OBA ISIAKA OGUNMOLA & ANOR v. ALHAJI LASISI SAKA & ORS
(2011)LCN/4570(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 24th day of May, 2011
CA/I/114/2003
RATIO
PLEADINGS: WHETHER WHERE A WRIT FAILS TO CLAIM RELIEF AGAINST A DEFENDANT AND THE DEFENDANT MAKES NO APPLICATION TO THE COURT OF FIRST INSTANCE TO, DISMISS THE ACTION UPON THAT GROUND, BUT FILES A DEFENCE TRAVERSING THE STATEMENT OF CLAIM WHICH DISCLOSES A CAUSE OF ACTION AGAINST HIM, THE APPELLATE COURT WILL NOT, ON APPEAL FROM JUDGMENT AFTER TRIAL, ENTERTAIN AN APPLICATION MADE BY THE DEFENDANT FOR THE FIRST TIME, TO DISMISS THE ACTION BECAUSE OF SUCH FAILURE OF THE WRIT TO CLAIM RELIEF AGAINST HIM
From the record before the court the Appellants/Respondents did not make an issue on the discrepancy between the writ of summons of the Plaintiffs/Respondents at the lower court, and their amended statement of claim. They joined issues with the Respondents as plaintiffs by filing their statement of defence. They defended the action based on their defence to the statement of claim of the Respondents/Appellants. The law is very clear on this; it is too late in the day for the appellants to raise this issue on appeal. They have no choice in the matter now. The Supreme Court has pronounced on this issue. See: – Hunmuani Ajoke vs. Amusa Yesufu Oba & anor. (1962) 1 All NLR 73 at 75 wherein the apex court stated: “Where a writ fails to claim relief against a Defendant and he makes no application to the court of first instance to, dismiss the action upon that ground, but files a Defence traversing the statement of claim which discloses a cause of action against him, the Federal Supreme Court will not, on Appeal from judgment after trial, entertain an application made by the Defendant for the first time, to dismiss the action because of such failure of the writ to claim relief against him.” Also see: – Sanusi Aiyeriyina Alade vs. olalere Akanji Alemuloke & Ors, (1988) 2 SC parts 1, 1 at 8. PER SIDI DAUDA BAGE, J.C.A.
GRANT OF DECLARATORY RELIEFS: WHETHER DECLARATORY RELIEFS CAN BE GRANTED ON ADMISSIONS MADE BY THE DEFENDANT WHERE THE PLAINTIFF FAILS TO ESTABLISH HIS ENTITLEMENT TO THE DECLARATION BY HIS OWN EVIDENCE
The appellant has stated the duty of the applicant to a declaratory relief which I agree with. Let me add that the law on the requirement of the plaintiff to plead and prove his claims for declaratory reliefs 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. See:- Dumez Nig. Ltd vs. Nwakhoba & 3 Ors (2008) 12 SC 142; Dantata Vs. Mouktar Mohammed (2000) 7 NWLR (pt. 644) 776; Oduwole Vs. Lagos State Development property (2003) 9 NWLR (pt. 878) 382; Onagoruwa Vs. JAMB (2001) 12 WRN 123; Fada Vs. Naomi (2002) 22 WRN 180. Also the Onus of proof on the plaintiff seeking or claiming a relief and or remedy is on him, and the Onus remains on him until it is discharged. See: – Section 137 (1) of the Evidence Act which provides: “In Civil cases the burden of first proving the existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.” On this See: – Kokorowo vs Ogunbambi (1993) 8 NWLR (Pt. 373) 627 Olufosoye Vs. Fakorede (1993) 1 NWLR (pt. 272) 1; Balogun Vs. Labiran (1988) 3 NWLR (pt. 80) 66; Olusesi VS Oyelusi (1986) 3 NWLR (Pt. 31) 634; Jako Ltd vs. Owoniboys (1005)4 SCNJ 256; Famfa Oil Ltd A.G. of Federation (2003) 11 MJSC 66; Anozie vs Aluko (2001) 37 WRN 133; Abas vs. Onido (1998) 6 NWLR (pt. 548) 89. PER SIDI DAUDA BAGE, J.C.A.
BURDEN OF PROOF: POSITION OF THE LAW WHERE THE ADVERSARY FAILS TO ADDUCE EVIDENCE
The position of the law is that where the adversary fails to adduce Evidence to put on the other side of the imaginary scale of justice, a minimum Evidence adduces by the other side would suffice to prove its case. See: – Newsbread Org. Ltd vs. Erhmosele (2006) 2 S.C. (PT. 1)136. PER SIDI DAUDA BAGE, J.C.A.
COUNTER CLAIM: NATURE OF A COUNTER CLAIM; WHETHER A COUNTER CLAIMANT MUST PROVE HIS CLAIM BEFORE HE CAN OBTAIN JUDGMENT
A counter claim in law is a separate, independent, and distinct action. A counter claimant must prove his claim before he can obtain judgment. See: – Jeric Nig. Ltd vs. Union Bank Plc. (2000) 12 SCNJ 184 at 2201; General Oil vs. F.S.B. International Bank Plc (2005) 5 NWLR (Pt. 979) 579 at 597. PER SIDI DAUDA BAGE, J.C.A.
ADMISSIONS: WHETHER ADMISSIONS MADE BY AN ADVERSARY WHOLLY OR VOLUNTARILY NEED TO BE PROVED
I have stated before and I will repeat now, that it is a clear principle deeply enshrined in our jurisprudence that admissions made do not require to be proved for the simple reason, among others that “Out of the abundance of the heart the mouth speaketh.” The law is settled that no better proof is required than that which an adversary wholly or voluntarily owns up. See: Chief Chukwuemeka Odunmegwu Ojukwu vs. Dr. Edwin Onwudiwe & Ors (1984) 2 SC, 75 at 88; Hauwa Unudu vs. Bulama Abdul-razak (2001) 7 NWLR (pt. 779) 662, Nigerian Industrial Dev. Bank Ltd vs. Olalomi (2002) 28 WRN 66: Mohammed Sani Abacha & Anor vs. The State (2002) 9 MJSC I A.G. Abia State vs. AGF (2002) NSCOQ 163; A.G. of Lagos State vs. Hon. Justice L J. Dosumu (1989) 3 NWLR (pt. 111) 552. PER SIDI DAUDA BAGE, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
OBA ISIAKA OGUNMOLA & ANOR Appellant(s)
AND
ALHAJI LASISI SAKA & ORS Respondent(s)
SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Adeniji, J., of the Oyo State High Court of justice sitting at Ogbomoso, delivered on the 20th of August, 1988, granting the two reliefs of the plaintiffs and dismissing the defendants counter claim.
The Respondents as plaintiffs had in paragraph 26 of their amended statement of claim dated the 27th of February, 1996, averred the following reliefs against the appellants:-
1. Declaration that the defendants and or members of their family are not members of the plaintiffs’ family in so far as they are not related either by blood or otherwise.
2. An order of perpetual injunction restraining the defendants and members of their family from claiming to be related to the plaintiffs’ family and or parading themselves as members of plaintiffs’ family.
The suit went to trial after pleadings were exchanged. Both parties called evidence. Briefly stated the appellants’ case was that the plaintiff instituted this action for themselves and on behalf of Labiran branch of Ladapo family. It is instructive to say that Labiran was the son of Adelana. Ladapo begot Adelana. Plaintiffs claimed that Oladapo their ancestor came from Iwo to settle at Iwo Ate and that he later became the Otuwo of Iwo Ate. On the other hand, the plaintiffs claimed that the defendants are descendants of Akinsola. Specifically, the plaintiffs claimed that Majeowogbe begats Ogunsikun, Ogunmodede and Ogunmola. Plaintiffs claimed that the defendants are not their relations and cited instances of inter marriages between the plaintiffs’ family and the Defendants family to buttress the fact the two parties are not related. On the other hand, the Defendants/Appellants claimed that the ancestor of the Plaintiff/Respondents is Oterunmi and that they are related to the plaintiffs through Lawoyin a daughter of Oladapo.
The Respondents as plaintiffs led evidence by calling four witnesses, and the plaintiffs gave evidence as PW 5 and PW 6 respectively at page 53 and 61 of the records. The appellants as defendants called one witness and the 1st defendant gave evidence as DW 2 at pages 63 to 65 of the records. The counsel on both side addressed the court. The Learned trial judge thereafter delivered his judgment wherein he granted the reliefs of the plaintiffs and also dismissed the counterclaim of the defendants. The defendants who were dissatisfied with the judgment of the learned trial judge filed a Notice of Appeal which is contained at pages 87 to 88 of the records. From the four (4) grounds of Appeal contained in the Notice of Appeal and the additional grounds of appeal allowed by this court on the 25/10/2004, the Appellant distilled the following issues for determination viz:-
1. Whether having regard to the totality and quality of evidence led vis-a-vis plaintiffs’ pleadings before the learned trial judge in this case, the learned trial judge was right in granting the plaintiffs reliefs and dismissing the Defendants counter claim?
2. Whether having pleadings in this case Was a Vis the Viva Voce evidence led by them, the plaintiffs were entitled to judgment as entered for them by the learned trial judge?
3. Whether the learned trial judge was right when he merely dismissing the Defendants counter claim without any consideration for same.
Learned counsel to the Respondents, formulated the following issues for the determination of this appeal as follows: –
1. Whether the learned trial judge was right in holding that the plaintiff; and the defendants are not related.
2. Whether the trial judge did not consider the counter claim of the defendants before dismissing same
In the determination of this appeal, I tend to be guided by the issues as formulated by the learned counsel to the appellant.
In arguing issue one (1) which covers grounds 1, 2, 3, and 4 of the additional grounds of appeal filed by the appellants with the leave of this court on the 25th October, 2004, learned counsel to the appellants submitted that, a proper scrutiny of the pleadings of the plaintiffs (Respondents) before the lower court vis-a-vis the evidence led in totality and quality will not justify the entering of judgment for them. The claim of the plaintiffs was confusing from the inception as to which family they are representing in bringing the action before the trial court. This same confusion as to representation also affected their pleadings and evidence to the extent that they will not be entitled to judgment as awarded them by the court below.
Learned counsel further submitted that the claim of the plaintiffs is declaratory in the main and the success of it depends on availability of credible, legally admissible evidence and even the admission of the defendants (where made) will not entitle the plaintiffs to judgment.
Learned counsel further submitted that the plaintiffs’ case was fought on two planks at the lower court, i.e. the traditional History and alleged intermarriages between the plaintiffs’ family and the defendants’ family. A careful painstaking examination of the pleadings of plaintiffs (Respondents) Viz-a-Viz the evidence led by them will not justify the entry of judgment for them as done by the court below.
Learned counsel further submitted that the conclusion reached by the learned trial judge at page 85 of the records that the plaintiffs have successfully proved and established the chronological order of their ancestor linking the order to Oladapo cannot stand having regard to the’ evidence of the plaintiffs (Respondents) on the records.
Learned counsel further submitted that, the defendants pleaded their origin linking same to Oladapo or Ladapo which on common ground is the founder of Iwo-Ate. They pleaded in paragraph 3 of the further amended statement of defence and counter claim that Oladapo is their ancestor, while Oterunmi is the ancestor of the case of the Defendants as pleaded that Oterunmi is the ancestor of the plaintiffs. In the Amended statement of claim of the plaintiffs nowhere Oterunmi is pleaded and it was when the Defendants pleaded his name that the plaintiffs in their Reply remembered that Oterunmi was one of the sons of Kitibi.
Learned counsel submitted further that the second thrust of the plaintiffs’ case before the Lower court is on the alleged intermarriage between the plaintiffs family and the Defendants family, the burden of proof of such fact is on the plaintiffs who asserts same and proof is by credible and cogent evidence which will justify a conclusion that such fact has been established. The assertion of the plaintiffs to that effect and the assertion of the Defendants to the contrary assume the nature of Oath against Oath, which one can hardly choose from.
Learned counsel further submitted that the plaintiffs (Respondents) were therefore obliged to present impeachable materials before this court which will establish the existence of such marriage or call independent witnesses of the existence of such marriage, which is denied by the defendants (appellants).’Existence of a marriage is facts, which can be proved by, do commentary evidence, which will put the issue beyond any speculation or doubt. The detailed particulars should also be pleaded to put the issue beyond doubt.
Learned counsel submitted further that, the above position becomes stronger when one considers the entire case of the parties before the court which shows a tremendous inter connectivity which goes beyond the latter day marriage theory which the plaintiff (Respondent) will want this court to believe. (The court shall and should also deduce from the evidences on record particularly PW 3 evidence, that the bitter acrimony is a product of disagreement on chieftaincy.)
When Learned counsel further submitted that, this count though an appellate court is in a good position as the trial court to evaluate the evidence on record and come up with a conclusion that same was not properly evaluated by trial court as done in this case, particularly it does not involve the credibility of witnesses. The various conclusions of the learned trial judge are not supported by credible evidence. The judgment is perverse and same is not a proper examination of the facts and exercise of judicial discretion. See: – Falcom Bent. (Nig.) Ltd vs. Manulu (2002) FWLR (pt. 95) 392 at 403 – 404; Agbonifo vs. A.S Aiweroba (1988) 1 NWLR (pt.70) 32S; MISR (Nig.) Ltd vs. Ibrahim (1975) 5 SC 55 Egonu vs. Egonu (1973) 11 – 12 SC 111; Raynard Vs. Allan (1934) WACA 52.
In reply to these submissions, Learned counsel to the Respondent submitted that the evidence of DW1, DW 2, are at variance with paragraph 11 of their further Amended statement of Defence and counter claim. They are deemed to have abandoned the facts pleaded in their paragraph 11 of the further amended statement of defence and counter claim See: – Adegbite vs. (1990) 4 NWLR (Pt 146) 578.
Learned counsel further submitted that the effect of the abandonment of the facts pleaded in paragraph 11 of the further Amended statement of Defence and counter claim is that the Appellants are deemed to have admitted the facts pleaded in paragraph 24 of the Amended statement of claim coupled with the evidence given in support of the pleaded facts by the plaintiffs and their witness.
Learned counsel further submitted that the learned trial judge was right in her finding that the plaintiffs have successfully proved and established the chronological order of their ancestors linking the order to Oladepo. The Appellants have in their brief made heavy weather of the fact that the PW 1 said Oterunmi been her ancestor. The alleged contradictions being alluded by counsel to the appellants Viz-a-Viz the evidence of the PW 1 and other plaintiffs witness is so immaterial or it is not a material contradiction as the witness herself claimed that Oladapo was her ancestor. See: – Nwokoro vs. Onuma (1997) 9 & 10 S.C.N.1 63 at 77.
Learned counsel further submitted that there is no ambiguity in the plaintiff/Respondents suing for them and on behalf of Adelana branch. The Respondents copiously pleaded the fact that Adelana was Labirans father. PW 6 gave evidence to this effect.
Learned counsel further submitted that the appellants at the lower court did not join issue as to the fact that the plaintiffs claimed to be representing members of the Labiran and Adelana branches of Ladapo family. Also, those appellants did not file any ground of Appeal challenging the competence of the Respondents to sue in the name of either Labiran or Adelana, court should discountenance the submissions of counsel on this issue.
Learned counsel submitted further that the Appellants refused to call the people they pleaded in paragraph 11 of their further Amended statement of defence and counter claim to rebut the evidence of intermarriages of the Appellants family and the Respondent’s family. This court should invoke the provisions of Section 149(d) of the Evidence Act against the Appellants. Evidence of rebuttal would have been given by these people whom the Respondents claimed to be members of the Appellants family.
Learned counsel submitted further that the learned trial judge was tight in holding that the Appellants and Respondents families are not related by virtue of the fact that there is evidence of inter marriages between them and that is contrary to the Yoruba’s custom and tradition. DW1 gave evidence at page 64 lines 12 13 that “Under the Yoruba custom you cannot marry your blood relation–.”
Learned counsel further submitted that the finding of the lower court that the Appellants and the Respondents perverse. The finding of the learned trial judge is supported by evidence before the court. A finding can only be perverse when it runs counter to the evidence and pleadings or where it has been shown that the learned trial judge took into account matters which ought not to have been taken into account or shut his eyes to the obvious or when it occasioned a miscarriage of justice. See: -Isaiah Onu & Ors, Vs, Ibrahim Idu & Ors (2006) All FWLR (Pt. 328) 691 at 715; State vs. Ajie (2000) FWLR (pt. 76) 2813.
Learned counsel on this issue further submitted that the trial judge finding was in accordance with the pleadings and evidence before the court and that no miscarriage of justice has been suffered by the Appellants.
After the review of ISSUE No. 1 in the appellants brief of argument, and the response of the respondent to the said issue, also dealt with as issue No.1 to the respondents brief, it has become quite imperative to review and consider issue No. 2 of the appellant’s brief of argument and the response of the respondent thereto before obtaining the position of the court to them, as both issues 1 and 2 have similar facts and similar arguments proffered. Also to be reviewed alongside is the reply, brief of the appellant dated 12/2/08 filed on the 14/2/08, but deemed as properly filed on the 27/2/08.
In arguing issue 2 learned counsel to the appellant submitted that he will adopt in-to-to the entire facts as stated in arguing the 1st issue as if the entire facts are set out herein. It should also be added that while the plaintiffs pleaded in paragraph 1 of the reply to the statement of Defence and counter claim that Majeowogbe is the ancestor of the defendants they gave that the defendants are from Akinsola family. Their case by the two court processes filed by them is self contradictory and the evidence further worsened the situation.
Learned counsel further submitted that a consideration of the facts of this case will elicit a negative response to the issue posed in the second issue set out in this appeal, although the ground of appeal has only one particular(s) of error attached to it, it is the ground of appeal as couched is broad and constitutes sufficient particulars of the complaints of the Appellants against the judgment of the lower court, and also give adequate notice of the Appellants grievance against the judgment.
Learned counsel further submitted that the Respondents as plaintiffs in the lower court did not plead an essential facts of alleged in propriety of relations to marry themselves under alleged Yoruba native law and custom in their amended statement of claim. The only pleading having a semblance of issue of intermarriages in paragraph 24 of the amended statement of claim contained at pages 18-20 of the amended statement of claim. Also paragraph 13 of the plaintiff’s reply to the statement of defence and counter-claim.
Learned counsel submitted further that the conclusion of the learned trial judge that this fact is so notorious under the Yoruba custom that the court has taken judicial notice of it appear a bit stretching of the Yoruba native law and custom beyond contemplation. The plaintiffs did not in their pleadings rely on the notoriety of the allege custom as to make the lower court held to be so notorious under the Yoruba custom that the court has taken judicial notice of it.
The Respondent proffered no arguments to issue 2 of the appellants brief.
In their reply brief, the appellants submitted that they had joined issues with the Respondents materially on the Respondents brief. The Appellants contend that contrary to the submission of the Respondents in paragraph 4.02 of the Respondents brief, the Evidence given by the DW 1 is not in any way at variance with the pleadings of the Defendants at all. The evidence highlighted is a reaction of DW1 to the pleadings of the Respondents in paragraph 24 of their Amended statement of claim and in rebuttal of the facts pleaded in that paragraph.
Learned counsel submitted further that even where a defendant(s) does not call evidence, it is the duty of the trial court to examine the evidence of the plaintiffs and determine its credibility and see whether it meets the legal test. A court is not to give judgment in favour of a party just because he gave evidence particularly when he is claiming a declaratory relief. The evidence before the court must be credible, believable, and in line with his pleadings.
Learned counsel submitted further that considering the case of the Respondents at the lower court from the originating process to the conclusion of same, the entire case was contradictory and self defeating. It is only when contradictions are minor, unsubstantial or immaterial that it will be disregarded. See: – Nwokoro vs. Onuma (1997) 9 & 10 SCNJ 63 at 77.
Learned counsel further submitted that the respondents had argued that the learned trial judge was right in holding that the Appellant and Respondents families are not related by virtue of the fact that there is evidence of intermarriage between them and that the court can act on one singular proof of customary practice. The evidence before the court does not establish the existence of inter-marriages between the Appellants and Respondents families, The Respondents are to give evidence of the alleged marriages by quality of evidence which will put the burden on the Appellants to lead evidence to negative that position or accept the evidence led by the respondents as the true position on the matter. See: -Olaiya Vs. Olaiya (2002) 8 MJSC 45 at 60-67 paragraphs D-B.
Learned counsel submitted further that the duty to call a witness on a matter will arise when a party alleging the existence of a particular fact has discharged the burden on him thereby shifting the same to the adversary. The situation on hand is quite different totally. The evidence adduced by the persons seeking to establish the existence of the facts are inherently bad and contradictory, The Appellants urge this court to reject them. The Respondents brief is not a product of proper appraisal of the matter as borne out by the records and it is settled that perverse findings cannot sustain a judgment. See: – Fashanu vs. Adekoya (1974) 6 SC, 83 at 91; Jolayemi vs. Olaoye (2004) 9 MJSC 93 at 117 – 118 paragraphs G-F.
This court will now consider issues 1 and 2 together. A convenient starting point is the contention of the Appellant that the plaintiffs (Respondents in this court) had by their writ of summons initiated their action at the lower court “For themselves and on behalf of Adelana branch of Oladapo family. The same plaintiffs by their amended statement of claim dated 27th February, 1996, was “For themselves and on behalf of Labiran branch of Ladapo family. The Appellant contended that throughout the entire proceedings the writ of summons was not amended thereby showing that the action was fought in the writ for Adelana branch of Ladapo family while in the statement of claim it was fought for Labiran branch of Ladapo family and so was in the reply to the statement of defence and counter claim for Labiran branch of Ladapo. For the purposes of clarity this court will reproduce the relevant portions of both the writ of summons and the amended statement of claim in question.
“Forms of summons e.t.c.
Form 1 General form of writ of summons
HOG/31/95 In the High Court of Justice
Oyo State of Nigeria
Suit No. HOG/31/95
In the High Court of … State
In the Ogbomoso Judicial Division
For them
BETWEEN – (1) Alhaji Lasisi Saka
(2) Samuel Jayeola, Selves and on behalf of Adelana
branch of Oladapo family
And
(1) Oba Isiaka Ogunmola
(2) Tijani Odediran (For themselves and on behalf of Majewogbe family
The Defendant…. ”
For the Amended Statement of claim
In the High Court of Justice
Oyo State of Nigeria
In the Ogbomoso Judicial Division
Holding at Ogbomoso
Suit No. HOG/31/95
Between:-
(1) Alhaji Lasisi Saka
(2) Samuel Jayeola (For themselves and on behalf of Labiran branch of Ladapo family)
And
(1) Oba Isiaka Ogunmola
(2) Dare Odediran for themselves and on behalf of Majeowogbe family
The reply brief, the same as above.
From the record before the court the Appellants/Respondents did not make an issue on the discrepancy between the writ of summons of the Plaintiffs/Respondents at the lower court, and their amended statement of claim. They joined issues with the Respondents as plaintiffs by filing their statement of defence. They defended the action based on their defence to the statement of claim of the Respondents/Appellants. The law is very clear on this; it is too late in the day for the appellants to raise this issue on appeal. They have no choice in the matter now. The Supreme Court has pronounced on this issue. See: – Hunmuani Ajoke vs. Amusa Yesufu Oba & anor. (1962) 1 All NLR 73 at 75 wherein the apex court stated:
“Where a writ fails to claim relief against a Defendant and he makes no application to the court of first instance to, dismiss the action upon that ground, but files a Defence traversing the statement of claim which discloses a cause of action against him, the Federal Supreme Court will not, on Appeal from judgment after trial, entertain an application made by the Defendant for the first time, to dismiss the action because of such failure of the writ to claim relief against him.” Also see: – Sanusi Aiyeriyina Alade vs. olalere Akanji Alemuloke & Ors, (1988) 2 SC parts 1, 1 at 8.
Another issue canvassed by the Appellants is that the Respondents claim (plaintiffs at the lower court) is declaratory in the main, and the success of it depends on availability of credible legally admissible evidence and even the admission of the Defendants (where made) will not entitle the plaintiffs to judgment. The two planks on which the plaintiffs’ case was fought at the lower court were traditional history and alleged intermarriages between the plaintiffs’ family and the Defendants family.
The appellant has stated the duty of the applicant to a declaratory relief which I agree with. Let me add that the law on the requirement of the plaintiff to plead and prove his claims for declaratory reliefs 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. See:- Dumez Nig. Ltd vs. Nwakhoba & 3 Ors (2008) 12 SC 142; Dantata Vs. Mouktar Mohammed (2000) 7 NWLR (pt. 644) 776; Oduwole Vs. Lagos State Development property (2003) 9 NWLR (pt. 878) 382; Onagoruwa Vs. JAMB (2001) 12 WRN 123; Fada Vs. Naomi (2002) 22 WRN 180.
Also the Onus of proof on the plaintiff seeking or claiming a relief and or remedy is on him, and the Onus remains on him until it is discharged. See: – Section 137 (1) of the Evidence Act which provides:
“In Civil cases the burden of first proving the existence of a fact lies on the party against whom the judgment of the court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.”
On this See: – Kokorowo vs Ogunbambi (1993) 8 NWLR (Pt. 373) 627 Olufosoye Vs. Fakorede (1993) 1 NWLR (pt. 272) 1; Balogun Vs. Labiran (1988) 3 NWLR (pt. 80) 66; Olusesi VS Oyelusi (1986) 3 NWLR (Pt. 31) 634; Jako Ltd vs. Owoniboys (1005)4 SCNJ 256; Famfa Oil Ltd A.G. of Federation (2003) 11 MJSC 66; Anozie vs Aluko (2001) 37 WRN 133; Abas vs. Onido (1998) 6 NWLR (pt. 548) 89.
From the record before the court, this case was fought on two planks at the lower court. The traditional history and the alleged intermarriages between the families of the plaintiffs and the defendant. To establish their claim of the non-existence of any blood relationship with the Appellants/Defendants the plaintiffs/Respondent at the lower court dwelt heavily on the intermarriages that existed between the families of plaintiffs and the defendants. The PW1, PW2 and PW3 gave evidence of intermarriages between the plaintiffs and the defendants. After reviewing the evidence of the three plaintiff witnesses PW1, PW 2, PW 3, the trial court at page 85 of the record paragraph 20 state: –
“From the above reviewed evidence I believe the evidence of the plaintiffs on the issue of intermarriages and I hold that there are intermarriages between the families of the plaintiffs and the defendants.
Paragraph 25
“Both the plaintiffs and the defendants are agreeable on the fact that under the Yoruba custom members of the same family do not marry each other. The 1st defence witness Oyekunle Popoola during cross-examination stated thus “under the Yoruba custom, one cannot marry One’s blood relations”
Paragraph 30
“This fact is so notorious under the yoruba custom that the court has taken judicial notice of it.”
On the 2nd plank of this case the traditional history, the trial court a page 85 of the records the last paragraph stated:
“The plaintiffs have also successfully proved and established the chronological order of their ancestors linking the order to Oladapo. The contradictions in the evidence of the, plaintiff on this point are minor and do not go deep into the root of this case…”
From the record before the court the Appellant/Defendants did not adduce any evidence to the contrary of what the plaintiffs/Respondent stated on their ancestral back ground. The Appellant had tried to point at some contradictions in the evidence of the plaintiffs/Respondents and the trial court which reviewed the evidence said the contradiction was minor. The position of the law is that where the adversary fails to adduce Evidence to put on the other side of the imaginary scale of justice, a minimum Evidence adduces by the other side would suffice to prove its case. See: – Newsbread Org. Ltd vs. Erhmosele (2006) 2 S.C. (PT. 1)136.
The trial court at page 86 paragraph 15 stated:
“Finally, having reviewed the evidence of plaintiffs and their witnesses vis-a-vis that of the 1st defendant (D.W. 2) and Oyekunle Popoola (D.W. 1) and the submission of both counsel, I am of the opinion that the plaintiffs have proved their case beyond all probabilities and as such the two reliefs sought by the plaintiffs are hereby granted —–. ”
I have nothing before me to depart from this finding of the trial court. I therefore resolved issues No.1, and 2 against the appellants in favour of the respondents, affirming the decision of the trial court on issues 1 and 2).
On issue No.3 the counter claim learned counsel to the Appellants submitted that the learned trial judge in deciding on an objection to the competence of the counter-claim raised by the plaintiffs concluded thus–
“From the foregoing therefore, I hold that the defendants counter-claim is properly before the court.”
Learned counsel submitted further that the learned trial judge in concluding the judgment at page 86 of the record stated “Finally having reviewed the evidence of plaintiffs and their witnesses Vis-a-vis that of the 1st defendant (DW2) and Oyekunle Popoola (D.W.1) and the submissions of both counsel, I am of the opinion that the plaintiffs have proved their case beyond all probabilities and as such the two reliefs sought by the plaintiffs are hereby granted whilst the defendants counter-claim are hereby dismissed.”
Learned counsel further submitted that had the learned trial judge considered or adequately considered the counter-claim, he would have come to a different conclusion in favour of the counter-claim. The failure of the court below to so consider the counter-claim has occasioned miscarriage of justice.
The learned counsel to the Respondent replied the Appellant on this issue at its opening remarks to issue No. 2. of its brief of argument, wherein the learned counsel had submitted that the learned trial Judge considered the counter claim of the Appellants alongside the claims of the Respondents before dismissing same. I concede the fact that a counter-claim is a separate claim from the case of the plaintiffs. However, the parties relied on pleadings filed in respect of their cases and also gave evidence in support of their pleadings.
Learned counsel further submitted that the trial judge copiously reviewed the evidence of the parties and their witnesses before finding for the plaintiffs and dismissing the counter claim. The main thrust of the counter claim is that the Appellants are related to the Respondents through one Lawoyin a grand-daughter of Oladapo the ancestor of the defendants and that Oterunmi is the ancestor of the Respondents. This issue has been taken care of by the finding of the trial judge in the claims of the plaintiffs/ Respondents.
A counter claim in law is a separate, independent, and distinct action. A counter claimant must prove his claim before he can obtain judgment. See: – Jeric Nig. Ltd vs. Union Bank Plc. (2000) 12 SCNJ 184 at 2201; General Oil vs. F.S.B. International Bank Plc (2005) 5 NWLR (Pt. 979) 579 at 597.
In the instant case, the respondents in their brief of argument at their issue No.2 paragraph 1 line 3 stated “I concede the fact that a counter claim is a separate claim from the case of the plaintiffs –.” I have stated before and I will repeat now, that it is a clear principle deeply enshrined in our jurisprudence that admissions made do not require to be proved for the simple reason, among others that “Out of the abundance of the heart the mouth speaketh.” The law is settled that no better proof is required than that which an adversary wholly or voluntarily owns up. See: Chief Chukwuemeka Odunmegwu Ojukwu vs. Dr. Edwin Onwudiwe & Ors (1984) 2 SC, 75 at 88; Hauwa Unudu vs. Bulama Abdul-razak (2001) 7 NWLR (pt. 779) 662, Nigerian Industrial Dev. Bank Ltd vs. Olalomi (2002) 28 WRN 66: Mohammed Sani Abacha & Anor vs. The State (2002) 9 MJSC I A.G. Abia State vs. AGF (2002) NSCOQ 163; A.G. of Lagos State vs. Hon. Justice L J. Dosumu (1989) 3 NWLR (pt. 111) 552.
In the present case before the court, the appellants counter-claim was never heard by the trial court before it was summarily dismissed. The respondent admitted a counter-claim is a separate claim to his. The trial court itself by its enrolled order under the hand of the trial judge granted the amendment sought by the Defendants/Appellants to argue their counter claim dated the 27th day of February, 1996 contained at page 84 of the records. For clarity the said order is reproduced thus: –
‘AND AFTER HEARING Mr. A.O. Adedeji of counsel for the Defendant/Appellant who moved the motion and Chief Diti Akande of counsel for Plaintiffs/Respondents who did not oppose the motion but asked for costs the court hereby ordered as follows”-
“Order as prayed. Leave is granted to the Defendant/Applicant to amend-their statement of defence as contained in Exhibit A’ attached thereto N100:00 is awarded as cost against the Defendant/Applicant in favour of the Plaintiffs/Respondents case is adjourned till 25th day of April, 1996 for mention.”
The trial judge still at page 84 of the records paragraph 30, stated “From the foregoing therefore I hold that the defendant counter-claim properly before the court.”
The counter-claim was never heard, before the court concluded at page 86 of the records — “Whilst the defendants counter-claim is hereby dismissed. The trial court fell into a grave error by this conclusion. The counter-claim was never heard which undoubtedly amounted to a miscarriage of justice. The law is settled that such a dismissal of the counter-claim without hearing it at all cannot bind the appellant. See: -A.G. Fed, vs. A.I.C. Ltd (2000) 6 SC (pt. 1) 175: where in it was held “For a judgment or order to be valid against a party, he must be aware of the Relief claimed and be given the opportunity to resist it. The dismissal of the counter-claim could not have been made on the merit, became the law is that a judgment on the merit is determined on an issue either of law or fact which party is right. See. U.T.C. vs. Pamotei (1989) 3 SC (Pt.1) 79. I therefore resolved issue No 3 in favour of the Appellant.
In the final analysis, I allow the appeal in part. The judgment of Adeniji J, in suit No. HOG/31/95, delivered on the 29th of August, 1998, is affirmed in respect of issues 1 and 2 of the Appellants brief of argument, In respect of issue No. 3 the counter-claim of the Appellant which was never heard by the trial court, this court makes the order that the case be remitted back to the trial court to hear the counter-claim which it had summarily dismissed without hearing.
I make no order as to costs.
MODUPE FASANMI, J.C.A.: I have had the opportunity of reading in advance the lead judgment of my learned brother S. D. Bage, J.C.A.
I agree with the reasoning and conclusion, I also allow the appeal in part and abide by the consequential orders contained therein.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: My learned brother, Bage, J.C.A., afforded me the opportunity of reading in draft the judgment just pronounced by him. I fully concur in the judgment.
It is now settled that a statement of claim supersedes the writ of summons and amends the latter in consequence. In Nta and Others v Anigbo and Another (1972) 1 All N.L.R. (Pt.2) 74 at 79 – 80, the Supreme Court held in respect of the same issue that:
“On the first ground of appeal learned counsel for the defendants contends that the claims of the plaintiff as expressed in their statement of claim were different from those shown on their writ and that the learned trial judge had entered judgment for the plaintiff in the version of their claims as set out in the statement of claim, he was in error of law. It is trite law that a statement of claim set out therein supercedes the writ. This statement of the law was indeed conceded by learned counsel for the defendants and we were rather surprised that he still held oh, even after the concession, to hip criticism of the course taken by the learned trial judge in this connection. We see no substance in this ground of appeal and it must fail.” (My emphasis).
Declaratory reliefs are not granted on admissions but on hard fact proved by the evidence tendered at the trial of the action by the claimant see Motunwase v. Sorungbe and Another (1988) 5 NWLR (Pt.92) 90 at 101 – 102.
The court below was wrong when it declined to determine the counter-claim on the merits, which is a separate cause of action.
I would allow the appeal in part also, and abide by the consequential orders contained in the judgment of my learned brother, Bage, J.C.A.
Appearances
Akinsunbo Akande with Orifumishe V.For Appellant
AND
A.A.L. OkunadeFor Respondent
