Jolayemi v. Olaoye (2004) 12 NWLR (Pt. 887) 322, where, Uwaifo JSC, had so succinctly put this position of law in its proper perspective thus: “I realise that a Defendant need not prove anything if the Plaintiff has not succeeded in establishing his case at least prima facie, in order that the necessity of the Defendant to confront the case so made out may arise.”
PROCEDURE FOR NO CASE SUBMISSION
When a defendant intends to make a no case submission he will need to elect whether if the ruling is against him, he will call evidence. The Judge will need to be satisfied of a clear intention not to call evidence. Once that is done, the defendant will not be allowed to call evidence. But the Judge has a discretion whether or not to press for a clear statement of that intention. It seems from the state of the authorities that in the discretion of the Judge a defendant, who made a no case submission under circumstances which were not definite whether he intended thereafter to call evidence, will not lose his right to adduce evidence thereafter. But in the case of resting on a plaintiff’s case, there is no question of election. The fact that the defendant decides to and does rest on the case of the plaintiff puts an end to the matter. The court will be entitled to and must consider the evidence in all its ramifications as it would do in a fully canvassed case (but in a one-sided manner as there is no evidence from the defendant), resolving thereby the issue of credibility of the plaintiffs witnesses.
– Uwaifo JSC. Ekpanya v. Akpan (1988)