KANO STATE GOVT & ANOR v. KASMAL PROPERTIES LTD (2022)

KANO STATE GOVT & ANOR v. KASMAL PROPERTIES LTD

(2022)LCN/16982CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, May 12, 2022

CA/L/1343/2018

Before Our Lordships:

Onyekachi Aja Otisi Justice of the Court of Appeal

Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal

Peter Oyinkenimiemi Affen Justice of the Court of Appeal

Between

1. KANO STATE GOVERNMENT 2. ATTORNEY GENERAL OF KANO STATE APPELANT(S)

And

KASMAL PROPERTIES LIMITED RESPONDENT(S)

RATIO

WHETHER OR NOT AVERMENTS CONTAINED IN PLEADINGS WHICH NO EVIDENCE IS ADDUCED ARE DEEMED ABANDONED

I consider it to be well settled that averments contained in pleadings on which no evidence is adduced, are deemed abandoned. See Enugu Civil Service Commission v Agu Geofrey (2006) LPELR-7638(CA). Pleadings do not constitute evidence. This is trite. A defendant who does not give evidence in support of his pleadings or in challenge of the evidence of the claimant is deemed to have accepted the facts adduced by the claimant, notwithstanding his general traverse. See Federal Capital Development Authority v. Naibi (1990) LPELR-1262(SC), Bua v. Dauda (2003) LPELR-810(SC), Inakoju & Ors v. Adeleke & Ors (2007) LPELR-1510(SC). Pleadings without evidence to support it are worthless. See Cameroon Airlines v. Otutuizu (supra), (2011) LPELR-827(SC); Ifeta v. S.P.D.C. Nig. Ltd (2006) LPELR-1436(SC).
Thus, where evidence given by a party to any proceedings was not controverted or challenged by the opposite party who had the opportunity to do so, it is always open to the Court seised of the proceedings to act on the unchallenged evidence before it.

See Omoregbe v. Lawani (1980) LPELR-2655(SC), Ifediora & Ors v. Okafor & Ors (2019) LPELR-49518(SC), Bronwen Energy Trading Ltd v. Oan Overseas Agency (Nig) Ltd & Ors (2022) LPELR-57306(SC). It is settled law that where, in a civil case, the party offers no evidence in defence of the case of the claimant, the burden placed on the claimant is minimal, since there is no evidence to challenge the case of the claimant. In the absence of any evidence to put on one side of the imaginary scale in a civil case, the claimant can use the unchallenged evidence to establish his case. See Nwabuoku v. Ottih (1961) LPELR-25029(SC), Chami v UBA Plc (2010) LPELR-841(SC), Bua v. Dauda (supra), Adewuyi v. Odukwe (2005) LPELR – 165(SC), SPDC (Nig) Ltd v. Edamkue & Ors (2009) LPELR-3048(SC). PER OTISI, J.C.A.

THE NATURE OF DECLARATORY RELIEF

Expounding on the nature of a declaratory relief, the Supreme Court, per Ariwoola, JSC in U.T.C. (Nig) Plc v. Peters (2022) LPELR-57289(SC) at page 10, said:
“Declaratory claims are said to be invitations to the Court to make pronouncement on the legal position of a state of affairs and it is by itself not enforceable in law. Declaratory judgment therefore is a remedy for determination of a justifiable controversy where the plaintiff is in doubt as to his legal rights. It is granted as a judicial discretion only in circumstances in which the Court is of the opinion that the party seeking it is entitled, when all facts are taken into account.” PER OTISI, J.C.A

THE POSITION OF LAW ON THE FUNDAMENTAL REQUIREMENT OF A DECLARATORY RELIEF

A fundamental requirement of a declaratory relief is that the claimant must satisfy the Court that he is entitled in law to the relief claimed. Therefore, a declaratory relief will be granted where the claimant is entitled to relief in the fullest meaning of the word; Chukwumah v. Shell Petroleum (Nig) Ltd (1993) LPELR-864(SC). It follows that the success of a declaratory relief depends entirely on the strength of the claimant’s own case, and not on the weakness of the defence, if any, although the claimant may take advantage of the defendant’s evidence, where it supports his case, after he might have proved his case as required by law. The Supreme Court, per Peter-Odili, JSC in Adamu v. Nigerian Airforce & Anor (2022) LPELR-56587(SC) at page 13, emphasized that:
“It needs be brought to the fore that declaratory reliefs are not granted based on the lack of credible evidence by the defence but on the convincing, satisfactory and credible evidence by the claimant. Assuming that the Respondents’ evidence were not satisfactory enough, that is not a pointer that the declarative reliefs should be granted.” (Emphasis mine). PER OTISI, J.C.A

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): The subject matter of this appeal is property situate at No. 1228, Bishop Oluwole Street, Victoria Island, Lagos. It formally served as the liaison office of Kano State Government in Lagos State until it was leased out to Lexon Properties Ltd by the Kano State Government. At the expiration of the lease, the Appellants had difficulties ejecting Lexon Properties Ltd from the premises as it did not surrender vacant possession, as demanded. The property then began to serve as abode for miscreants and other persons of questionable character.

In view of these difficulties, the Appellants, by a letter dated 19/7/2012, Exhibit C1, appointed the Respondent to manage the property and ensure that vacant possession of the property was delivered to it. The letter made no mention of the fees payable to the Respondent by the Appellants for this service. The Respondent averred that this was because of an agreement between the parties that the Appellants will give the Respondent a long lease of the property for 25 years after vacant possession of the premises must have been secured by the Respondent.

By 27/3/2014, the Respondent secured vacant possession of the property. However, the Appellants now demanded for vacant possession of the property from the Respondent. The Respondent, acting on their earlier agreement, averred that they forwarded a draft Lease Agreement to the Appellants with five United Bank of Africa cheques for the total sum of ₦80,000,000 as rent for the initial period of 5 years of the lease. But the Appellants did not execute the said Lease Agreement, and did not respond to the written demand of the Respondent. The Respondent also averred that it spent N50 million in mobilizing the police to evict the illegal occupants of No 1128, Bishop Oluwole Street, and to pay legal fees to Messrs TRLPLAW, who handled the legal matters in relation to the eviction of the illegal occupants, including prosecuting Suit No. FHC/L/CS/1048/2012 at the Federal High Court, Lagos. The Respondent then commenced the Suit leading to this appeal at the High Court of Lagos State, Coram I.O. Harrison, J., claiming reliefs set out in the Amended Statement of Claim of 14/11/2016, pages 113- 118 of the Record of Appeal, as follows:
(i) A Declaration that the Claimant having procured vacant possession of the 1st Defendant’s property located at 1228 Bishop Oluwole Street, Victoria Island, Lagos for the 1st Defendant on the basis of the promise made by the Defendants that they would execute a deed of lease of the property for a period 25 years in favour of the Claimant on an agreed rent, the Defendants are estopped from resiling from this promise and must execute a deed of lease of the said property in favour of the Claimant for a period of 25 years at the agreed rent.
(ii) A Declaration that the Claimant, having been put into possession of the property by the Defendants upon the receipt of its cheques, draft lease agreement and having taken benefit of funds expended by the claimant to evict illegal occupants and miscreants from the property, has acquired a valid and enforceable equitable interest in the property at 1228 Bishop Oluwole Street, Victoria Island, Lagos for the Defendants which may be enforced by an order of specific performance involving the transfer of the corresponding legal interest by the execution of the deed of lease of the property for a period of 25 years in favour of the Claimant at the agreed rent.
(iii) An Order directing the Defendants to specifically perform their obligation under the draft lease agreement between the parties by executing a deed of lease of the property at 1228 Bishop Oluwole Street, Victoria Island, Lagos for a period of 25 years in favour of the Claimant within 7 (seven) days of the judgment of this Court.

At the trial, the Respondent led evidence in support of its claims, with the Appellants cross-examining the Respondent’s witnesses. The Appellants, on their part, elected not to call evidence. Upon consideration of the facts and evidence adduced, the trial Court, on 7/6/2018 entered judgment in favour of the Respondent, against the Appellants. Aggrieved by the judgment of the lower Court, the Appellant lodged this appeal by Notice of Appeal filed on 7/9/2018 on five grounds of appeal, pages 231 – 237 of the Record of Appeal.

Briefs of Argument were filed, pursuant to the Rules of this Court. The Appellants’ brief was filed on 5/11/2018. The Respondent’s brief was filed on 12/3/2021, while the Appellants’ reply brief was filed on 2/2/2022. All the briefs were deemed properly filed and served on 21/3/2022.

At the hearing of the appeal on 21/3/2022, Eyitayo Fatogun, SAN, who appeared with Solomon Okosun, Esq., for the Appellants, adopted the Appellants’ briefs, and urged the Court to allow the appeal. Prof Taiwo Osipitan, SAN, who appeared with Tola Akindun, Esq., for the Respondent, adopted the Respondent’s brief, and urged the Court to dismiss the appeal.

The Appellants abandoned ground 1 of the grounds of appeal, which is hereby struck out. Two issues for determination were distilled from four grounds of appeal, as follows:
1. Whether the learned trial Judge was not wrong when he refused, failed and neglected to consider and resolve the issue of the legal personality and the locus standi of the claimant before the Court. (Grounds 2 and 3 of the grounds of appeal).
2. Whether the learned trial Judge was right in granting all the declaratory reliefs and order of the Respondent on the ground that the Appellants abandoned their statement of defence. (Grounds 4 and 5 of the grounds of appeal).

For the Respondent, the issues for determination were framed in this manner:
i. Whether or not learned trial Judge rightly resolved the issue of legal personality and locus standi of the Respondent.
ii. Whether or not the learned trial Judge was right in entering judgment in favour of the Respondent.

The issues for determination seek the same resolutions, though they were framed in consideration of respective positions. I shall adopt the issues as framed by the Appellants in considering this appeal. The issues, being entwined, shall be considered together.

Arguments on issues 1 and 2
The Respondent had pleaded in paragraph 1 of the Amended Statement of Claim that:
“The claimant is a Limited Liability Company engaged in the business of property development and having its offices at 33 Sanusi Fafunwa Street, Victoria Island, Lagos.”

The Appellants denied the pleading and put the Respondent to the strictest proof. The issue of the Respondent’s Registration Certificate was also made an issue during cross-examination, but the said certificate was not tendered. Two companies, Kasmal Group and Kasmal Properties Ltd, which claimed to be incorporated by Corporate Affairs Commission were involved in the relationship with the Appellants. There was no evidence from the Respondent’s witnesses on the relationship between Kasmal Group and the Respondent. It was submitted that the Respondent being a non-natural person had the obligation when instituting an action in Court to plead and present its certificate of incorporation. This cannot be presumed, unless it is expressly admitted. In the instant case, the certificate of incorporation was not frontloaded. Under cross-examination, the witness for the Respondent said the certificate was in the office. The provisions of the Companies and Allied Matters Act (CAMA), which includes the certificate of incorporation, as required by the Act cannot be waived; citing Olufeagba v Abdul-Raheem (2009) 18 NWLR (PT. 1173) 384 at 438-439, Goodwill & Trust v Witt & Bush Ltd (2011) All FWLR (PT 576) 517, Zenith Plastic Ind. Ltd v Samotech Ltd (2008) ALL FWLR (PT 427) 176. By its failure to produce the certificate of incorporation, and having regard to the provisions of Sections 36 and 679 of CAMA, the Appellant had failed to show its locus standi to maintain the action.

On issue 2, the Appellants submitted that the Respondent’s declaratory claims were anchored on three legs, upon which an order of specific performance was sought. However, in spite of the deficiency in the evidence adduced, the learned trial Judge granted all the claims of the Respondent as proved, because the Appellants did not lead any evidence. The learned trial Judge failed to note that in all declaratory claims, the claimant has the obligation to establish and prove its claims. A claimant cannot rely on the weakness of the defendant. Where the defendant has failed to file a defence, or if there were mere admissions, it will not justify the granting of a declaratory relief, citing Gaji v Paye (2003) 8 NWLR (PT 823) 603 – 604, Daggash v Bulama (2004) 14 NWLR (PT 892) 241, Nwokidu v Okani (2010) 3 NWLR (PT 1181) 362 at 390 – 391, Odofin v Ayoola (1984) 11 SC 72 at 119.

The learned trial Judge had made definite findings of fact elicited under cross-examination. He also found that the evidence elicited under cross-examination had debunked and discredited the evidence of the Respondent. It was submitted that in this event, the trial Judge had no further duty to weigh evidence that was discredited.

The Court was urged to note that the declarations and orders made by the trial Court were on the basis of holding that the Appellants have abandoned their defence to the action. That the law is settled that a defendant has no duty to lead evidence where the claimant’s witness evidence on oath has been discredited and made useless, the claims of the claimant would then fail. Where a party through cross-examination, succeeds in destroying the case of its opponent, such evidence is sufficient for the Court in determination of the case.

The Appellant referred to the facts as found by the learned trial Judge to have been extracted under cross-examination, and argued that there was no lawful and credible evidence before the lower Court to affirm the claim of oral agreement, as claimed by the Respondent. The content of Exhibit C1, the letter for the recovery of the premises from the recalcitrant tenant and to deliver immediately to the Appellants, cannot be amended by oral evidence. The Court was urged to dismiss the first declaratory reliefs as not proved.

On the issue of the Respondent forwarding a draft lease agreement with a cheque of N80,000.000.00 being rent for the first five years, the learned trial Judge found that the Appellants discredited the Respondent’s witness with these facts:
a) There was no proof of the cheques which were allegedly paid or given to the Appellants, as they alleged to have been lost. How they were lost, when, how and what steps were taken to recover it was not shown to the Court throughout hearing.
b) There was no evidence before the trial Court of any payment either to the police or to a lawyer.
c) There was no covering letter or correspondence sending the draft agreement/cheque to the Appellants.
d) The Respondent had no acknowledgement of letter dated 6/10/2010, Exhibit C5, which was a letter, alleged to have been written to the 1st Appellant by the Respondent, expressing an interest to lease the property in issue.
e) There was no receipt for the sum of N50,000,000.00, part of which was alleged to have been paid to TRLPLAW.

The Appellants submitted that there was no credible evidence before the trial Court to enable a conclusion that the Respondent paid rent in line with the alleged draft lease agreement alleged to have been forwarded to the Appellants. That the holding of the trial Judge that the evidence of the Respondent’s witnesses in this regard had not been challenged was perverse and should be set aside.

It was further contended that there was no credible evidence to support the grant of the relief for specific performance. The only agreement between the parties was for the recovery of the property, Plot 1128 Bishop Oluwole Street, Victoria Island, Lagos. There was no proof of any other agreement for the lease of the said property to the Respondent. There was no proof that N80, 000,000.00 was paid as rent for the first five years. The Court was urged to set aside the finding of the lower Court in this regard. The Court was finally urged to resolve the issues in favour of the Appellants and to allow the appeal.

The Respondent, in reply, referred to paragraph 1 of its Amended Statement of Claim, in which it pleaded, page 113 of the Record of Appeal:
“The Claimant is a Limited Liability Company engaged in the business of property development and having its offices at 33, Sanusi Fafunwa Street, Victoria Island, Lagos.”

In response to the above averment, the Appellants gave a general denial in paragraph 1 of their Amended Statement of Defence, page 106 of the Record of Appeal. It was argued that the Appellants’ pleading was a general traverse. There was no frontal denial of Respondent’s legal personality or status by the Appellants. A general traverse, not being a denial, the Appellants were wrong to contend that issues were joined by the parties on legal personality/status of the Respondent. That the reliance on Sections 36 (6) and 679 (3) of the Companies and Allied Matters Act by the Appellants was misplaced. The provisions do not apply where incorporated status of the Company has not been frontally challenged through proper joinder of issues by the parties. Reliance was placed on the decisions in: Eyo & Ors v Okpa & Anor (2009) LPELR-11903 (CA), Eke v Okwaranyia (2001) 12 NWLR (Pt.726) 181 at 186, Onuoha & Ors v Nwachukwu & Ors (2018) LPELR- 46268 (CA). That on the state of the pleadings, issues were not joined by the parties on the legal status/personality of the Respondent. It was further submitted that the Appellants, who elected not to call evidence, effectively abandoned their Amended Statement of Defence of 21/11/2016. The effect of abandonment of pleadings is that the pleadings can no longer be relied on and the facts pleaded therein go to no issue, citingE.B. Plc, Awo omamma v. Nwokoro (2012) 14 NWLR (Pt. 1321) 488 at 508, U.B.N. Ltd. v. Jimba (2001) 12 NWLR (Pt. 727) 505 at 518, Manson v H.E.S (Nig.) Ltd. (2007) 2 NWLR (Pt. 1018) 211 at 233-234, Akpan v R.T.Q.I. Church (2001) 15 NWLR (Pt. 736) 328 at 349-350, Owners of M.V Gongola Hope v Smurfit Cases Ltd (2007) ALL FWLR (Pt.388) 1005.

It was submitted that in the case of Goodwill & Trust v Witt & Bush Ltd (supra) relied on by the Appellant, the issue of legal personality and production of certificate of incorporation were directly in issue between the parties having regard to the state of pleadings. Further, the parties therein adduced evidence, unlike in the instant case where the Appellants abandoned their pleadings and elected not to call evidence.

Similarly, in the case of Zenith Plastic Ind. Ltd v Samotech Ltd (supra), a fuller context of the judgment would show its decision that the obligation to tender a certificate of incorporation would only arise where issues have been joined by the parties on it, which is not the case herein. The Court was urged to hold that the facts of both cases were distinguishable and inapplicable to the instant appeal.

It was submitted that, contrary to the Appellants’ position, CW1, Evaristus Aloko, under cross-examination, stated that the Respondent was part of the Kasmal Group of Companies. The Certificate of Registration as Contractor in Kano State, Exhibit C3, was issued in favour of the Kasmal Group to which the Respondent is a subsidiary. All correspondences between the Appellants and Respondent after the issuance of Exhibit C3, the Certificate of Registration, were between the Respondent, Kasmal Properties Limited, and the Appellants. Exhibit C1 is the letter of instruction issued by the Appellants in favour of the Respondent and not Kasmal Group. It was submitted that the Appellants were estopped from contending that the Respondent lacked the locus standi to commence this action in the lower Court, citing Section 169 of Evidence Act, 2011. Tika Tore Press v Abina (1973) 12 SC. 67; Anaeze v Anyaso (1993) 5 NWLR (Pt. 291) 1 at 33.

In reply to issue 2, the Respondent had called two witnesses, CW1 and CW2, while the Appellants adopted a strategy of not calling any evidence in support of their pleadings. The Appellants’ pleadings were, consequently, deemed abandoned, and the Respondent was only required to discharge a minimal burden of proof. It was submitted that the Appellants, having adopted a legal strategy of failing to controvert and challenge frontally the evidence of the Respondent, were bound to sink or swim with their decision not to call evidence, citing Ibori v Agbi & Ors (2004) LPELR-1402 (SC), Moses v FRN (2019) LPELR-47747 (CA).

It was argued that the lower Court rightly recognised that the claim of the Respondent was rooted in equity especially that Respondent had obtained vacant possession of the property, which was part of the contract between the Appellants and Respondent. Consequently, learned trial Judge narrowed down the issue between the parties as follows:
‘‘The main issue before the Court is whether there is a contract between the parties and whether same is enforceable by the grant of the Claimant’s claim.’’ (page 219 lines 15 -16 of the Record of Appeal).

The learned trial Judge, having regard to the oral and documentary evidence before her, held that there was indeed a contract between the parties.

The Respondent relied on the findings of fact made by the learned trial Judge, which were borne out of the evaluation of the oral and documentary evidence before her to submit that the findings were credible, cogent and ought not to be disturbed by this Court. The evaluation by the learned trial Judge of the evidence adduced by the Respondent showed that the lower Court did not find that the evidence of Respondent’s witnesses to be manifestly unreliable. Rather the Court was satisfied that Respondent had discharged its burden of proof, even when all that was required of the Respondent was minimal proof. The Appellants, having placed nothing on the other side of the scale of justice, the learned trial Judge was right to rely and act on the unchallenged and uncontroverted evidence of the Respondent, citing Cameroon Airlines v Mike E. Otutuizu (2011) 1 SCM 70 at 92, per Rhodes-Vivour, JSC, Military Governor of Lagos State & Ors v Adebayo Adeyiga & Ors (2012) SCM 183 at 211 per Adekeye, JSC.

The Respondent further submitted that the address of Counsel is not a substitute for evidence. The evidence of CW1 and CW2, contained in witness depositions dated 14/11/2016, reproduced at pages 120-124 and 125 – 127 of the Record of Appeal, were unchallenged. The Appellants had the opportunity of adducing evidence in rebuttal of these material facts/allegations but adopted a strategy of not calling evidence. Appellants’ Counsel failed to ask pertinent questions from CW2 about the said meeting of 18/7/2012 held at the 2nd Appellant’s office in Kano State, where the Respondent agreed to assist the Appellants obtain vacant possession of the property upon the condition that the Appellants would execute a Deed of Lease for the property for 25 years. That CW2 also testified that it was further agreed at the said meeting that the lease would be for a period of 25 years with the sum of N80,000,000.00, representing rent for the first five years, while the remaining 20 years would be paid in four equal instalments after the expiration of the first five years. That the next day after the said meeting, the Appellants issued a letter dated 19/7/2012 (Exhibit C1) signed by Hafsat Yahaya Sani for the 2nd Appellant. Under cross-examination, CW2 had confirmed that she was present at the said meeting. The learned trial Judge was entitled to rely on the unchallenged and uncontroverted evidence of the Respondent’s witnesses in entering judgment in favour of the Respondent, as address of the Appellants in their Brief of Argument was not a substitute for evidence which ought to have been adduced at trial, citing Chima v. Ezea (2009) 2 NWLR (Pt. 1125) 263 at 380, Vinz Int’l (Nig.) Ltd. v. Morohundiya (2009) 11 NWLR (Pt. 1153) 562 at 583.

The Respondent submitted that it successfully established that it is entitled to the order of specific performance. The Respondent’s acts of obtaining vacant possession of the subject property, issuance of cheques and the provision of a draft Lease Agreement pursuant to the Appellant’s promise to execute a deed of lease of the property, created an agreement/contract upon which the Respondent acquired a valid and enforceable equitable right against the Appellants. Hence, Respondent’s claim at the lower Court was rooted in equity. An order of specific performance directs a party to an agreement to perform its obligation under the agreement. The objective is to “place contracting parties in the position actually contemplated by the contract performance”, citing Covell Lupton & Forder Principles of Remedies. Lexis Nexis Butterworths 5th Ed. 2012 at 240. Further reliance was placed on Seven Network (Operations) Ltd v Warburton (No. 2) (2011) NSWC 386, BFIG Corp v BPE (2012) 18 NWLR (Pt.1332) at 244, ACMEL (Nig.) Ltd v F.B.N. Plc (2014) 6 NWLR (Pt. 1402) 158 at 184-175.

The Respondent acknowledged that the grant of a decree of specific performance is discretionary, granted on the basis of settled legal principles, citing Kodilinye in Introduction to Equity in Nigeria at pages 158 – 159. It was submitted that the Respondent, having performed its side of the contract, the learned trial Judge rightly exercised her discretion in favour of the Respondent by compelling the Appellants to execute the Deed of Lease for a period of 25 years in furtherance of their promise to the Respondent, on the basis of which the Respondent performed its obligation. Reliance was placed on the decisions in Onayemi v Idowu (2008) 9 NWLR (Pt. 1092) 306 at 334, Mba – Ede v Okufo (1990) 2 NWLR (Pt. 135) 787 at 797. The Court was urged to resolve the issue in favour of the Respondent.

In the reply brief, the Appellant restated that the identity and the registration of the Respondent was in issue. The Respondent who had ample opportunity to produce the certificate of registration, failed and refused to do so. That, assuming without conceding that the document exists, it was a case of withholding evidence, citing Lawal v. Magaji & Ors (2009) LPELR-4427(CA). The Court was urged to invoke Section 167 (d) of the Evidence Act 2011 in presuming the existence of the documents, which if produced at that period will not favourable to the Respondent.

On the failure to call witnesses, it was submitted that answers obtained from a witness under cross-examination, whether witness of the claimant or of a co-defendant in the case, is as good and admissible as the evidence obtained under examination in chief, citing INEC v Ifeanyi (2010) 1 NWLR (PT. 1174) 98 at 118, Adeosun v Governor Ekiti State (2012) 4 NWLR (PT. 1291) 581 at 600, Gaji v Paye [2003] 8 NWLR (Pt 823) 603-604, Daggash v Bulama [2004] 14 NWLR (PT 892) at page 241.

The Respondent referred to evidence elicited under cross-examination.

The Court was again invited to have regard to the fact that the entire reliefs as claimed by the Respondent were declaratory in nature, which were not to be granted on the perceived weakness of the case of the adverse party, citing Chime v Ezea (2009) 2 NWLR (PART 1125) 163, Nwokidu v. Okani (2010) 3 NWLR (Pt 1181) 362 at 390 – 391, Agbaje v Fashola & Ors (2008) LPELR-3648(CA), Alhaji Adebayo Akande v Jimoh Adisa & Anor. (2012) 8 SCM 56 at 80. The Court was urged to allow the appeal.

Resolution
Central to the resolution of this appeal, to my mind, are two questions: what happens when a defendant decides not to give evidence on its pleadings, and what would be the standard of proof for a declaratory relief in that circumstance.

At the conclusion of the case for the Respondent, learned Counsel notified the trial Court, page 207 of the Record of Appeal:
“We will not call any witness. We shall rely on the Claimants(sic) evidence in particular that extracted during cross-examination.”

I consider it to be well settled that averments contained in pleadings on which no evidence is adduced, are deemed abandoned. See Enugu Civil Service Commission v Agu Geofrey (2006) LPELR-7638(CA). Pleadings do not constitute evidence. This is trite. A defendant who does not give evidence in support of his pleadings or in challenge of the evidence of the claimant is deemed to have accepted the facts adduced by the claimant, notwithstanding his general traverse. See Federal Capital Development Authority v. Naibi (1990) LPELR-1262(SC), Bua v. Dauda (2003) LPELR-810(SC), Inakoju & Ors v. Adeleke & Ors (2007) LPELR-1510(SC). Pleadings without evidence to support it are worthless. See Cameroon Airlines v. Otutuizu (supra), (2011) LPELR-827(SC); Ifeta v. S.P.D.C. Nig. Ltd (2006) LPELR-1436(SC).

Thus, where evidence given by a party to any proceedings was not controverted or challenged by the opposite party who had the opportunity to do so, it is always open to the Court seised of the proceedings to act on the unchallenged evidence before it.

See Omoregbe v. Lawani (1980) LPELR-2655(SC), Ifediora & Ors v. Okafor & Ors (2019) LPELR-49518(SC), Bronwen Energy Trading Ltd v. Oan Overseas Agency (Nig) Ltd & Ors (2022) LPELR-57306(SC). It is settled law that where, in a civil case, the party offers no evidence in defence of the case of the claimant, the burden placed on the claimant is minimal, since there is no evidence to challenge the case of the claimant. In the absence of any evidence to put on one side of the imaginary scale in a civil case, the claimant can use the unchallenged evidence to establish his case. See Nwabuoku v. Ottih (1961) LPELR-25029(SC), Chami v UBA Plc (2010) LPELR-841(SC), Bua v. Dauda (supra), Adewuyi v. Odukwe (2005) LPELR-165(SC), SPDC (Nig) Ltd v. Edamkue & Ors (2009) LPELR-3048(SC).

In the light of this established position of the law, I do not see any real challenge to the corporate nature of the Respondent. Exhibit C1 was the letter dated 19/7/2012, by which the 1st Appellant engaged the services of the Respondent as its agent to manage the property in issue herein. This letter was not controverted. The Appellants dealt with the Respondent with the knowledge of its status as a limited liability company. The evidence of CW1 was that he did not have the Respondent’s certificate of incorporation with him in the Court, not that it did not exist. I agree with the learned trial Judge that, in the light of the unchallenged evidence of the Respondent on its status, and the fact that Exhibit C1 was not challenged, the status of the Respondent cannot be said to be in serious contention. This was unlike the case in Goodwill & Trust Investment Ltd & Anor v. Witt & Bush Ltd (supra), (2011) LPELR-1333(SC), relied on by the Appellants, in which the appeal revolved around the juristic personality of the appellants therein. I therefore resolve issue 1 against the Appellants and in favour of the Respondent.

As rightly pointed out by the Appellants, the three declaratory reliefs sought by the Respondent were premised on the following facts:
1) That it was appointed as an agent to manage the property of the Appellants at No. 1228 Bishop Oluwole Street, Victoria Island.
2) That there was a promise made orally that the Appellants would execute a Deed of Lease of the property for a period of 25 years in its favour at an agreed rent and,
3) That upon recovery of possession of the property from its former occupier (the Respondent’s tenant), the Respondent took possession, paid rent for the first five years, by cheque, which the Appellants were at liberty to cash, and forwarded a draft deed of lease agreement to the Appellants but it was not executed.

The Respondent thereupon sought specific performance of execution of the draft deed of lease in respect of the said property.

Expounding on the nature of a declaratory relief, the Supreme Court, per Ariwoola, JSC in U.T.C. (Nig) Plc v. Peters (2022) LPELR-57289(SC) at page 10, said:
“Declaratory claims are said to be invitations to the Court to make pronouncement on the legal position of a state of affairs and it is by itself not enforceable in law. Declaratory judgment therefore is a remedy for determination of a justifiable controversy where the plaintiff is in doubt as to his legal rights. It is granted as a judicial discretion only in circumstances in which the Court is of the opinion that the party seeking it is entitled, when all facts are taken into account.”
A fundamental requirement of a declaratory relief is that the claimant must satisfy the Court that he is entitled in law to the relief claimed. Therefore, a declaratory relief will be granted where the claimant is entitled to relief in the fullest meaning of the word; Chukwumah v. Shell Petroleum (Nig) Ltd (1993) LPELR-864(SC). It follows that the success of a declaratory relief depends entirely on the strength of the claimant’s own case, and not on the weakness of the defence, if any, although the claimant may take advantage of the defendant’s evidence, where it supports his case, after he might have proved his case as required by law. The Supreme Court, per Peter-Odili, JSC in Adamu v. Nigerian Airforce & Anor (2022) LPELR-56587(SC) at page 13, emphasized that:
“It needs be brought to the fore that declaratory reliefs are not granted based on the lack of credible evidence by the defence but on the convincing, satisfactory and credible evidence by the claimant. Assuming that the Respondents’ evidence were not satisfactory enough, that is not a pointer that the declarative reliefs should be granted.” (Emphasis mine).
That means, even in default of defence in respect of such a claim, the claimant must show that he is entitled to judgment. See Maja v. Samouris (2002) LPELR-1824(SC), Martchem Industries (Nig) Ltd v. M.F. Kent West Africa Ltd (supra).

The learned trial Judge found that, pages 218 – 219 of the Record of Appeal:
“The Court agrees that certain salient facts were elicited under cross-examination which if this was a claim in law as opposed to equity might have held water but this a claim in equity.
The facts are as follows:
(i) There was no other agreement save for the letter Exhibit C1 which authorized the Claimant to act as agent.
(ii) There was no proof of the cheques which were allegedly paid or given to the Defendants as they were alleged to have been lost.
(iii) The Claimant could not produce minutes of the meetings wherein any other issue was agreed to the parties.
(iv) The Claimant is still holding on to the property even after evicting the tenants.
(v) There was no evidence before the Court of any payment either to the Police or to a lawyer.
(vi) The Claimant was not the person allegedly registered by the Kano State Government.
(vii) There is no proof of the registration of the Claimant.
(viii) There was no covering letter or correspondence sending the draft agreement/cheques to the Defendants.
(ix) Claimant has no acknowledgment of letter dated 6th October, 2010, Exhibit C5.
(x) Claimant did not have a copy of the advert for the sale of the property which led to him filing the form (Exhibit C4).
(xi) Claimant did not have any order of Court mandating it to enter into the property to evict the tenants based on the Suit No. FHC/CS/1048/2012 which he instituted and expended part of the N50,000.00 (Fifty Million Naira) on.
(xii) There was no receipt of the sum or sums of N50,000,000 (Fifty Million Naira or any sum from TRLP partners.
(xiii) The N50 Million Naira never passed through any financial institution.
(xiv) The Claimant did not have a copy of the acknowledgement of the expression of interest form.
(xv) CW2 did not attend the meeting of 10th September, 2010 where she claimed it was discussed and agreed that the property will be given to the claimant.
(xvi) She also did not have the minutes of the meeting of the said date.

(xvii) That the claims of the Claimant are manifestly unreliable.”

By these findings the learned trial Judge clearly stated that, while she agreed that these facts were elicited under cross-examination if the Respondent’s claim was in law as opposed to equity, the said facts might have held water. But because the Respondent’s claim was in equity, the trial Court would not accord the findings any importance. Notwithstanding these interesting findings, including that the claims of the Claimant, the Respondent herein, are manifestly unreliable, the learned trial Judge went on to find and hold, page 220 of the Record of Appeal:
“The question is, Is there a valid contract between the parties herein? It is clear from the evidence before the Court that the contract between the parties was one that was partly oral and partly written, pursuant to a promise to lease the premises the Claimant undertook to recover possession by ejecting the occupants in the premises situate at 1228, Bishop Oluwole Street, Victoria Island, Lagos (as per letter Exhibit C1).
Exhibit C1 letter of authority only referred to the recovery of the premises there was no written reference to the understanding between the parties as regards the grant of a 25/30 year lease in favour of the Claimant.” (Emphasis mine).

Exhibit C1, the only written document between the parties, was reproduced at page 27 of the Record of Appeal. It reads:
“LETTER OF APPOINTMENT TO ACT AS AGENT FOR THE GOVERNMENT OF KANO STATE TO MANAGE PROPERTY NO. 1228 BISHOP OLUWOLE STREET VICTORIA ISLAND, LAGOS
I have been directed to inform you that the Government of Kano State hereby appoints you as its agent for the purpose of managing its property described as No. 1228 lying and situate at Bishop Oluwole Street Victoria Island, Lagos.
You have the authority of Kano State Government to ensure that vacant possession of the property in question is delivered to it immediately, please.
(signed)
Hafsat Yahaya Sani
Principal State Counsel
For Hon. Attorney General/Comm. for Justice.”

The learned trial Judge harped on the fact that the Appellants gave no evidence in proof of their case, which meant that the evidence for the Respondent was not controverted, and went on to hold, page 227 of the Record of Appeal:
“Exhibit C1 (the letter of authority) the Claimant was definitely appointed to recover possession and a letter was written to that effect which to the mind of the Court looking at the case wholistically tends to be believable as there was no mention of consideration in the said suit. Was the eviction process meant to be gratis – it is more plausible that there was this arrangement of a lease being granted even though the Court cannot understand why there was no attempt to put something down in writing by the Claimants.
It is trite that there was no other consideration on the face of the letter but the Claimants say the agreement to execute lease was the consideration that was why there was no other consideration stated on the face of Exhibit C1 dated 19th July, 2012.
…
The Court finds that the oral evidence proffered does not contradict or alter Exhibit C1. In fact it fills in the missing portion of what is the consideration? It is a separate collateral contract in line with Section 128 (1)(b) Evidence Act.”
Now, Section 128(1)(b) of the Evidence Act, 2011 provides:
(1) When a judgment of a Court or any other judicial or official proceeding, contract or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceeding or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence. Provided that any of the following matters may be proved-
…
(b) the existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, if from the circumstances of the case the Court infers that the parties did not intend the document to be a complete and final statement of the whole of the transaction between them;”
(Emphasis mine).

It seems to me that the learned trial Judge, with respect, engaged in conjecture and assumptions, to arrive at his conclusion on the transaction between the Appellants and the Respondent.

Fundamentally, a Court is restrained from reading into a document words that are not found therein. In Northern Assurance Co. Ltd v. Wuraola (1969) LPELR-25562(SC) at pages 10 – 11, the Supreme Court emphatically pronounced:
“It is trite law that in the construction of documents the primary rule is that effect should be given to the literal contents in their ordinary way as they appear on the documents and that anything which does not appear ex facie on such documents should NOT be imported into them.”
(Emphasis mine).
See also Union Bank Plc v Ozigi (1994) LPELR-3389(SC), Gana v SDP (2019) LPELR-47153(SC).
A Court cannot by conjecture fill in imagined blanks into any document. And, I use the words, imagined blanks, intentionally. In the first place, it must be restated with emphasis that a claimant must rely on the strength of his own case in seeking declaratory reliefs, more so in matters relating to land or leases, as found herein. See Osuji v Ekeocha (2009) LPELR-2816(SC), Matanmi & Ors v. Dada & Anor (2013) LPELR-19929(SC), Adamu V. Nigerian Airforce & Anor (supra). It is irrelevant that the defendant has failed to challenge the evidence of the claimant by abandoning his defence, or that the defendant’s defence is weak. A Court cannot fill in any blanks or gaps by speculation, conjecture or assumptions. See Orhue v. NEPA (1998) LPELR-2758(SC), Awolola v. Governor of Ekiti State & Ors (2018) LPELR-46346(SC).

The learned trial Judge acknowledged that, on the evidence adduced, the claims of the Respondent were manifestly unsupportable, but said it was a claim in equity, more so, when the Respondent had not proffered any evidence. But equity does not act in vain and should not be taken for granted. It must be buttressed or grounded on solid facts that would induce the Court to act in favour of the party seeking its aid. See Reichie v. Nigeria Bank for Commerce and Industry (2016) LPELR-40051(SC).
It is a settled principle of equity that where a person has given his word to another upon which that other has taken some material or substantial steps, equity will insist that the man should keep his word. See Owosho v Dada (1984) NSCC 568 at 580. In his concurring opinion in Adigun v. Ibadan North Local Govt (2016) LPELR-41385(CA) at page 36, Okoronkwo, JCA (of blessed memory) said:
“Since the days of Walsh vs. Lonsdale (1882) 21 Ch.D 9, the law treats agreement for a lease as good as a Formal Lease and so whenever there is a semblance of agreement particularly where supported by some consideration or act of part performance, the law since the intervention of equity will treat such transaction as a lease and will in appropriate case decree specific performance.”
In the instant appeal, however, there were no facts upon which equity could act in favour of the Respondent nor is there any law here in aid of which equity can act to grant the Respondent’s declaratory reliefs.

The learned trial Judge attempted to fill in imagined gaps in Exhibit C1 by speculating on the fact that the alleged oral agreement for the lease must have been the agreed payment for the eviction of the 1st Appellant’s tenant at No. 1228 Bishop Oluwole Street, since the eviction could not have been done at no cost to the Appellants. But it is speculative to conclude that a lease for 25 years must have been the agreed return for eviction of the Appellants’ recalcitrant tenant. On the flip side, it could also be speculated that the Respondent was otherwise compensated or paid separately for their services in evicting the said tenant.

Exhibit C1 made no reference to a further agreement, whether for a lease or otherwise. No minutes of the alleged meeting held on 18/7/2012 that CW2 said she attended where the alleged lease was agreed on, was tendered. There was nothing tendered to remotely show that any such agreement was made. A claim that there was an agreement for a lease of 25 years and the sum of N80,000,000.00 paid for the first five years, with absolutely no document in proof of such assertions, sounds completely farfetched to me. There was absolutely nothing to prove that the cheque alleged to have been issued for the amount of N80,000,000.00 was ever cashed. No statement of account of the Respondent was tendered in proof that such a huge amount left the account of the Respondent to the 1st Appellant. No cheque numbers were pleaded and cheque stubs tendered in proof that such cheques were at all issued. Further, as found by the learned trial Judge, there was absolutely nothing to prove that a kobo of N50 million, alleged to have been spent by the Respondent in evicting the tenant, was received anybody, including the Law Firm, TRLPLAW, nor was any record of how it was spent placed before the lower Court. There was absolutely nothing to show that the alleged N50 Million Naira passed through any financial institution. Declaratory reliefs, followed by an order for specific performance ought not be granted upon such lacklustre and shallow evidence.

A defendant who has offered no evidence, could still have judgment in his favour if the claimant is unable to prove an essential element of his claim. See Bronwen Energy Trading Ltd. v. Oan Overseas Agency (Nig) Ltd & Ors (supra); In Martchem Industries (Nig) Ltd v. M.F. Kent West Africa Ltd (2005) LPELR-1842(SC), the Supreme Court, per Oguntade, JSC, made this point clear, at page 13:
“It is certainly not in consonance with the law to say that in every case in which the evidence called in support of the plaintiff’s case is unchallenged, judgment must be given in favour of the plaintiff. On the contrary, it is possible and there are several known examples that evidence called in support of plaintiff’s case even if unchallenged, may still be insufficient to sustain plaintiff’s claims. In Alhaji Garba G. Haruna v. J. D. Salau (1998) 7 NWLR (Pt. 559) 659, I said concerning unchallenged evidence:
“The argument that because the plaintiff’s evidence was unchallenged, judgment should be given in his favour is patently unsound. It is trite that in an action, the evidence of a plaintiff may be so weak and so discredited under cross-examination that it is unnecessary for the defendant to testify. It is also trite that the evidence given by the plaintiff even if unchallenged, may still be insufficient to sustain the claim made by the plaintiff. In the case at hand, no reasonable Court or Tribunal could have given judgment in favour of the plaintiff when the plaintiff had by his own mouth given evidence that he agreed to sell his property to the defendant and that he had been paid the agreed purchase price.”
(Emphasis mine).

Let me reiterate that declaratory reliefs are not granted based on the lack of credible evidence, or no evidence, or even admissions by the defence but on convincing, satisfactory and credible evidence by the claimant. See Adamu v. Nigerian Airforce & Anor (supra); Chukwumah v. Shell Petroleum (Nig) Ltd (supra). In my considered view, the Respondent failed to prove their case at the lower Court by any credible evidence. There was therefore no basis for the award of the declaratory reliefs and the order for specific performance made in favour of the Respondent. It is on this ground that I resolve issue 2 in favour of the Appellants.

There is merit in this appeal. It succeeds and is hereby allowed. The judgment of the lower Court delivered on 7/6/2018 in favour of the Respondent, is set aside. The claims of the Respondent, which were not proved by any credible evidence, are hereby dismissed.
Parties shall bear their costs.

ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: After going through the comprehensive lead judgment in draft delivered by my learned brother, ONYEKACHI AJA OTISI JCA, I agree that the appeal is meritorious and is hereby allowed by me.

PETER OYINKENIMIEMI AFFEN, J.C.A.: I had the advantage of reading in draft, the judgment just delivered by my learned brother, ONYEKACHI AJA OTISI, JCA. I agree with the reasoning and conclusions reached on the issues raised in this appeal, which I adopt as my own. I hereby record my concurrence with the leading judgment, and abide by the consequential orders contained therein.