MRS OLORUNSHOLA GRACE & ORS v. OMOLOLA HOSPITAL & ANOR
(2013)LCN/6030(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 18th day of March, 2014
CA/IL/23/2013
RATIO
“The rationale is that declaratory relief calls for the exercise of the discretion of court in favour of the person asking for some. Therefore any party who desire the court to exercise its discretion in his favour must oblige the court with the materials on which the court can act in exercising its discretion judicially and judiciously. See Williams v. Hope Rising (1982) 1-2 SC 145 at 152. This principle of law, in my humble view, is not in conflict with another principle which is to the effect that there is no rule of law or practice which requires a plaintiff in a civil suit to be physically present in court or testify if he can otherwise prove his case without giving evidence. In the present case involving declaratory relief, damages for trespass and perpetual injunction the respondents, who did not whisper a scintilla of evidence to the learned trial judge to prove their claim were erroneously granted all their reliefs, the fact that the appellants failed to file a statement of defence notwithstanding. The respondents did not even adequately describe the land in dispute as they simply claim ownership of what they described as “large expanse of land totaling 48 plots of the back of Ministry of Agriculture Ilorin.” In Alhaji Musa Adu & 3 Ors v. Saka Gbadamosi & 3 Ors (supra) my learned brother Nweze, JCA aptly observed thus: “To put it mildly, the conclusion of the learned trial judge was the forensic equivalent of jurisprudential sacrilege. It has long been established both in our jurisdiction and under English law that to obtain a declaratory relief as to a right, there has to be evidence which supports an argument as to entitlement to such a right. The right will not be conferred simply upon the state of pleading or by admissions therein.” The respondents having failed to adduce evidence were not entitled to their bare claims of declaratory reliefs, damages for trespass and perpetual injunction. The learned trial judge was in error to have entered judgment on such bewildering declaratory reliefs. ln Ogolo v Ogolo (2006) 5 NWLR (Pt.972) 163 at 184 paras. C – E the Supreme Court per Onnoghen, JSC aptly observed thus: “A declaratory relief cannot be granted without oral evidence by the plaintiff even where the defendant admits same in the pleadings, the relief being equitable in nature. In the instant case, the reliefs claimed by the appellant at the trial court and which were granted in the default judgment included a declaratory relief. The trial court was therefore under a misconception of law when it granted declaratory judgment in default of statement of defence thereby rendering the said judgment liable to be set aside upon proper application to that effect.” The respondents must only succeed on the strength of their case and not on the weakness of the appellants defence or default thereof. The Supreme Court and this court have in deluge of cases settled the principle of the law that a party claiming a declaration of right must, as a matter of incumbent duty, satisfy the court by evidence, not by admission in the pleading of the defendant, that he is entitled to such declaration. See Dim v Enemuo (2009) 10 NWLR (Pt.1149) 353.” Per MUKHTAR, J.C.A.
“The law is well settled that declaratory relief will not be granted without oral testimony from the claimant or on his behalf. See Bello v. Eweka (supra); Ogbonna v. A.G., Imo State (1992) 1 NWLR (Pt.220) 647 at 698.” Per MUKHTAR, J.C.A.
“It is the law that in civil cases the standard of proof is that of balance of probabilities and the burden of first proving the existence or non-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 however being had to any presumption deducible from the state of the pleadings.” Per MUKHTAR, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
1. MRS OLORUNSHOLA GRACE
2. MRS SEFINAT SHEHU
3. OBIASO PAUL
4. IKE CHIMEZIE
5. CHUKWUDI ONUCHUKWU
6. MR BODE
7. CHRIST EMULATION MINISTRY
8. SAMUEL EMMANUEL
9. GOSPEL HERALD CHURCH
10. MR & MRS FEMI DARE
11. MRS ATINUKE BAMISAYE
12. MRS R.S. ADEWUSI Appellant(s)
AND
1. OMOLOLA HOSPITAL
2. MRS. C.M. OMOJASOLA Respondent(s)
HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): The respondents as plaintiffs took out a writ of summons against the appellants as defendants of the High Court of Kwara State (court below) in suit number KWS/174/2011 seeking for the following reliefs:
(a) A declaration that the claimants are the lawful and bona fide owners of the large expanse of land totaling 48 plots of the back of Ministry of Agriculture Ilorin.
(b) A declaration that the claimants are validly entitled to the occupation and possession of the large expanse of land totaling 48 plots at the back of the Ministry of Agriculture Gbagba area Ilorin.
(c) A declaration that the entry of the defendants and their agents and privies on the claimants land without their consent amount to trespass.
(d) An order of this Hon Court compelling the defendants and their agents to remove their illegal structures from the claimant’s land.
(e) The sum of Two Million Naira Only (N2,000,000.00) being general damages for trespass committed by the defendants on the said land.
(f) An order of perpetual injunction restraining the defendants, their agents, servants and privies or whatsoever from committing further acts of trespass on the said piece of land.
(g) Cost of this suit.
The learned trial judge relied on the provision of Order 17 Rule 5 of the Kwara State High Court (Civil Procedure) Rules 2005 and granted all the reliefs in default of defence as no statement of defence was filed by the appellants. The appellant was afflicted by the default judgment delivered by Folayan, J on 17th May 2012 and in a state of sulky dissatisfaction proceeded to file a notice of appeal on 1st August 2012 premised on the following three grounds:
1. The trial court erred and misdirected itself in law when it held that;
“It is observed that throughout the trial the defendants, except the 7th and 9th who appeared on 19/1/12, have refused or neglected to come to court or file any paper. There is no doubt that the defendants have no interest in defending this suit and by the provision of Order 29 Rule 5 this court is permitted to enter judgment in favour of the claimant… ”
2. The trial court erred in law when it held thus;
“… in the circumstance of this case (sic) this court has no other option than to invoke the provisions of Order 17 and Order 29 Rule 5 of the Rules of this Court. I hereby so enter judgment in favour of the claimants as per their claims in the statement of claim against the defendants. ”
3. The judgment is against the weight of evidence.
Both learned counsel were on common ground in narrowing down the three grounds of appeal to the following two issues for determination:
1. Whether declaratory reliefs can be granted in default of appearance or in default of defence/pleading without oral evidence.
2. Whether the invocation of Order 17 and Order 29 Rule 5 of the Kwara State High Court (Civil Procedure) Rules 2005 by the trial court does not run counter to the decisions of the Supreme Court in Maja v Samouris (2002) 3 SCNJ 29 at 44 – 45 paras. 35 – 10 and Bello v Eweka (1981) 1 S.C 101.
The two issues may conveniently be taken together as they both have a common denominator: whether it is proper for a court of justice to grant declaratory reliefs without hearing evidence.
The learned counsel for the appellants Iliasu Saka, Esq. argued that declaratory reliefs are not grantable in the absence of oral evidence notwithstanding the default of defence. He submitted that the averments in the respondent’s statement of claim on which evidence was not led go to no issue and ought to have been deemed as abandoned. He relied on a number of authorities including Bello v Eweka (1981) 1 S.C 101 at 102; Alhaji Musa Adu & 3 Ors v Saka Gbadamosi & 3 Ors (2009) 6 NWLR (Pt. 1136) 110 at 123.
The learned counsel for the respondents Oluronke Adeyemi, Mrs argued that there is nothing in the judgment appealed against that runs counter to Supreme Court pronouncement in Maja v Samouris (supra). He further argued that the learned trial judge rightly applied Order 29 Rule 5 that specifically deal with possession of land, which was relief (b) in the respondents’ writ of summons. It was submitted for the respondents that the trial court rightly granted entered judgment for the respondents as no injustice was occasioned to the appellants who appeared in court after being served and even engaged a lawyer but failed to file pleading. It was further contended for the respondents that the case of Bello v Eweka (supra), which deals with priority of title to land contended by parties who derived title from a common vendor, is not apposite with the instant case.
The law is well settled that declaratory relief will not be granted without oral testimony from the claimant or on his behalf. See Bello v. Eweka (supra); Ogbonna v. A.G., Imo State (1992) 1 NWLR (Pt.220) 647 at 698.
It is the law that in civil cases the standard of proof is that of balance of probabilities and the burden of first proving the existence or non-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 however being had to any presumption deducible from the state of the pleadings.
Bearing in mind the position of the law on standard and burden of proof in civil cases and the issue of declaratory relief, the rationale behind the principle that such a relief would not be granted without evidence being produced at the trial is barefaced. This principle applies even if the other party has admitted the case of the plaintiff. The rationale is that declaratory relief calls for the exercise of the discretion of court in favour of the person asking for some. Therefore any party who desire the court to exercise its discretion in his favour must oblige the court with the materials on which the court can act in exercising its discretion judicially and judiciously. See Williams v. Hope Rising (1982) 1-2 SC 145 at 152.
This principle of law, in my humble view, is not in conflict with another principle which is to the effect that there is no rule of law or practice which requires a plaintiff in a civil suit to be physically present in court or testify if he can otherwise prove his case without giving evidence. In the present case involving declaratory relief, damages for trespass and perpetual injunction the respondents, who did not whisper a scintilla of evidence to the learned trial judge to prove their claim were erroneously granted all their reliefs, the fact that the appellants failed to file a statement of defence notwithstanding. The respondents did not even adequately describe the land in dispute as they simply claim ownership of what they described as “large expanse of land totaling 48 plots of the back of Ministry of Agriculture Ilorin.”
In Alhaji Musa Adu & 3 Ors v. Saka Gbadamosi & 3 Ors (supra) my learned brother Nweze, JCA aptly observed thus:
“To put it mildly, the conclusion of the learned trial judge was the forensic equivalent of jurisprudential sacrilege. It has long been established both in our jurisdiction and under English law that to obtain a declaratory relief as to a right, there has to be evidence which supports an argument as to entitlement to such a right. The right will not be conferred simply upon the state of pleading or by admissions therein.”
The respondents having failed to adduce evidence were not entitled to their bare claims of declaratory reliefs, damages for trespass and perpetual injunction. The learned trial judge was in error to have entered judgment on such bewildering declaratory reliefs. ln Ogolo v Ogolo (2006) 5 NWLR (Pt.972) 163 at 184 paras. C – E the Supreme Court per Onnoghen, JSC aptly observed thus:
“A declaratory relief cannot be granted without oral evidence by the plaintiff even where the defendant admits same in the pleadings, the relief being equitable in nature. In the instant case, the reliefs claimed by the appellant at the trial court and which were granted in the default judgment included a declaratory relief. The trial court was therefore under a misconception of law when it granted declaratory judgment in default of statement of defence thereby rendering the said judgment liable to be set aside upon proper application to that effect.”
The respondents must only succeed on the strength of their case and not on the weakness of the appellants defence or default thereof. The Supreme Court and this court have in deluge of cases settled the principle of the law that a party claiming a declaration of right must, as a matter of incumbent duty, satisfy the court by evidence, not by admission in the pleading of the defendant, that he is entitled to such declaration. See Dim v Enemuo (2009) 10 NWLR (Pt.1149) 353.
The responder in this in this case seem to have relied very heavily on the fact that the appellants had failed to file pleading and therefore they had no burden of proving their unchallenged claims before the lower court. The position of the law is indeed correct as stated in the respondents’ brief of argument that what has been admitted in a civil case needs no further proof as stated in Achimugu v. Minister FCT (1998) 11 NWLR (Pt.574) 467 at 477. However, the respondents appeared to have lost sight of the exception in this state of the law where the claims of the plaintiff relate to declaratory reliefs as is the position in the present case. The law in this respect is that courts do not make declaration of right even on admission or in default of defence much less in this case where the description of the land in question was so vague and bedraggled. 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 discretion to grant or refuse the declaration and the success of the claimant in such an action depends entirely on the strength of his own case and not on the weakness of the defence. This is audibly in line with what Obaseki, JSC (as he then was) said in Bello v. Iweka (supra) where the learned jurist observed thus:
“It is true as was contended 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. ”
The application of the invocation of Order 17 and Order 29 Rule 5 of the Kwara State High Court (Civil Procedure) Rules 2005 in the con in which the learned trial judge did was in direct fray with the pronouncements of the Supreme Court in Maja v Samouris (supra) and Bello v Eweka (supra). From the foregoing appraisal, I am of the view that the combined issues 1 and 2 have clearly been resolved perforce in the affirmative and in favour of the appellant. In conclusion, the appeal is meritorious and succeeds willy-nilly and is hereby allowed. Accordingly, the judgment of the High Court of Kwara State in suit number KWS/174/2011 delivered on the 17th May 2012 is set aside. However, having regard to the dangling circumstances, the case is hereby sent back to the Chief Judge of Kwara State for reassignment to another Judge.
I assess cost of N30,000.00 to the appellants against the respondents.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, Hussein Mukhtar JCA gave me the opportunity of reading before now the lead judgment just delivered.
By their writ of summons the respondents who were claimants at the trial court had sought 7 reliefs which include three declarations, general damages and injunction. The learned Judge entered judgment in their favour “as per their claims in the statement of claim” without any evidence but on the basis of refusal of the defendants (now appellants) to come to court or file any paper.
The settled position of law is that a claimant who seeks a declaratory relief must rely on the strength of his case and not on the weakness of the defence. Such a claimant must satisfy the court by adducing compelling and cogent evidence of his entitlement to the declaration before same can be granted. The court as a matter of law does not grant a declaratory relief in default of pleadings or even upon admission by the defendant. See Anyanwu vs. Mandilas Ltd (2007) 4 SC (Pt.111) 58; Emenike vs. PDP & Ors (2012) All FWLR (Pt. 640) 126.The grant of respondents’ claim by the learned judge of High court of Kwara State in this case was clearly erroneous and it is for this and other reasons adduced in the lead judgment that I find this appeal to be meritorious and successful.
I allow the appeal and abide by the consequential order and award of costs by my learned brother.
UCHECHUKWU ONYEMENAM, J.C.A.: I had the preview of the judgment of my learned brother HUSSEIN MUKHTAR, JCA.
I have nothing to add to the well considered and written judgment. I also set aside the judgment of the High Court of Kwara State Ilorin in Suit No. KWS/174/2011 delivered on 17th May, 2012.
I abide by the consequential Orders.
Appearances
Iliasu Saka, Esq.For Appellant
AND
Oluronke Adeyemi, Mrs. Bukola Mary Bamidele, Mrs.For Respondent
