DURU & ANOR V. NWOSU & ORS.
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DURU & ANOR V. NWOSU & ORS.
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DURU & ANOR V. NWOSU & ORS.
BENIGNUS DURU AND ANOR.
V
10 JONATHAN NWOSU AND ORS.
SUPREME COURT OF NIGERIA
OBASEKI,
J.S.C.
NNAMANI,
J.S.C.
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KARIBI-WHYTE,
J.S.C.
OPUTA,
J.S.C.
NNAEMEKA-AGU, J.S.C.
7th July, 1989
APPELLANTS
RESPONDENTS
SUIT NO. SC 150/1987
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Practice and Procedure- Contents of proper judgment - Retrial - When it nzay be ordered -
Prima facie case - Use of
Land Law - Proof of ownership of land
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Evidence - Burden of proof - Distinction - Evidential - Persuasive burden.
Evidence - Onus of proof - Title to land.
Words and Phrases - Prima facie case - Meaning of
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ISSUES:
1.
What should a proper judgment contain?
2.
On whom does the onus of proof lie in an action for declaration of title to land?
3.
What is the difference between the evidential and persuasive burden of proof?
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4. What is a
prima facie
case?
5.
Can a
prima facie
case apply to civil matters?
6.
Under what circumstances can a Court of Appeal order a retrial?
FACTS:
The Plaintiff/Respondent as representing "the Nwosu family Umokwaraonere
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Umuezeala Ogboko sued the defendants/Appellants in their personal capacities
claiming a declaration of title to that piece or parcel of land known as and called "Ala
Amaeka" of the annual value of N10.00 and damages for trespass.
At the trial court both parties laid claim to the land and traced their title to their
ancestors. After a review of the evidence the trial judge gave judgment for the
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plaintiffs.
The defendant/Appellant being dissatisfied with the learned trial judge's treatment
of the burden of proof and on the onus he placed on the appellants to discredit the
respondent evidence or lose it, appealed to the Court of Appeal.
The Court of Appeal upheld the decision of the trial court and the defendant/ap-
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pellant still aggrieved appealed to the Supreme Court on the approach of the learned
trial judge to the evidence of the parties and the endorsement by the Court of Appeal.
HELD:
1. To discharge the responsibility for a fair and just verdict of the case put up by two
or more contending parties, the learned trial judge has to fully consider the
evidence proferred 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
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NIGERIAN SUPREME COURT CASES
[1989] 3 N.S.C.C.
findings of fact, apply the relevant law and come to some conclusion based on
his consideration of the totality of the evidence before him.
2.
That it is trite law that in an action for declaration of title to land the burden of
proof is on the plaintiff, generally he is to succeed on the strength of his own case
and not on the weakness of the defence since it is a universal principle that he
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who asserts proves his assertion, he who claims proves his claim.
In this case each party claims from their ancestor, the onus was thus firmly on
the Respondent and not on the appellant.
3.
The evidential burden is placed by law on one of the parties in respect of every
issue, it never shifts. The persuasive burden is usually on the plaintiff in that he is
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the party who will fail on the whole if no evidence is called at all.
4.
Prima facie
evidence is defined as probably synonymous with sufficient evidence
such as will prevail until contradicted and overcome by other evidence.
5.
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 cases,
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consideration whether the plaintiff has made out a
prima facie
case usually arises
after the close of the case for both sides but before the evaluation of evidence
begins.
6.
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
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makes it possible for the appeal court to say there has been no miscarriage of
justice.
[As to
who bears the onus of proof in an action for declaration of title to land,
see:
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1.
Bakare v. A.C.B. Ltd. [1986] 17 N.S.
C.C. (Pt.1) 634.
2.
Elias v. Omo-Bare
[1982] 13 N.S.C.C. 92.]
[As to
who bears the evidential burden in an action for declaration of title to
land,
see:
Elias v. Omo-Bare
[1982] 13 N.S.C.C. 92.]
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[As to
when a Court of Appeal can order a retrial,
see:
Okpara v. Fed. Republic of
Nigeria
[1977] 11 N.S.C.C. 166.]
CASES REFERRED TO IN JUDGMENT:
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1.
Osawuru v. Ezeiruka
(1978) 6 and 7 S.C. 135, 145.
2.
Samuel Adenle v. Michael Oyegbade
(1967) N.M.L.R. 136.
3.
Mosalewa Thomas v. Preston Holder
(1946 12 W.A.C.A.
4.
Awomutu V. Salami & Ors.
(1978) 3 S.C. 105, 115.
5.
Babafunke Johnson & Ors. v. Akinola Maja & Ors.
(1951) 13 W.A.C.A. 290.
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6.
Aquad v. Nzimiro & Anor
10 W.A.C.A. 73.
7.
Mogaji & Ors. v. Odofin & Ors.
(1978) 3 S.C. 91.
8.
Woluchem & Ors. v. Chief Gudi & Ors.
(1981) 5 S.C. 291 at 294.
9.
Magnus Eweka v. Bello
(1981) 1 S.C. 101.
10.Adeyeye v. Ajiboye
(1987) 3 N.W.L.R. (Pt.6) 432, 451.
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11.Stephen v. State
(1986) 5 N.W.L.R. (Pt.46) 978, 1005.
12.Onuoha v. State
(1988) 3 N.W.L.R. (Pt.83) 460, 475-476.
13.Olufosoye v. Olorunfemi
(1989) 1 N.W.L.R. (Pt.95) 26, 37.
14.Onwuka v. Ediala
(1989) 1 N.W.L.R. (Pt.96) 182, 208-209.
15.
Ogundare The Bale of Ijako Orile & Ors. v. Ishanyinka Badijoko Okanlawon &
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Ors.
F.S.C. 163/1962 decided on
2
/
1
2/63.
16.
Kodilinye v. Mbanefo Odu
2 W.A.C.A. 336.
17.Ededem Archibong v. Nto Archibong Ita
(1954) 14 W.A.C.A. 520, 522.
18.Nigerian Maritime Services Ltd. v. Alhaji Bello Afolabi
(1979) 2 S.C. 79, 84.
19.Jenkins v. Grocott
(1904) 1 K.B. 374.
20.Ajidagba v. I.G.P.
(1958) 3 FS.C. 5.
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