KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND FRANCIS, J. Plaintiffs in this case claimed a declaration of title to 8 Toguwa Street, Lagos, on the ground that they were the surviving direct issues of one Kadiri deceased brother of the original owner Barikisu Oshun.
At the close of the case for the plaintiff the trial Judge held that no case had been made out for defendant to answer and gave judgment for defendant.
The judgment reads as follows:- In my opinion no case has been made out for defendant “to, answer. The plaintiffs case depends on her proving “ affirmatively that Barikisu and Kadiri were full brother and “sister and the evidence to this effect is most unsatisfactory. “Neither she nor any of her witnesses have been able to give “me the names of these two people's parents and such inform- “ation as they give is admittedly derived from Barikisu “herself.” The grounds of appeal are:- “1. The learned Judge was wrong in law in holding that no case “had been made out for the defendant to answer. The evidence was “sufficient to support the plaintiffs’ claim.
“2. The judgment is against the weight of evidence”.
In number of recent cases the Court of Appeal in England has strongly deprecated the practice of counsel for the defence submitting at the end of the plaintiff’s case that there was no case to go to the jury-Scrutton L.J. in Halliwell v. Venables (1930) 99 L.J. K.B. 353 said “There has been too much lately of “this trying to run cases on no evidence to go to the jury. It is “very much better for the parties, in the matter of expense, that “the verdict of the jury should be taken in such a case coupled “with the submission there is no evidence to go to the jury, “because then you save the expense to the parties of a second “trial.” In that case the Court of Appeal enforced that view, as was done in McGowan v. Stott (1930) 143 L.T. 219, by ordering in that, in the event of the respondent succeeding in the new trial which was ordered, he should not have any costs of the first trial. The observations of the C.A. in its Judgment in Alexander v. Rayson (1936) 1. K.B. at p. 178 and Lord Justice Goddard in Parry r. Aluminum Corporation Ltd., 56 T.L.R. at p. 318 define the duty of a Judge where “no case to answer” has been submitted.
In the present case it does not appear from the record and it has not been suggested that the trial Judge held that “no case had been made out for defendant to answer” at the request of defendant counsel. We will bear this fact in mind in awarding costs.
There are cases in which a Jury is entitled on the evidence to indicate to the judge that they do not want to hear the defendant's rase: In such case counsel for the plaintiff is entitled to address the Jury and it is the duty of the Judge to sum up in all but straight forward causes.
In the judgment of the Court of Appeal in Alexander v. Burgoine 56 T.L.R. p, 153, it was stated “a Judge may, and not “infrequently does, say to a Jury in a case which, when it has “been heard, appears to be perfectly clear ‘Members of the jury “do you think it will be of any assistance to you if I sum up or “do you think you can give an opinion at once' Judges indeed
“have said that to juries in cases such as Mr. Justice Macnaghten “instanced: for example, in a case where a man is complaining of “libel , and after his cross-examination has shown that he has no “case at all, the ,Judge sometimes turns to the jury and says “Have you heard enough of this case. In such cases, of course “the Judge should be careful to say that the plaintiff’s counsel has “Still the opportunity of addressing them if they wish.”
It cannot be open to doubt that where a plaintiff has himself shown that he has no case a Judge trying a case as Judge and Jury is entitled to stop the case after plaintiff has closed his case and addressed the Court.
In the present case the plaintiffs did not establish that they had no case, On the contrary they established a prima facie case on evidence which the trial Judge, for reasons he gave, considered “most unsatisfactory”. It not infrequently happens that although the plaintiffs’ evidence discloses a very weak case yet when all the evidence is heard that case is converted into a very strong case,, eg., when the defendant and his witnesses go into the witness- box and are cross-examined.
Whilst we agree that the plaintiffs had to prove affirmatively that Barikisu and Kadiri were full brother and sister we are of the opinion that, plaintiffs having led evidence that such was the fact and so established a prima facie case, the trial Judge was not justified in stopping the ease before all the evidence was before him merely because the evidence for the plaintiff was “ most unsatis- factory”.
We are aware that in rather a similar case to this, that of Fayemi, the Babalawo v. the U.A.C., Ltd. (WAC. 1090) (not yet reported), this Court, differently constituted, being satisfied that the trial Judge concluded that the evidence of the plaintiff was “totally unreliable “dismissed the appeal. We are not aware of the exact facts of that case, or whether the Court then considered the dicta and decisions in recent cases in England, so that it makes no difference to our decision in the present case.
The appeal is allowed, the judgment of the Court below, including the order as to costs, is set aside, and it is ordered that if any sum has been paid in pursuance of that judgment it shall be refunded, A new trial is ordered before a different Judge.
As to costs, since it was not on the submission of defendants counsel that the case was stopped in the Court below, each side will bear their own costs in this Court. The costs already incurred in the court below will be in the discretion of the Judge at the new trial.