CHIEF FOLAYAN OLUWADARE & ANOR v. CHIEF ADEDEJI ADENIGBA & ORS
(2015)LCN/7925(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 30th day of June, 2015
CA/EK/35/2015
RATIO
PRACTICE AND PROCEDURE: DECLARATORY RELIEFS: WHAT A PARTY SEEKING FOR DECLARATORY RELIEFS MUST ESTABLISH
It is trite that a party seeking for declaratory reliefs must establish same by offering oral evidence to the satisfaction of the Court. See Maja v. Samouris [2002] 7 NWLR (Pt 765) 78at pages 100-101 paras H-C where the Supreme Court held thus: The Court does not make declaration of right either on admission or in default of defence without hearing evidence and being satisfied by such evidence to the plaintiff?s entitlement to such a right. The requirement of oral evidence arises from the fact that the Court has a discretion to grant or refuse a declaratory relief and its success depends entirely on the strength of the plaintiffs own case and no on defence.Similarly inC.P.C.V. INEC [2011] 18 NWLR (Pt 1279) 493 at 538 the Supreme Court of Nigeria held that A plaintiff who seeks for a declaratory relief must rely on the strength of his own case and not on the weakness of the defendant’s case. The plaintiff must satisfy the Court that, upon the pleadings and cogent and credible evidence adduced by him, he is entitled to the declaration of right in his favour. per. AHMAD OLAREWAJU BELGORE, J.C.A.
PRACTICE AND PROCEDURE – DECLARATORY RELIEFS; WHETHER A DECLARATIVE RELIEF CAN BE GRANTED WITHOUT FIRST HEARING EVIDENCE
A declaratory relief cannot be granted without first hearing evidence and the Court being satisfied that it is a case on which declaration should made: see Bello v. Eweka (1981) 1 S.C. 101. It makes no difference that the declaratory relief was being sought in a proceeding where process, including witness statements, were frontloaded; oral evidence must be first led. This position was recently confirmed by this Court, Lagos Division, per Augie J.C.A., with the concurrence of her learned brothers Oseji and Abubkar JJ.C.A. BOLOUKUROMO MOSES UGO, J.C.A. per. AHMAD OLAREWAJU BELGORE, J.C.A.
JUSTICES
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
1. CHIEF FOLAYAN OLUWADARE
2. JOSHUA OSANYINLEYE
(For themselves and on behalf of Folayan Branch of Adesulu Ruling House, Ilasa Ekiti) Appellant(s)
AND
1. CHIEF ADEDEJI ADENIGBA
2. PRINCE ADEBANJO AJIBOLA
(For themselves and on behalf of the Adesulu Ruling House of Ilasa Ekiti)
3. EKITI EAST LOCAL GOVERNMENT OMUO EKITI Respondent(s)
AHMAD OLAREWAJU BELGORE, J.C.A.(Delivering the Leading Judgment): This appeal was brought against the decision of the Ekiti State High Court, Omuo-Ekiti Division, contained in the judgment of Hon. Justice A. Adesodun, delivered on the 27th day of March, 2014 in Suit No. HOM/9/2013.
The learned trial Judge granted the prayers of the claimants in an application to him to enter a default judgment against the Defendant for failure to enter defence in the substantive suit vide a writ of summons dated and filed on the 15th day of August, 2013 and statement of claim dated and filed on the 1st day of August, 2013.
The Appellants were not joined as parties to the suit before the trial Court, but were granted leave to appeal against the judgment as interested parties. This appeal has been brought vide a Notice of Appeal dated and filed on the 26th day of June, 2014 containing three (3) grounds of appeal.
In the Appellants? Brief of Argument dated and filed on the 7th day of December, 2015, the following sole issue was raised for the determination of the Honourable Court:
Whether it was proper for the trial Court to have
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granted declaratory reliefs in default of pleadings without calling for oral evidence in proof of same. (Ground 1)
On the sole issue, it was submitted that it was improper for the trial Court to have granted declaratory reliefs to the Respondents without calling for evidence in proof thereof. They argued that it is the law that Courts do not make declarations of right either on admissions or default of defence without hearing satisfactory evidence in proof thereof. They referred this Court to the cases ofOkhuarobo v. Aigbe (2002) 9 NWLR [Pt. 771] 29 @ 54 Paras. B-C, C.P.C v. INEC (2011) 18 NWLR [Pt. 1279] 493 @ 538 Paras. D-E,Maja v. Samouris (2002) 7 NWLR [Pt. 765] 78 @ 100-101 Paras. H-C
They finally urged this Honourable Court to set aside the judgment of the trial Court and remit the case to the Chief Judge of Ekiti State for re-assignment to another judge.
The Respondents, on their own part, filed a joint Brief of Argument on the 11th day of January, 2016 wherein they submitted two (2) issues for determination, to wit:
1. Whether there are (sic) enough material evidence before the lower trial Court upon which her judgment in the suit
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was based?
2. Whether the lower Court acted rightly in granting summary judgment in favour of 1st& 2nd Respondents in default of the Defendant (3rd Defendant) filing its statement of defence within the period stipulated by the Rules of Court?
In support of the first issue, the Respondents submitted that the trial Judge was presented with cogent and incontrovertible affidavit evidence pursuant to Order 3 Rule 2(1) of the High Court of Ekiti State (Civil Procedure) Rules, 2011, and upon which the trial Court based its judgment.
It was argued that the cases of Maja v. Samouris (Supra) and Okhuarobo v. Aigbe (Supra) cited by the Appellants are distinguishable from the instant case as they were not decided on Rules of Court that gave room for frontloading of processes of Court. In its stead, CBN v. Amao & 2Ors (2010) 5-7 SC [Pt. 1] 1 @ 30-31 on the propriety of granting declaratory reliefs upon affidavit evidence was commended to us.
The Court was urged to resolve this issue in favour the Respondents.
?The Respondents then argued in support of the second issue that the trial Judge acted rightly and within his powers pursuant to Order
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20 Rule 9 of the High Court of Ekiti State (Civil Procedure) Rules, 2011 to give judgment as it did in default of defence.
They finally urged the Court to uphold their arguments and submissions and dismiss this appeal with substantial cost.
In their Reply on Points of Law, the Appellants submitted that the Rules of Court relied upon by the Respondents in their argument is subordinate to the Evidence Act and in the light of Section 133 (i) (sic) of the Evidence Act the burden of proof is on the Respondents against whom the Court will give judgment if no evidence was adduced on either side.
They further referred the Court to Order 32 Rule 2(i) of the High Court of Ekiti State (Civil Procedure) Rules, 2011 to establish that any act required to be proved in a trial shall be proved by written depositions and oral examination of witnesses.
They urged this Honourable Court to allow the appeal.
When this appeal came up for hearing, learned counsel for the respondents, Taju Ahmed Esq., informed the Court that he was conceding to the appeal, agreeing with the learned counsel for the appellants that the trial Court ought to have taken oral
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evidence in support of the declaratory reliefs being sought by the appellants. It was at this stage that the appeal was adjourned for judgment.
The 1st and 2nd Respondent had instituted this action against the 3rd Respondent claiming the following reliefs, viz:
?1. A declaration that the reference to the late patriarch of our Adesulu Royal family of Ilasa Ekiti, Oba Abel Jimoh Ajibola Oloniijogunaye II, as being a defendant of Adanaogun Ruling House in the defendant?s letter of 15tth day of May, 2013; Ref. No EELG/948/107 is wrong, misleading, derogatory and defamatory.
2. A declaration that the imputation of the defendant in her letter dated 15th day of May, 2013 Ref: EELG948/107 about the late patriarch of the claimants? family to the effect that ?it should be recalled that Oba Ajibola Oloniijogunaye II, the immediate past Oba came from ADANAOGUN RULING HOUSE OF HOUSE OF OKE GEMUGERE? is wrong misleading, libellous and grossly defamatory.
3. A declaration that the appropriate Ruling House of the Late Oba Abel Jimoh Ajibola Oloniijogunaye II and his family is Adesulu
4. Ruling House of OkeGemugere and
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not Adanaogun Ruling House of OdoGemugere.
5. A declaration that there is only on Ruling House bearing ?Adesulu Ruling House is of OkeGemugere and not Odo Gemugere.
6. An order of Court restraining the defendant, her agents and privies from further referring to the Adesulu Ruling House of Oke Gemugere, Ilasa Ekiti (the family of the claimants) as being from OdoGemugere or any other quarter in Ilasa Ekiti other than Oke Gemugere.
7. A sum of N100,000,000.00 (One Hundred Million Naira) as damages for the embarrassment, and defamation of the late patriarch of the claimants? family (Oba Abel Jimoh Ajibola Oloniijogunaye II) and the entire princes and princesses of Adesulu Ruling House by the defendant vide her letter Ref: EELG948/107 and dated 15th day of May, 2013.?
(see page 1-2 of the record of appeal)
The writ of summons and statement of claim together with the accompanying documents were served on the 3rd respondent. The 3rd respondent did not file its statement of defence. Consequent upon this, the 1st and 2nd respondent brought an application, praying the trial Court to enter judgment for them in default of
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pleadings. See pages 36-42 of the record. The 1st and 2nd respondents? prayer was granted by the trial Court, See pages 46-47of the record. The Judgment of the trial Court can be found on pages 47-49 of the record.
It is trite that a party seeking for declaratory reliefs must establish same by offering oral evidence to the satisfaction of the Court. See Maja v. Samouris [2002] 7 NWLR (Pt 765) 78at pages 100-101 paras H-C where the Supreme Court held thus:
?The Court does not make declaration of right either on admission or in default of defence without hearing evidence and being satisfied by such evidence to the plaintiff?s entitlement to such a right. The requirement of oral evidence arises from the fact that the Court has a discretion to grant or refuse a declaratory relief and its success depends entirely on the strength of the plaintiffs own case and no on defence.?
Similarly inC.P.C.V. INEC [2011] 18 NWLR (Pt 1279) 493 at 538 the Supreme Court of Nigeria held that ?
?A plaintiff who seeks for a declaratory relief must rely on the strength of his own case and not on the weakness of the
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defendant?s case. The plaintiff must satisfy the Court that, upon the pleadings and cogent and credible evidence adduced by him, he is entitled to the declaration of right in his favour.?
In the instant case, the respondents did not adduced oral evidence; they simply relied on the affidavit evidence in support of their motion for default judgment and the learned trial Judge went ahead to enter judgment in their favour. This is manifestly wrong. The learned trial Judge should not have entered judgment for the respondent without having heard oral evidence from them in support of their declaratory prayers as pleaded in the statement of claim.
The respondent having conceded to this appeal, it will serve no useful purpose belabouring the issue any further.
This appeal succeeds and it is accordingly hereby allowed. The decision of the High Court of Justice, Omuo-Ekiti Judicial Division in Suit No.HOM/9/2013, delivered on the 27th day of March, 2014 is hereby set aside.
?This case shall be remitted to the Honourable Chief Judge of Ekiti State for reassignment to a Judge of the High Court of Ekiti State other than Hon. Justice A.
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Adesodun, for hearing and determination on the merits.
Each party shall bear his own cost.
FATIMA OMORO AKINBAMI, J.C.A.: I have had the privilege of reading in draft the lead judgment prepared and delivered by my learned brother, Ahmed Olarewaju Belgore, JCA and I am in complete agreement with the conclusions in relation to the issues for determination of the appeal.
BOLOUKUROMO MOSES UGO, J.C.A.: I was given the privilege to read in advance the judgment delivered by my lord Ahmad Olarewaju Belgore J.C.A. and I agree with the reasoning and conclusion contained therein.
A declaratory relief cannot be granted without first hearing evidence and the Court being satisfied that it is a case on which declaration should made: see Bello v. Eweka (1981) 1 S.C. 101. It makes no difference that the declaratory relief was being sought in a proceeding where process, including witness statements, were frontloaded; oral evidence must be first led. This position was recently confirmed by this Court, Lagos Division, per Augie J.C.A., with the concurrence of her learned brothers Oseji and Abubkar JJ.C.A.,
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in Nasco Town Plc v. Nwarueze (2015) All FWLR (Pt.780) 1381 at 1391 ? 1399.
For this and the more comprehensive reasons contained in the judgment of my learned brother, I also allow the appeal and set aside the decision of the lower Court and order that the action be tried afresh in the High Court of Ekiti State by a Judge other than Adesodun J.
I abide by my lord?s order as to costs.
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Appearances:
Adedayo Adewunmi, Esq.For Appellant(s)
Taju Ahmed, Esq.For Respondent(s)
Appearances
Adedayo Adewunmi, Esq.For Appellant
AND
Taju Ahmed, Esq.For Respondent
