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

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

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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;

(b) whether it is relevant;

(c) whether it is credible;

(d) whether it is conclusive; and

(e) whether it is more probable than that given by the other party.

Finally, after invoking the law, if any, that is applicable to the case, the trial Judge will then come to his final conclusion based on the evidence which he has accepted.

Can we say that the learned trial Judge has followed this fundamental procedure in the case in hand We think not. We recall that in his reserved judgment, the learned trial Judge observed as follows:-

“Before a consideration of the title of the defendants can be considered at all, or the strength of the authorities, the plaintiffs’ title must first be considered and decided upon. See the case Aromire & Ors. v. Awoyemi (1972) All NLR p.101. So I propose to examine first the case of the plaintiffs.”

(The underlining is ours)

After setting out the evidence adduced by the plaintiffs/respondents in support of their claims, and without considering the evidence of the defendants/appellants, he then found as follows:-

“Now to evaluate the evidence for the plaintiffs. I must say that I am impressed by the 1st plaintiff and the witnesses called to support him. The tenant and witness (put on the land by the plaintiffs’ relation Kadiri Iposu Oniga and one time head of the plaintiffs’ family) and his co-tenants according to him, had farmed on the land for over 35 years. The other two witnesses for the plaintiffs are men advanced in age and of influence in the Epe community. They all strike me as witnesses of truth.”

With respect to the traditional evidence adduced by the plaintiffs/respondents, the learned trial Judge also observed:-

“As regards the traditional evidence all the witnesses agreed that Iposu was a follower of Kosoko who had arrived in Epe with Kosoko. I prefer however to believe that Iposu arrived in Epe a few years later after Kosoko but was in fact a Kosoko supporter and that Iposu got the land in dispute from Kosoko who had obtained it with the permission of the then Awujale.”

He thereafter made eight specific findings of fact, favourable to the plaintiffs/respondents, with respect to the evidence adduced by them in support of the traditional history and the acts of ownership pleaded by them. We pause here to emphasize the fact that all these findings of facts were made before the case for the defence was considered because it was after these findings that the trial Judge stated as follows:-

“Now to consider the case for the defendants.”

(The underlining is ours)

It is, therefore, clear that the learned trial Judge had already considered, believed and accepted the plaintiffs/respondents’ case before considering that of the defendants/appellants. This is precisely what he cannot do. The case of Aromire & Ors. v. Awoyemi (1972) 1 All NLR 101 on which he relied did not say that he can do it. Declaration of title was not claimed in that case. The claims there were for damages for trespass, recovery of possession and injunction. All that this court did in that case was to refer to another decision of this court in Godwin Egwuh v. Duro Ogunkehin (unreported but see S.C. 529/66 decided on the 28th February, 1969) where this court observed:-

“It is of course settled law that where two parties claim to be in possession of land the law ascribes possession to the one of them with the better title. (See Jones v. Chapman (1848) 2 Exch. 803; Canvey Island Commissioners v. Preedy (1922) 1 Ch. 179). In a similar case this court directed as follows:-

‘We are in no doubt that on the pleadings the case of the plaintiff postulates that she had a better title to the land than the defendant who admittedly was at the time of the institution of the proceedings, rightly or wrongly, in possession of the land. ….The learned trial Judge rejected the defendant’s case and passed severe strictures on the defendant’s witnesses and their conduct; but with respect, a consideration of the defendant’s case and the weakness of it did not arise until the plaintiff had led evidence showing, prima facie, that she had a title to the land. She had failed to do this and it is inconceivable that she should be allowed to succeed on her claims when, as indeed it is, the defendant is in possession and maintains that he is entitled so to remain. If it be alleged that someone in possession of land is a trespasser the person so alleging has the onus of showing that he has a better right to the possession which was disturbed and unless that onus is discharged, the person so alleging cannot defeat the rival party. Such is the case here and we are of the view that the plaintiff’s case had failed and it should have been dismissed.’ ” (The underlining is ours)

It would appear from the above that what the defendants/appellants are now complaining about is precisely what this court has criticized in the above case. In short, the learned trial Judge in that case condemned the defendant without considering the totality of the case before him and weighing the respective cases of the parties on the imaginary scale of justice. It is manifest that the learned trial Judge in the case in hand has also not put the defendants/appellants’ case on that imaginary scale and found it wanting in weight.

We therefore think that his approach to the case is grossly unfair to the defendants/appellants. With respect, it appears to us that the learned trial Judge, at the time he found for the plaintiffs/respondents, had not considered the defendants/appellants’ case at all. We think, again with respect, that it is an under-statement to complain that the judgment is against the weight of evidence. What happened is worse than that. No imaginary scale was used in this particular case and the question of weight does not therefore arise.

For all these reasons, we think that the judgment should not be allowed to stand. The appeal is therefore allowed and the judgment of the learned trial Judge (Dabiri, J.,) in Suit No. IK/68/69 delivered in the High Court at Ikeja on 26th April, 1976, including the order as to costs, is hereby set aside. As we are unable to say what his findings would have been had he considered the totality of the evidence adduced by both parties and weighed it properly before coming to a decision, we agree with learned counsel for the plaintiffs/respondents that the justice of the case would be met by sending the case back for retrial before another judge. We accordingly order that the case be heard de novo before another Judge.

The defendants/appellants are awarded the costs of this appeal which we assess at N50.

Other Citation: (1978) LCN/2064(SC)

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