WHYTE, J.S.C.: I have had the privilege of reading the judgment of my learned brother, Nnamani, J.S.C. I agree entirely with his reasoning and his conclusion allowing this appeal. I too hereby without adding to any of the reasons given in the lead judgment will allow the appeal.

I also will and hereby remit the case for trial in the High Court of Imo State. Appellant shall have N500 as costs of the appeal in this court.

OPUTA, J.S.C.: I have had the privilege of a preview in draft of the lead judgment just delivered by my noble and learned brother, Nnamani, J.S.C., and I am in full and total agreement that this appeal is meritorious and should be allowed. As the main issue canvassed before this court is the rather unorthodox way, the judgment of the learned trial Judge (which was affirmed by the Court of Appeal) was written, it will not be necessary to set out the facts in detail. I will however set out enough of those facts as pleaded as may be necessary for an appreciation and resolution of the issues canvassed by learned counsel in their Briefs of Argument and in oral submission before the court.

The respondents who were plaintiffs in the court of first instance sued as representing “the Nwosu family of Umuokwaraonere Umuezeala Ogboko.”

They sued the defendants in their personal capacities claiming:-

1. Declaration of title to that piece or parcel of land known as and called “Ala Amaeke”….

2. N100 (One hundred Naira) general damages for trespass into the said land.

3. Perpetual Injunction to restrain the defendants, their servants and/or agents from further acts of trespass to the land.

Pleadings were ordered, filed and duly exchanged. Both sides laid claims to the land, each side as owners thereof. Each side mentioned the names of their ancestors from whom they inherited the land in dispute. Each side claimed that as owners in possession, they allowed their opponents to live on part of the land in dispute as tenants. Each side pleaded several acts of possession within living memory. Each side alleged the other side trespassed into the land in dispute over which it had exercised present rights of possession without let or hinderance from the other side.

The plaintiffs called 7 witnesses P.W.1 to P.W.7 in proof of the various allegations of fact made in their Amended Statement of Claim. The defendants called 5 witnesses – D.W.1 to D.W.5.

It is however relevant to note that before evidence was gone into, the trial High Court, acting under Order 32, Rule 1 of the High Court Rules Cap. 61 of Laws of Eastern Nigeria (applicable in Imo State) settled the 1st sues arising from the pleadings of the parties as follows:-

1. Plaintiff to establish the representative capacity in which he is suing.

2. Plan No. E/GA.2078/75 of the plaintiff being identical with plan No. EC.299/75 of the defendants in respect of the area the plaintiff has put in issue should go in by consent.

3. Both sides agree as to the name of the land in dispute. Where is it situate?

4. Each side to give evidence of the boundaries of the larger area of Amaeke land in which is enclosed the portion in dispute and is at liberty to call boundary witnesses as to this larger area.

5. Where is Nkoro forming boundary?
(a) …………….
(b) …………….
(c) …………….

6. How has each side come to own the larger area of Amaeke land enclosing the area in dispute and what exercise of rights of ownership and possession has either side and their predecessors enjoyed over the larger area of Amaeke land?

7. Why has the plaintiff brought this action and what does he claim?

If one is allowed to comment on the Issues as settled above I will say straight away that since the plans of the parties agree as to the area in dispute and since the parties gave the land the same name, the tendering by consent “of the area the plaintiff has put in issue” concluded the issue of the identity of the land in dispute. That being so, the substantial remaining live issue should have been who owns the land in dispute? The parties can, and tried to prove that – (as they have pleaded) – by traditional evidence and/or by evidence of acts of possession and user. Here are two opposing parties with adverse interest, claiming ownership of the same piece of land and each relying for proof of such ownership on traditional evidence and acts of possession. Each alleged the other party came into the land by their leave and licence; each alleged trespass against the other. Definitely both sides cannot be telling the truth. Who then was lying? Who was speaking the truth? In cases like the present, based mainly on facts, much will naturally depend on the credibility of the witnesses called by and on either side.

Now how did the learned trial Judge deal with the Issues, he himself settled before evidence was gone into? He set out the claims of the plaintiffs at p.85 of the record of proceedings. This seems to answer part of Issue No.7 namely “what does the plaintiff claim?” Now as to the identity of the land in dispute, the learned trial Judge observed at p.86 lines 1 to 5 as follows:-

“He (the plaintiff) also tendered the plan No. EC.299/75 of the defendants which was admitted as Ex. B. This procedure was adopted because during the settlement of issues, it was agreed that both plans should go in by consent as they were identical in respect of the land in dispute, Ala Amaeke, both the area in dispute and the area of it not in dispute.” If, as remarked above by the learned trial Judge, the plaintiffs plan, Ex. A and the defendants’ plan Ex. B are agreed as to the name (Ala Amaeke), location, and size (as shown on both plans Exs. A and B) of the land in dispute, what was the need of investigating the ownership of the larger area of Ala Amaeke which was not in dispute? It is true that under OUR law there are five recognised ways of proving ownership of, and title to, a piece of land. See Idundun v. Okumagba (1976) 9-10 S.C. 227; Omoregie v. Idugiemwanye (1985) 2 N.W.L.R. (Pt.5) 41

It is also true that one of these five methods or ways of proof of title is by proof of possession of connected and adjacent land in circumstances rendering it probable that the owner of such connected and adjacent land would also be the owner of the land in dispute. But the parties to this case pleaded and relied on their traditional history and acts of possession on and over the land in dispute. The ownership of adjacent land (the larger area of Ala Amaeke) was not an issue in this case. It was a misdirection on the part of the learned trial Judge to make it one. I dare say this misdirection affected his decision in this case.

Now going back to the judgment, the learned trial Judge, to use his own words “summed up” the evidence led by the plaintiffs and their witnesses. This took from pp.86 10 94. He then summed up the evidence of the defendants and their witnesses. This took from p.94 of the record to p.99. After this, the learned trial Judge dealt with Mr. Ilobi’s closing address at p.101 of the record. Mr. Ilobi at p.101 lines 11-15 cited the case of Kodilinye v. Mbanefo Odu 2 W.A.C.A. 336 saying that the plaintiffs must rely on the strength of their case and not on the weakness of the defendants’ case. In reply to this proposition of law, the learned trial Judge said:-

“I agree. This is the broad principle, but Webber, C. J., went further to say,

“If this onus is not discharged the weakness of the defendants’case will not help him and the proper judgment is for the defendant.”

In my view, what it means is that where a plaintiff has not made out a prima facie case and a defendant is called upon to defend, then, if there is weakness in his evidence, the court cannot, because of that weakness in his evidence, declare title for the plaintiff since originally he had not discharged the onus of proof which is on him as plaintiff. It is different where a plaintiff has made out a prima facie case. Then before his case can be dismissed, the defendant must lead such evidence as will discredit the plaintiffs evidence. In the present case, the question is whether the defendants have led such evidence as to discredit the evidence of the plaintiff.”

I must say that the “prima facie case” theory as well as its concomitant theory of evidence “in rebuttal” or “to discredit” arc novel interpretations now being put on the time honoured principle spanning the entire length and breadth of our land law as it relates to the Burden of Proof in cases of declaration of title to land as decided in Kodilinye v. Mbanefo Odu supra.

At this juncture, it becomes necessary to consider issues No.1 and No.2 as formulatcd in the appellants’ Brief. I will deal with Issue No.2 first. That Issue is formulated thus:-

“(ii) Did the learned trial Judge’s application of the principle of “prima facie case” work to the appellants’ prejudice and did the Court of Appeal perpetuate this error?”

What is a prima facie case? In the sphere of criminal jurisprudence, the expression “prima facie case” has acquired a definite and distinctive meaning.

It has become a term of art. Thus by Section 287(1) of the Criminal Procedure Law Cap. 31 of the 1963 Laws of Eastern Nigeria (applicable in Imo State):-

“287-(1) At the close of the evidence in support of the charge, if it appears to the court that a prima facie case is made out against the defendant sufficiently to require him to make a defence, the court shall call upon him for his defence”

(Italics mine)

Section 287(1) above requires the court consider, after hearing all the witnesses for the prosecution, whether a prima facie case is made out against the defendant “sufficiently to require him to make a defence.” At that point, the court is only and merely to consider whether the available evidence, if believed, may lead a reasonable jury to convict:- see Ibeziako v. Commissioner of Police (1963) 1 All N.L.R. 61 at p.69. In other words the available evidence should be sufficient to cover the essential elements of the offence charged or any other offence of which the court may convict on the charge:-Omorere v. Police (1956) N.R.N.L.R. 58: see also Ibeziako supra p.70. If a reasonable tribunal might convict on the evidence so far laid before it, then there is a case to answer. In other words, a prima facie case has been made out for the defendant to answer. The concept of prima facie case presupposes that at that stage the question is not whether or not the court will convict. This latter question will await the end of the case, when the court will weigh all the available evidence and the arguments addressed to it by learned counsel. How does the above fit into the case now on appeal? Pleadings were filed by the parties. Issues were settled on those pleadings. Evidence was led on both sides. Learned counsel addressed the court and advanced all their arguments bearing on the facts and the law. Have we not really passed the stage of prima facie case (that is if that expression can be meaningfully applied to the case on appeal)? I think this case having reached the Stage of delivery of judgment has definitely passed the stage of prima facie case which merely invites a Ruling not a Judgment, except of course the defence rests. Even there, it is to be observed that in this case, the defendants did not rest their case on the case of the plaintiffs. No. They did not. In my view the stage was set for evaluation of the evidence led on both sides, for comparing and contrasting the various accounts of the stories of those witnesses against the background of the possibilities and probabilities induced by, and in keeping with, the surrounding circumstances of the case, in an attempt to find out whom to believe and whom to disbelieve. When the stage of credibility has been reached there and then the stage of prima facie case has been past and should therefore be forgotten.

In his Brief, learned counsel for the plaintiffs/respondents supported the importation of the concept of “prima facie case” into civil litigation but having regard to the cases he cited, there seems in practice as opposed to theory to have been some mix up between the concept of prima facie case and the concept of onus of proof in civil cases. Prima facie literally means at first sight. In civil cases, “the first sight” one has about the case is at the pleading stage. If at that stage one talks of prima facie case, then the expression prima facie will mean what it says. If the plaintiffs pleadings do not disclose a cause of action a defendant can move to have same struck out for he will not be required to answer to pleadings which will, in any event, fail. This, the defendant can do by way of demurrer under Order XXIX of the High Court Rules, Cap. 61, Laws of Eastern Nigeria 1963 (applicable in Imo State).

In Ballentine’s Law Dictionary 3rd ed. at p.987, prima facie case is defined as:-
“A case supported by sufficient evidence to warrant submission to the jury or trier of the fact and the rendition of a verdict or finding in accord therewith. A cause of action or defence sufficiently established by a party’s evidence to justify a verdict in his favour, provided the other party does not rebut that evidence” (Italics mine).

Going by Ballentine’s definition above, the cases of both sides have been submitted to the Judge, who, in his capacity as a jury or Judge of fact, was to evaluate all the evidence and make a rendition of a verdict according to which evidence preponderates on the balance of probability.

Learned counsel for the respondent cited Black’s law Dictionary 5th ed., p.1071 but left out the most important parts of that definition. (I hope not by design):-

“Prima facie case: Such as will prevail until contradicted and overcome by other evidence. A case which has proceeded upon sufficient proof to that stage where it will support a finding if evidence to contrary is disregarded. A prima facie case consists of sufficient evidence in the type of case to get plaintiff fast a motion for directed verdict in a jury case or motion to dismiss in a non-jury jury case; it is the evidence necessary to require defendant to proceed with his case. Courts use concept of “prima facie” case in two senses:

(1) in sense if plaintiff producing evidence sufficient to render reasonable a conclusion in favour of allegation he asserts this means plaintiff’s evidence is sufficient to allow his case to go to the jury and

(2) Courts use “prima facie” to mean not only the plaintiffs evidence would reasonably allow conclusion plaintiff seeks but also that plaintiff’s evidence compels such a conclusion if he, defendant, produces no evidence to rebut it.” In this case, the defendants denied all the material averments of the plaintiffs as to their traditional history and as to acts of possession on the land in dispute. The defendants gave evidence in proof of their averments and allegations. The court was left with two conflicting and adverse accounts. Without believing one side and disbelieving the other, no legally tenable and satisfactory verdict can be returned. The case on appeal; from whatever angle one may like to look at it, from whatever definition one may like to adopt, had passed the “prima facie case” stage and entered the evaluation of evidence and credibility of witnesses stage. The evidence of the plaintiffs were rebutted by defendants’ evidence and the entire case was before the Judge who (as jury) had already summarised each party’s case to himself as jury.

I will now deal with the concept of onus of proof in actions for declaration of title to land under our law. In Kodilinye v. Mbanefo Odu supra the West African Court of Appeal noted at p.337:-

“The onus lies on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to a declaration of title. The plaintiff in this case must rely on the strength of his own case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment is or the defendant.”

The principle of the above decision is that in a case of declaration of title to land, the onus lies firmly on the plaintiff. It is a universal principle that he who asserts proves his assertion; he who claims proves his claim. Sections 134, 135, 136 and 138 of our Evidence Act Cap. 62 of 1958 all bear this out.

The cases of Onyekaonwu v. Ekwubiri & Ors. (1966) 1 All N.L.R. 32; Nwokafor & Ors. v. Udegbe (1963) 1 All N.L.R. 104; Nwankwo Udegbe & Ors. v. Allachuba Nwokafor (P.c.) (1963) 1 All N.L.R. 417 all cited and adopted the principle laid down in Kodilinye v. Mbanefo Odu supra. But as Bairamain, J.S.C., observed in Onyekaonwu supra – p.34 – “The question in any given case is whether the Onus has been discharged.” The question can also be when was the onus discharged? In Onyekaonwu supra it was discharged by and in the pleadings and that was why in the retrial ordered after allowing the appeal in Onyekaonwu, the defendants were asked to begin because Section 145 of the Evidence Act operated in favour of the plaintiffs and no one goes into the trouble of proving that which the law presumes in his favour. The concept of onus of proof and the right to begin should not be confused with the different though related concept of prima facie case.

The appellants’ contention in their Issue No.2 is that the learned trial Judge’s application (I would say erroneous application) “of the principle of “prima facie” case worked to the prejudice of the appellants.” I think that contention is right. Civil cases ought to be decided on the balance of probability- from where we got the famous imaginary balance in Mogaji v. Odofin (1978) 3 S.C. 91. That balance must also have its scales evenly weighted before the evidence of each party is put on each scale for weighing. Where there is an obvious bias by the learned trial Judge for the evidence adduced by one side (as in this case where the trial Judge consciously or unconsciously accepted the evidence of the plaintiffs as true until rebutted or discredited) then he was not holding the scales fairly and evenly. As I observed in Onwuka v. Ediala (1989) 1 N.W.L.R. (Pt.96) 182 at p.208 – “this scale though imaginary is still the scale of justice, and the scale of truth …. what ought to go into the imaginary scale should therefore be no other than credible evidence.” Now where the trial Judge did approach the issue of the credibility of the witnesses who testified with coloured glasses (coloured by his apparent prejudice in favour of the plaintiffs’ witnesses) his resolution of the issue will also be coloured to the prejudice of the defendants/appellants. By the stand he took, induced no doubt by his concept of “prima facie case”, the learned trial Judge robbed his approach to the issue of credibility of the judicial element of impartiality and objectivity.

The decision in Kodilinye v. Mbanefo Odu supra clearly stated that the onus was on a plaintiff claiming a declaration of title to land to prove his claim. There was in this case clearly a misapprehension by the learned trial Judge as to what the antecedent presumptions were and where the onus of proof lay. By his insistence that the defendants to succeed will have to discredit the case of the plaintiffs, by that insistence, the learned trial Judge proceeded on a wrong assumption as to the onus of proof. Nothing has happened in the case so far to shift the burden of proof onto the defendants/appellants. The Judge’s erroneous view of the principle decided in Kodilinye v. Mbanefo supra affected seriously the weight of his opinion as to the credibility of the witnesses and his views on the entire evidence. Also when a trial Judge; as in this case, appears to have accepted the evidence of the plaintiffs before even reviewing the evidence of the defendants, then he is in breach of the principle applied in civil cases – that they are decided on a balance of probability. Such a course definitely offends the decision of this court in Mogaji v. Odofin supra. This court decided that, in Amokomowo v. Andu (1985) 1 N. W.L.R. (Pt.3) 530. I will answer the questions posed in Issue No. 2 as formulated in the appellants’ Brief in the affirmative. The learned trial Judge’s prima facie case approach worked to the prejudice of the appellants. The Court of Appeal was in error in not correcting but instead perpetuating the initial error of the learned trial Judge.

The other two remaining Issues, Nos. 1 and 2 as formulated by the appellants are related and should be treated together. They are:-

“Issue No. 1: Was the Court of Appeal correct in approving the way the learned trial Judge treated the burden of proof in this case and on the burden he placed on the appellants having regard to the principle laid down in Mogaji & Ors. VS. Madam Rabiatu Odofin & Ors. (1978) 3 S.C. 91″

Issue No.3: Was the Court of Appeal right in dismissing the appellants’ appeal?”
The answer to both Issues following my discussions above will be in the negative. The Court of Appeal, with respect, was wrong on both issues.

In the final result and for all the reasons given above and for the fuller reasons in the lead judgment of my noble and learned brother, Nnamani, J.S.C., which reasons I now adopt as mine, I, too, will allow this appeal, set aside the judgments of the trial court and of the Court of Appeal as well as all the consequential orders made by the two courts below. In their place, I substitute the following orders:-

1. This appeal is allowed.

2. The case is sent back to the Imo State High Court to be retried properly.

3. There will be costs to the appellants which I assess at N500.00.

NNAEMEKA-AGU, J.S.C.: This is a further appeal by the defendants against the judgment of the Court of Appeal, Enugu Division, which had dismissed an appeal against the judgment of Uche, J., sitting in an Orlu High Court.

The claim before the High Court was for a declaration of title to “Ala Amaeke” land, N100.00 damages for trespass and perpetual injunction. After hearing, the learned trial Judge made a number of findings of fact and granted to the plaintiff a statutory right of occupancy to the land verged pink in his plan, Exh. A. awarded to him N80.00 damages for trespass, and granted to him perpetual injunction.

Upon the dismissal of their appeal to the Court of Appeal, Enugu Division, the defendants (hereinafter called the appellants) have appealed further to this court. My learned brother Nnamani, J.S.C., has set out the facts which led up to this appeal. I do not intend to repeat them. He has also set out the issues for determination as formulated by counsel on both sides in their briefs. In my opinion, they could be summarized as follows:

Whether the learned trial Judge was right to have applied, and the Court of Appeal right to have approved the concept of prima facie case to this case, which is a civil case, and whether the way it was applied in this case led to a miscarriage of justice.

Learned Senior Advocate for the appellants, Chief Onyiuke, submitted that the courts below were wrong to have applied the principle of prima facie case, which should be more properly applicable to criminal cases, to this case which is civil. He further submitted that the way it was applied and the whole approach of the learned trial Judge to the vital process of evaluation of evidence were wrong and led to a miscarriage of justice. Learned counsel for the respondent, Mr. Munonye made powerful submissions to the contrary. Also, he emphasized that this was a case in which the two lower courts had made concurrent findings of fact, and that these should not be disturbed by this court.

It appears to me that the learned Judge’s approach to the evidence called by both sides in this case typifies the not infrequent confusion between two species of burdens in a case of this nature – the evidential burden or the burden of introducing evidence and the persuasive burden or the legal burden of proof. Both burdens are fundamentally different in approach, effect, and intendment. The difference, I believe, is best illustrated from jury trials. Professor Glanville Williams, rightly in my view, put it correctly thus:

“The rule imposing an evidential burden is applied by the Judge, in deciding whether to leave the general issue (or some specific question) to the jury. The rule imposing the persuasive burden is for application by the jury. Putting this in another way, the evidential burden governs what the Judge does, in leaving the question to the jury or withdrawing it from them; the persuasive burden governs what he says, in directing them how to reach their verdict.”

See Glanville Williams: New Law Journal, February 17, 1977. See also Aguda; Law & Practice Relating to Evidence in Nigeria (1st Edition) para. 21-10. As applied to our own situation in which the Judge is both Judge and jury, evidential burden is that provisionary burden which is incumbent on a party to introduce or produce or elicit evidence on any material element of the case. The burden is usually imposed by law. On that burden, no question of proof, in the sense of evidence which has been assessed and believed, arises. It is discharged by introducing such evidence as is required of the party. When it is incumbent on the plaintiff, then unless and until he has discharged it, no question of evaluation of evidence arises. Evidential burden is placed by law on one of the parties in respect of every issue: it never shifts. Both evidential and persuasive burdens may, however, be on the same party. The persuasive or ultimate burden is usually on the plaintiff in that he is the party which will fail in the whole case if no evidence is called at all. A necessary corollary to this is, of course, that when the onus of proof is on the plaintiff, as it often is, and he fails to make out a prima facie case, his case fails without any regard to what evidence the defendant has called and whether or not the latter called any evidence at all.

What then is the meaning of the expression “prima facie case”? The expression “prima facie” comes from two Latin words primus (which means first) and facies (which means face). “Prima facie”, therefore literally means on the first appearance. Applied to the rule of onus of proof in the law of evidence, a “prima facie case” is a case supported by such a quantum of evidence on every material issue thereof that, if no evidence is called by the other side, or, if called, as often happens in civil cases, such contrary evidence is disregarded, the plaintiff (or the party on which the burden lies) will be entitled to the verdict of the court on the case or the particular issue, as the case may be. It is evidence which, viewed on the face of it alone, is sufficient to entitle the court to proceed with the proceedings. In a civil case at least, it is not a case which takes into account the evidence called by or on behalf of the opposite party.
Part of Chief Onyiuke’s submissions in the instant case is that the use of the expression “prima facie case” by the learned trial Judge in this case was in error, as such an expression is peculiar and more appropriate in criminal cases. The expression is appropriate in a no case submission in a criminal case, he submitted.

With greatest respects, such a submission is against the run of the authorities. For, as pointed out by the learned counsel for the respondents, that expression has been freely used in many civil cases and appeals even by this court.

Reference may be made to the following cases:
Victoria Aduke & Anor. v Solomon Aiyelabola (1942) 8 WA.C.A. 3 p.45
Bafunke Johnson & Anor. v Akinola Maja & Ors. (1951) 13 W.A.C.A. 290, p.292.
Lawrence Onyekaonwu v Ekwubiri & Ors. (1966) 1 All N.L.R. 32, p.35.
Godwin Egwuh v Duro Ogunkehin: SC.529/1969; and
A.R. Mogaji & Ors. v Odofin & Ors. (1978) 4 S.C. 91, p.94.

But in all those cases the court spoke of it in the sense of leading evidence, or a similar expression, not “proof”

I am of the firm view that the expression prima facie case can be properly used in both criminal and civil cases, though at two different stages of the proceedings. In criminal cases, it is used at the close of the case for the prosecution to decide whether the accused person has a case to defend at all. In civil proceedings, in which the cases of both sides are pleaded and revealed on the pleadings, consideration whether the plaintiff has made out a prima facie case usually arises after the close of the cases for both sides but before the evaluation of evidence begins. Indeed, it could sometimes, arise for determination on the pleadings. The important point is that no evaluation of evidence should take place before the consideration arises. When this initial hurdle is not scaled, the need to evaluate evidence and come to any conclusions on it does not even arise.

On the other hand, save in cases of clear admissions, persuasive burden, also sometimes called the ultimate or legal burden, can only be said to have been discharged after evaluation of evidence. Such evidence must additionally be legal, relevant, admissible, credible and cogent.

I do not hold that the learned Judge was in error when, after summing up, and before evaluating the evidence, he stated that the respondent, as plaintiff, had made out a prima facie case. It is, however, in the further submission of Chief Onyiuke that I entirely agree with him that the learned trial Judge fell into grave error, and that the Court of Appeal was wrong to have confirmed the decision. He submitted that having stated that the respondent had made out a prima facie case, the learned trial Judge proceeded as if that was tantamount to the fact that, as plaintiff, he had proved his case and it was left for the appellants, as defendants, to “rebut”, “discredit” or “contradict” it. That approach was contrary to the well-established principle in Mogaji v.Odofin (supra) whereby the Judge was obliged to put the evidence called by each party on either side of an imaginary balance and weigh them together to find out which is more probable, he submitted.

In my judgment”, this latter submission is sound. After the Judge had found that the plaintiff had made out a prima facie case, which can only properly mean that he had produced the evidence which if, after evaluation, is accepted, will be sufficient to discharge the general and ultimate burden of proof on him, he ought to have proceeded to evaluate the evidence. He could only have done so properly by placing the evidence called by either party on every issue and in the whole case on either side of an imaginary balance and weighing them together. In the process he should have taken into account the party on whom, in view of the state of the pleadings, the onus of proof lies as well as the admissibility, quality, quantity, and probative value of such evidence. Whichever set of evidence preponderates, that is outweighs the other, on every issue or in the whole case ought to have been accepted. See on this A.R. Mogaji & Ors. v. Madam Rabiatu Odofin & Ors. (1978) 4 S.C. 91, at pp.93-96. One cardinal principle which rings through every judgment in a civil case as a result of this decision is that the evidence called by each party, the plaintiff and the defendant, must, subject to where the burden of proof resides, be given an equal treatment: they must be weighed together. My learned brother Eso, J.S.C., in his lead judgment in

Vincent I. Bello v Magnus A. Eweka (1981) 1 S.C. 101 said much the same thing at page 119 where he encapsulated the principle in Mogaji’s case (supra) thus:

“In short, a trial Judge in a civil case before him sets out the issues joined by the parties in the pleadings, assembles the evidence adduced by either side on the issue so joined, weighs that evidence in the imaginary scale .and finds out which evidence outweighs the other by the quality or the probative value of the testimony of the witnesses and the documents.”

Reference may also be made to the opinion of my learned brother, Nnamani, J.S.C., in his lead judgment in Chief Victor Woluchem & Ors. v Chief Simon Gudi & Ors. (1981) 5 S.C. 29, at pp.306 to 316. I derive a lot of benefit from some of his pronouncements on Mogaji’s decision in that judgment to which most of his eminent brothers concurred. At page 306, he stated:

“Beginning with ground 2 of the additional grounds of appeal argued in this court, it seems to me that the proper procedure or approach in considering the evidence is first that the trial Judge ought to start (against the background of the issues between the parties) by considering the evidence led by the plaintiff and then proceed to consider that led by the defendants. Unless the evidence led by the plaintiffs is so patently unsatisfactory, in which case he does not have to consider the case of the defence at all, he will take the evidence led by both sides and put it in that imaginary scale, weigh it and decide upon the preponderance of credible evidence which has more weight. If the Judge decides the issue after considering the evidence led by the plaintiffs and before proceeding to examine the evidence led by the defence he would clearly be in error. He would have prejudged the issues before he ever considers the case of the defence: His decision must be based on his consideration of the totality of the evidence put before him.”

As to the relationship between this exercise and onus of proof where it lies on the plaintiff, as it usually does, he said at page 309:

“This burden of proof on the plaintiff does not discharge the trial Judge from his duty to consider the evidence of both the plaintiff and the defendant and ascribe relative weight to each of them. All it means is that at the weighing of the evidence of both sides, the plaintiff should succeed because the evidence in his favour tips the balance in that imaginary scale. He should have led more credible and admissible evidence to secure a declaration in his favour.

His success must not be because the defence has offered weak evidence.”

He concluded this aspect of his judgment by emphasizing that civil cases are decided on a balance of probabilities which demands a consideration of the evidence led by both sides.

In my respectful opinion these are true and correct statements of the law. This is why I think it is now too late to say that there is no set standard or set approach to the writing of judgments. For over the years not only have definite parts of a good judgment emerged although they remain usually unnamed, but in particular, there is now only one method for evaluation of evidence in a civil case. Every good judgment begins with an introduction of the parties and the nature of the action, states the issues in controversy, sums up the evidence called by each party, resolves the issues in controversy, and, based upon such resolution of issues, reaches a verdict and makes consequential orders. More relevantly, it is now settled that the only method of evaluating evidence called by both sides in a civil case is to put each set of evidence, on either side of an imaginary balance and weigh them together. Whichever outweighs the other in terms of probative value ought to be accepted.

I wish to seize this opportunity to emphasize that this is the only proper method of evaluating evidence in a civil case. In the process, if on an issue one of the parties fails to call evidence, the evidence called by the other side on the issue ought normally to be accepted unless it is of such a nature and quality that no reasonable tribunal will accept it. The onus of proof in such a case is discharged on a minimal of proof:

See Nwabuoku v. Ottih (1961) 1 All N.L.R. 487

What did the learned trial Judge do in the instant case on appeal? I shall limit myself to only two instances. At page 101 of the record the learned trial Judge said, inter alia:

“It is different where a plaintiff has made out a prima facie case
Then before his case can be dismissed the defendant must lead such evidence as will discredit plaintiffs evidence. In the present case the question is whether the defendants have led such evidence as to discredit the evidence of the plaintiff.”

Thus he clearly regarded the making out of a prima facie case as tantamount to a plaintiff proving his case by evidence which had been believed: it was only left for the defendant to discredit such evidence! He put this attitude beyond doubt when he later stated:

“In so far as the court has held that the plaintiff at the conclusion of his case had made out a prima facie case, it is for the defendant to rebut all primary facts in contention, like boundaries and boundarymen.”

From this approach, it cannot be argued that he was holding the evidence called by both sides on these vital and decisive issues on the balance, as he was supposed to. It is clear, therefore, that when, before he evaluated the evidence in the manner I have discussed, he stated, in sum, that the plaintiff (respondent) had made out a prima facie case, he clearly meant that it was for the appellants to discredit, contradict or rebut it. That is not the proper approach in a civil case. He had given the respondents mare, and the appellants less than they deserved. It is essential that every court, in our country, being also a tribunal of fact, must thoroughly understand the proper approach to the vital function of evaluation of evidence. Unless the printed evidence unequivocally demonstrates that a trial Judge appreciated and applied the above procedure in his approach to the evidence called by either side, it is difficult to say affirmatively that he could have reached the same conclusion if the proper procedure was followed. I believe that a good case of a mistrial has been made out. I agree with my learned brother, Nnamani, J.S.C., that a miscarriage of justice has been occasioned. As this is the case, I agree with him that the Court of Appeal was wrong to have affirmed the judgment of the learned trial Judge. A retrial must be ordered.

The appeal succeeds and is allowed. I also adopt as may own the orders made in the lead judgment.

Appeal allowed.
Re-trial Ordered.

Appearances: Chief G.C.M. Onyiuke, S.A.N. (with him, G.C.B. Okany. E. O. I. E Ekong and E.O. Ekpo) for the Appellant

P. E. Munonye, Esq. (with him, I. I. Onumaegbu) for the Respondent

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