PAULINUS C. NGOKA v. PHILIP IFEZUE & ORS (2016)

PAULINUS C. NGOKA v. PHILIP IFEZUE & ORS

(2016)LCN/8436(CA)

In The Court of Appeal of Nigeria

On Thursday, the 24th day of March, 2016

CA/OW/165/2013

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

Between

PAULINUS C. NGOKA Appellant(s)

AND

1. PHILIP IFEZUE
2. FELIX IFEZUE (CHAIRMAN CORONATION COMMITTEE)
3. EZE MICHAEL OKENWA (PRESIDENT GENERAL AMANATO IHITE OWERRI DEVELOPMENT UNION)
4. REUBEN ESINULO Respondent(s)

RATIO

WHETHER R NOT WHERE A PARTY IN A CASE FAILS TO GIVE EVIDENCE IN HIS CASE, HE IS DEEMED TO HAVE ACCEPTED THE EVIDENCE OF THE OPPOSING PARTY

In Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 2311 at paras. D-F; where a similar scenario played out as in the present case, Alagoa, JSC delivering the lead Judgment of the Supreme Court reasoned thus: “It is trite law that where a party in a case either fails to give evidence in his case as disclosed in his pleadings or fails to challenge the evidence of his adversary or opposing party, he is deemed to have accepted the evidence of the opposing party notwithstanding the general traverse. There is a plethora of case law on this subject matter.
See Alhaji Usman Bua v. Bushiru Dauda (2003) 13 NWLR (Pt. 838) 657; Imana v. Robinson (1979) 3-4 S.C. 1; Meridim Trade Corporation v. Metal Construction (WA) Ltd (1998) 3 S.C. 20 (1998) 4 NWLR (Pt. 544) 1; Samson Ajibade v. Mayowa & Anor. (1978) 9 & 10 S.C. 1 at page 6; Federal Capital Development Authority v. Naibi (1990) 3 NWLR (Pt. 138) 270 at 281. The effect of this traverse coupled with the denial, inability or unwillingness of the Appellants to give evidence on them notably their star witness DW2 Donatus Ezeani is that the Appellants have accepted the evidence of the PW2 Igwe Ojiakor on these paragraphs and all the Exhibits tendered by him in proof of the Respondents claim notably Exhibits “B”, “C” and “E”.
See further UBN Ltd. v. Jimba (2001) 12 NWLR (Pt. 727) 505 of 518 para. B. PER AGUBE, J.C.A.

THE BURDEN OF PROOF IN AN ACTION FOR DECLARATION OF TITLE TO LAND

Notwithstanding the fact that the Respondents abandoned their case and as had been held earlier and supported by authorities like Akingbehin v. Thompson (2008) 6 NWLR (Pt. 1083) 270 at page 289 para. H, Ecobank (Nig.) Plc v. Gateway Hotels Ltd. (1999) 11 NWLR (Pt. 627) 397 of 417-418 paras. F-A; Ogundaye v. Oghienreye (2007) 15 NWLR (Pt. 1057) 218 at 246 paras. E-H, Lawal v. U.T.C. (Nig.) Plc (2005) 13 NWLR (Pt. 943) 601 at 622; that pleadings and Depositions filed in Court without more do not constitute evidence except the parties involved appear in open Court to adopt the Depositions; the Learned Counsel for the 1st-3rd Respondents made some salient points when he cited Nwadialo (SAN) in his book “CIVIL PROCEDURE IN NIGERIA” where the Learned Author defined Declaratory Judgment, A.G. Cross-River State v. A.G. Federation & Anor (2012) Vol. 210 LRCN 1 54 and the off-cited case of Dumez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361 at 373-374; where the Supreme Court variously held that:
“In order to be entitled to a declaration, a person must show the existence of a legal right, subsisting or in future and that right is contested. What would entitle a plaintiff to a declaration is a claim which a Court is prepared to recognize and if validly made, it is prepared to give legal consequences,” and further that:
“The burden of proof on the Plaintiff in establishing declaratory relief to the satisfaction of the Court is quite heavy in the sense that such declaratory relief is not granted even on admission by the Defendant where the Plaintiff fails to establish his entitlements to the declaration by his own evidence.”
See also Fabiyi, JSC in Mataini & Ors. v. Dada & Anor (2013) Vol. 221 (Pt. 223) at 296; PZ citing Nwokidi v. Okana (2010) 3 NWLR (Pt. 1181) 362; Dantata v. Mohammed (2002) 7 NWLR (Pt. 664) 176; Ekundayo v. Beruwa (1965) 2 NWLR 211 and Dumez (Nig) Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361 at 373. See further Section 137(1) of the old Evidence Act (now Sections 133(1) and 134 of the 2011 Evidence Act) which provide that in civil cases 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 being had to any presumption that may arise on the pleadings. Furthermore, the burden of proof shall be discharged on the balance of probabilities in all civil proceedings.
The above Sections of the Evidence Act were given judicial imprimatur in the celebrated case of Jack & Ors. v. Whyte & Ors. (2001) 5 NSCQR 610 at 621 paras. C-E; where the Supreme Court per Uthman Mohammed, JSC; relied on the authorities of Joseph Constantine Steamship Line Ltd v. Imperial Smelting Corporation (1942) AC 154 at 174 and Imana v. Robinson (1979) 3-4 S.C. 1 and held that:
“The burden of proof in Civil cases rests upon the party, whether Plaintiff or Defendant, who substantially asserts the affirmative of the issue. It is an ancient rule founded on consideration of good sense, and it should not be departed from without reasons. It is fixed at the beginning of the trial by the State of pleadings, and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it, and never shifting in any circumstances whatever. If when all evidence, by whomsoever introduced, is in, the party who has this burden has not discharged it, the decision must be against him.” PER AGUBE, J.C.A.

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the High Court of Imo State delivered by the Honourable Justice C. A. ONONEZE-MADU of the Orlu Judicial Division on the 5th day of December 2012 in the above headed Suit No. HOR/126/2004. The Appellant as Claimant in the lower Court had by a Writ of Summons dated and filed on the 20th day of December, 2004 and his Statement of Claim dated and filed on the 22nd day of February, 2006 sought for the following Reliefs against the Respondents in paragraph 14 thereof:
“a. A Declaration that the Plaintiff is the Head (DIOKPARA) of DURUOBIAKU Village AMANATOR IHITE OWERRI AUTONOMOUS COMMUNITY IN ORLU Local Government Area of Imo State.
b. N10,000,000.00 (Ten Million Naira) general damages against the 1st Defendant to the Plaintiff for the 1st Defendant’s wrongful claim of the Headship of Duruobiaku Village aforesaid.
c. Perpetual injunction restraining the 1st Defendant from claiming, parading himself or presenting himself as the head of Duruobiaku Village Amanator Ihite Owerri Autonomous Community in any manner howsoever.
d.

Perpetual injunction restraining the 2nd, 3rd and 4th Defendants from accepting, presenting or recognizing the 1st Defendant as the Head of Duruobiaku Village aforesaid in any manner whatsoever.”

Upon being served with the necessary processes like the plaintiff and Witnesses Statements on Oath and List of Documents sought to be relied upon of the trial and Hearing Notices, the Defendants through their Learned Counsel Chief O. J. O. Okoli Esq., on the 23rd day of August, 2006 filed their Joint Statement of Defence dated the 22nd day of August, 2006 accompanied by the List of Witnesses, Witnesses’ Sworn Statements of Chief Felix Ifezue, Chief Reuben Esinilo, Mr. Vincent Onwukaeme and Mr. Gilbert Obianigwe. The Plaintiffs also filed an Additional List of Witness.

?On Wednesday the 13th day of July, 2011 trial commenced with the Claimant as PW1 AND Augustine Njoku (PW2) adopting their Witnesses Written Depositions without being cross-examined by either the Defendants or their counsel who were absent from Court without any reason. The case was however adjourned to the 26th of September, 2011 after the Minutes Book of the Umuagu Youths Association which

contained the Minutes of the Association Meeting of 25/1/2003 and 8/2/2003 as pleaded by the PW2 in paragraph 2 of his Deposition was tendered, admitted and marked Exhibits “A” and “B” See page 108 of the Records.

On the 1st day of February, 2012, the Claimant was present in Court while the Defendants were absent and no appearance was entered for them by any Counsel. R. O. Ogbonna, Esq., who appeared for the claimant informed the Court that PW1 and PW2 had concluded their evidence and the matter was adjourned for Cross-examination by the Defence and up till that day, the Defendants and their Counsel had refused or neglected to come to Court. The Learned counsel for the claimant in the circumstance applied that the Defendants be foreclosed from cross-examining the Witnesses for the Claimant, having failed to appear in Court for the past thirteen (13) months then – 13/7/11 and 26/6/11.

In the same vein, the Learned Counsel for the Plaintiff/Claimant also applied to the Court for the foreclosure of the Defendants from further giving evidence adding that the Defendants appeared last in Court in 2010 and accordingly the Court remarked as follows:-<br< p=””

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“COURT On record the Defendant has not been appearing in Court and the matter was adjourned for the Defendant to cross-examine PW1 and PW2. It seems to me that the Defendants are not ready to defend this case and cannot tie the hands of the Court. There should be an end to litigation in the circumstances, the Claimant is hereby directed to conclude his evidence and/or file his address. Court: Case adjourned to 22/2/12.” See page 109 of the Record.
The Court did not sit thereafter until the 27th day of June, 2012 on which date parties were absent but K. O. Ogbonna, Esq., for the Claimant informed the Court that the matter was for adoption of Claimant’s Address which Address (Written dated and filed on 20/2/2012) was duly so adopted by the Learned Counsel for the Claimant in line with Claims as stated in his Writ of Summons and Statement of Claim. The Court subsequently adjourned the case to 23/7/12 for judgment but it was not until Wednesday, the 5th day of December, 2012 that the Judgment was actually delivered. See pages 110-122 of the Records.

?Specifically the Learned Trial Judge after evaluating the evidence adduced by the Claimant and witness held

of pages 121-122 as follows.
“From the totality of the evidence before me, I am of the firm view that the failure of the Claimant to adduce evidence to show that Ngoka through whom he is claiming Headship or Diokparaship position of Duruobiaku did not predecease his father which by custom gave rise or entitled the 2nd son Ifezue from the lineage of the 3rd Defendant to step info the position of 1st son and head of Duruobiaku, it is fatal to his Claim.
In other words, the Claimant having failed to make further deposition in reply to the statement of Defence, refuting or denying paragraphs 4-7, 11, 12 and 14 of the statement of Defence and failing to lead evidence in relation to that in his testimony, cannot be said to have satisfactorily proved his case.
In the final analysis, I hereby hold that the claimant has failed to adduce evidence to entitle him to his claim and has not therefore proved his Claim as to the Head or Diokparo of Duruobiaku Village, Amanator Ihite Owerri Autonomous Community in Orlu Local Government Area.
I therefore dismiss this suit in its entirety. There is no order as to costs since the Defendants abandoned the case

halfway.”

Dissatisfied with the above Judgment of the Court below, the Claimant who shall hereinafter be addressed as the Appellant has appealed to this Court by a Notice of Appeal with seven Grounds dated and filed on the 4th day of March, 2013. I shall reproduce for the sake of emphasis the Grounds of Appeal without their respective particulars hereunder inter alia:-
“GROUNDS OF APPEAL
GROUNDS 1
ERROR IN LAW
The Learned Trial Court erred in law when it held “that relief 3 of the Claimant cannot stand since the event had already taken place”, going by the fact that relief number 1 of the Claimant as a declaratory relief would require another relief to aid execution where it succeeds.
GROUND 2
ERROR IN LAW
The Learned Trial Court erred in law when it considered and analyzed the pleadings of the Defendants and ascribed probative value on same when the Defendants, despite being severally served with hearing notices refused to attend Court to give evidence in support of their pleadings and in defence of the action, thereby came to a wrong decision which has occasioned a miscarriage of justice.
GROUND 3
ERROR

IN LAW
The Learned Trial Court descended into the area of conflict, analyzed the evidence not before it, copiously made a case for the absent Defendants and arrived at a wrong decision occasioning a miscarriage of justice on the Claimant.
GROUND 4
ERROR IN LAW
The Learned Trial Court erred in law when based on its analysis of the Defendants statement of Defence, it held that “from the evidence before it (i.e. the pleadings) issues arise which must be clarified as it relates to Custom and facts in order to arrive at the justice of the case,” despite the fact that the Defendants did not give evidence and as such could not have properly raised any wise issues in their Statement of Defence, and came to a wrong decision.
GROUND 5
ERROR IN LAW
The Learned Trial Court erred in law when it held that “…..the claimant did not deny paragraphs 4, 5, 6, 11 – 12 – 14 and 15 of the statement of Defence. All through the file, I cannot see any reply to the Statement of Defence denying these averment of facts as stated. The evidence of PW2 equally, did not refer to these important issues? for the Claimant to succeed, he must lead

evidence to clarity those issues. The Court therefore accepts paragraph 4, 5 – 7, 11, 12 and 14 of the Statement of Defence as truth”, and came to a wrong decision.
“GROUND 6
ERROR IN LAW
The Learned Trial Court erred in law when it held that: “I hold that going through Exhibits A and B and the evidence of PW2 and even pw1, it cannot be said that the Claimant has proved his Headship or Diokparaship of Duruobiaku…. From the totality of the evidence before me, I am of the firm view that failure of the Claimant to adduce evidence to show that Ngoka through whom he is claiming Headship or Diokparaship position of Duruobiaku did not predecease his father which by custom gave rise or entitled the 2nd son, Ifegwu from the lineage of the 3rd Defendant to step into the position of the 1st son and Head of Duruobiaku, it is fatal and fundamental to his claim…. In other words, the Claimant having failed to make further deposition in reply to the Statement of Defence, refuting or denying paragraphs 4-7 11, 12 and 14 of the Statement of Defence and failing to lead evidence in relation to that in his testimony cannot be said to have satisfactorily proved

his case”, and came to a wrong decision.
“GROUND 7
ERROR IN LAW
The Learned Trial Court erred in law when it held that: “I hereby hold that the Claimant has failed to adduce evidence to entitle him to his Claim and has not therefore proved his Claim as the head of Diokpara of Duruobiaku Village Amanator Ihite Owerri Autonomous Community in Orlu Local Government Area”, and dismissing the suit of the Claimant in its entirety and thereby occasioned a miscarriage of justice.
RELIEFS SOUGHT FROM THE COURT OF APPEAL
(a) That the judgment of the Imo State High Court sitting at Orlu and Presided by Honourable Justice C. A. Ononeze Madu (J) delivered on the 5th day of December 2012 be set aside.
(b) That judgment be entered for the Claimant/Appellant by granting Reliefs Number 1, 2 and 3 in the Claimant/Statement of Claim.”

Following the transmission of the Records and entry of the Appeal in this Court, parties through their respective Learned Counsel exchanged their respective Briefs of Argument. In the Appellant’s Brief of Argument settled by Emma E. Ukaegbu Esq. dated and filed on the 24th day of September 2013, the Learned Counsel

formulated three Issues for determination couched as follows:
“(a) Whether the lower Court was right given the facts and circumstances or to hold that the Plaintiff’s/Appellant’s Relief No. 3 cannot stand since the event had already taken place in view of the existence of the Plaintiff’s Relief No. 1 which is a Declaratory Relief? (GROUND ONE OF THE GROUNDS OF APPEAL).
(b) Whether the Lower Court was right to have analyzed, evaluated and ascribed probative value to the pleadings and depositions of the Defendants who neither appeared nor gave evidence in Court side by side with that of the Plaintiff/Appellant who appeared in Court with his Witness and gave cogent and credible evidence?
(GROUNDS 2 – 5 OF THE GROUNDS OF APPEAL)
(c) Whether the Plaintiff/Appellant proved his case and is entitled to judgment given the unchallenged evidence he proffered at the Lower Court? (GROUNDS 6 AND 7 OF THE GROUNDS OF APPEAL).

As for the 1st-3rd Respondents, Chief O. J. O. Okolie (KSC) who settled their Brief distilled two Issues:
ISSUES DISTILLED BY LEARNED COUNSEL FOR THE 1ST AND 3RD RESPONDENTS.
“(i) Whether the Trial Judge was wrong in taking

judicial notice of Custom of Ihite Owerri people which was duly pleaded in the Statement of Defence but was not Countered?
(ii) Whether the Trial Judge was wrong in holding that:
“… the Claimant must plead and prove his Claims for declaratory reliefs on the evidence called by him without relying on the evidence called (or not called) by the Defendants.” (Italics mine)? in their said Brief of Argument dated and filed on the 7th of April, 2014.”

Finally, K. O. Osuagwu, Esq. who settled the Brief of the 4th Respondent dated 12th March, 2014 but filed on the 13th of March, 2014 also adopted the three Issues as formulated by the Learned Counsel for the Appellants.

Upon being served with all the Respondent’s Brief, the Learned Counsel for the Appellant further filed Appellant’s Reply on Points of Law on the 30th April, 2014 but dated the 29th of April, 2014.

ARGUMENTS OF LEARNED COUNSEL ON THE ISSUES FORMULATED FOR DETERMINATION.
ISSUE NUMBER ONE (1): “WHETHER THE COURT WAS RIGHT GIVEN THE FACTS AND CIRCUMSTANCES OR TO HOLD THAT THE PLAINTIFF’S/APPELLANTS RELIEF NO. 3 CANNOT STAND SINCE THE EVENT HAD ALREADY TAKEN PLACE IN VIEW OF THE

EXISTENCE OF THE PLAINTIFF’S/APPELLANT’S RELIEF NO. 1 WHICH IS A DECLARATORY RELIEF?”
Arguing the first Issue, the Learned Counsel to the Appellant alluded to the purports of Reliefs Number 3 and 1, the evidence of the Plaintiff/Appellant and his Witnesses as contained in pages 108 of the Records together with their depositions as contained of pages 44 to 47 and pages 54 to 55 of the Records respectively. He referred specifically to the evidence of the Plaintiff/Appellant as regards Reliefs 1 and 3 of his Claim as contained in paragraphs 4 to 13 of his Deposition (pages 44 to 46 refer) which Deposition was adopted by him as CW1 in his evidence in open Court on the 13th July, 2011 but he was not cross-examined.

?The Learned Counsel explained that from the evidence before the Lower Court, Relief No. 1 of the Claimant was meant for the Lower Court to declare the proper position of the Plaintiff as the Head (Diokpara) of Duruobiaku Village, by virtue of the fact that, that Relief sought for a declaratory Relief and if it succeeded, it could not be executed on its own because declaratory Reliefs cannot be executed. According to him, if the Plaintiff’s case

succeeded, Relief 3 would become necessary to give effect and teeth to same and thereby restrain the 1st Respondent who was contesting the position with the Appellant from parading himself or presenting himself as the Head of Duruobiaku Village, even as a consequential order as there cannot be two heads in Duruobiaku Village.

He submitted further that from the state of things as depicted in paragraph 13 of the Appellant’s Deposition, the 1st Respondent would not stop parading himself as the Head of Duruobiaku Village after coronation as the Headship of the Village is a Traditional position which ostensibly continues until the death of the holder. From the foregoing, he therefore contended that the Lower Court was wrong to have held as it did of page 113 of the Records that 3rd Defendant/Respondent having been coronated on 23/12/2004, it presupposed that Reliefs 3 and 4 of the claimant could not stand since the event had already taken place as one cannot put something on nothing and expect it to stand.

?It was further submitted still on this Issue that from the unchallenged evidence of the Appellant before the Lower Court, Relief No. 3 of the Appellant

ought to have been allowed but not struck out in view of the findings of the Lower Court of page 114 of the Records that the Defendants abandoned their case after filling their Statement of Defence and Witnesses Depositions in spite of issuance of several Hearing Notices and also the further finding of page 115 of the Records that the crux of the matter was the Headship of Duruobiaku Kindred as between the Appellant and 1st Respondent. He maintained that if the Lower Court had found in favour of the Appellant and so declared in line with Relief number one (1) of the Appellant, it would have required Relief number 3 to give effect to the Declaration, the restraining orders made; and in the light of the above, he insisted that the Lower Court was wrong to have held that Relief 3 was no longer relevant or could not stand after the coronation of the 23rd December, 2004.

He reiterated on the authority of Amadi v. Comm. for Education Imo State (2001) 9 NWLR (Pt. 717) 17 of 26 paras. F-C; that even though the coronation had taken place the judicial hands of the Court were not fettered from making restraining orders in appropriate cases as in this case.

?On

the contention that the Defendants abandoned their case, he cited the case of UBA v. Jimba (2001) 12 NWLR (Pt. 727) 505 at 518 para. B. and submitted that where a party chooses not to give evidence in support of his case he is deemed to have abandoned the case since pleadings are not substitute for evidence. Thus, he added, since the Court so found of page 114 of the Records, the evidence given by the Appellant was unchallenged and uncontroverted in spite of the ample opportunity given the Respondents to so do and the Lower Court ought to have acted on same and given Judgment for the Appellant rather than appraise the facts contained in the Respondents pleadings and depositions which do not constitute evidence.

Still on the position of the law that pleadings and depositions do not constitute evidence, he placed reliance on Fed. College of Education v. Anyanwu (1997) 4 NWLR (Pt. 501) 533 of page 563 para. G and Uwegba v. A.G. of Bendel State (1986) 1 NWLR (Pt. 16) 303; to insist that in the absence of any evidence from the Respondents, the Court below had no option than to accept the Appellant’s evidence which remained unchallenged and uncontroverted. We

were so urged to hold that the lower Court was in error to have regarded the Respondents’ pleadings and Depositions as evidence which were evaluated and appraised in holding Relief 3 as no longer being relevant.

We were therefore urged to set aside the findings and conclusions of the Trial Court in respect of Reliefs 3 and 1 but hold that Relief 3 was still relevant to give effect to Relief 1 if it had been granted and therefore Issue Number One (1) should be resolved in favour of the Appellant.

ISSUE NUMBER TWO (2): “WHETHER THE LOWER COURT WAS RIGHT TO HAVE ANALYZED AND ASCRIBED PROBATIVE VALUE TO PLEADINGS AND DEPOSITIONS OF THE DEFENDANTS WHO NEITHER APPEARED NOR GAVE EVIDENCE IN COURT, SIDE BY SIDE WITH THAT OF THE PLAINTIFF WHO APPEARED IN COURT WITH HIS WITNESSES AND GAVE COGENT AND CREDIBLE EVIDENCE?”
On this Issue, the Learned Counsel for the Appellant had referred us to pages 112 lines 30-32 and 114 lines 3-4 of the Records to submit that from the above findings of the Court below in the said pages the Defendants did not cross-examine the Plaintiff and witnesses as the Defendants indeed did not attend Court nor testified and the Court

below erred in ignoring the fact and law that averments do not constitute credible evidence which a party like the Defendants/Respondents were required to adduce in the instant case.

Citing again Akingbehin v. Thompson (2005) 6 NWLR (Pt. 1083) 270 at page 289 para. H; on the effect of a Defendant failing to support his pleadings with oral evidence, pages 111-122 and particularly 114-121 of the Records where in spite of the earlier findings by the Learned Trial Judge, he went on to reproduce the contents in the pleadings and Depositions of the Defendants who had abandoned their case, analyzed them, evaluated same side by side with the evidence of the Appellant and his witnesses and ascribed probative value to same, which according to the Learned Counsel was an error committed by the Learned Trial Judge.

Further references were made to page 114 lines 30-31 of the Records, page 116 lines 18 and 19 thereof in submitting on the authorities of EcoBank (Nig.) v. Gateway Hotels Ltd. (1999) 11 NWLR (Pt. 627) 397 at 417-418 paras. F-A, Imana v. Robinson (1979) 3-4 S.C. 1, Ogundaye v. Oshunreye (2007) 15 NWLR (Pt. 1057) 218 at page 246 paras. E-H SC., that all

through the Judgment what the Court below did was to analyze the evidence of the Appellant and witnesses along side with the pleadings and Depositions of the Defendant which were not evidence in spite of the age long position of the law that pleadings and Deposition can only metamorphose into evidence except the persons involved appear in Court and adopt them.

He insisted that for the lower Court to have placed the pleadings and depositions of the Defendants/Respondents at par with the unchallenged and uncontroverted evidence of the Appellant and witness which were credible and ought to be accepted in grounding his Claim as was decided in Federal College of Education v. Anyanwu (1990) 4 NWLR (Pt. 501) 533 at page 577 paras. E-F; he further maintained that by placing side by side the evidence of the Appellant and witness with the Depositions and pleadings of the Defendants/Respondents, having evaluated and ascribed probative value, to the said pleadings and Depositions, the lower Court descended into the arena of conflict and made a case for the Respondents in their absence and gave a judgment which occasioned a miscarriage of justice.

We were

therefore urged on the authorities of Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) 172 at 233 para. C; to interfere with the Judgment of the Lower Court as it is not permitted for the said Court to make a case not made by any of the parties before it. More so, according to him, it is not the duty of the trial Court to supply or imagine evidence for the Respondents who were not in Court but to limit itself to the evidence adduced by the Appellant and his witnesses who appeared before it as the law requires parties to call witnesses to prove their cases and the Court ought to apply the law to the facts of the case presented before it. F.B.N. PLC v. ACB LTD (2006) 1 NWLR (Pt. 962) 438 at para; where it was held that anything short of the above would result in judicial anarchy was referred to in urging us to set aside the findings of the Lower Court and hold that the Appellant proved his case by cogent, credible evidence which remained unchallenged, uncontroverted, and uncontradicted which we are in a proper position to re-evaluate and rely upon to grant the Appellant’s Reliefs after resolving this Issue in favour of the Appellant.

ISSUE NUMBER 3: “WHETHER

THE PLAINTIFF/APPELLANT DID NOT PROVE HIS CASE AND IS ENTITLED TO JUDGMENT AS CLAIMED GIVEN THE UNCHALLENGED AND UNCONTROVERTED EVIDENCE PROFFERED AT THE LOWER COURT?”
On this Issue, the Learned counsel for the Appellant referred us to pages 108-109 of the Records, where the Learned Trial Judge in its Judgment made findings in support of the Defendants/Respondents who abandoned their case despite all the opportunities given to them, in submitting that the Appellant presented his case before the lower Court whereas the Respondents did not challenge or controvert same but abandoned their case without presenting it.

The Learned Counsel still harped on the fact of the abandonment of the Respondents’ case without presenting any defence to the case put forward by the Appellant and as such was deemed to have proffered no evidence in the defence of the case put forward by the Appellant. Lawal v. U.T.C. (Nig) Plc (2005) 13 NWLR (Pt. 943) 601 at 622 paras. A-C; was relied upon where a similar scenario arose, to buttress his above submission. He recalled the case of the Appellant as pleaded and deposed to which he adopted in Court as contained in pages 44-47,

pages 54 to 55 of the Records on the pedigree of the said Appellant. He then alluded to the Custom of the Ihite Owerri in Duruobiaku Village that the 1st son always becomes the Diokpara of Duruobiaku, Umuagu Amanator, Ihite Owerri Autonomous Community. The Learned Counsel for the Appellant also alluded to the evidence of the Appellant that there were several arbitrations, gatherings and resolutions in which the 18 Villages of Ihite Owerri participated which confirmed the Custom aforesaid yet the Respondent tried to challenge and usurp the position of the Appellant as Diokpara of the Village. This assertion of the Appellant was said not to have been challenged, controverted and therefore credible and cogent and since the Court below refused to make use of same, this Court is in the same position as the trial Court to appraise and evaluate the evidence and find on those facts in favour of the Appellant.

For the above submission he placed reliance on the case of Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354) 522 at page 584 paras. A-D; on the position of the Court of Appeal where the Trial Court failed to properly evaluate the evidence before it and citing

again the case ofNwakonobi v. Udeorah (2013) 7 NWLR (Pt. 1354) 499 of 518 paras. D-E SC, he maintained that Appellant proved his case on the basis of the evidence presented by him in the Lower Court which remained credible, cogent, unchallenged and uncontroverted which the Court ought to accept.

We were in the final analysis urged to resolve Issue Number 3 in favour of the Appellant and set aside the Judgment of the Lower Court after the re-evaluation of the evidence as this does not entail the credibility of witnesses who testified before the Court, in line with the decisions in Okwejiminor v. Gbokeji (2008) 5 NWLR (Pt. 1079) 210 paras. G-A; and Woluchem v. Gudi (1981) 5 S.C. 291.

ARGUMENT OF THE LEARNED COUNSEL FOR THE 1ST-3RD RESPONDENTS
ISSUE NUMBER ONE (1)
“WHETHER THE TRIAL JUDGE WAS WRONG IN TAKING JUDICIAL NOTICE OF THE CUSTOM OF IHITE OWERRI PEOPLE WHICH WAS DULY PLEADED IN THE STATEMENT OF DEFENCE BUT WAS NOT COUNTERED?”

Arguing this Issue, the Learned Counsel for the 1st-3rd Respondents submitted that the Court below was right in holding that the failure of the claimant to file a Reply in denial/affirmation of the

averments in paragraphs 4, 6, 7, 11, 14 and 15 of the Statement of Defence was a serious lapse. He also submitted that the defence of the Defendants was not dismissed, rather, the Defendants were only foreclosed by the Trial Court from cross-examining the Claimant and his witness because of their absence from Court as according to Learned Counsel for the 1st-3rd Respondents, the Defendants duly filed and served their Statement of Defence and Witnesses Depositions although they did not have the opportunity of calling oral evidence before the Court due to absence but the Trial Court however took judicial notice of the Customary Law of Ihite Owerri people which pertains to a first son who predeceased his father as pleaded by the Defendants in their Statement of Defence.

In the light of the above, the Learned Counsel relied on the provision of Section 14(2) of the Evidence Act which going by its succinct wordings, the Court below in his view, cannot be said to have erred when it took cognizance of the fact that the Appellant failed to counter the said custom of what happens when a first son predeceases his father as canvassed by the Defendants. The Learned

Counsel also denied that the Learned Trial Judge did regard the pleadings and depositions of the Defendants as evidence as argued by the Learned Counsel to the Appellant in paragraph 3.16 of the Appellant’s Brief but that the Court below took judicial notice of the prevailing Custom of the parties which was pleaded by the Defendants but was unchallenged by the Claimant both in his pleadings and evidence before the Court, adding that averment not challenged is bound to be accepted as the truth. For this submission he referred to the case of Okparaeke v. Egbuonu 7 WACA 53, on the object of pleadings and the law that parties are bound by their pleadings.

The Learned Counsel finally placed reliance on Emenike v. PDP & Ors. (2012) Vol. 210 LRCN 91 at 133; to urge us on the strength of his arguments to affirm the decision of the trial Court dismissing the suit of the Appellant.

ISSUE NUMBER TWO (2)
“WHETHER THE TRIAL JUDGE WAS WRONG IN HOLDING THAT: ? “the Claimant must PLEAD AND PROVE his Claims for a declaratory relief as other claims i.e. Claims 2, 3 and 4 are merely injunctive Reliefs Predicated on the declaratory relief?”
Arguing

this Issue, the LEARNED Counsel for the 1st-3rd Respondents pointed out that it is trite that the Plaintiff/Appellant’s Reliefs sought at the Court below were majorly premised on the 1st Claim which was a Declaratory Relief as other claims 2, 3 and 4 were merely injunctive reliefs predicated on the Declaratory Relief.

Citing the “CIVIL PROCEDURE IN NIGERIA BY Fidelis Nwadialo (SAN) on the definition of a Declaratory Relief and its purpose, as well as the cases of A.G. Cross River State v. A-G Federation & Anor (2012) Vol. 210 LRCN 1 at 45 and Dumez Nig. Ltd v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361 at 373-374 (S.C) on whom the burden lies in establishing a Declaratory Relief, he reminded us that the grant of a Declaration Relief is of the discretion of the Court and the Plaintiff’s ability to prove the existence of the state of facts sought to be declared.

He therefore submitted that in the instant case, the Appellant sought to be declared the Head (Diokpara) of Duruobiaku Village in Amanator Ihite Owerri Autonomous Community in Orlu Local Government Area of Imo State but failed to show/prove the existence of the facts enough to enable

the Court below to so hold.

Thus, from the foregoing, he maintained that the Learned Counsel for the Appellant in his Issue Number 2 was wrong to have argued that the Lower Court erroneously ascribed probative value to the pleadings and Depositions of the Defendants. He referred us to page 121 lines 1-9 of the Records on the question whether the Court below wrongly ascribed probative value to the pleadings of the Respondents and pointed out that in the aforesaid page of the Records the Court below found as a fact that though the evidence of the Claimant/Appellant was not challenged, yet it was not sufficient to ground the grant of his claim.

Referring as again to lines 26-31 of the same page 121 of the Records, he submitted that it cannot be gainsaid that the lower Court did not refuse the grant of the Reliefs sought by the Claimant on the ground that the case of the Defendants weighed more on the imaginary scale of justice rather that the Claimant failed to prove his case as required by law. The Learned Counsel stressed that since the Appellant claimed one (1) Declaratory Relief, the law required him to establish his claim as his other three (3)

Claims were predicated on the success of the Declaratory Relief and to that extent, those three other claims were consequential Reliefs which could not be granted per se.

Finally, he asserted and pitched their tent on the authority of Dumez Nig. Ltd. v. Nwakhoba (supra) to the effect that even where the Defendant admitted the facts as asserted by the Claimant in the Suit, the law nevertheless places on the Claimant a heavy burden of proof to be discharged in order to be entitled to the Declaratory Relief sought for.

On the strength of the foregoing, we were urged to affirm the decision of the lower Court and accordingly dismiss the Appeal.

ARGUMENT OF LEARNED COUNSEL TO THE 4TH RESPONDENT REUBEN ESINULO:
As said earlier the Learned Counsel for the 4th Respondent K. O. Osuagwu, Esq. in the brief filed on behalf of the 4th Respondent adopted all the three Issues as formulated by the Learned Counsel for the Appellant as well as all the arguments proffered in their respects. He however informed the Court on the facts of the case that the appellant filed a Statement of Claim and witnesses Depositions which he served on all the Respondents

including the 4th Respondent. He claimed that the 4th Respondent being aware of the fact that the Appellant was fighting a just cause, deliberately refused to contest the Suit and in that wise filed no processes.

The Learned Counsel the 4th Respondent claimed that Reuben Esinulo did not at any time consult or brief O. J. O. Okolie, Esq., of No. 3 Chief N. L. Obioha Road, Orlu, Imo State to represent him or file processes of the Lower Court on his behalf.

According to Learned Counsel, the 4th Respondent was surprised to learn that not only was Judgment in the matter given against the Appellant, spurious processes were filed at the Lower Court purporting to have been filed with the knowledge and consent of the 4th Respondent, whereas he knew nothing about the said processes.

?In the light of the foregoing, the Learned Counsel pointed out that the Counter-Affidavit of pages 16 to 18 of the Records, the Statement of Defence of pages 32 to 34 of the Records, the Application of pages 60 to 65 of the Records, his 4th Respondent’s alleged Deposition of pages 71 to 72 of the Records were made without his knowledge and consent neither did he swear to, make

nor file any Deposition on his (4th Respondent’s) behalf.

Apart from the above and having adopted the arguments of the Learned Counsel for the Appellant as his, the 4th Respondent went further to file an Affidavit to show that he never filed any processes of the Lower Court nor did he authorize anybody to do so on his behalf. See pages 1-3 of the 4th Respondent’s Brief of Argument. In summary, the Learned Counsel submitted that the 4th Respondent did not challenge the case of the Appellant of the Lower Court and has no intention of doing so at the Court of Appeal.

Accordingly, the Learned Counsel affirmed of page 3 para. 5(b) of the 4th Respondent’s Brief of Argument thus:
“5(b) The Appellant’s case is cogent and credible. The 4th Respondent has sworn to an affidavit annexed to his Brief to verify and authenticate the contents of his Brief of Argument.”

?Attached to the Brief is the said Affidavit of 11 (Eleven) paragraphs deposed to by the said 4th Respondent (REUBEN ESINULO) which averments are to the effect that he hails from Umuehihie Village in Odune, Amanator, Ihite Owerri Autonomous Community but resident of No. 26 Erondu Rood, Aba,

Abia State.

He admitted that he was the 4th Defendant in Suit No. HOR/126/2004 filed and determined at the High Court Orlu, Imo State and also the 4th Respondent in this Appeal No. CA/OW/165/2013. The Appellant as Claimant served him his processes at the Lower Court before the coronation and following the disputes over their cabinet positions, Duruobiaku village had earlier been suspended from the coronation exercise while the 1st Respondent was prevented from participating in the coronation exercise by the Town Union led by his humble self (the 4th Respondent).

?He further averred that he did not challenge the Suit at the Lower Court and filed no processes neither did he consult, authorize, brief any Counsel to represent him nor file processes on his behalf in the Lower Court or any Deposition/Statement of Defence. He also did not discuss with or authorize anybody including Chief Felix Ifezue to file any Counter-affidavit and/or Statement of Defence on his (4th Respondent’s) behalf neither did he at any time brief Chief O. J. O. Okolie, Esq. of No. 3 Chief Obioha Orlu to represent him nor file processes on his behalf at the Lower Court or this

Court.

He was surprised to learn that the lower Court gave Judgment against the appellant while going through the Notice of Appeal, the Record of Appeal having been served on him by a Bailiff of the Court of Appeal on 26th June, 2013 and upon going through same he saw a Statement of Defence filed on 23/8/2006 purporting to have been jointly made and authorized by himself and 3 others including other processes like the Deposition credited to him and sworn to at the High Court Orlu, Imo State on 8/10/2009 which he never made nor authorized to be made and signed.

He totally denied making such Deposition or Statement of Defence credited to him as the process did not even trace his nativity properly and its originators did not seem to know him well.

He reiterated that he is from Umuehihie Village in Odume Amanator Ihite Owerri Autonomous Community and not from Duruobiaku Village as insinuated by the purported deposition of the 8th October, 2009 and that placing him in Duruobiaku Village is an aberration and total distortion of facts and goes to show that he neither authorized nor consented to their being made and filed.

?The 4th Respondent also

denied in the Affidavit that he is a Chief as designated in the Deposition and had never been one at any time but added that he was aware of the dispute between the Appellant’s family and the Ifezue family both of Duruobiaku Village over the Headship of their said Village. Due to the dispute, he further stated, the 1st and 2nd Respondents were prevented from participating in the coronation by the Town Union led by him (the 4th Respondent).

Finally, the Respondent averred that he was born and bred and grew up with his parents of Aba, Abia State and he never commented or made a Statement in respect of the matter between the Appellant’s Ngoka and Ifezue families but was totally stunned to see processes including a Deposition claimed to have been made and sworn to by him of the High Court Orlu, Imo State. He denied ever making any statement to anybody over this matter except here on Appeal as the Deposition attributed to him does not bear his correct names or signature and he is embarrassed to see such statements credited to him.

APPELLANT’S REPLY ON POINTS OF LAW:
In the Appellant’s Reply Brief on Points of Law, the Learned Counsel pointed out that

the Respondents (I presume the 1st-3rd Respondents), raised new Issues and Points of Law which he set out and relied on them. Beginning from the Respondents’ Brief, it was contended that the 1st-3rd Respondents on the authority of Oke v. Kaja (2014) 3 NWLR (Pt. 1394) 374 of 388 paras. G-H; have purported to have formulated two Issues outside those formulated by the Appellant whereas they never filed a Notice of Cross-Appeal nor a Respondents’ Notice.

The two Issues formulated by the 1st to 3rd Respondents were said not have any similarity with the Issues formulated by the Appellant and are not distilled from or related to or based on any of the Grounds of Appeal. On the effect of raising issues not related to or based on the Grounds of Appeal, he cited Society BIC S.A. v. Charzin Ind. Ltd. (2014) 4 NWLR (Pt. 1398) 497 at 532 para. B. Not having filed a Cross-Appeal or Respondents’ Notice, we were urged to discountenance the two new Issues which the Respondents formulated and made submissions on the authority of Crown Star & Co. Ltd. v. The Vessel MV Vali (2000) 1 NWLR (Pt. 639) 37.

?Accordingly, in the light of the 1st-3rd Respondents not making

any submissions on the Issues raised by the Appellant, we were urged to hold that the Respondents are deemed to have admitted all the submissions of the Learned Counsel for the Appellant and accordingly we should allow the Appeal and hold that the 1st-3rd Respondents filed no replies to the Appellant’s Arguments on the Issues raised. However, in the likely event of our being minded to countenance the arguments on the two Issues of the 1st-3rd Respondents, the Learned Counsel for the Appellant argued on Issue 1 (one) of the said Respondents on whether the Trial Judge was wrong to have taken judicial Notice of the custom of Ihite-Owerri people which was duly pleaded in the Statement of Defence, that it is trite that pleadings do not constitute evidence and that the Defendants/Respondents who filed Statement of Defence and witnesses Deposition never come to Court to defend the said Depositions which would constitute their evidence and be cross-examined. He again placed reliance on Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 311 at 388 paras. C-D S.C; to submit that the 1st-3rd Respondents had abandoned their case and accepted that of the Appellant.<br< p=””

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Furthermore, he asserted, the Respondents having abandoned the pleadings and witnesses Depositions, the Court below could not have taken judicial notice of same or anything pleaded therein. On the quotation of paragraph 3.3 of the 1st-3rd Respondents’ Brief as being the provision of Section 14(2) of the Evidence Act, 2011, it was submitted that there is no such provision in the Evidence Act of 2011 like Section 14(2) and since the Defendants/Respondents did not give evidence of custom sought to be relied upon, they did not establish same so as to warrant the custom being judicially noticed.

Again, it was the submission of the Learned Counsel that the Respondents failed to comply with the clear provisions of Sections 16 to 18 of the Evidence Act, 2011 (as amended) and cannot urge the Court to take judicial notice of any custom just as the Court below was in error to have countenanced or purported to have taken judicial notice of any custom allegedly pleaded by the Respondents who had abandoned their pleadings and did not testify. He relied still on Federal College of Education v. Anyanwu (1997) 4 NWLR (Pt. 501) 533 at 563 para. G. on the need to call

evidence to support the averments in his pleadings as pleadings are not substitute for evidence adding that whatever case the Respondents had sought to make had been deemed abandoned and went to no issue. He maintained as earlier argued in the main Brief of Argument that since the Appellant’s case was not challenged nor contradicted the Appellant required only minimal proof and minimal evidence to have his case proved.

The Learned Counsel again took umbrage under Bua v. Dauda (2003) 13 NWLR (Pt. 338) 657 at page 679 paras. G-H; to submit that the Appellant in this case, proffered more than minimal evidence and in fact enough evidence at the Lower Court to prove his case beyond the balance probabilities. As for the case of Okparaeke v. Egbuonu 7 WACA 53; cited by the Learned Counsel for the 1st-3rd Respondents, he insisted that the Court could not have taken judicial notice of a Custom or part of any of the Respondents’ pleadings because it was not the duty of the Court to make a case for a party which he did not make for himself Uhembe v. Parkes (2014) 3 NWLR (Pt. 1395) 475 refers.

On the citing of Emenike v. INEC (2012) Vol. 210 LRCN 91 at 133 also

reported (2012) 12 NWLR (Pt. 1315) 556, he distinguished same from the present case for in the former case all the parties appeared in Court and the Court made it clear that Courts do not concern themselves with issues not before them.

He finally urged the Court to resolve the 1st-3rd Respondents Issue Number 1 (one) in favour of the Appellant as the Learned Counsel’s Address cannot be substituted for evidence, the said Pleadings having not been supported by evidence before the Lower Court.

On Issue II of the 1st-3rd Respondents which is “Whether the Learned Trial Judge was wrong in holding that the Claimant must lead evidence and prove his Claim for declaratory reliefs on the evidence called by him without relying on the evidence called (or not called) by the Defendants”, he submitted that it is trite that where a declaratory relief is accompanied by an injunctive relief, the declaratory Relief proclaims the rights of the parties while the injunctive order can be enforced where any of the parties fails to comply with it. In this case, he maintained that the Appellant proffered sufficient evidence to entitle him to all the Reliefs sought since the

evidence of the Appellant and witness was unchallenged, uncontroverted and was sufficient to entitle him to the Relief sought if same were properly evaluated by the Lower Court.

Anchoring his submissions finally on the case of Splinters (Nig.) Ltd v. Oasis Finance Ltd (2013) 18 NWLR (Pt. 1385) 188 of pages 226-227 paras. H-E, he insisted that the Court below was in error to have placed the evidence adduced by the Appellant side by side with the facts in the abandoned pleadings of the Respondents as well as their Depositions in his evaluation and analysis of the totality of evidence. We were then urged to resolve Issue Number II (Two) of the 1st-3rd Respondents in favour of the Appellant.

RESOLUTION OF ISSUES:
In the resolution of the Issues formulated by the Learned Counsel for the Appellant as well as those of the 1st-3rd Respondents, I shall adopt the THREE ISSUES distilled by the Learned Counsel for the Appellant and subsume the TWO ISSUES of the Learned Counsel for the 1st-3rd Respondents within those of the Appellant since the Learned Counsel for the Appellant had reacted to the arguments as proffered by the Learned Counsel for the

Respondents, the bulk of those arguments of the Learned Counsel for the Appellant which are repetitive of his arguments on the three Issues formulated in the Appellant’s Brief.

ISSUE NUMBER ONE (1)
“WHETHER THE LOWER COURT WAS RIGHT GIVEN THE FACTS AND CIRCUMSTANCES TO HOLD THAT THE PLAINTIFF’S/APPELLANTS RELIEF NUMBER 3 CANNOT STAND SINCE THE EVENT HAD ALREADY TAKEN PLACE IN VIEW OF THE EXISTENCE OF THE PLAINTIFFS/APPELLANT’S RELIEF NUMBER 1 (ONE) WHICH IS A DECLARATORY RELIEF (GROUND ONE OF THE GROUNDS OF APPEAL?”
I had cause to reproduce the Reliefs sought by the Appellant (then plaintiff) in the lower Court of the beginning of this Judgment but it suffices for purposes of emphasis to restate Reliefs (a) or (l) as well as (c) or (3) of the Appellant’s Statement of Claim as contained in page 30 of the Records as follows:
“(a) or (1) A Declaration that the Plaintiff is the Head (Diokpara) of Duruobiaku Village Amanator, Ihite Owerri Autonomous Community in Orlu Local Government Area of Imo State.
(c) or (3) Perpetual injunction restraining the 1st Defendant from claiming, parading himself as Head of Duruobiaku Village Amanator

Ihite Owerri Autonomous Community in any manner howsoever.”
Black’s Law Dictionary, 7th Edition by Bryan Garner et al at page 415, defines “Declaration” as: “a noun 1. A formal statement, proclamation, or announcement, especially one embodied in an instrument.” For the purpose of this case and the Issue at stake, the Appellant sought for a declaratory judgment which the self same Dictionary defines at page 846 thereof as “A binding adjudication that establishes the rights and other legal relations of the parties without providing for or ordering enforcement. Declaratory judgments are often sought, for example, by insurance companies in determining whether a Policy covers a given insured or peril – Also termed declaratory decree; declaration.”
?In the instant case, the Appellant sought for the proclamation/establishment of the legal relationship or rights of the parties particularly between the 1st Respondent and himself (the Appellant) as regards the “Diokparaship” of Duruobiaku Village by the Court declaring him as such. By the mere declaration of that right as enuring to him, such declaration as we have seen from the above definition is not

automatically enforceable and that explained why the Plaintiff/Appellant sought an additional Relief by way of perpetual injunction restraining the 1st Respondent from claiming and parading himself as Head of Duruobiaku Village, Amanator Ihite Owerri Autonomous Community in Orlu Local Government of Imo State.
At page 788 of the said Black’s Law Dictionary, the Learned Authors define injunction generally as “A Court order commanding or preventing an action. To get an injunction the complainant must show that there is no plain, adequate, and complete remedy at law and that an irreparable injury will result unless the relief” (as in the instant case) “is granted”.
Commenting on this legal term, the Learned Authors referred to Howard C. Joyce’s Article:
“A Treatise on the law relating to injunction para. 1, of 2-3 (1909)”; where he posited that:
“In a general sense, every order of a Court which commands or forbids is an injunction; but in its accepted legal sense, an injunction is a judicial process or mandate operating in personam by which, upon certain established principles of equity, a party is required to do or refrain from doing a

particular thing. An injunction has also been defined as a Writ framed according to the circumstances of the case, commanding an act which the Court regards as essential to justice or restraining an act which it esteems contrary to equity and good conscience, as a remedial writ which Courts issue for the purpose of enforcing their equity jurisdiction; and as a Writ issuing by the order and under the seal of the Court of equity.”
Speaking specifically about perpetual injunction which is the specie of injunction sought by the Appellant as an ancillary to the Declaratory judgment sought from the Lower Court, the self same Dictionary of the same page 788 thereof defines it as “Permanent injunction: An injunction granted after a final hearing on the merits. Despite its name, a permanent injunction does not necessarily last forever. Also termed final injunction.” Going by the above definitions, it is trite law that the Reliefs sought as in (a) and (c) or (1) and (3) of the Statement of Claim are (were) equitable remedies which are not granted just for their asking or even upon admission by the Defendant/Respondent.
?In other words, to entitle the

Plaintiff/Appellant to the Declaration sought together with the injunction to permanently restrain the Respondents (particularly the 1st) from claiming and parading himself as the Diokpara of Duruobiaku Village, he ought not only to come with clean hands but must plead facts and lead clear, cogent, compelling and convincing evidence to warrant the Court below and indeed this Court to grant and affirm the grant of the aforesaid Reliefs as sought.
In the light of the above analysis, the Learned Counsel for the 1st-3rd Respondents was in firma terra when he in his argument on the Respondents’ Issue Number II brilliantly placed reliance on Fidelis Nwadialo (SAN’s) definition of Declaratory Judgment in his book “CIVIL PROCEDURE IN NIGERIA” which is in tandem with the above quoted definitions from Black’s Law Dictionary, that it is a Judgment that merely proclaims the existence of a legal relationship but does not contain any order which may be enforced against the Defendant and that the purpose of a declaratory action is to seek equitable relief as I had earlier noted.

?The Learned Counsel for the 1st-3rd Respondents and that of the Appellant are ad idem in

their respective arguments on Issue Number 1 of the Appellant at pages 6 paras. 3.10 – 3.14 of the Appellant’s Brief and page 4 para. 4.1 of the 1st-3rd Respondents, that if the Court had found in favour of the Plaintiff/Appellant being the Head of Duruobiaku Kindred or Village and so declared in line with Relief 1 of the plaintiff/Appellant’s Reliefs, it would have required Relief 3 to give effect and bite to the Declaration by way of restraining order since the plaintiff/Appellant’s Relief as sought in the Court below were predicated on the 1st Claim (the Declaratory Relief) as the other Reliefs were merely injunctive in nature.

Now, the crux of this matter and in particular Issues 1 (ONE), 2 (TWO) and 3 (THREE) of the Appellant and indeed Issues Numbers ONE (I) and TWO (II) of the 1st-3rd Respondents is whether the Court below was wrong to have based on the totality of the evidence before it, held that Relief Number 3 could not stand since the event of the coronation of the 1st Respondent had already taken place in view of the Plaintiff’s/Appellant’s Relief Number 1 which was for declaration?

?In the course of his arguments on the Issues the

Learned Counsel for the Appellant had referred us to pages 108, 44-47 and 54-55 of the Records which contain the Depositions and evidence of the Appellant and his witness Augustine Ngoka which evidence of the Plaintiff/Appellant as CW1 in open Court was given on the 13th day of July, 2011 without being cross-examined.

We were also referred to paragraphs 4 to 13 of the Appellant’s Deposition to submit that the unchallenged evidence of the Appellant and witness would have been allowed to stay and should not have been discountenanced, disregarded and struck out as the Court below did since from the findings of the Court of page 114, the Respondents had abandoned their case and ought to have found in favour of the Appellant.

Furthermore, he had also argued that the Court below ought to have made the necessary restraining Orders irrespective of whether the coronation had taken place.

Before delving into the evidence of the Appellant and his witness as adduced, it is necessary to recall that the Appellant had pleaded as follows in his statement of Claim that:
“1. The Plaintiff is a Lecturer at the University of Agriculture Umudike in Abia State.

The Plaintiff is a native of Duruobiaku Umuagu Amanator Ihite Owerri Orlu Local Government Area of Imo State and ordinarily resident therein.
2. The 1st Defendant is a factory worker while the 2nd Defendant is a politician. They are also natives of Duruobiaku Umuagu Amanator Ihite Owerri Autonomous Community, ordinarily resident therein.
3. The 3rd and 4th Defendants are natives of Amanator Ihite Owerri Autonomous Community in Orlu Local Government Area of Imo State and ordinarily resident therein. The 3rd Defendant is the Traditional Ruler of the said Community while the 4th Defendant is the President General of the same Community.
4. The Plaintiff comes from the family of late Ngoka the 1st son of Duruobiaku. Duruobiaku had three sons namely Ngoka, Ifezue and Onwukaeme. Ngoka married many wives but had only one son who was young at the time of his death.
5. As a result of the maltreatment and treachery of Ngoka’s two brothers to Ngoka’s family after Ngoka’s death the wives of Ngoka whisked away his only son Peter for his safety, Ngoka’s brothers had perfected plans to kill the little boy.
6. Ngoka’s said only son Peter came back

to Ngoka’s family when he had grown up. The said Peter had a wife who gave birth to three son, Peter died under mysterious circumstances at an unripe age in 1935.
7. After the death of Peter whose sons were still young at the time of his death, members of the family of his other brothers who had numerous sons started laying claim to control of Peter’s family including his widow. The first of such troubles was a year after Peter’s death when Umuifezue and Awurogu who was the first son of Onwukaeme dragged a man called Nwalugwo to Obi Emejuru. They accused him of interfering with their brother Peter’s family and claimed to have inherited Peter’s assets, Nwalugwo had merely cut fruit for Peter’s widow for a fee. Ihite Owerri people of the said Obi Emejuru ruled that the family of the 1st and 2nd Defendants and Awurogu could not inherit the property of Ngoka because he was survived by his male issues.
8. Members of family of the 1st Defendant continued to lay one form of spurious claim or the other on the property of the family of the Plaintiff. They also started laying claim to the Headship or Diokpara of the Plaintiff village now Duruobiaku against

Plaintiff’s family. These claims led to several arbitrations which all ended in favour of the Plaintiff’s family. Some of them include arbitration before Emejuru in 1936, in 1951 when Ngoka’s daughter Nwigwe died, in 1970 when the entire Amanator asked the families of Ifezue and Awuruogu to hands off all Ngoka’s assets for Ngoka’s children and in 1979 when the entire eighteen villages of Ihite Owerri (now comprising three Autonomous Communities) affirmed Plaintiff’s father Joseph Ngoka as the ‘DIOKPARA’ or head of Duruobiaku village.
9. Ngoka who was the first son of Duruobiaku begat Peter as his first and only son. Peter begot the Plaintiff as his first son. Under the Custom of Ihite Owerri, the first son is the head of the family. Consequently, the Headship of Duruobiaku devolved along the line aforementioned such that the Plaintiff is now the Head of Diokpara of Duruobiaku Umuagu, Amanator Ihite Autonomous Community.
10. In the course of the various arbitrations the villages of the larger Ihite Owerri now comprising three Autonomous Communities recognized Plaintiff’s father Joseph as the Head of Duruobiaku Village. When the first Defendant

started laying claim to the headship of Duruobiaku against the plaintiff on the basis that the Plaintiff’s family were not free born, their community took them to a spiritualist who confirmed the Plaintiff and his family free born and the Plaintiff as Head of Duruobiaku Village.
11. All the decisions of Ihite Owerri people aforementioned affirming Plaintiff’s father as Head of Duruobiaku were not challenged by anybody. However, sometime in 2003 a meeting was convened by Umuagu people to look into a Report of cancellation of Plaintiff’s name in a letter sent through him as village Head of the then Umuagu from which Duruobiaku was carved out to Umuagu people by the Eze of the then larger Ihite Owerri Community to which Amanotor belonged. The report of the seer who confirmed Plaintiff as head of Duruobiaku is contained in the minutes of Umuagu Meeting People. The Plaintiff hereby pleads the Minutes of Umuagu Youths Meeting of 2-5-2003 and 8-2-2002 containing the Report and shall at the trial rely on it.
12. Plaintiff’s family has performed all traditional rites pertaining to and concerning Ngoka’s family since the death of Ngoka till date. However,

some misguided and mischievous fellows particularly from the family of the 1st and 2nd Defendants have conspired to embolden the 1st Defendant to continue his spurious claim to the headship of Duruobiaku. Plaintiff has resisted same in so many ways.
13. Sometime in 2004, the coronation of the 3rd Defendant was slated for December of that year. The 2nd Defendant being the Chairman of the Coronation Committee, mischievously manipulated to have the 1st Defendant perform as the Head of Duruobiaku Village in the process of the coronation of the 3rd Defendant. The 4th Defendant as Head of Government of the Town was also to participate in the said ceremony. The Plaintiff after several efforts to stop the Defendants from their design of having the 1st Defendant usurp the function and position of the plaintiff instituted this Suit.”

As said earlier in proof of his pleadings the Plaintiff/Appellant had deposed in his Statement on Oath at pages 44-47 of the Records which is a replica of the averments in the Statement of Claim which I had earlier reproduced in full. At page 54 to 55, the only witness called by the Appellant, AUGUSTINE NGOKA in his Statement on

Oath deposed to the following facts:
“I Augustine Ngoka, a businessman resident in Aba, Christian, native of Duruobiaku Village in Amanator Ihite Owerri Autonomous Community in Orlu Local Government Area of Imo State and Nigerian Citizen do hereby state on Oath as follows:
1. That I know the parties to this Suit.
2. That I was Secretary of Umuagu Youths Association from 2000-2004. As Secretary I clerked several meetings of Umuagu Youths Association.
3. That one of the several discussions of the Community clerked by me was a Report of Cancellation of Claimant’s name from a letter addressed to Umuagu people from the Igwe of the then larger Ihitte Owerri through the Claimant as Village Head which matter was carried over from my predecessor.
4. That this matter continued appearing in Umuagu meetings until Ifezue’s family alleged that they were resisting the Diokparaship of Ngoka’s family on the ground that Ngoka’s children were not free born. This happened at a meeting of Umuagu held on January 25, 2003. This resulted in Umuagu people taking the matter to a Spiritual Seer through a delegation of its members.
5. That the report of

the delegation was taken by Umuagu people on February 8, 2003. The Report was however scheduled to discussion in Easter Monday of 2003. Unfortunately, on the said date, the discussion could not hold because the meeting was disrupted.
6. That the minutes of 25th January, 2003 and 8th February, 2003 were adopted by Umuagu people. I hereby rely on the Minutes Book of the Association.
7. That I make this deposition in good faith and in accordance with the Oaths Law.”

As was rightly submitted by the Learned Counsel for the Appellant and as earlier highlighted of the beginning of this Judgment, the Appellant and his witness testified by adopting the said Witnesses Statements on Oath of page 108 of the Records in the proceeding of 13th July, 2011. The PW2 in the course of adopting his statement stated that he, in paragraph 6 of his said statement on Oath, referred to the minutes of 25/1/2013 and 8/2/2013 which he recorded as the secretary of Umuagu Youths Association as deposed to in paragraph 2 of the said Deposition.

?Having been shown the Minutes Book which he identified, same was tendered admitted as Exhibit ‘A’ and ‘B’ and the case was

adjourned to 26/9/2011 to Cross-examination of the PW1.

There is no indication from the Records whether the Court sat on that 26th September, 2011 for purposes of the cross-examination of the PW1. However, from what is contained in page 109 of the Records/Proceedings of 1st February, 2012, the Claimant was present in Court but the Defendants were absent and unrepresented by Counsel. On the other hand, R. O. Ogbonna, Esq. represented the Claimant and informed the Court that PW1 and PW2 had concluded their evidence and the matter was for cross-examination by Defence but up till then the Defendants had refused and/or neglected to come to Court. The Learned Counsel for the Claimant/Appellant, then applied that the Defendant be foreclosed from cross-examining the witnesses having failed to appear in Court for the past 13 (thirteen) months ? 13/7/22, 27/6/11.

The Learned Counsel for the claimant (now Appellant) also applied that the Defendant be foreclosed from further giving evidence adding that the last time they appeared on record was in 2010. In response to the Learned Counsel’s applications, the Court recorded thus:
“COURT on record the

Defendant has not been appearing in Court and the matter was adjourned for the Defendant to cross-examine PW2. It seems to me that the Defendants are not ready to defend this case and cannot tie the hands of the Court. There should be an end to litigation in the circumstances the Claimant is hereby directed to conclude his evidence and file his address.”

Upon the above order of the Court and considering the fact that the testimonies of the Appellant and his witnesses together with the Exhibits stood unchallenged and uncontradicted, on the 27th day of June, 2012 to which the case was further adjourned, K. O. Ogbonna, Esq. adopted the Address of the Claimant dated and filed on 20/2/2012 and urged the Court to grant all the Reliefs as stated in the writ of Summons and statement of Claim. The case was then adjourned to 23/7/12 for Judgment but it was not until the 8th day of December 2012 that the Judgment culminating in this Appeal was delivered.

It would be recalled that the Appellant led evidence relating to Reliefs 1 and 3 which are the subject of Issue Number 1 (one) in his paragraphs 4 to 13 of Witness Deposition as adopted in Court which evidence

was buttressed by his only witness who tendered the minutes of the Umuagu Youths Association Meetings and their resolutions of those meetings. In the said evidence/Depositions, the Appellant had traced his genealogical pedigree to the family of Late Ngoka the first son of Duruobiaku who had three sons namely Ngoka, Ifezue and Onwukaeme. Ngoka was said to have married many wives but had an only son who was young of the time of his Ngoka’s demise

At page 114 of the Records lines 3-5 the Learned Trial Judge found that: “It is pertinent to note that the Defendants abandoned their case after filing the Statement of Defence and Depositions. Several Hearing Notices were issued.”

He evaluated the evidence of the Claimant as CW1 which was as stated earlier after his historical antecedents claimed that by customary inheritance, the lineage of Ngoka is the Head and Diokpara and by extension, the claimant being from the lineage of Ngoka is the Head or Diokpara of Duruobiaku Umuagu Amanator Ihite Owerri Autonomous Community. See Lines 6 – 17 of page 114 (supra) of the Records.

?In lines 18-22 of the said page 114/4 of the Records/Judgment, the Learned Trial

Judge further found that:
“PW2 confirmed the historical claim of the PW1 and added that several Local Arbitrations have deliberated on this issue and all decisions reached have been in favour of the Claimant. That Ihite Owerri people confirmed Claimant’s father as the Head of Duruobiaku Village.
It was the Claimant’s assertion that all traditional rites pertaining to and concerning Ngoka’s family have been performed by his family until 2001 when the 1st and 2nd Defendants in collaboration with the 4th Defendant (who incidentally here on Appeal has conceded to the Appellant’s Appeal as earlier recorded), attempted to (sic) coronate the 2nd Defendant as the Head of Duruobiaku Village. Wherefore he brought this action claiming as enumerated above.”

The Learned Trial Judge in lines 22 page 114/4 to page 115/5 of the Records/Judgment went on to summarize the averments of the Defendants/Respondent in their Joint Statement of defence which was that Duruobiaku was their great grandfather who begat Igwemadu as his only son. Igwemadu in turn begot three sons namely – Ngoka, Ifezue and Onwukaeme. According to them, the first son of Igwemadu – Ngoka died in

the presence of his father without a male child and his father Igwemadu with his other sons buried him. They were said to have further pleaded in their Defence that under their Custom, when a first sons predeceases his father without a son, his Diokpara position or first son position will devolve on the second son and his lineage will loose his right as Diokpara. It was their further defence that Ngoka the grandfather of the Claimant lost his Headship position having predeceased his father – Igwemadu

They had also asserted that the Claimant/Appellant was born several years later through a woman married by Ngoka’s widow called Agnes who begot three sons that stepped in to maintain the lineage of Ngoka who predeceased his father.
The Defendants/Respondents denied that there were Arbitrations or decisions of the Ihitte Owerri People confirming any of the ancestors of the Claimant to be the Head of Duruobiaku or the Obuofo of Duruobiaku and finally denied that the claimant/Appellant was entitled to any of these claims. See pages 32-34 of the Records and paragraphs 4-15 of the Joint Statement of Defence.

?It would be recalled that the 2nd Respondent

(Chief Felix Ifezue), Mr. Vincent Onwukaeme and Gilbert Obianigwe had made their witnesses statements as can be found of pages 67-70, pages 73-75; 76-77. The Deposition of Ernest Esinulo (the 4th Respondent which he has denied here on Appeal is contained in pages 83-84 of the Records.

However, as rightly found by the Court below none of these witnesses was called or appeared in Court to substantiate their averments in both their joint Statement of Defence and Depositions nor was any of the witnesses for the Appellant cross-examined.
Curiously the Learned Trial Judge in spite of the findings that the Defendants abandoned their Defence thereby leaving the evidence of the Appellant and his witness that he was the Diokpara unchallenged, uncontroverted and uncontradicted, held of page 116 of the Records that: “The Claimant filed his suit on 20/12/2014 and obtained the order of Court for substituted service on 31/10/2005 looking at the file of this Suit which the Court is enjoined to read, the 3rd Defendant was coronated on 23/12/2004. It therefore pre-supposes that Reliefs 3 and 4 of the Claimant cannot stand since the event had already taken place as you

cannot put something on nothing and expect it to stand. See the celebrated case of Macfoy v. U.A.C.”
With the greatest respect, this finding of the Learned Trial Judge is as perverse as it is most erroneous as the Claimant was not seeking for an interim or interlocutory injunction but a perpetual injunction which should naturally follow the grant of the Claimant’s Relief for Declaration that he was the Diokpara since there was no defence or challenge from the Defendants by way of evidence or cross-examination. In other words, the pleadings and Depositions of the Defendants/Respondents were bare/mere assertions which did not translate to any evidence as none of the Defendants/their Witnesses animated their said Depositions into evidence by way of adoption nor were their said Depositions subjected to any scrutiny to ascertain their veracity by way of cross-examination in open Court.
In Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 2311 at paras. D-F; where a similar scenario played out as in the present case, Alagoa, JSC delivering the lead Judgment of the Supreme Court reasoned thus: “It is trite law that where a party in a case either fails to give

evidence in his case as disclosed in his pleadings or fails to challenge the evidence of his adversary or opposing party, he is deemed to have accepted the evidence of the opposing party notwithstanding the general traverse. There is a plethora of case law on this subject matter.
See Alhaji Usman Bua v. Bushiru Dauda (2003) 13 NWLR (Pt. 838) 657; Imana v. Robinson (1979) 3-4 S.C. 1; Meridim Trade Corporation v. Metal Construction (WA) Ltd (1998) 3 S.C. 20 (1998) 4 NWLR (Pt. 544) 1; Samson Ajibade v. Mayowa & Anor. (1978) 9 & 10 S.C. 1 at page 6; Federal Capital Development Authority v. Naibi (1990) 3 NWLR (Pt. 138) 270 at 281. The effect of this traverse coupled with the denial, inability or unwillingness of the Appellants to give evidence on them notably their star witness DW2 Donatus Ezeani is that the Appellants have accepted the evidence of the PW2 Igwe Ojiakor on these paragraphs and all the Exhibits tendered by him in proof of the Respondents claim notably Exhibits “B”, “C” and “E”.
See further UBN Ltd. v. Jimba (2001) 12 NWLR (Pt. 727) 505 of 518 para. B.
Thus, in the instant case, when the Court found at page 114 of the

Records/Judgment that the Defendants abandoned their case, the evidence adduced by the Appellant and his witness ought to have been accepted as unchallenged, uncontradicted and therefore credible to warrant the grant of the Reliefs sought by the Appellant notwithstanding that the 3rd Defendant was coronated (Crowned) on the 23rd December, 2004. Having not challenged the evidence of the Appellant and his witness including the documentary Exhibits tendered which confirmed that the Ihitte Owerri people confirmed that the Headship of Duruobiaku inheres on the Appellant, the Court below ought to have declared such coronation illegal, null and void and restrained the Respondent or the Ifezue’s from parading themselves as Diokpara of Duruobiaku Village, Amanator Ihitte Owerri Autonomous Community.
The Learned Counsel to the Appellant was thus on very firm pedestal to have argued citing the case of Amadi v. Commissioner for Education, Imo State (2001) 9 NWLR (Pt. 717) at 26 paras. F-C; that the judicial arms of the Learned Trial Judge were not fethered when the Defendants/Respondents abandoned their Defence and he ought to have given Judgment in favour of the

Appellant on his unchallenged evidence and accordingly make the restraining Orders against the 1st Defendant/Respondent from parading himself as the Head (Diokpara) of Duruobiaku Village Amanator Ihitte Owerri Autonomous Community in Orlu Local Government Area of Imo State as claimed by the Appellant.
Rather than do the needful according law, the Learned Trial Judge embarked upon the appraisal of the facts contained in the pleadings and Depositions of the Defendants side by side with the evidence of the Appellants and his witness who alone were before him in open Court and whose said evidence were not challenged, controverted or contradicted. The procedure adopted by the Learned Trial Judge in proceeding to subject the pleadings and Depositions of the Defendants to evaluation and appraisal along with the unchallenged evidence of the Appellant in dismissing the claim of the Appellant fell for consideration in the case of Federal College of Education v. Anyanwu (1997) 4 NWLR (Pt. 501) 535 of 563 paras. E-H; where Salami, JCA (as he then was) contributing to the Lead Judgment of this Court, Abuja Division per Orah, JCA posited on the authority of Uwegbo v.

Attorney-General Bendel State (1986) 1 NWLR (Pt. 16) 303 that:
“Pleadings, it is settled law, are no substitute for evidence; it is necessary for the defence to call evidence to support its averments and for failure to do so is deemed to be abandonment of the defence to support the averments by the Defendant or Appellant…… In the absence of any evidence from the Appellant (in this case the Respondents) that the Respondent, like his colleague employed and posted to the Respondent by the Federal Ministry of Education and transferred to the services of the Appellant or deemed to have been transferred on a given date then the defence collapses like a pack of cards. In the absence of such proof, the Court had no option than to accept the Respondent’s version which remained unchallenged and uncontroverted.”
In the light of the above decision and the authorities of Uwegbo v. A.G. Bendel State (supra), Imana v. Robinson (supra), Samson Ajibade v. Mayowa & Anor. (supra); F.C.D.A. v. Naibi (supra) all cited by Alagoa, JSC in Ndulue v. Obiakor (2013) 8 NWLR (Pt. 1356) 311 at 338 para. D-F, the lower Court had no option than to accept the evidence of the

Appellant and his witness which stood alone unchallenged and uncontroverted and ought to have acted upon that evidence to give judgment to the Appellant upon his Declaratory and Injunctive Reliefs as well as the Damages in Reliefs C in the sum of N10,000.000.00 (Ten Million Naira), as sought by the Appellant. Not having so done, the Learned Trial Judge was in error to have embarked upon the evaluation of the pleadings and Depositions of the Respondents which were not evidence to dismiss the claim of the Appellant. This Issue is accordingly resolved in favour of the Appellant.

ISSUE NUMBER 2
“WHETHER THE LOWER COURT WAS RIGHT TO HAVE ANALYZED AND ASCRIBED PROBATIVE VALUE TO THE PLEADINGS AND DEPOSITIONS OF THE DEFENDANTS WHO NEITHER APPEARED NOR GAVE EVIDENCE IN COURT, SIDE BY SIDE WITH THAT OF THE PLAINTIFF WHO APPEARED IN COURT WITH HIS WITNESSES AND GAVE COGENT AND CREDIBLE EVIDENCE?”
THIS Issue beggars the answer which has already been given in the resolution of the first Issue in favour of the Appellant. I shall therefore resolve same together with ISSUE NUMBER 3 of the Appellant which questions: “WHETHER THE PLAINTIFF/APPELLANT DID PROVE

HIS CASE AND IS/WAS ENTITLED TO JUDGMENT AS CLAIMED GIVEN THE UNCHALLENGED AND UNCONTROVERTED EVIDENCE HE PROFFERED AT THE LOWER COURT?” since all the arguments of the Learned Counsel for the Appellant appear to be same on all the three Issues formulated.

As has been noted earlier, the Appellant and his witness who tendered Exhibits ‘A’ and ‘B’ gave their evidence in support of their claim whereas despite series of adjournments the Defendants/Respondents did not bother to appear in Court to challenge the evidence of the said Appellant and his witness neither did they come to Court to substantiate their pleadings and averments in their respective Depositions/witnesses Statements on Oath. Indeed the Court below so found and held at pages 112 lines 30-32 and 114 lines 3-5 of the Judgment that Respondents abandoned their Statement of Defence and Depositions despite several hearing notices issued to them.
The Learned Counsel for the Appellant was therefore on very sound footing when he argued that not only were the Appellant and witness not cross-examined but neither the Respondents nor their counsel ever appeared in Court throughout the trial as they

might have been basking in the euphoria of the completed act of the coronation of the 1st Respondent upon which the Court below based his dismissal of the claims of the Appellant’s Reliefs 3 and 4.
Notwithstanding the fact that the Respondents abandoned their case and as had been held earlier and supported by authorities like Akingbehin v. Thompson (2008) 6 NWLR (Pt. 1083) 270 at page 289 para. H, Ecobank (Nig.) Plc v. Gateway Hotels Ltd. (1999) 11 NWLR (Pt. 627) 397 of 417-418 paras. F-A; Ogundaye v. Oghienreye (2007) 15 NWLR (Pt. 1057) 218 at 246 paras. E-H, Lawal v. U.T.C. (Nig.) Plc (2005) 13 NWLR (Pt. 943) 601 at 622; that pleadings and Depositions filed in Court without more do not constitute evidence except the parties involved appear in open Court to adopt the Depositions; the Learned Counsel for the 1st-3rd Respondents made some salient points when he cited Nwadialo (SAN) in his book “CIVIL PROCEDURE IN NIGERIA” where the Learned Author defined Declaratory Judgment, A.G. Cross-River State v. A.G. Federation & Anor (2012) Vol. 210 LRCN 1 54 and the off-cited case of Dumez Nig. Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361 at 373-374; where

the Supreme Court variously held that:
“In order to be entitled to a declaration, a person must show the existence of a legal right, subsisting or in future and that right is contested. What would entitle a plaintiff to a declaration is a claim which a Court is prepared to recognize and if validly made, it is prepared to give legal consequences,” and further that:
“The burden of proof on the Plaintiff in establishing declaratory relief to the satisfaction of the Court is quite heavy in the sense that such declaratory relief is not granted even on admission by the Defendant where the Plaintiff fails to establish his entitlements to the declaration by his own evidence.”
See also Fabiyi, JSC in Mataini & Ors. v. Dada & Anor (2013) Vol. 221 (Pt. 223) at 296; PZ citing Nwokidi v. Okana (2010) 3 NWLR (Pt. 1181) 362; Dantata v. Mohammed (2002) 7 NWLR (Pt. 664) 176; Ekundayo v. Beruwa (1965) 2 NWLR 211 and Dumez (Nig) Ltd. v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361 at 373. See further Section 137(1) of the old Evidence Act (now Sections 133(1) and 134 of the 2011 Evidence Act) which provide that in civil cases 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 being had to any presumption that may arise on the pleadings. Furthermore, the burden of proof shall be discharged on the balance of probabilities in all civil proceedings.
The above Sections of the Evidence Act were given judicial imprimatur in the celebrated case of Jack & Ors. v. Whyte & Ors. (2001) 5 NSCQR 610 at 621 paras. C-E; where the Supreme Court per Uthman Mohammed, JSC; relied on the authorities of Joseph Constantine Steamship Line Ltd v. Imperial Smelting Corporation (1942) AC 154 at 174 and Imana v. Robinson (1979) 3-4 S.C. 1 and held that:
“The burden of proof in Civil cases rests upon the party, whether Plaintiff or Defendant, who substantially asserts the affirmative of the issue. It is an ancient rule founded on consideration of good sense, and it should not be departed from without reasons. It is fixed at the beginning of the trial by the State of pleadings, and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings

place it, and never shifting in any circumstances whatever. If when all evidence, by whomsoever introduced, is in, the party who has this burden has not discharged it, the decision must be against him.”
From the above authority, the burden of proving that he was the Diokpara of Duruobiaku was on him (the Appellant) and that burden was even more onerous since from the authorities earlier cited, the principal Relief sought by Appellant was declaratory in nature and is normally granted at the discretion of the Court upon credible evidence which must satisfy the Court before doing so.
Now, the evidence of the Appellant and his witness had earlier been reproduced as well as the findings of the Court below that the Defendants/Respondents abandoned their case and ordinarily ought to give judgment to the Plaintiff upon his unchallenged evidence after the evaluation of the evidence of the Appellant and his witness. However, as can be gleaned from page 117 of the Records/page 7 of the lower Court’s Judgment, the Court went on to evaluate both the evidence adduced by the Appellant and witness side by side with the Respondent’s pleadings when he held in line 17

to 34 as well as page 118/18 lines 1-32 to page 119/9 of the Records/Judgment that from the evidence before him (the pleadings) Statement of Claim and Statement of Defence, the issues that arose which must be clarified related to custom and facts in order to arrive of the justice of the case. He rightly stated that: “It is trite law that a claimant must succeed on the strength of his case and must produce evidence which when balanced on the scale will tilt in his favour.”
Yet the Learned Trial Judge further held at the same page 117/7 of the Records/Judgment in lines 24-26 thus:
“It is trite law that since the Defendant did not challenge the Deposition/evidence of the Claimant through cross-examination, the Court is bound to accept it as truth.” In spite of the above, the Learned Trial Judge still went further to hold that the issues, questions/facts that the Appellant must lead evidence on in order to entitle him to his claim was to establish the custom as it relates to a first son who predeceased his father without a male child as the Defendant claimed. The Learned Trial Judge again in spite of finding earlier that the evidence of the

Appellant was unchallenged goofed when he still proceeded to insist that the Claimant must also establish whether Ngoka was a direct son of Duruobiaku as the Claimant alleged or Igwemadu whom Defendant’s claimed was the only begotten son of Duruobiaku who later begot Ngoka and 2 others, Ifezue and Onwukaeme and then held of page 118/8 of the Records/Judgment that:
“The evidence of the Claimant (his Statement of Claim, Deposition and even the evidence of the PW2 did not state, deny or clarify this all important issues/questions raised by the Defendants in their defence.
I had expected the Claimant to file a Reply to the Statement of Defence in order to clarify or deny specifically these issues.
See paragraph 4, 6, 7, 11, 14 and 15 of the Statement of Defence which requires strong denial or affirmation in a Reply to Statement of Defence. I am afraid that failure of the Claimant to file a Reply to the Statement of Defence, refuting these strange customary beliefs which is prevalent in Igbo Land including the Community of the parties and failure to lead evidence in Court to refute these averments, is a serious lapse on the part of he Claimant.<br< p=””

</br<

The Claimant in law is expected to rely on his strength in order to succeed.
The Court takes judicial notice of Igbo Custom as it relates to a 1st son who predeceased his father and had no child. In such circumstance, the 1st son loses his position as the 1st son to the next son.”
With the greatest respect to the Learned Trial Judge, the Claimant had pleaded and proved in both his Statement of Claim and Deposition (paragraphs 4, 5, 6, 7, 8, 9; that among others, Ngoka who was the first son of Duruobiaku (even though he predeceased his father) had an only son who was very young of the demise of his father and as a result of the oppressive and treacherous tendencies of Ngoka’s siblings to the extent of trying to exterminate Peter so that Ngoka’s lineage would be obliterated from the face of the earth, the wives of Ngoka spirited that only son out of the community.
The said Peter subsequently returned at Adulthood, got married and begot three sons after which he also died mysteriously in 1935. Thereafter, the families of the other two brothers of Ngoka continued in their quest to disinherit the children of Ngoka of their birthrights. As if the

eyes of the Learned Trial Judge were blinded by the dust of the contest, he was oblivious of the evidence of the Appellant after tracing his genealogical pedigree from Duruobiaku to Ngoka, Peter and subsequently Joseph his father in paragraphs 9 and 10 of his Deposition that:
“(9) That Ngoka who was the first son of Duruobiaku begot Peter as his first and only son. Peter begot Joseph as his first son while Joseph begat me as his first son. Under the custom of Ihite Owerri the first son is the head of the family. Consequently the headship of Duruobiaku devolved along the line aforementioned such that I am now the head or Diokpara of Duruobioku Umuagu Amanator Ihitte Owerri Autonomous Community.
10. That in the course of the various arbitrations, the villages of the larger Ihite Owerri now comprising three Autonomous Communities recognized my father, Joseph as the Head of Duruobiaku Village when the first Defendant started laying claim to the Headship of Duruobiaku against me on the basis that my family is not free born, their community took them to a spiritual seer who confirmed me and my family free born and also confirmed me as Head of Duruobiaku

Village. This incident occurred in 2003.”
The Defendants, it should also be noted had not debunked by way of evidence the evidence of the Appellant in paragraphs 11-13 of the Appellant’s Deposition as adopted in Court. Accordingly, the Learned Trial Judge was wrong to have held that the evidence of the Claimant (his Statement of Claim, depositions and even the evidence of the PW2) did not state, deny or clarify these all important issues/questions raised by Defendants as to whether Ngoka was a direct son of Duruobiaku as the Claimant alleged or Igwemadu whom the Defendants claimed was the only begotten son of Duruobiaku who later begot Ngoka and two others, Ifezue and Onwukaeme).
I am also of the candid view that the Learned Trial Judge also goofed when he held of page 118/8 of the Record/Judgment lines 7-18 that he had expected the Claimant to file a Reply to the Statement of Defence in order to clarify or deny specifically these issues. According to him, and in spite of the fact that the evidence of the Appellant on his origin and heritage stood unchallenged;
“See paragraphs 4, 6, 7, 11, 14 and 15 of the Statement of Defence which requires

strong denial or affirmation in a Reply to the Statement of Defence. I am afraid that failure of the Claimant to file a Reply to the Statement of Defence, rebutting these strong customary beliefs which is prevalent in Igbo land including the Community of the parties and failure to lead evidence in Court to refute these averments, is a serious lapse on the part of the Claimant.”
With the greatest respect to the Learned Trial Judge and in complete agreement with the Learned Counsel for the Appellant, His Lordship was in error to have equated the Depositions of the Respondents in the enumerated paragraphs of the Respondent’s Statement of Defence as well as their Depositions on the status of the Appellant, with evidence which he evaluated, analyzed and placed on the imaginary scale of justice to dismiss the Appellant’s case.
?The Learned Trial Judge’s holdings of pages 119 still on the Appellant’s inability to deny the averments in paragraphs 4, 5, 6, 7, 11, 12-14 and 15 of the Statement of Defence and that since the Appellant did not deny those paragraphs of the Statement of Defence as stated above he (the Learned Trial Judge) had accepted those

unsubstantiated paragraphs as the truth, are also perverse and occasioned the Appellant grave miscarriage of justice and therefore cannot stand.
The Appellant proved without any contradiction that Ngoka his grandfather died leaving the young Peter even though he (Ngoka predeceased) his father and that the said Peter begot Joseph who begot him the said Appellant to carry on Ngoka’s lineage.
It was rather the Defendants to whom the burden of proving the contrary shifted after the Appellant had testified in Court without being challenged and as the Court found out that the Defendants abandoned their defence, who failed to debunk the claim of the Appellants and the evidence of the Appellant and his witness ought to be believed and acted upon.
?I therefore agree that throughout the Judgment of the Court below, what the Learned Trial Judge did was to analyze and evaluate the evidence adduced by the Appellant and witness together with the pleadings and the unsubstantiated depositions of the Respondents and witnesses and ascribing probative value to the contents of the pleadings and Depositions which had not been translated to evidence. This procedure

adopted by the Learned Trial Judge potently violated the age long established legal principle that pleadings are not evidence until verified by oral testimonies and that until those facts pleaded metamorphose into evidence, the Court cannot act on the facts in the pleadings. EcoBank Plc v. Gateway Hotels Ltd (supra) and Imana v. Robinson (supra) refer.
The Learned Counsel for the Appellant has aptly cited and relied on Ogundaye v. Oshunleye (2007) 15 NWLR (Pt. 1057) 218 at 246 paras. E-H; where the Supreme Court stated the position of the law inter alia:
“The law presumes that a person who comes into litigation should have a case to state, a case that will give him judgment. The case is made at the stage of the pleadings, be he a Plaintiff or Defendant. While the plaintiff states his case in the Statement of Claim, a Defendant states his case in the statement of Defence. If, at the hearing, the Defendant decides not to give evidence to vindicate the Statement of Defence, the Court is entitled to hold that the evidence of the Plaintiff is unchallenged. Although at the stage of pleadings the parties have joined issues, this was not the position at the

hearing of the case. It is merely saying the obvious that pleadings do not have the brain and the mouth to talk and so they need the human being with the automation of the brain, mind and mouth to express the contents of the pleadings in open Court. Where the human being, in this con the Appellant (the Respondent in our instant case) failed to talk for the Statement of the Defence, that is the end of the road for the Defendant.” (herein the Respondents).
This authority lays bare the error committed by the Learned Trial Judge in going out of his way to carry out the evaluation of the Respondents’ pleadings and Depositions which were not evidence along with the unchallenged evidence of the Appellant and ascribing probative value to the said Respondents’ pleadings and depositions rather than accepting the unchallenged and uncontroverted evidence of the Appellant and giving him judgment upon his claims. See Obineche v. Akurobi (2010) ALL FWLR (Pt. 533) at 1865 per Adekeye, JSC, who held that where evidence by a party to any proceedings was not challenged or controverted by the opposite party who had the opportunity to do so, it is always open to the Court

seised of the case to act on such unchallenged or uncontroverted evidence before it.
I am not oblivious of the onerous burden on the Appellant as Plaintiff to prove his case in order for the Court below to exercise its discretion to grant the Declaratory and injunctive Reliefs sought there at. Again, I am also very conscious of the settled position of the law as laid down in the locus classicus of Mogaji v. Odofin and other cases like Woluchem v. Gudi (1981) 5 SC 291 at 294; Omokhofe v. Military Administrator, Edo State (2001) 14 NWLR (Pt. 733) 290 at 310-311 Yabatech v. M.C. & D Ltd (2014) 3 NWLR (Pt. 1395) 616 at 664 paras. A-D, Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360; that the evaluation of evidence and ascription of probative value thereto are within the exclusive purview of the Court of trial that had the opportunity of watching the demeanour of the witnesses which advantages are not open to the Court of Appeal that is only seised of the Records from the lower Court.
?There is also no doubt that in the evaluation process and before coming to a decision as to which of the evidence he believes or accepts and which of the evidence he

rejects, he must put the totality of the evidence of witnesses as adduced on the imaginary scale of Justice. He should weigh one side against the other and then decide upon the preponderance of credible evidence which of them weighs more.
However, in the peculiar circumstances of this case, where the evidence of the Appellant and his witness were unchallenged the Supreme Court Per Onu and Kalgo, JJSC had restated the position of the law that, the Court had held in a plethora of cases that where the evidence called by a Plaintiff in a Civil Proceeding is neither challenged nor contradicted, the onus of proof on him is discharged on minimum proof as an averment in pleadings cannot be accepted simpliciter without calling evidence to prove it, and if no such evidence is called, the averment is deemed to be abandoned and it must therefore be rejected. See Henshaw v. Effangha (2008) LPELR-4075 (CA), Okpoko Community Bank Ltd v. Igwe (2012) LPELR-1994(CA).
Finally, and to further buttress the fact that the Learned Trial Judge was in grave error to have embarked on the evaluation of the pleadings and Depositions of the Respondents along with the evidence of

the Appellant and ascribing probative value to the said pleadings of the Respondents which were not adopted in open Court and subjected to scrutiny by the way of cross-examination; the Supreme Court again Per Ogbuagu, JSC in SPDC Nig. Ltd v. Edamkue & Ors. (2009) LPELR -3048 (SC) at 41-42 paras. D-D; a case which facts were almost on all fours with ours also restated the appropriate position the Learned Trial Judge would have taken when the Respondents who pleaded in paragraph 11-15 of their Statement of Defence and deposed to facts that the Appellant was not a direct son of Ngoka but a product of a custom they styled “Iluru agala nwonyi” in that the widow of Ngoka went to Ihitenansa and “Married” the father of the Plaintiff; and in another breath that any son born under this type of arrangement only takes the place of his “step-mother’s husband” and that Ngoka died before his father and lost his heirship and therefore his descendants cannot lay any claim to the heirship, which custom the Court swallowed line, hook and sinker and took judicial notice of where/when there was no evidence from the Respondents to prove such custom reasoned thus:
“Let me

for the avoidance of doubt, say that in respect of Issue (iv) of the Appellant, I note that the Appellant, in paragraph 16(1) of its Further Amended Statement of Defence of page 191 of the Records, pleaded inter alia, that the Estate Surveyors and Valuers of the PW2, did not carry out any appraisal of the losses caused by the said oil spillage. Then in Paragraph 16(4) and page 192 thereof, it pleaded that it will rely on the appraisal Reports produced by its valuers in respect of the said oil spillage. I note that at the trial, it never called its own valuers. So, at the close of the trial there was no evidence from the Appellant to controvert the said evidence of the PW2 who and in fact, produced Exhibits “A” and “A1″.”
Against the above background which is exactly what played out herein at the lower Court where the Appellant and his witness testified and tendered Exhibits ‘A’ and ‘B’ in proof his claim that he was the authentic Diokpara of Duruobiaku while the Respondents pleaded in their paragraphs 4, 5, 6, 7, 11, 12-14 and 15 of their Statement of Defence Claim and Felix Ifezue deposed in his Statement on Oath at page 68 of the Records (paragraph 14):

“That throughout the life time of the said Peter he never talked about or agitated for Diokpara/Obufor Duruobiaku for three reasons, namely:
(i) Ngoka died before his father
(ii) Peter was not Ngoka’s son
(iii) Peter was a visitor in Duruobiaku;”
but did not lead evidence to prove same, having abandoned their said Defence as rightly found by the Learned Trial Judge, the Learned Emeritus Lawlord of the Apex Court posited inter alia as regards the evaluation of evidence and placing same on the imaginary scale of justice before taking a decision that:
“The law is well settled that a trial Court is entitled to rely and act on uncontroverted or uncontradicted evidence of Plaintiff or his/its witness/witnesses. In such a situation, there is nothing to put or weigh on the imaginary or proverbial scale. In such a case, the onus of proof is naturally discharged on a minimum of proof. See the cases of Nwabuko v. Ottih (1961) 2 SCNLR 232; (1961) 1 ANLR 487 at 490; Oguma Associated Companies (Nig.) Ltd. v. IBWA (1988) 1 NLR (Pt. 73) 658 of 682; (1988) 3 SCNJ 13 and Balogun v. UBA Ltd. (1992) 6 NWLR (Pt. 247) 336 at 354. (1992) 7 SCNJ 61 just to

mention but a few.”
In the instant case, the Learned Trial Judge in the absence of any evidence from the Respondents who had abandoned their Defence, had nothing to weigh on the imaginary scale of justice except the evidence of the Appellant and his witness which were unchallenged, uncontroverted and uncontradicted and therefore ought to have been believed and acted upon to grant the Reliefs sought.
The Learned Trial Judge therefore was in grave error to have embarked on the futile exercise of evaluation of the Depositions and Statement of Defence of the Respondents and believing them in the absence of any evidence from the Respondents to substantiate them on the guise of taking judicial notice of on unproved custom.
I therefore agree with the Learned Counsel for the Appellant on the authorities of Lawal v. U.T.C. (Nig) Plc. (2000) 13 NWLR (Pt. 943) 601 at 622; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1384) 522 at 548; Nwakonobi v. Udeorah (2013) 7 NWLR (Pt. 1354) 499 of 518 paras. D-E, S.C. and Okwejuminor v. Gbokeji (2008) 5 NWLR (Pt. 1079) 172 at 216 paras. C-A; as well as the celebrated case of Woluchem v. Gudi (supra); that the trial Court

had no other option than to accept and rely on the evidence of the Appellant and witness as the truth of what he claimed in the absence of any alternative version and that where as in this case the Learned Trial Judge misapplied and misapprehended the position of the law by embarking on evaluation of the Statement of Defence and Deposition of Respondents which were not evidence and proceeded to ascribe probative value to them to the extent of believing the Respondents, the Judgment of the Learned Trial Judge cannot stand and we shall interfere with his erroneous findings and set same aside. I also resolve Issues Numbers Two and Three in favour of the Appellant.

On the whole, from the totality of the facts of this case, the Plaintiff’s case was not challenged and Judgment ought to have been entered in his favour. This Appeal therefore succeeds in its entirety and I so hold. The perverse Judgment of the Hon. Justice C. A. Ononeze-Madu, sitting of the Imo State High Court No. 1, Orlu, Imo State delivered on the 5th of December, 2012 is hereby set aside and Judgment in Suit No. HOR/126/2004 is hereby entered in favour of the Plaintiff/Appellant as per his

particulars of Claim. N50,000.00 is awarded against all the Respondents.

RAPHAEL CHIKWE AGBO, J.C.A.: I have read the lead judgment of my learned brother Agube, JCA and I agree completely with him that there is merit in this appeal. The issue here is very elementary. Pleadings can never graduate to evidence and a pleaded fact on which no evidence is led is deemed abandoned unless admitted in clear terms. The defendants having not led evidence are deemed to have admitted all evidence led by the plaintiff which evidence must be in consonance with his own pleadings. In the instant case the trial Court was bound by the unchallenged evidence of the plaintiff and his witness which evidence was not challenged by the defendant. Considering defense pleadings in lieu of evidence was clearly perverse. I allow the appeal and abide by the consequential orders made in the lead judgment.

ITA GEORGE MBABA, J.C.A.: I had the advantage of reading in draft the lead judgment just delivered by my learned brother, I. I. Agube, JCA. I agree with his reasoning and conclusions that the Appeal is meritorious and should be

allowed. I too allow it and abide by the consequential orders in the lead judgment.

Appearances

Emmanuel Ukaegbu, Esq. with him, L. U. Ogwuegbu, Esq.For Appellant

AND

K. O. Osuagwu, Esq. with him, Peter N. Chinwokwu for 4th RespondentFor Respondent