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Types of burden of proof in civil cases and whether it shifts


CITATION: (2020) LPELR-49568 (SC)

In the Supreme Court of Nigeria

Suit No: SC.416/2014

Before Their Lordships:

2. REV. K. OYEMA – Appellant(s)


The respondent, as plaintiff commenced this action at the High Court of Justice, Awka Judicial Division, in the then Anambra State of Nigeria vide a writ of summons dated December 16, 1986. By the further amended statement of claim, the respondent claimed against the appellants for a declaration of title to land situate in Awka, damages for trespass into the said land and an injunctive order, return of property and accounts. After considering the evidence of parties and the final submissions of respective counsel, the High Court entered judgment for the respondent and granted all the reliefs claimed, except the claim for return of various vehicles by the appellants to the respondent, which was dismissed. Dissatisfied with the judgment of the High Court, the appellants appealed to the Court of Appeal, Enugu Division. On the June 30, 2014, the Court of Appeal affirmed the judgment of the High Court, dismissing the appeal for lacking in merit. Further dissatisfied, the appellants appealed to the Supreme Court.

The Court determined the appeal on the following issues:
1. Whether the action was competent having been commenced by the respondent instead of Saviour’s Church of Nigeria.
2. Whether the respondent discharged the burden of proof placed on them in line with the provisions of the Evidence Act.

Arguing the issues, Counsel to the appellants contended that the action ought to have been heard and determined by the Federal High Court and not Anambra State High Court as the suit is not just a land matter or declaration of title to land but principally revolves around the operation of associations incorporated under Part C of the Companies and Allied Matters Act (CAMA) 1990, and the operation/application of the Companies and Allied Matters Act to the activities of the entities and associations. That when an objection is raised, challenging the jurisdiction of the trial Court to hear and determine a suit before it, it is the nature of the plaintiffs’ claims that determines the jurisdiction of the Court.

Counsel submitted that a close and adroit examination would reveal that the action is about a religious association/church whose members have disagreed among themselves, gotten factionalized, each faction registered as separate association, but are still claiming ownership of the old church called Saviour’s Church of Nigeria. That Section 7 (1) (c) of the Federal High Court Act, Cap 134, Laws of the Federation ofNigeria, 1990 confers exclusive jurisdiction on the Federal High Court in causes and matters like this, citing Sken Consult v Ukey (1981) 1 SC Page 1 at 14; Godwin v Okwey (2010) 16NWLR (Pt. 1219) 309.

Learned Senior Advocate for the appellants stated that the entire issue of change of name from Saviour’s Church of Nigeria to the respondent’s name was the case made out for the respondent by the High Court and affirmed by the Court of Appeal. That the re-constitution of Trustees of an Incorporated Trustees is fundamentally different from change of name, each with distinct procedural requirements as it is necessary to effect a change of name of an existing incorporated Association, Section 597 (1) and (2) of the Companies and Allied Matters Act (CAMA) 1990 must be strictly complied with.

He stated that the respondent had a duty to lead evidence on pleaded facts in order to establish that the conditions in Sections 597 (1) & (2) and 599 (1) (2) (3) of CAMA were satisfied and these the Respondent failed to do.

Counsel further argued that the incorporated entity called Saviour’s Church of Nigeria is not one and the same as Saviour’s Apostolic Church of Nigeria as the two entities are separate and distinct and so as the subject matter of the dispute between the parties are vested in Saviour’s Church of Nigeria, the instant action ought to have been commenced in that name and not the Respondent who lacks locus standi to institute and maintain the action in this appeal.

Counsel further argued that the respondents, having predicated their entitlement to the land indispute on grant by Awka Local Government Council and having gone further to aver in their amended statement of claim that a document evidencing the said grant was issued to them, the only acceptable evidence to prove the grant or allocation is the production of a Certified True Copy of the document of grant or title in line with Sections 85 (1), 89 and 105 of the Evidence Act, Cap E.14 Laws of the Federation of Nigeria, 2004.


Arguing the issues, Counsel for the respondent submitted that the reliefs sought by the Respondent at the trial Court are clearly within the jurisdiction of the High Court of Anambra State sitting at Awka, as the claim was essentially one for a declaration of title to land situate in Awka, damages for trespass into the said land and an injunctive order, return of property and accounts. That the issues joined by the parties are not Companies and Allied Matters Petition subject to the jurisdiction of the Federal High Court. Counsel stated what is in issue is the ownership of the Church land situate at Awka.

Counsel submitted that the respondent as plaintiff discharged the burden of proof laid upon it by law and then the burden shifted to the Appellants as defendants to prove their assertions on the issue of merger and their implicit denial of the fact that the land in dispute was held in trust. Also that DW1 contradicted himself on various other assertions thus making his testimonies totally unreliable in proof of their averments as severally found by the High Court which an appellate Court would not ordinarily disturb as only the trial judge had the first hand opportunity of seeing and observing the witnesses. He cited Omisore v Anor. v Aregbesola & Ors. (2015), LPELR-24803 (SC); Emiri v Imieyeh (1999) 4 NWLR (Pt. 599) 442.

Counsel concluded arguments by stating that the Respondent established by pleading and evidence the traditional history of the land and the unbroken chain of devolution from the original owners to their present ownership of the land in dispute.


In resolving the 1st issue, the Court stated the trite position of the law that the jurisdiction of a Court is determined by the plaintiff’s claim as disclosed in the writ of summons and/or endorsed in the statement of claim. However, when evidence has been taken before the raising of the issue of jurisdiction, the Court may refer to any part thereof necessary. See Tukur v Government of Gongola State (NO.2) (1989) 4 NWLR (Pt. 117) P. 517.

Relating the above principle of law to the present case, the Court quoted relevant portions of the Statement of Claim and Statement of Defence filed at the High Court with a view to determining whether the claim before the High Court was within the domain of the Companies and Allied Matters Act, which would deprive the High Court of Jurisdiction. After so doing, the Court agreed with the Counsel for the Respondents that from the pleadings of the parties, the claim before the High Court was not one bordering on the Companies and Allied Matters Act but a simple land dispute and as such was within the jurisdiction of the High Court.

Going further, the Court held that the issue of the registration and re-constitution of Incorporated Trustees and the operation of the Companies and Allied Matters Act raised by the Appellant on appeal are new issues which cannot be raised on appeal without leave of Court first sought and obtained. Even where leave has been sought and obtained, such new issue must be traceable to the pleadings of the parties.

According to the Court, the arguments of the appellants is an attempt to introduce into a simple land dispute an issue of the Companies and Allied Matters Act (CAMA) through the use of the name of the respondent which variously is called “Saviour’s Apostolic Church of Nigeria” or “The Saviours Apostolic Church” or “Saviours Apostolic Church of Nigeria Eastern States”, each of which title was used interchangeably and none of the parties was in difficulty as to what or who was referred to and there remained at all times that the dispute was that of the ownership of the landand buildings thereon. The appellants joined issues with the respondent, not on the validity or invalidity of registration or any company and allied matters, but on the ownership of the church land situate at Awka. The Court further held that assuming issues were joined on the registration and re-constitution of the respondent, the respondent would then have the burden to produce proof as to the juristic personality of the respondent which the respondent did by tendering Exhibits B and C as evidence of incorporation.

In resolving the 2nd issue, the Court restated the trite principle of law that the burden of proof in civil cases has two distinct facets; the first is the burden of proof as a matter of law and the pleadings normally termed as the legal burden or the burden of establishing a case. The second is the burden of proof in the sense of adducing evidence usually described as the evidential burden. While the legal burden of proof is always static and never shifting, the other type being evidential burden of proof shifts or oscillates constantly as the scale of evidence preponderates. The Court stated that the primary onus of proof in a civil case lies on the plaintiff, now respondent, citing the following cases: KWAMINA KUMA v KOFI KUM (1934) WACA 178 @ p. 179; KODILINYE v MBENEFO ODU (1935) 2 WACA 336AT P. 337; amongst other.


Relating the above to the instant case, the Court reproduced portions from the Further Amended Statement of Claim and reached the conclusion that the respondents who pleaded grant of the land by the Awka Local Government Council in the early 1950s had proved that the land was granted for free to the Saviour’s Apostolic Church of Nigeria through late pastor John Ekweozor, who is one of the trustees of the church, even though they were not able to produce the document of title. The Court held that the respondent established by pleadings and evidence, the traditional history of the land. The Respondent showed in an unbroken chain how the land devolved upon them from the original owners of the land.

On the other hand, the Appellants as defendants denied the ownership of the Respondents as plaintiffs and averred that the land was a personal gift to the 1st defendant by the Ezi-Awka Elders through their Attorney Mr. W.N. Nwobu and B.N. Echeazu. The Appellants thus had the onus to prove same which the Court held that they failed to do.

Concluding on the issue, the Court added that the land in dispute in the instant appeal is part of the land litigated upon in Suit No. AA/91/73 tendered as Exhibit P. The judgment therein is a product of an action in rem, which establishes the status of whoever won in the suit in respect of the land. It is not a personal action that dies with the parties concerned and so Exhibit P remains a subsisting and final judgment in the absence of any appeal against same.

In conclusion, the Court held that the appeal lacked merit and consequently dismissed same. The decision of the Court of Appeal, which affirmed the decision of the High Court was thus affirmed.
Ogwu James Onoja, SAN, with him, Noah Abdul, Esq.,
M.A. Ebuke, Esq., and Mimi Ayua, Esq. – For Appellant(s)
Ikechukwu Onuoma, Esq. with him, Daniel Aloh, Esq.
For Respondent(s)

Compiled by LawPavilion


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