A. R. Mogaji & Ors V. Madam Rabiatu Odofin & Ors (1978)

LawGlobal-Hub Lead Judgment Report

FATAYI -WILLIAMS, J.S.C.

In these proceedings commenced in the High Court of Lagos State sitting at Ikeja, the plaintiffs claimed against the defendants –

(a) declaration of title to all those pieces of land situate at Ikosan, in Epe

(b) injunction to restrain the first set of defendants and their servants and agents from unlawfully entering the said land; and

(c) possession of the several holdings on the said land unlawfully occupied by the 3rd and 4th defendants.

After pleadings had been ordered and duly delivered, the learned trial Judge heard evidence from both sides. In a reserved judgment, he found for the plaintiffs with respect to their claim for declaration of title to the land in dispute and for injunction. Being dissatisfied with this judgment the plaintiffs have now appealed. Nineteen grounds of appeal were filed but the only one argued was the general ground in which the defendants/appellants complained that the judgment is against the weight of evidence.

In the course of the arguments in support of the ground of appeal, it became clear, after we ourselves had adverted to it, that what the defendants/appellants were really complaining about is that the evidence adduced by the parties was neither put on any scale nor weighed at all before the learned trial Judge found for the plaintiffs/respondents. Learned counsel also complained that it was after the learned trial Judge had considered the case for the plaintiffs and found for them that he proceeded to consider the case for the defendants/appellants and disbelieved the evidence called by them.

Learned counsel also contended that, by this procedure, the learned Judge had already prejudged the issue before he ever considered the case for the defendants/appellants let alone the weight to be attached to it. Learned counsel then submitted that the cardinal rule of law is that all parties to a case must be heard and have their cases considered together before any decision is arrived at but that in the case in hand the learned trial Judge, having found for the plaintiffs/respondents on the facts before considering the defendants/appellants’ case, had no choice but to give judgment for the plaintiffs/respondents later.

Learned counsel finally submitted that the scale of justice was already weighed against the defendants/appellants before the defence was considered by the learned trial Judge. In his reply, learned counsel for the plaintiffs/respondents, with commendable frankness, conceded that the way the judgment was written is rather unusual in that the learned trial Judge found first for the plaintiffs/respondents on their evidence alone before considering the case for the defendants/appellants in detail and rejecting the evidence given in support of that case.

He also conceded, rightly in our view, that in view of this extraordinary procedure adopted by the learned trial Judge, the justice of the case would be met by an order of retrial before another Judge. We think there is merit in the complaints of the defendants/appellants. When an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before him. In other words, the totality of the evidence should be considered in order to determine which has weight and which has no weight at all.

Therefore, in deciding whether a certain set of facts given in evidence by one party in a civil case before a court in which both parties appear is preferable to another set of facts given in evidence by the other party, the trial Judge, after a summary of all the facts, must put the two sets of facts on an imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other, and then apply the appropriate law to it; if that law supports it bearing in mind the cause of action, he will then find for the plaintiffs.

If not, the plaintiff claim will be dismissed. In certain circumstances, however, the claim is either struck out or the plaintiff is non-suited. Incidentally, in deciding which evidence has more weight than the other, a trial Judge sometimes seeks the aid of admissions made by one party to add more to the weight of the evidence adduced by the other party. This is precisely why the totality of the evidence must be considered and why a trial Judge must weigh the conflicting evidence adduced by both parties and then draw his own conclusions. of course, the procedure set out above will be unnecessary if the plaintiff’s case is so patently bad that no reasonable tribunal could possibly act upon it. In such a case, the trial Judge will dismiss the plaintiff’s claim without calling upon the defence.

In short, before a Judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party, but by the quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore, in determining which is heavier, the Judge will naturally have regard to the following:-

(a) whether the evidence is admissible;