Claim for Declaratory Reliefs: A 40-Year – Old Misconception of The Applicable Law By The Supreme Court, That Requires Correction.
By Kola’ Awodein S.A.N, FCTI, FICI (Arb.) and Mutiu Ganiyu Esq.
ABSTRACT
The decisions of the Supreme Court as the highest court within the hierarchy of Courts in Nigeria are final and binding, and serve as precedents that the lower courts in the judicial hierarchy must follow. The decisions of the Supreme Court are also binding on all other persons and authorities. This is so, notwithstanding any perceived error whether of facts or law that may be in that decision. It is only the Supreme Court that can reverse its decision in a later case.
The issue of granting declaratory reliefs is one of many on which the Supreme court itself has made definite and authoritative pronouncements.
The position of the Supreme Court, is that in order to succeed in a claim for declaratory relief, the onus is on the plaintiff to establish/prove his case to the satisfaction of the court. The established principle, is that the plaintiff must prove that it is more likely than not that his claim is valid and sustainable and that in doing so, the plaintiff cannot rely on the weakness of the defendant’s case, nor on any admissions by the defendant nor on the failure of the defendant to file a defence to the claim but must AT ALL times notwithstanding the circumstances, give evidence to prove his case and focus only on the strength of his own case and that failure to do is fatal to his case .
In other words, notwithstanding the admission of the defendant or the failure to file a defence to the suit, or perhaps not having a defence properly so called. the burden of proof remains throughout on the Plaintiff and his case must fail completely unless he provides credible evidence in proof.
Our contention here with respect, is that this longstanding legal proposition as articulated by the Apex Court, represents a misconception of the applicable law and should now be reconsidered, as it has resulted in significant miscarriages of justice for the most part.
We will argue, that, there is no question that what we have classified as a misconception of the applicable law in suits in which declaratory Remedies or Reliefs are being claimed, has persisted and in most cases unchecked or challenged, even by the exceptional legal minds, among Nigerian jurists, who have sat on and enriched our Supreme Court bench since the 1980’s, and recognised for their profound scholarship and insights, aside from a few contrary opinions.
Of the few exceptions, one case stands out and it is to be found in the very detailed analysis and compelling reasoning of His Lordship Niki Tobi JSC in his dissenting Judgment in Akaninwo & Ors v Nsirim[1] which dissentient, of course, has no precedential value, and has not, unfortunately, been adopted by any subsequent Majority decision of the Apex Court.
We argue that the situation is even more surprising when we reflect on and appreciate the fact that over 50 or more years ago, the Supreme Court set a crucial precedent in Adedire Ogunleye v. Gabriel Arewa[2], affirming that a declaratory relief can be granted in default of pleadings by the defendant, without the need for the plaintiff to give or adduce oral evidence in support of its case.
We have observed with significant concern that several esteemed Justices, in inadvertently deviating from the decision in Ogunleye V Arewa[3] and in disregarding the provisions of the Evidence Act and the Rules of pleading, seem to have fundamentally misconstrued the law on this matter thereby misguiding the lower Courts.
We have also argued, and hope persuasively that the dissenting opinion of Honorable Justice Niki Tobi represents a more sound interpretation of the law.
We have noted that this longstanding position of our Apex Court, has largely been influenced by its reliance on the English Court’s decisions of Wallersteiner V Moir[4] and Metzger vs. Department of Health and Social Security[5].
We respectfully argue that the English Court decisions in most of these cases were misinterpreted and misapplied. Consequently, they should not have been referenced or relied upon, given the binding precedent set by the Apex Court itself in Ogunleye V Arewa[6], which was regrettably overlooked. Furthermore, those contrary Supreme Court decisions disregarded the provisions of the Evidence Act and the rules of pleadings which were applicable.
In this article, we contend that the Apex Court’s misapplication of and or incorrect reliance on the aforementioned English Cases has led to decisions that materially diverge from the binding judgment in Ogunleye V Arewa[7].
We argue that this misconception, has established a principle that for decades had resulted in injustice for many parties seeking declaratory reliefs or remedies and continues to do so today.
We have reinforced our arguments that the effect of not citing Ogunleye V Arewa[8] and considering or overlooking the case, and ignoring the relevant provisions of the Evidence Act and the Rules of Pleading, means in law, that those subsequent cases, with a few exceptions, from the 1980s that appear to have laid down a contrary proposition to the one laid down in the Adedire Ogunleye V Gabriel Arewa[9] or that did not refer to or apply the relevant provisions of the Evidence Act and/or binding rules of pleading were decided per incuriam.
Of course, there is no denying the point that the Apex Court has the power to overrule itself and has done so in the past for it gladly accepts that it is better to admit an error than to persevere in error See Adegoke Motors Ltd V Adesanya[10].
We have also noted that , there have been some cases in between especially in relation to declaration of title to land , that , have applied the provisions of the Evidence Act and Rules of Pleading and have appropriately , in our respectful view , held that , in claims for Declaratory Reliefs, the onus shifted to the Defendant who has admitted the Plaintiff’s ownership of title, and decided in favour of the Plaintiff, where such a defendant failed to provide evidence to establish his possession and title … In that instance, the Apex Court held that a Plaintiff is entitled to a declaratory relief upon admission of the defendant. But the majority of the cases at the Apex Court have retained the aforementioned erroneous position.
It is our contention that, the very comprehensive dissenting Judgment of Nikki Tobi JSC in Chief Edmund Akaninwo & Ors v Chief O. L. Nsirim & Ors[11] offers, in convincing respect, very valuable insights into why the current position of the majority of the Supreme Court cases on the subject is mistaken and should be corrected.
We have posited that even if these cases were held not to be decided per incuriam, we can rely on the memorable words of Idigbe JSC in Mrs Victoria Omolara Bucknor Macleans & Anor v Inlaks Ltd[12] quoting Lord Morris in Conway V Rimmer that “though precedent is an indispensable foundation on which to decide what is the law there may be times when a departure from precedent is in the interest of justice and the proper development of the law” See (1968) 1 ALL ER 874 at 892 D-E
We have, submitted that Ogunleye V Arewa[13] properly interpreted, represents the correct position of the law on the matter and that the Supreme Court should reverse course, and, at the earliest opportunity declare that the applicable law is as stated in that case.
We have also opined that it is essential for the Supreme Court to clarify and authoritatively reaffirm the binding applicability of the Evidence Act and the rules of pleading in the context of Declaratory Reliefs and give full effect to their legal consequences in every case.
This clarification would enhance consistency in judicial interpretation and ensure that the evidentiary standards necessary for obtaining such reliefs are properly upheld. This would promote fairness, reduce ambiguity and guide lower Courts in their decisions.
Meaning and Nature of Declaratory Judgment
According to the Black’s Law Dictionary, a declaratory judgment is
“a binding adjudication that establishes the right and other legal relations of the parties without providing for or ordering enforcement”
In Clifford Osuji v Nkemjika Ekeocha[14] the Supreme Court per Adekeye JSC stated the law as follows: “I am equally duty bound to define the nature of declaratory reliefs particularly in relation to title to land. The purpose of a declarative relief sought from Court is essentially an equitable relief, in which the Plaintiff prays the Court in exercise of its discretionary jurisdiction to pronounce an existing state of affairs in law in his favour as may be discernible from the averments in the Statement of claim. A declaratory relief is not confined to cases where there is a complete or subsisting cause of action but may be employed in all cases where the Plaintiff conceives he has a right. Adigun v AG Oyo State (1987) 1 NWLR (Part 53) 678; Igbokwe v Udobi (1992 ) 3 NWLR (pt. 228) 214 ; Dantata v Mohammed ( 2007) 7 NWLR ( pt 664 ) 176.”
The long-standing principle
It is important to state that the long standing principle which has been frequently stated by the Supreme Court in majority of cases is that, the courts do not grant declaratory reliefs to the plaintiff based on the admission of the defendant or upon default of defence. In other words, the rule is that the plaintiff must at all times satisfy the court by cogent, credible and convincing evidence called by him that he is entitled to a declaratory relief claimed by him. So, where the plaintiff on his own evidence fails to prove his claim for declaration, his claim must fail.
This position is clearly stated in the case of Dumez Nig. Ltd. v. Nwakhoba[15] where the Apex Court held that:
“The law on the requirements of the Plaintiff to plead and prove his claims for declaratory reliefs on the evidence called by him without relying on the evidence called by the Defendant is indeed well settled. The burden of proof on the Plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the Defendant where the Plaintiff fails to establish his entitlement to the declaration by his own evidence. In other words, declaration of rights as sought by the plaintiffs/respondents in their first relief against the defendant/appellant in the present case, cannot be made on admission or in default of pleading by the defendant not talk (sic) of reliance on the evidence of defendants’ witnesses. See Wallersteiner v. Moir (1974) 3 ALL E R 217 at 251…….This statement of the law was adopted by this Court in Vincent E, Bello v. Magnus Eweka (1981) 1 SC 101 ; and also applied in Motunwase v. Sorungbe (1988) 12 SC (Part 1 ) 130.”
This authoritative pronouncement merely reinforces the Apex Courts position in earlier decisions since the 1980s (Bello v. Eweka)[16], which have been consistently followed by numerous subsequent cases which the lower Courts have had to follow without question This pronouncement has indeed become a guiding principle.
It has thus been clearly established that a plaintiff must succeed squarely and completely on the strength of his case. The weakness of the defendant’s case or any admission by the defendant or failure to defend the suit cannot in any way relieve the plaintiff of the heavy burden of proof where he claims declaratory reliefs. He is required nonetheless to adduce evidence in proof of his case otherwise his claim would fail completely.
The Impact of the Provisions of the Law of Evidence and Rules of Pleading ignored.
This principle has apparently reduced into silence and ineffectiveness, the provisions of Section 123 of the Evidence Act, 2011, (formerly Section 75 of the Evidence Act) which stipulates as follows
“No fact needs to be proved in any civil proceeding which the parties to the proceeding or their agents agree to admit at the hearing. or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings.”
This principle that a Plaintiff is obligated to give evidence at all times notwithstanding the failure of the defendant to file a defence or upon defendant’s admission, having found expression in numerous judgments of the Apex Court, has inexplicably placed a burden, on a party seeking declaratory relief, which the applicable law of Evidence, does not place on such a party.
Moreover, this stance of our Courts, that, declaratory Judgments cannot be entered or made based on the admission of the facts by the adverse party has also made the well-known rule of pleadings that all facts pleaded by a party that is expressly and clearly accepted, conceded to, and admitted in the opposite party’s pleadings require no proof by evidence , wholly inapplicable.
This is the context in which the honourable Justice Niki Tobi’s position in Akaninwo v. Nsirim’s case[17] represents a significant departure from the Supreme Court’s unyielding stance on the issue.
His Lordship’s minority decision in the case, is very remarkable for the reason that it challenged, this mainstream position of the Court. The fact that it was a dissenting opinion notwithstanding, it gives a welcome clarity to the matter. This is notwithstanding the fact that none of the Justices of the Supreme Court in the majority nor His Lordship , Niki Tobi, J.S.C. himself, cited Ogunleye vs. Arewa[18].
In Akaninwo v. Nsirim[19]the question arose as to whether certain individuals were members or indigenes of a particular community , as to be conferred with rights, benefits, or privileges that could be bestowed on actual members of the said community. The plaintiffs in their Claim sought both declaratory and injunctive reliefs. Both the trial and the appeal courts ruled in the plaintiffs’ favour. Still dissatisfied with the decisions of both courts, a further appeal was made to the Supreme Court.
The defendants appealed the decision of the trial judge on the ground essentially that, the learned trial judge refused their application to amend their statement of claim and proceeded immediately to hear and determine the case after denying their application for amendment. Their appeal was dismissed by the Court of Appeal and they further appealed to the Supreme Court.
In allowing the Appeal, the majority of the Supreme Court, in the lead judgement of Mahmud Muhammed, J.S.C.( as he then was ) first referred to the reasoning of both the trial and appeal courts in upholding the dismissal of the application for the amendment of the statement of defence on the ground “…that granting the amendment would lead to allowing the defendants to withdraw or abandon the admissions to the case of the plaintiffs , they had earlier made thereby prejudicing the plaintiffs.”
His Lordship Mahmoud Mohammed JSC thereafter stated further that,
“However, having regard to the fact that the main relief claimed in the plaintiffs’ action at the trial court is a declaratory relief , which by law is not granted on admission by the defendants but on proof by evidence to the satisfaction of the trial Court before exercising its discretion of whether or not to grant the relief, the reason given by the learned trial judge that to allow the withdrawal of the admission would have prejudiced the plaintiffs, is not supported by law. This is because with or without the admission in the statement of defence, the duty on the plaintiffs to prove their entitlement to the declaratory relief on their own pleading and evidence, would not have changed. This is because the law is well settled that the Court does not make declarations of right either on mere admissions or in default of defence without hearing appropriate evidence and being satisfied with such evidence. See Metzger v. Department of Health & Social Security (1977) 3 All E.R. 444 at 451 where Megarry, V.C. said: – “The Court does not make declaration just because the parties to litigation have chosen to admit something. The Court declares what it has found to be the law after proper argument not merely after admission by the parties. There are no declarations without arguments, that is quite plain”
Here, it should even be noted that in Metzger’s (supra), the operative words are “without arguments” and NOT “without evidence”.
In addition to Metzger’s case, His Lordship also referred to Wallensteiner v. Moir[20] in support of the proposition which was enunciated in the above passage.
Since, indeed these two cases have always been relied on by our Courts, most especially the apex Court, for the proposition under focus, it is appropriate to discuss the two cases later in this article.
But first, in his dissenting judgement in the Akaninwo’s case[21], His Lordship Niki Tobi, J.S.C., articulated a well-reasoned opinion holding that, given the particular context of the Metzger’s[22] case, a general or blanket application of the case ought not and cannot be made on the position that essentially postulates that, the Court cannot grant declaratory relief on the mere admission of the adversary.
Rather, the eminent Jurist postulated that a DISTINCTION must be drawn between two types of declaratory reliefs –namely a. A declaration as to a statute (based on an issue of law) and, b. A declaration as to right(s) of an individual in the following words:
“In the first category of declaratory reliefs, the relief is specifically on a statute and it is based on an issue of law. Parties cannot admit a position which is not law in a litigation as parties are not allowed by law to compromise on an issue of law. And so, when a plaintiff seeks declaratory relief on the dry bones of the law and the law only and alone, Metzger should apply. In the second situation, which affects the alleged right or right of an individual, admission should totally and completely remove proof by the plaintiff and a court of law, in my view, should give judgment based on the admission of the defendant.”
It is very important and significant to note his Lordship’s particular holding as it relates to the Evidence Act and the Rules of Pleading.
Respectfully, Niki Tobi JSC in Akaninwo[23] relying on the case of Ojiegbe v. Okwaranyia[24], gave very resounding justification for his stance, as it pertains to the granting of declaratory reliefs where the individual rights are involved.
His Lordship keenly and correctly noted that:
“It is the law that an admission against interest is relevant and admissible evidence.” Additionally, he wrote that “A fact admitted by a defendant in his pleadings should be taken as established and should form one of the agreed facts of the case. See Chief Okparaeke v. Ogbuonu (1941) 7 WACA 53; Olubode v. Oyesina (1977) 5 SC 79…….. An admission in pleadings basically puts an end to proof… This is because by the admission, the parties no longer join issues on the matter. Since proof presupposes a dispute and since admission drowns the elemenLimitedt of dispute, proof becomes superfluous. See Veritas Insurance Co. Ltd. v. Citi Trust Investments limited (1993) 3 NWLR (Pt. 281) 349. See also sections 19 to 26 of the Evidence Act.”
This position by Justice Niki Tobi JSC is the only indication that the Supreme Court of Nigeria may subsequently appreciate, the need to review and reverse its position on this point after more than four decades and counting. But for now this significant dissentient has been overshadowed by the consistent majority position in most subsequent cases so far. His lordship’s opinion, here, has not even received any mention or consideration, since it was handed down.
The cases of Metzger v. Department of Health & Social Security[25] and Wallersteiner v. Moir[26]: An analysis
We consider it pertinent to consider these two English cases, upon which the majority of the decision of our Apex Court were apparently predicated.
Metzger v. Department of Health & Social Security[27]
In Metzger’s[28] the construction of the Social Security Benefits Up-rating Order 1029, 1976 fell due for consideration. The contention in that case being that the Order was not made under section 125(1) of the Social Security Act 1975. This then meant that what was in issue in the case was in reality construction of statute.
The case is thus concerned with the interpretation of both the statute in question and the subsidiary legislation which was said to have been made under it. Hence the pronouncement of Meggary VC which emphasises that a declaratory Judgment requires more than an admission and necessitates comprehensive legal arguments is, in our opinion, arguably right.
Therefore, the application by the Supreme Court of the ratios of the Metzger’s[29] case in Akaninwo[30] with due respect, is wrong and inappropriate at the very least, because the facts of Akaninwo’s[31] case are completely different from those of Metzger’s[32] as those facts of Akaninwo[33] case have nothing to do with declaratory relief based on a written law or statute as in Metzger[34].
After all, lawyers and Judges are required to exercise care and caution in adopting comments or pronouncements of any court even that of superior court in an earlier case where the facts are different. In this regard, Oputa, J.S.C in the case Adegoke Motors Ltd v Adesanya & Anor[35] correctly stated the law as follows:
“It also appeared in rather bold relief that there is now a tendency among our lawyers, and sometimes among some of our Judges, to consider pronouncements made by Justices of the Supreme Court in unnecessary isolation from the facts and surrounding circumstances of those particular cases in which those pronouncements were made. I think it ought to be obvious by now, that it is the facts and circumstances of any given case that frame the issues for decision in that particular case. Pronouncements of our Justices whether they are rationes decidendi or obiter dicta must therefore be inextricably and intimately related to the facts of the given case. Citing those pronouncements without relating them to the facts that induced them will be citing them out of their proper context, for, without known facts, it is impossible to know the law on those facts.”
In Wallersteiner v Moir[37] the facts were that Dr. Wallersteiner, the plaintiff, sued Mr. Moir for libel contained in a stern criticism by the latter over certain deals Dr. Wallersteiner with a company by which Dr. Wallersteiner became the majority shareholder in the company with an 80% stake.
In his criticism of Dr. Wallersteiner’s dealings, Mr. Moir released a circular wherein he accused the Dr. Wallersteiner of fraud, misfeasance, and breach of trust.
It was against this backdrop that Dr. Wallersteiner sued him for libel. In response, Mr. Moir raised a defence of privilege, and with the support of other minority shareholders of the company counterclaimed against Dr. Wallersteiner on the grounds of fraud, misfeasance, and breach of trust. Dr. Wallersteiner failed to put up a reply or defence to the counterclaim and delayed to do so for a long period of time, which the court described as “inordinate and inexcusable”.
The judge gave judgment in favour of Mr. Moir on the counterclaim and subsequently dismissed the main action for libel which was filed by Dr. Wallersteiner. The judgment was given in the very words of the prayer which contained declarations that Dr. Wallersteiner was guilty of fraud, misfeasance, and breach of trust. On appeal, the Court upheld the dismissal of the action for libel, however, the Court noted (with regard to the declaratory judgment made by the trial judge in default of defence by Dr. Wallersteiner) as follows per Berkeley L. J:
“I am more familiar with the practice in the Chancery Division than in any other Division of the High Court, but is probably in the Chancery Division that more use is made of declaratory relief than elsewhere. It has always been my experience, and I believe it to be a practice of very long standing, that the court does not make declarations of right either on admissions or in default of pleading. A statement on this subject of respectable antiquity is to be found in Williams v Powell, where Kekewich J, whose views on the practice of the Chancery Division have always been regarded with much respect, said that a declaration by the Court was a judicial act, and ought not to be made on admissions of the parties or on consent, but only if the court was satisfied by evidence.”
It is significant to note that the Learned Judge also held in the similar case that:
“Where relief is to be granted without trial, whether on admissions or by agreement or in default of pleading, and it is necessary to make clear on what footing the relief is to be granted, the right course, in my opinion, is not to make a declaration but to state that the relief shall be on such and such a footing without any declaration to the effect that that footing in fact reflects the legal situation.”
It is absolutely necessary to emphasize, that this portion of the judgment in Wallerstenier’s[38] case quoted in paragraph 36 supra , has been COMPLETELY ignored by our Courts including the Supreme Court in citing and applying that dictum of Berkeley L.J. but which is quite notable .
In our respectful view, the ratio of Wallenstenier’s[39] case is clearly to the effect that a Plaintiff seeking declaratory Reliefs can still be entitled to judgement upon default or admission except that a declaration, would not be made as sought, but that, judgement should still be given as the Plaintiff is found entitled to.
In essence, the position is that, if a party has sought a declaratory relief, and there has been an admission by the other party, or default of pleadings, Berkeley L. J. held that, full effect SHOULD be given to that admission or default of pleadings and judgment should still be given to the claimant – though not in its declaratory form or nature as prayed by the party.
However, the position of the Nigerian Courts, in a clear misunderstanding and misconception of the ratio of the decision in the Wallersteiner case is that, where a party seeks a declaratory relief and fails to adduce evidence to the satisfaction of the court, even in cases where the opposing party defaults in filing defence or admits to material facts in issue, the claimant’s case will be dismissed without any judgment or relief whatsoever being granted in favour of the plaintiff by the Court.
It is our respectful contention that, the Wallersteiner case is not an authority for the general proposition that no judgement at all can be obtained by the plaintiff upon a defendant’s admission or in default of pleadings in a suit seeking declaratory reliefs.
We submit that this long held judicial approach is, with the greatest respect a misconception and it is as erroneous as it is unjust. The principle underlying the third ground of the decision in Wallensteiner[40] cited above clearly follows the established rule that a Court has and can exercise the power to grant less than what was claimed by the parties.
Regrettably, our Courts have repeatedly dismissed the Plaintiffs case for declaratory reliefs where such a Plaintiff has not adduced satisfactory evidence, irrespective of defendant’s admissions or failure to file a defence.
But more importantly, the position that, as a matter of law, a Plaintiff cannot get a declaratory judgement in default of defence and without trial as stated in Wallensteiner’s[41] itself, flies in the face of our Supreme Court’s 1960 case of Ogunleye V Arewa[42] which is to the contrary.
As for Metzger’s[43] case, as we have stated above, the issue in the case was on the construction of the relevant statute which issue, as a matter of law cannot be resolved by agreement of the parties or by the failure of the defendant to file a response to the plaintiff’s case but must be after legal arguments. It should be carefully noted that the operative words of the Justice in that case are “legal arguments” and not evidence.
Consequently, the cautionary words of Niki Tobi, J.S.C. in Akaninwo[44], that it is inappropriate to make a sweeping application of the principle in all cases where a party seeks a declaratory relief, without due regard to the nature of the reliefs sought., is useful and apt.
The majority decision in Akaninwo[45] apart from the English cases aforementioned relied on several other Supreme Court cases , Vincent Bello v. Magnus Eweka[46]; Motunwase v. Sorungbe[47]; Okedare vs. Adebara[48]; Quo Vadis Hotels and Restaurants Limited v. Commissioner of Lands Midwestern State & Others[49]; and Fabunmi v. Aigbe[50]
Remarkably , in all of these cases which involved claims for declaratory Reliefs , the Apex Court made the same far reaching pronouncement that a Plaintiff or Counterclaimant not being entitled to declaratory judgment upon admission or default of defence but must in all cases establish his case by evidence or lose completely, even though on the FACTS of each of these cases, except tangentially one , namely Okedare V Adebara[51] (supra) , the issue of a party relying on an admission or upon default of defence did not arise.
Indeed, this seemingly established position always arguably appeared in these cases, as an obiter.
However, it was the ratio of the Supreme Court’s decision in Ogolo V Ogolo[52].
Indeed, this Apex Court’s position, is such that has been considered so powerful and dominant, having been made so consistently and repetitively and for decades by eminent Justices of the Supreme Court, such that the lower Courts have found irresistible and have followed without fail.
The aforementioned case of Okedare vs. Adebara[53], was essentially a land dispute wherein the plaintiff’s prayers contained a declaratory relief as per the title to or ownership of the disputed parcel of land. On this issue the court per X JSC held as follows:
“I have tried in vain to discover from the 1st defendant’s pleadings where if at all he admitted knowing “all land in Jebba” claimed by the plaintiffs. But be that as it may, even If there was such an admission (which is denied) I believe it is settled law that a party claiming to be entitled to a declaration must satisfy the court by evidence and not by an admission in the pleadings of the defendant, that he is entitled to such a declaration. Apart from the fact that the court has a discretion whether or not to grant the declaration, the success of a claimant in such an action depends entirely on the strength of his own case and not the weakness of the defence (See Kodilinye v. Odu (1935) 2 WACA 336 and Bello v. Eweka (1981) 1 S.C. 101 at 102 per Obaseki”
In the much earlier case of Bello v Eweka[54] at pages 102 and 118, which was referred to and relied upon in Okedare V Adebara[55] Obaseki, J.S.C. said at page 101. “It is true as was contended, before us by the appellant’s counsel that the Rules of Court and Evidence relieve a party of the need to prove what is admitted but where the Court is called upon to make a declaration of a right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by evidence, not by admission in the pleadings of the defendant that he is entitled. The necessity for this arises from the fact that the Court has a discretion to grant or refuse the declaration and the success of a claimant in such an action depends entirely on the strength of his own case and not on the weakness of the defence.”
The Supreme Court’s apparent position before Bello V Eweka[56]
It is useful to point out that before the Supreme Court’s definitive pronouncement on this point per Obaseki JSC , in Bello V Eweka case[57] (supra) the Apex Court’s position on this matter had been markedly different…
The 1975 case of Oke – Bola & Ors. V Molake[58] would illustrate this in bold relief .
The Appellants as plaintiffs at the trial court sued for declaration of title to a piece of land, damages and others. The learned judge however dismissed the claim for failure of the Plaintiffs to prove title.
Dissatisfied, the Plaintiff appealed to the Supreme Court.
On the pleadings, the defendants had admitted the plaintiff’s ownership of the land in dispute. It however went on to state that the said land was mortgaged by the persons named therein who were predecessors of the plaintiffs. The learned judge held that the plaintiffs failed to disprove this averment hence dismissed the case.
The Supreme Court coram Darnley Alexander CJN, George Sowemimo and Madarikan JJSC allowed the Appeal and granted the declaration to title sought by the Plaintiff holding that once the Defendant had admitted that the ownership of the land in dispute is vested in the Plaintiffs and the Defendant having failed to prove such lawful possession of the land to oust the title of the Plaintiffs effect should be given to such an admission and the Plaintiffs declared owners.
George Sowemimo JSC (as he then was delivering the unanimous Judgment of the Apex Court stated as follows;
“In this appeal certain admissions were made which impel us to restate generally the rules of pleadings to which this Court had in several appeals drawn attention as guidelines ….Along with this settled principle is that which affects a party who had admitted the ownership of the other party of a property claimed effect should be given to such admissions not only with regard to the admitted fact but to its legal consequences; as in this case the burden of proof shifts from one party to the other”
His lordship further held that the “strange and indeed novel proposition of the learned trial judge is not supported in the judgement by any authority whatsoever….It is the failure by the learned trial judge to observe the principles which we set out in the opening paragraph of this judgment, which led him to hold erroneously that in spite of the admission by the defendant of the plaintiff’s title, it is still the duty of the plaintiff’s to establish such title.
The Supreme Court allowed the appeal and entered judgement in favour of the Plaintiff.
It can be appreciated, therefore, that in the above stated case, the Supreme Court gave full and decisive effect to the defendant’s admissions and put the burden of proof on the Defendant and upon the defendant’s failure to provide satisfactory evidence gave declaratory judgement in favour of the Plaintiffs.
What is difficult to understand and somehow perplexing is how, in subsequent cases, the Supreme Court, apparently consistently, overlooked this sound principle in Oke-Bola, resulting in a muddled legal landscape on this issue.
It must be mentioned that in Akaninwo[60], His Lordship, Niki Tobi JSC cited and analysed all the cases considered above and distinguished their facts and came to the right conclusion (in our view) that the facts in Akaninwo[61] did not warrant the application of the proposition that declaratory Judgment cannot be given on admission or in default of pleadings.
Accordingly, and flowing from the judicial exposition of the law by His Lordship Niki Tobi, J.S.C, the right application of the proposition in issue as laid down by His Lordship ought to have been the guiding lights for our Courts namely:
(I) The Court should examine the facts of the particular case and the nature of the declaratory relief being sought before making a pronouncement on the propriety or otherwise of granting the declaratory order being sought.
(II) Broadly speaking, there are two respects in which declaratory reliefs can be sought to wit; (a) Statute or Law (b) facts or individual rights (others)
(III) The court ought to have regard to the nature of the issues in the action or dispute and the circumstances of the case altogether to determine the declaratory relief to be granted.
The Supreme Court again adopts and applies this disturbing position in a case with relevant facts
But in the 2006 case of Chief L.L.B Ogolo v Joseph T. Ogolo[62], a case where the facts actually related to an application for declaratory judgement based upon default of defence, the Supreme Court clearly applied the principle that a Plaintiff cannot get a declaratory Judgement upon admissions or default of defence
The matter arose out of an appeal against the judgement of the Court of Appeal, Port Harcourt division delivered on 11th May, 2000 in which it reversed the ruling of the trial court refusing to set aside a default judgement in favour of plaintiff (now appellant).
The appellant, as plaintiff, had instituted an action at the trial court claiming among others a DECLARATION that the plaintiff is the duly elected and recognised chief of Main Pgolo House and Head of Dieperi Section of Opobo Town in Opobo LG. Rivers State.
The respondent then filed a Notice of Preliminary Objection on the ground that the suit is vexatious, frivolous, and abuse of court process. No statement of Defence was filed.
So, the plaintiff filed a motion for an order for judgement in default of a statement of defence. The trial judge dismissed the PO and gave judgement in default, in favour of the plaintiff, for the declaration sought.
Respondent then filed a motion to set aside the judgement with an affidavit exhibiting his defence, but the court dismissed the application, hence the appeal to the Court of Appeal.
The Court of Appeal overruled the trial court and remitted the matter to that court to deal with it according to law. The appellant being dissatisfied with the judgement appealed to the Supreme Court.
The Apex Court per Water Nkanu Onnoghen JSC (Later CJN) categorically stated the position of the Law thus:
“It must be noted that the reliefs claimed by the respondent at the trial court and which were granted in the default judgement, included a declaratory relief. The Law is settled that such a relief cannot be granted without oral evidence by the plaintiff even where the defendant expressly admitted same in the pleadings, the said relief being equitable in nature when looked at from that angle, it becomes very clear that the trial judge was under a misconception of the law when he granted a declaratory judgement in default of statement of defence thereby rendering the said judgement liable to be set aside upon proper application to that effect.”
The appeal was therefore dismissed.
This case is very significant because it is one of the few cases where the facts of the case related directly to and called for the application of the principle and formed the ratio of the case .”
Several other subsequent cases have repeatedly followed this same pattern of misconception , we would argue , with a few exceptions including notably the case of Okoye V Nwankwo[63].
In Okoye vs. Nwakwo[65] the Supreme Court, apparently accepted, as a matter of legal principle, that, indeed declaratory Judgment can be granted without the claimant having to call any evidence.
In that case, the respondent who was the plaintiff had claimed among other reliefs a declaration of entitlement to a parcel of land. The trial Court Olike J, set the case down for hearing. When the case was called on for hearing, His Lordship held that, since the defendants had pleaded in their statement of defence unequivocally, that the plaintiff’s ancestor was the original owner of the land in dispute, the position is that the onus is on the defendants to prove an absolute grant to them as pleaded.
The defendants dissatisfied, appealed to the Enugu Division of the Court of Appeal, which Court, affirmed the decision of High Court and dismissed the appeal. Again, dissatisfied the appellants appealed further to the Supreme Court where the following issue was formulated for determination to wit;
“Whether the Justices of the Court of Appeal were right in holding that from the totality of the facts of this case that the appellants ought to call their witnesses first.”
In a very lengthy and well written Majority Judgment, Mary Odili JSC, who delivered the lead judgement of the Apex Court, reviewed the law with respect to burden or onus of proof and stated as follows;
“The onus or burden of proof is merely an onus to prove or establish an issue. There cannot be a burden of proof where there are no issues in dispute between the parties and to discover where the burden lies in any given case, the court has a bounden duty to critically look at the pleadings. The general rule is that it is the plaintiff who seeks a decree of declaration of title that has the onus of proof. The norm in civil cases is that, the plaintiff starts the process of testimony first and his witnesses if any, thereafter the defendant proffers his evidence in defence. In L. A. Are v. Adisa & Anor (1967) 1 All NLR 148: (1967) SCLR 260 it was held by the Supreme Court that, in the light of section 135 of the Evidence Act and of the pleadings, the onus was on the plaintiff to prove his averment that the necessary approval was not duly obtained. …. In the matter of who testifies first, at the bottom of it, is the pleadings of the parties… Before a court decides whether or not there is an admission or reply to a suit in respect of an averment in statement of claim, it must consider the entire pleadings of the parties as whole. Burden of proof is two-fold. The first is the ability of a plaintiff to establish and prove the entire or reasonable portion of his case before a court of law that can give judgment in his favour. This is always constantly on the plaintiff. The other type is related to particular facts or issues which a party claims exist. It is this burden of proof that oscillates from one party to the other. While the first type of burden of proof is called legal burden or the burden of establishing a case, the second one is called evidential burden”.
Thereafter, the Supreme Court applied the law as discussed above and came to the conclusion that the defendant it was, who bore the burden of first calling evidence in the case: The Court reasoned thus
“Since the parties agreed and as found as a fact, by the trial Judge that the plaintiffs were the original owners of the land in dispute, the onus is on the defendants to establish a change of ownership by sale. There is no onus on the plaintiffs to establish a pledge.
With that onus being on the defendants, it is their duty to begin to adduce evidence, for it is they who would lose if no more evidence is adduced having regard to the state of the pleadings. Another way of stating it is that when it is accepted by both sides and found as a fact by the trial court that the plaintiffs’ ancestor was the “original founder” of the land in dispute, the presumption that their successors in title continued to be owners of the land in dispute, until the contrary is proved.
It might seem strange or even radical and revolutionary for a trial court to call on a defendant to take the witness stand by himself or his witnesses before the plaintiff would be heard. But in truth there is nothing novel or out of the ordinary and so the two courts below were well guided by the applicable rules of court of the High Court of Anambra State, Order 24 rule 17 and sections 135 – 137 of the Evidence Act to decide that the appellant take the first slot of testimony before the respondent as plaintiff. These concurrent findings are well founded, I see nothing upon which to base a departure from what they did or upset those earlier findings and conclusion”.
The Supreme Court has thus in Okoye V. Nwankwo[66] dispelled the notion , that in all cases in which the claimant seeks a declaratory order, the claimant must adduce evidence to support his claim. If as the Supreme Court has decided in the Okoye V. Nwankwo[67]the claimant would not have to call evidence even where the defendant has filed a defence which defence from the state of pleadings does not require the claimant to call evidence, it means that in a case in which the defendant has not filed a defence at all, the claimant would be entitled to a judgment in default of defence.
Even though the Judgement in Okoye V Nwankwo[68] was the majority decision of the Supreme Court, it still has not doused the insistence of the Apex Court in other cases to take a contrary position and has thrown this matter into uncertainty.
The strong dissentient in Okoye V Nwankwo[69] by Ngwuta JSC of blessed memory
Indeed, in this same case Ngwuta JSC of blessed memory dissented sharply stating clearly, strongly and memorably, that being a claim for declaration, the Plaintiff was obliged, notwithstanding the defendant’s admission, to adduce evidence…
Justice Ngwuta cited many decisions of the Supreme Court including Bello V Eweka[70]; Umesie & Ors V Onuaguluchi & Ors[71]; Obawole V Williams[72]; CPC V INEC [73]; Dumez Nig. Ltd V Nwakhoba & Ors.[74]; AG Rivers State V AG Akwa Ibom State[75] in holding and asserting forcefully that “ …. this Court, while appreciating the general principle of law that what is admitted needs no proof stated that the general principle does NOT APPLY in a claim for Declaration of title or right” (emphasis ours)
This is how his lordship put it in his dissenting opinion, “…….Secondly , and perhaps more important than the pleadings from which no issue between the parties can be isolated , is the question whether the general principle that what is admitted requires no proof is applicable to action for declaration of a right …..It would follow from case law that in a claim for declaration of title or right , the Plaintiff WILL LOSE if no evidence is led irrespective of any admission in the Statement of defence ….. In my view, based on decided cases of this Court, the Plaintiff who seeks a declaration of right or title , a discretionary relief, has to open his case and lead evidence first notwithstanding any admission in the pleading of the defendant “ (Emphasis ours)
His lordship’s dissentient then concluded as follows “…. the decisions of this Court relied upon by the Majority decision are INAPPLICABLE to the facts of this case. The authorities dealt with the Rules of Court and Evidence Law that what is admitted requires no proof. This case is AN EXCEPTION to the general rule and provisions of the Evidence Act for a declaration of right or title, a discretionary relief, CANNOT be based on admission governed by the Evidence Act and Rules of Court . This is so because whether there is an admission of the Claim in the Statement of defence or they’d is no Statement of defence, the declaration can only be granted on the quality of the evidence based on the pleading. It cannot be granted in default of pleadings or admission in the pleading of the defendant. It is the Plaintiff WHO WILL LOSE if no evidence is led and therefore he has to start …. I resolve the sole issue in favour of the Appellant … set aside the decision of the trial Court as affirmed by the Court of Appeal and order the Plaintiff to lead evidence first “ (Emphasis Ours)
This Justice Ngwuta’s dissent, particularly the portions quoted, profoundly illustrates the confusion that the Supreme Court has sadly and regrettably caused in this area of law.
The Court of Appeal is constrained by established authority.
The reality is that, the lower Courts in the judicial hierarchy including the Court of Appeal have been applying the law as enunciated by the Supreme Court in the cases already discussed stating that declaratory judgement cannot be given upon admissions or default of defence .
It is submitted that the lower Courts have no choice in doing this given the doctrine of stare decisis which obliges lower Courts in the judicial hierarchy to follow and apply legal principles laid down by an higher Court irrespective of the opinion of that lower Court as to the correctness or otherwise of the decision of the higher Court on the point this principle was restated most starkly by the Supreme Court in Dalhatu vs. Turaki[76]. In the Dalhatu case[77], the Supreme Court declared the law as follows:
“The doctrine of judicial precedent otherwise known as stare decisis is not alien to our jurisprudence. It is well settled principle of judicial policy which must be strictly adhered to by all lower courts. While such lower courts may depart from their own decisions reached per incuriam, they cannot refuse to be bound by decisions of higher courts even if those decisions were reached per incuriam. The implication is that a lower court is bound by the decision of a higher court even where that decision was given erroneously: see Emerah &Sons Ltd. v. Attorney-General Plateau State & Ors (1990) 4 NWLR (Pt. 147) 788; Gbobal Trans Occeanico S.A. v. Free Ent. (Nig.) Ltd (2001) 5 NWLR (Pt. 706) 426 at 441.”
The same view was expressed by this court per Uwais, C.J.N. in the case of Atolagbe v. Awuni[78] where at p. 564, His Lordship observed thus:
“It is now well settled that under the common law doctrine of precedent or stare decisis, the decision of a higher court may be criticized by the Judge of a lower court but notwithstanding the criticism, the Judge of the lower court is bound to follow and apply such decision in the case before him. He has no right to disregard the decision or side-track it.”
In the Court of Appeal case of Abdullahi V. Military Administrator & Ors[79], the appellant’s claims were mainly declaratory over his retirement of the plaintiff (now appellant) from service and the stoppage of his salary and emoluments. Although the respondent failed to defend or contest this action, the court noted that this, notwithstanding, such default would not relieve the appellant from establishing his case by adducing evidence. The Appellant must adduce evidence to prove that he is entitled to the declaratory reliefs being sought. The Court, held as follows:
“The burden of proof is still on him because a declaratory relief is not granted on admission of a party or in default of defence but on argument as well as evidence.”
The Court had relied on among other cases Bello v. Eweka; Wallersteiner v. Moir; Metzger and others v. Department of Health and Social Security. The appellant’s case was dismissed by the Court on this basis.
In the same vein, in the case of Ladejobi & ORS V. Oguntayo & Ors[80] the Appeal Court,( it would appear) has even extended the boundaries of the principle by holding that when it comes to declaratory relief, the rules of court or the rule of evidence cannot relieve a party from proving its case by oral evidence where the other party admits to material facts. The Court declared this in the following words:
“When it comes to declaratory reliefs the admission of the defendant does not lessen the burden of the claimant. The admission of the defendant is significant, may enhance the case of the claimant, but it does not provide the claimant with such relief that entitles him to the declaratory reliefs he seeks. In Ademola v. Seven-up Bottling Company Plc., this Court per Mahmud Mohammed JCA held that: “The law in this respect is that Court do not make declaration of right either on admission or in default of defence. Where the Court is called upon to make a declaration of right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by the evidence adduced by that party and not by admission in the pleadings of the defendant that he is entitled to such declaration. The necessity for this specific proof arises from the fact that the Court has a discretion to grant or refuse the declaration and the success of a claimant in such an action depends entirely on the strength of his own case and not on the weakness of the defence. This is clearly in line with what Obaseki, JSC (as he then was) said in Vincent Bello v. Magnus Eweka (1981) 1 SC 101 at 102: ‘It is true as was contented before us by the appellant’s counsel that the rules of Court and evidence relieved a party of the need to prove what is admitted. But where the Court is called upon to make a declaration of right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the Court by evidence that he is so entitled…’ See also Kodilinye v. Mbanefo Odu (1935) 2 WACA 336 at 337; Akinola & Ors. v. Oluwo & Ors. (1962) WNLR 133 at 134; (1962) 1 SCNLR 352 and Elema v. Akenzua (2000) 13 NWLR (pt. 683) 92 at 98-99.“
Furthermore, in the case of Ochedi v. UBN PLC[81] ,the appellant was an employee of the Respondent who was suspended without pay over an allegation of fraud. After the conclusion of the investigation, which exonerated the appellant, the appellant was not reinstated to his position neither was he allowed to operate his account with the Respondent Bank. Against this background, he sued, seeking – among other things – declaratory reliefs. The process was served on the Respondent Bank. However, the Bank did not file any statement of defence. The Appellant’s case was dismissed on the basis that he failed to prove his case despite the fact that the Respondent was in default of filing a defence.
The Court of Appeal held that:
“From the above reliefs sought by the appellant, reliefs 1 and 3 are declaratory while reliefs 2, 4, 5 and 6 are consequential orders which are dependent upon grant of prayers 1 and 3. It is settled that a declaratory relief cannot be granted without oral evidence, even where the claim is admitted.” The Court relied on the case of Dumez Nigeria Ltd Vs. Nwakhoba (2008) 18 NWLR (Pt.1119) 361 @ 376, paragraph A-E; Wallerstainer vs Moir (1974) 3 ALL E.R. 217 @ 251; Motunwase Vs Sorungbe (1988) 5 NWLR (Pt 90) 90 @ 102.
We submit that these three decisions of the Court of Appeal cited above, amply exemplify the numerous instances, where, the Court of Appeal has loyally upheld the Supreme Court’s principle, that, a declaratory Judgment cannot be granted based solely on the defendant’s admission or defence. In our respectful view, the more legally sound proposition should have been completely different.
In Abdullahi v. Military Administrator & Ors[82]for example, one wonders what purpose the calling of oral evidence by the Appellant who was the plaintiff would have served after he had already pleaded the fact of his employment and the terms of that employment which the defendant did not deny or contradict by way of defence or in any other form.
111(a) Although, there are several cases where the Court of Appeal has shown a recognition of the effect of an admission, as in Goshi Abdurrahman v Jumai Abdulhamid[83], yet the Court has been unable to give full effect to that recognition, in the light of the aforementioned Apex Court’s pronouncement of its ineffectiveness in claims for declaratory reliefs.
In the above cited cas , Abiru JCA ( as he then was ) stated what he considers to be the position of the law, relying on Bunge v Governor, Rivers State[84] as follows:
“ ……..When a fact is admitted by the defendant, evidence on the admitted fact is IRRELEVANT and UNNECESSARY….( Emphasis Ours)
Justice Abiru also quoted Oputa JSC in Onobruchere & Anor v Esegine & Anor[85] thus: “An onus of proof does not exist in vacuo. The onus or burden of proof is merely an onus to prove or establish an issue. There cannot be any burden of proof where there are no issues in dispute between the parties. For example, if the Plaintiff’s claim is admitted, that will be the END of the story. Similarly, if a particular averment of the Plaintiff is admitted, there will no longer be an onus to prove what has been admitted by the opposite party….” (Emphasis Ours )
111(b) Yet , the Courts still inexplicably insist that in Claims for declaratory reliefs , the Plaintiff cannot get judgement on the basis of the defendant’s admission or default of defence but must nonetheless give evidence in proof of his case stating as Ngwuta JSC strangely did in Okoye v Nwankwo ( supra ) that “…….,Faced with a declaratory relief , the Court draw’s inspiration from CONSECRATED principles, one of which is that the party seeking the relief MUST lead evidence upon which the relief is granted or denied notwithstanding any admission in the defendant’s pleading. The Court has to be satisfied on the evidence led by the Plaintiff, that he is entitled to the reliefs he seeks“ (Emphasis Ours)
111(c) The pertinent question is whether this problematic and rigid position is not an injustice to all those affected? We submit with utmost respect, that, it is.
Interestingly, and instructively, the Supreme Court of Nigeria, indeed as far back as the year 1960, in Adedire Ogunleye vs. Gabriel Arewa[87] had rejected firmly the proposition that a plaintiff who claims a declaratory relief could not obtain judgment in default of defence without leading oral evidence in support of his claim. In fact, the Supreme Court had expressly regarded the proposition as absurd.
In Adedire Ogunleye vs. Gabriel Arewa[88], the respondent who was the plaintiff had sued, claiming against the appellant who was the defendant, declaration of title in respect of land at Ile-Ife. The respondent duly filed his Statement of Claim but the appellant failed to file his defence. The defendant brought three successive motions asking for extension of time and these applications were granted on each occasion; but the Statement of Defence was yet not filed.
The respondent then brought a motion for final judgment. The respondent was given judgment in terms of his writ without leading evidence. Against this, the appellant appealed on the ground that the facts alleged in the Statement of Claim should have been proved on oath before a declaratory judgment could be given.
The two grounds of appeal against the judgment bear reproduction as follows:
(1) “The learned trial judge erred in law in giving judgment for the plaintiff in the absence of evidence on oath by the plaintiff in proof of the facts alleged in his Statement of Claim.
(2) The learned trial judge ought to have directed his mind to the rule that the plaintiff must succeed on the strength of his own case and not on the weakness of the defendant’s.”
Counsel for the appellant, however, argued the first ground only and submitted that there was no jurisdiction in the Court to give judgment for the plaintiff on his Statement of Claim and in default of filing of Statement of Defence as the High Court (Civil Procedure) Rules W.R.L.N. 293 of 1958 give no such jurisdiction to the Court.
The Supreme Court, in its judgement, confirmed the applicability of the default provisions of the rules of the High Court of Western Region and held as follows:
“We agree that the Rules do not specifically make provisions similar to Order 27Rule 11 of the Supreme Court Rules in England, which read as follows:
“In all actions, other than those mentioned in the preceding Rules of this Order and actions against the Crown, the plaintiff may, if the defendant does not within the time allowed for that purpose deliver a defence, apply for judgment by motion or summons, and on the hearing of the application the Court Judge shall give such judgment as the plaintiff appears entitled to on the Statement of Claim” (Rule 10 of Order 27, relates to Probate and Admiralty actions).”
Order 35, rule 10 of the Western Region High Court (Civil Procedure) Rules
“Where no provision is made by these rules or by any other written laws, the procedure and practice in force for the time being in the High Court of Justice in England, shall so far as they can be conveniently applied, be in force in the Court, provided that no practice which is inconsistent with these rules shall be applied”
The Supreme Court in dismissing the Appeal and affirming the Judgment of the lower Court granting the Declaratory Judgement as claimed, thereafter held, as follows:
“The plaintiff’s Statement of Claim contained averments that the land in dispute was granted to him by the Oni of Ife, who also granted a portion of land to the defendant; that following a boundary dispute which arose between the plaintiff and the defendant the Oni of Ife sent two Chiefs to demarcate the boundary between the parties and Peregun trees were planted accordingly to mark the boundary and that after the demarcation of the boundary the defendant continued to lay claim to the plaintiff’s land. As the defendant failed to deny these allegations of the plaintiff, we think that the provisions of the Western Region High Court Rules would be rendered ineffective if Order 27 rule 11 of the Rules of the Supreme Court, England were not applied, for it would mean that even though no defence has been filed in answer to material averments by the plaintiff, the Court would still be bound to hear evidence as if no Statement of Claim has been filed. This would also reduce the Rules and Practice of pleadings to absurdity. We are of the opinion that the learned trial Judge was right in giving judgment for the plaintiff and that there is no substance in the appeal”.
Most unfortunately, Adedire Ogunleye vs. Gabriel Arewa[89] has never been cited nor considered in any of the cases that have gone before the Supreme Court on this subject, including the cases of Bello vs. Eweka[90], Motunwase v. Sorungbe[91], Okedare vs. Adebara[92], Quo Vadis Hotels and Restaurants Limited v. Commissioner of Lands Midwestern State & Others[93], Agbaje v. Agboluaje[94] (supra) and Fabunmi v. Agbe[95] (supra) and the several other cases where this troubling proposition of law has been applied.
Accordingly, it is our contention that all the cases where the Supreme Court has decided that a declaratory judgment cannot be granted upon default of defence at the least, must be regarded as having been decided per incuriam and the Supreme Court should not hesitate at the earliest opportunity to depart from them.
We submit with utmost respect, that the Supreme Court case of Adedire Ogunleye V Gabriel Arewa[96]is the binding Supreme Court decision on the subject which should have been followed since and ought now to be followed.
Attempts to water down the effects of the rule
It now remains to consider, how in more recent times, some of our justices have creatively attempted to ameliorate the obvious injustice of relying on the case law exemplified by the Wallensteiner v. Moir[97]and Bello v Eweka[98]and the cases that followed them.
Some of the Appellate Court Justices have sought to delimit the application of the proposition that a declaratory Judgment cannot be granted upon admission of the claim of the claimant by the other party or without the claimant leading oral evidence, in support of his claim or even in a case where the defendant or the adversary did not file a defence to the claim.
In Fed Mil Govt v. Sani (No 2)[99] (the Court of Appeal had considered the nature and the extent of the application of the rule.
It is pertinent to consider the facts of the case.
The facts of that case were that on the 31st of March, 1988, 5,000 metric tonnes of wheat flour arrived at the Apapa Port, Nigeria in the Nigerian Vessel “M.V. Folawiyo”. The cargo was consigned to the plaintiff/respondent, a businessman and a citizen of the Republic of Niger. According to the plaintiff, the wheat flour was imported through him by the Government of the Republic of Niger. It was to be transported by road-truck to the Niger Republic. He had earlier received approval of the Federal Government that the commodities could be off-loaded in Nigeria either at Port Harcourt or Calabar Ports. However, due to logistic reasons it became necessary to have the consignment discharged at the Apapa Port or the Tin-Can Island Port, Lagos.
The Nigeria Ports Authority refused to allow the plaintiff to remove the consignment of 5,000 metric tonnes from the Apapa Port on the ground that there was an instruction from the office of the Chief of General Staff that the wheat flour should not be delivered to the plaintiff. When all efforts, including diplomatic intervention by the Ambassador of the Republic of Niger, to retrieve the consignment failed, the plaintiff filed an action by writ of summons on the 18th day of May, 1988 claiming, inter alia, that the purported seizure, confiscation or takeover of the 5,000 metric tonnes of wheat flour by the defendants and or their servants or agents is unlawful. The plaintiff also sought an injunction restraining the defendants from disposing of, selling or otherwise dealing with any of or all the said 5,000 tonnes of wheat flour Finally, the plaintiff sought an order compelling the defendants to release and deliver the said 5,000 tonnes of wheat flour to him.
The plaintiff later sought and filed a motion on notice on the 30th of May, 1988 for an order amending the writ of summons and on the same day filed his statement of claim. In his writ of summons and statement of claim, the respondent had claimed as follows:
1. A declaration that the purported seizure, confiscation take over the 5,000 metric tonnes of the Elephant flour (dessin) farin francaise (500KG) brand of wheat flour property of the plaintiff being or lying at the Government warehouse in Apapa, Lagos by the defendants and or their servants or agents is unlawful and illegal.
2. An order of injunction restraining the defendants, each and all of them their servants, agents, privies or anyone claiming for or through them from disposing of, selling or otherwise dealing with any or all of the said 5,000 tonnes of wheat flour.
3. An order compelling the defendants their servants or agents to release and deliver over the said 5,000 tonnes of flour to the plaintiff.”
The plaintiff also filed a summons for judgment pursuant to Order 10, Rule 1(a) and (c) of the High Court (Civil Procedures) Rules of Lagos State 1972. It was supported by an affidavit sworn to by the plaintiff verifying the cause of action as contained in the statement of claim and stating that the defendants had no defence whatsoever to the action.
The High Court gave Judgment to the plaintiff as claimed.
Being dissatisfied, the defendants appealed to the Court of appeal. At the Court of Appeal, the appellant had argued among others that the High Court ought not to have entered judgement in favour of the plaintiff (who is now the respondent) since his prayers included a declaratory relief without the respondent having called oral evidence since the court does not make declarations of right on admission or in default of defence without hearing evidence. The appellant’s counsel had relied essentially on the cases of. Bello v. Eweka[100] and Wallersteiner v. Moi[101].
The Court of Appeal in arriving at a decision on the point reasoned and held per Akpata (J.C.A. as he then was) as follows at page 635E-636A:
“In support of his submission, he relied on Wallersteiner v. Moi (1974) 3All E.R. 217 where the Court of Appeal in England was unanimous in holding that the court does not make declarations of right on admission or in default of defence without hearing evidence. Mr. Omotade argued that the type of evidence in contemplation is oral evidence. He also cited the case of Bello v. Eweka (1981) 1 S.C. 101 in which the Supreme Court adopted with approval, per Obaseki, J.S.C., the dictum in Wallersteiner v. Moir (supra). With due respect to the learned Principal State Counsel, I must say that there is a world of difference between “default of defence” which is governed by Order 24 Rule 2 of the Lagos State High Court (Civil Procedure) Rules 1972 and assertion by a plaintiff that a defendant has “no defence to the action” which is within the purview of Order 10. Learned counsel seems to regard the two phrases as meaning one and the same thing. They do not. The former relates to the failure of the defendant to file a defence even though he may have a defence to the action; while in the latter it is the belief of the plaintiff that the defendant has no defence to the action and that it is needless for him to file pleading, that is, a statement of defence. While in the former a judgment in default of defence may be set aside by the trial Judge, in the latter if the defendant cannot show cause against summons for judgment by affidavit or upon being examined upon oath and judgment is entered against him, such judgment cannot be set aside by the same trial Judge except by the Appeal Court”
We would argue that , while the excerpts from the Judgment as quoted above, no doubt , show the depth of His Lordship’s appreciation of the intricacies which are triggered by the application of the principles involved on the point in issue, it is submitted that the reasoning of His Lordship as compelling as it is, still begs the question of whether any useful purpose would be served in insisting and in allocating valuable judicial time for the proof of a claim to which no defence has been filed or in respect of which the underlying facts have been admitted.
Indeed, if the claimant had sought an order directing that the defendant should perform a specific obligation without seeking any declaratory relief in the same claim, the claimant would be entitled to the order in question. This is hardly defensible. if the respondent who was the plaintiff at the High Court in the FMG V Sani No 2[102] for instance had instead of including the first prayer which was a prayer for declaration in his relief just claimed as follows:
1. An order of injunction restraining the defendants, each and all of them their servants, agents, privies or anyone claiming for or through them from disposing of, selling or otherwise dealing with any or all of the said 5,000 tonnes of wheat flour.
2. An order compelling the defendants their servants or agents to release and deliver over the said 5,000 tonnes of flour to the plaintiff”,
the issue of whether the plaintiff would have been entitled to judgment without leading oral evidence would not have arisen since no declaratory relief would have been sought.
This, it is submitted is sheer neat picking and it is reminiscent of the now much discredited days of yore when forms of action used to be determinative of the rights and remedies of litigants before the Court.
In other words, we submit that where a party makes an admission against his interest, the other party should be entitled to rely fully on such admission and take advantage of it and the Court ought to give full effect to its legal consequences without more.
In consideration of this, for instance, would it not be proper if the burden of proof is taken off the plaintiff in the circumstance where a defendant admits to indebted to the plaintiff in the sum claimed in a case where a party seeks declaratory relief as to indebtedness? Or a case where a party admits to a breach of the terms of a contract? Or an action for declaration of wrongful removal? Would it still be necessary for the burden of proof to completely rest on the plaintiff in these circumstances where the defendant makes an admission to relevant facts in issue or default failed to file a defence in default of pleadings, or indeed files a defence which in law is not a real or arguable defence to the Claim.
Should a Claim for a sum of money owed by a defendant be approached differently in terms of evidentiary proof from one formulated as a declaratory relief that the defendant is indebted to the Plaintiff in that same sum such that in the former judgment can be granted upon admission or default of pleadings whereas in the latter it cannot?
This certainly undermines justice in our respectful opinion.
Effect of the front loading regime under the Rules.
More recently, the Port Harcourt Division of the Court of Appeal in GE Int’l Operations Ltd v. Q-Oil & Gas Services[103] held that the resultant effect of the “front loading” requirements of the various High Court rules (in that case, the provisions of Order 3 Rule 3(1) of the Rules of the Court of Rivers state 2006 ) which require that all the documents and witness statement on oath of the plaintiff’s witnesses be attached to the Originating Process is that the plaintiff can now move the Court in an interlocutory application for final judgment in default of defence without having to prove his case at trial whether or not his claims involve declaratory or non-declaratory relief.
The Supreme Court affirmed this decision on appeal to that court. The case is reported as GE International Operations (Nig) Ltd v Q Oil and Gas Services Limited[104].
Interesting as the decision of both the Court of Appeal and the Supreme Court are on the point and specifically on the status of the witness statement on oath which the plaintiff is obliged to file along with his Originating Process, subsequent decisions of the Supreme Court have suggested that until such witness statement is adopted by the deponent of the witness statement, it cannot be regarded as a witness statement which can be used.
Even in this new dispensation of front loading processes, why should a plaintiff not be free and able to file and obtain an interlocutory judgement on default of pleadings or admissions without a trial and the requirement to have the witness statement first adopted to prove his case?
In our respectful view, such a Plaintiff ought to be entitled to judgment in the circumstances upon a proper consideration and application of the law.
Conclusion:
In conclusion, it is our contention that;
(i) The assertion that, a declaratory order or judgment cannot be granted in default of pleadings as reiterated by the Supreme Court in numerous cases has arguably never been part of Nigerian law.
Indeed, a contrary proposition as laid down by the Supreme Court of Nigeria as far back as the year 1960, in Ogunleye vs. Arewa[105]that a declaratory order or judgment can be granted by the Court default of the defendant to file a defence has always been the law on the subject.
(ii) An admission of the Claim or part of the Claim should equally entitle a Plaintiff/ Claimant to a declaratory judgment in whole or an interlocutory judgment for such part of the claim as has been unequivocally admitted
(iii) Since at least the case of Okebola & Ors V Molake[106]the Supreme Court had established that the Evidence Act and the Rules of Pleading are applicable in cases seeking Declaratory Reliefs, including land disputes and that where a rival party in such a claim, admits the other party’s ownership of a property, full effect ought to be given to that admission and its legal consequences.
(iv) That all the subsequent Supreme Court cases that appear to decide or have decided to the contrary, of the decisions in Ogunleye V Arewa[107] and Oke-BolaV Molake[108], where these latter cases were neither referred to nor considered, must be regarded as having been decided per incuriam and lack binding authority.
(v) The dissenting Judgment of Tobi JSC in Akaninwo v. Isirim[109] which distinguishes cases on declaratory reliefs as to the interpretation of Statute ie as to an issue of law, from that as to individual rights, establishes better judicial principles and ought to be followed in its appropriate context.
(vi) The majority decision of the Supreme Court in Okoye V. Nwankwo[110] ( 2014) which held that where from the state of pleadings, in a claim for declaratory reliefs , there is an admission of a fact in issue by the defendant , the onus of proof of the fact in issue is on the defendant, and not the claimant , and that it is the defendant that should in the circumstances first start to give evidence is merely a restatement of the correct position of the law on the subject.
(vii) That the Supreme Court which has repeatedly misconstrued and misconceived the law, and contributed to a considerable entanglement in legal understanding in this area of the law, ought to intervene at the earliest opportunity to provide clarity and resolve the existing confusion, definitively.
