Benignus Duru & Anor V. Jonathan Nwosu (1989)

LawGlobal-Hub Lead Judgment Report

NNAMANI, 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 con 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, 629; Williams 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.

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SC.150/1987