DIAMOND BANK PLC. V. ALHAJI USMAN YAHAYA & ANOR. (2011)

DIAMOND BANK PLC. V. ALHAJI USMAN YAHAYA & ANOR.

(2011)LCN/5053(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 21st day of June, 2011

CA/J/200/2009

RATIO

THE BURDEN OF PROOF ON THE PLAINTIFF IN ESTABLISHING DECLARATORY RELIEFS TO THE SATISFACTION OF THE COURT

As rightly submitted by learned counsel for the appellant, the respondents’ prayer in paragraph 11(a) of their amended statement of claim is for a declaratory relief. Reliefs (b) and (c) are for consequential orders, which are dependent upon the grant of prayer (a). Also, as submitted by learned counsel, the law is settled that a declaratory relief cannot be granted without oral evidence, even where the claim is admitted. In the case of: Dumez Nig. Ltd. Vs Nwakhoba (2008) 18 NWLR (1119) 361 @ 376 A – E, the Supreme Court held thus: “The burden of proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlement to the declarations by his own evidence. In other words, declaration of right as sought by the plaintiffs/respondents in their first relief against the defendant/appellant in the present case cannot be made on admission or in default of pleading by the defendant not to talk of reliance on the evidence of the defendant’s witnesses, See Wallersteiner Vs Moir (1974) 3 ALL ER 217 @ 251 where Buckley, L.J. said: “It has always been my experience, and I believe it to be a practice of long standing, that the court does not make a declaration of right either on admission or in default of pleading … but only if the court was satisfied by evidence. ” See also Metzger Vs Department of Health and Social Security (1977) 3 ALL ER 444 at 451. This statement of the law was adopted by this court in Vincent I. Bello Vs Magnus Eweka (1981) 1 SC 101 and also applied in Motunwase Vs Sorungbe (1988) 5 NWLR (92) 90 at 102.” See also: Ogolo Vs Ogolo (2006) All FWLR (313) 1 @ 13 – 14; (2006) 5 NWLR (972) 163 @ 184 D – E. PER. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN J.C.A.

THE POSITION OF THE LAW WHERE THE PLAINTIFF FAILS TO PROVE HIS CLAIM FOR DECLARATION

The law is settled that the courts do not grant declaratory relief based on the admission of the defendant. The plaintiff must satisfy the court by cogent, credible and convincing evidence called by him that he is entitled to the declaratory relief. So where the plaintiff on his own evidence fails to prove his claim for declaration, his claim must fail. See Ayanru V. Mandilas Ltd, (2007) 10 NWLR (Pt. 1043) 462; Ndayako V, Dantoro (2004) 13 NWLR (Pt. 889) 187. PER. KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN J.C.A.

Before Their Lordships

KUDIRAT M.O. KEKERE-EKUNJustice of The Court of Appeal of Nigeria

ALI ABUBAKAR BABANDI GUMELJustice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAMJustice of The Court of Appeal of Nigeria

Between

DIAMOND BANK PLC.Appellant(s)

AND

1. ALHAJI USMAN YAHAYA
2. ALHAJI ANES YAHAYARespondent(s)

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Benue State High Court, Makurdi Division delivered on 12/6/09 granting all the reliefs of the respondents herein who were the plaintiffs and dismissing the appellant’s counter claim. The appellant, being dissatisfied with the decision filed a notice of appeal dated 7/7/09 containing nine grounds of appeal.
The parties duly filed and exchanged briefs of argument, In the appellant’s brief dated 20/07/09 and filed on 22/07/09 settled by Amuwa Olatunde Esq., six issues were distilled from the grounds of appeal as follows:
1. Whether declarative reliefs could be granted by the learned trial Judge without oral evidence or affirmation of depositions on oath by the respondent and without tendering any document?
2. Whether the learned trial Judge was right to hold that pleadings constitute evidence?
3. Whether the learned trial Judge was right when he in error misconstrued all the documents tendered by the appellant to be that of the respondents?
4. Whether the learned trial Judge was right to say in his judgment that the appellant did not tender any document yet used the same documents “Exhibits A – M” to give judgment against the appellant?
5. Whether the learned trial Judge of the lower court was right to have set aside a valid sale covered by deed of legal mortgage when the remedy available to the mortgagors is in damages?
6. Whether the judgment of the lower court is not against the weight of evidence?
The respondents, in their brief settled by R.C. Ndefo Esq., dated 24/8/09 and filed on 25/9/09 distilled three issues from the grounds of appeal thus:
1. Whether the learned trial Judge was right in holding that this case could be determined based on the depositions filed by the parties without oral evidence.
2. Whether the learned trial Judge’s mistake of treating the document tendered in this case as having been tendered by the respondents rather than by the appellant, materially affected the judgment.
3. Whether the learned trial Judge was right in setting aside the sale of the mortgage property carried out without notice to the mortgagor, the 1st respondent.
The issues formulated by the parties are similar. I am of the view that the six issues formulated by the appellant could be condensed into three issues. The appellant’s issue 1 covers both issues 1 and 2. Issue 3 covers issues 3 and 4. Issues 5 and 6 could also be considered under one issue. The issues for determination therefore are:
1. Whether declarative reliefs could be granted by the learned trial Judge without oral evidence or affirmation of depositions on oath by the respondent and without tendering any document?
2. Whether the error of the learned trial Judge in treating Exhibits A – M tendered by the appellant as having been tendered by the respondents occasioned a miscarriage of justice?
3. Whether the learned trial Judge was right in setting aside the sale of the mortgaged property in the circumstances of this case.
The facts that gave rise to this appeal are as follows:
Sometime in 2003 the 2nd respondent, who is the son of the 1st respondent obtained a loan from the appellant. The 1st respondent gave his Certificate of Occupancy No. BN 1106 in respect of his petrol station to the 2nd respondent to use as collateral for the loan. Pursuant thereto a Deed of Legal Mortgage (Exhibit A) was executed by the parties. The 2nd respondent defaulted in repaying the loan. Several letters of demand were written to him to no avail. Purportedly exercising its powers under Exhibit A the appellant sold the mortgaged property by private treaty. Aggrieved by the sale of his property without notice to him the 1st respondent instituted an action
against the appellant before the Benue State High Court, Makurdi Division on 10/3/08. He subsequently amended the statement of claim by joining the 2nd respondent as co-plaintiff. By paragraph 11 of their amended statement of claim dated 28/7/08 they sought the following reliefs:
a. A declaration that the sale of the plaintiffs property covered by Certificate of Occupancy No. BN 1106 is null, void and of no effect whatsoever.
b. An order that the parties return to their status quo ante before the purported sale of the property and proper notice of sale or auction served on the plaintiffs.
c. An order that the defendants can only sell the property if after adequate notice of sale has been given to the plaintiffs and they fail to liquidate the balance.
The appellant filed an amended statement of defence and counter claim dated 23/9/08. In its counter claim it sought the following declaration:
“A declaration that the auction sale of Plot No. BN 1106 built as petrol station by the plaintiff is valid and legal.”
The respondents filed a reply and defence to the counter-claim dated 2/10/08.
The pleadings of the parties were accompanied by written statements on oath of their respective witnesses and a list of documents to be relied upon at the trial. The respondents indicated an intention to rely on one document, the certificate of occupancy No. BN 1106 while the appellant listed twelve documents. At the pre-trial session held on 12/2/09 learned counsel for the appellant sought to tender the documents to be relied upon from the Bar. They were admitted without objection and marked Exhibits A – M respectively. It was also agreed that since the documents to be relied upon by the appellant were not in dispute oral evidence would be dispensed with. Learned counsels were directed to file their written addresses. In his written address, learned counsel for the respondents challenged the procedure adopted by the learned trial Judge. In a considered judgment delivered on 12/6/09 the learned trial Judge granted all the reliefs claimed by the respondents and dismissed the counter claim, hence this appeal.
I shall now consider the merits of the appeal.
Issue 1
Learned counsel for the appellant submitted that pursuant to Order 32 Rules 1 and 3 of the Benue State High Court (Civil Procedure) Rules 2007 (hereinafter referred to as “the 2007 Rules”) the evidence in chief of a witness shall be his written deposition on oath adopted in open court. He submitted that in this case the respondents opted not to confirm their written statements or adopt them in court. He submitted that there was thus no evidence upon which the court could grant the respondents’ reliefs, which are declaratory. He submitted that where a party seeks declaratory reliefs he must adduce evidence in support thereof, no matter how minute, even where the adverse party has admitted the claim. He referred to: David Fabunmi Vs Abigail Ade Agbe (1985) NWLR (2) 299 @ 318; Ogolo Vs Ogolo (2006) All FWLR (3131 1 @ 13 – 14: Maja Vs Samouris (2002) 3 SCNJ 29 @ 44 – 45.
He submitted that the learned trial Judge erred when he held that the written depositions on oath constitute legal evidence upon which the court could act without the calling of oral evidence. He argued that pleadings do not constitute evidence but mere notice of a party’s case. He relied on: Obmiami Brick & Stone (Nig.) Ltd. Vs A.C.B. Ltd. (1992) 3 SCNJ 1 @ 35; Ezennah Vs Alhaii Mamoud I. Attah (2004) All FWLR (202) 1858 @ 1895 – 1896.
In reaction to the above submissions, learned counsel for the respondents referred to the court proceedings of 20/11/08 at page 90 of the record and submitted that learned counsel for both parties agreed with the learned trial Judge that it was not necessary to call oral evidence and agreed to submit written addresses based on the construction of the documents filed along with the written depositions. He observed that being a separate and independent action, the appellant was also obliged to proffer oral evidence to prove its counter claim, which it failed to do. He cited the cases of: Jeric Nigeria Ltd. Vs Union Bank of Nig. Plc (2000) 12 SCNJ 184; Narindex Trust Ltd. Vs Nigerian Intercontinental Merchant Bank Ltd. (2001) 4 SCNJ 208. He argued that in the present circumstances the appellant, having agreed to the procedure adopted, could not be heard to complain. He referred to Section 75 of the Evidence Act. He also referred to pages 120 – 125 of the record where the learned trial Judge dealt exhaustively with the interpretation of Order 32 Rules 1 – 4 of the 2007 Rules. He submitted that all the cases relied upon by learned counsel for the appellant were decided before the 2007 Rules came into effect.
As rightly submitted by learned counsel for the appellant, the respondents’ prayer in paragraph 11(a) of their amended statement of claim is for a declaratory relief. Reliefs (b) and (c) are for consequential orders, which are dependent upon the grant of prayer (a). Also, as submitted by learned counsel, the law is settled that a declaratory relief cannot be granted without oral evidence, even where the claim is admitted. In the case of: Dumez Nig. Ltd. Vs Nwakhoba (2008) 18 NWLR (1119) 361 @ 376 A – E, the Supreme Court held thus:
“The burden of proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the defendant where the plaintiff fails to establish his entitlement to the declarations by his own evidence. In other words, declaration of right as sought by the plaintiffs/respondents in their first relief against the defendant/appellant in the present case cannot be made on admission or in default of pleading by the defendant not to talk of reliance on the evidence of the defendant’s witnesses, See Wallersteiner Vs Moir (1974) 3 ALL ER 217 @ 251 where Buckley, L.J. said:
“It has always been my experience, and I believe it to be a practice of long standing, that the court does not make a declaration of right either on admission or in default of pleading … but only if the court was satisfied by evidence. ”
See also Metzger Vs Department of Health and Social Security (1977) 3 ALL ER 444 at 451. This statement of the law was adopted by this court in Vincent I. Bello Vs Magnus Eweka (1981) 1 SC 101 and also applied in Motunwase Vs Sorungbe (1988) 5 NWLR (92) 90 at 102.”
See also: Ogolo Vs Ogolo (2006) All FWLR (313) 1 @ 13 – 14; (2006) 5 NWLR (972) 163 @ 184 D – E.
Thus, in order to prove their claim in paragraph 11(a) of their amended statement of claim the respondents were required to lead oral evidence in support of their pleadings. The High Court of Benue State (Civil Procedure) Rules 2007 illustrate the new approach to civil procedure that has been embraced throughout the length and breadth of this country in recent times. The Rules introduce inter alia, the concept of front-loading and pre-trial conference for the purpose of achieving a just, efficient and speedy dispensation of justice. See Order 1 Rule 1(2).
Order 2 Rule 2(1) & (2) Provides:
2.(1) All civil proceedings commenced by writ of summons shall be accompanied by:
(a) statement of claim;
(b) list of witnesses to be called at the trial;
(c) written statements on oath of the witnesses and
(d) Copies of every document to be relied upon at the trial.
(2) when a plaintiff fails to comply with Rule 2(1) above, his originating process shall not be accepted for filing by the registry.”
Order 17 Rule 1 provides:
“The statement of defence shall be a statement in summary form and shall be accompanied by copies of documentary evidence, list of witnesses and their written statements on oath.”
Order 32 Rule 1 provides:
1(1) Subject to these Rules and to any enactment relating to evidence any fact required to be proved at the trial of any action shall be proved by written deposition and oral examination of witnesses in open court.
(2) All agreed documents or other exhibits shall be tendered from the Bar or by the party where he is not represented by a Legal Practitioner.
(3) The oral examination of a witness during his evidence-in-chief shall be limited to confirming his written deposition and tendering in evidence all disputed documents or other exhibits referred to in the deposition.
(4) Real evidence shall be tendered during the trial.’ (Emphasis mine)
The above provisions are clear and unambiguous and must be given their natural and ordinary meaning. Order 1 Rule 2(2) underscores the importance of the new provisions. Where a party desires to prove any fact, he shall be put in the witness box to confirm and adopt his written deposition and to tender any disputed documents. The learned trial Judge expressed the view at page 123 of the record that under the 2007 Rules, the need for oral evidence only arises when there is the need to cross-examine a witness particularly where disputed documents or facts are to be tendered through their makers. His Lordship thereafter embarked upon a very scholarly examination of existing English and Nigerian authorities to the effect that sworn depositions become legal evidence, upon which a court could act in appropriate cases without calling oral evidence. He contended further that where a case involves merely the interpretation of a document, such as a Deed of Legal Mortgage, an agreement, or provision in a statute, it is not necessary to insist on calling oral evidence, With due respect to His Lordship, none of the authorities relied upon were decided with reference to civil procedure rules such as the 2007 Rules. Even where the court is only to construe documents, a party or witness who has sworn to a written deposition must adopt or confirm that deposition on oath in court and tender any disputed documents. He would also identify those exhibits that have been admitted by consent. It is only when that has been done that the written deposition becomes his evidence in chief in the case. He is not being called upon to repeat the averments therein, but merely to identify the deposition and adopt it as his evidence in the case. After adopting his statement, the opposing party has the option to cross-examine him if he so desires. He may decline to do so. It is important to appreciate that the purpose of the new civil procedure rules is not to dispense with oral evidence entirely but to expedite the process of giving evidence in chief, which in the past was often a mere re-hash of the pleadings. Under the new dispensation instead of repeating the pleadings on oath, a witness merely has to adopt his sworn deposition. This significantly speeds up the process, as valuable time is saved and the adverse party who is already seised of the evidence in chief can prepare questions for cross-examination in advance. The era of a witness remaining in the witness box for several adjournments just to complete his evidence in chief is now a thing of the past. Until the deposition is confirmed and adopted, it remains part of the party’s pleadings. The law is that pleadings do not constitute evidence. See: The Administrators/Executors of the Estate of General Sani Abacha (deceased) Vs. S.D. Eke-Spiff & Ors. (2009) 7 NWLR (1139) 97 @ 129 B, 141 D – F & 143 G; Newbreed Org. Ltd. Vs Erhomosele (2006) 5 NWLR (974) 499 @ 545 C – E. I am therefore of the humble view that the learned trial Judge erred in holding that the mere filing of a written deposition on oath was sufficient proof of its contents. Even if one were to take the view that the appellant acquiesced in the wrong procedure adopted, it would not cure the defect because the failure of the respondents’ witness to adopt his written deposition before the court or to tender any document meant that they proffered no evidence in support of their claim for declaratory relief. This issue is accordingly answered in the negative and resolved in favour of the appellant.
Issue 2
Learned counsel for the appellant submitted that the evaluation of evidence and finding of fact, oral and documentary, are principally the duty of a trial court, which has the exclusive advantage of seeing the witnesses and observing their demeanour. He submitted that an appellate court would not interfere with the findings of the trial court unless the findings are perverse. He relied on: Alhaii Kazeem Vs Madam Mosaku (2007) 2 SCNJ 135 @ 152; Bangbade Vs Balogun (1994) 1 NWLR (323) 718; Civil Design Vs SCOA Nig. Ltd. (2007) 2 SCNJ 252 @ 278; Popoola Vs Adeyemo (1992) 8 NWLR (257) 1 @ 33. He submitted that the misconception of the leaned trial Judge in ascribing exhibits A – M to the wrong party was fatal to the appellant’s case, as His Lordship did not consider them in relation to its case in reaching his decision.
Learned counsel for the respondent conceded that the learned trial Judge erred when he held that Exhibits A – M were tendered by the respondents rather than the appellant. He submitted that the Court of Appeal would not allow an appeal on the basis of an error of the lower court unless such error occasioned a miscarriage of justice. He relied on: Oseni Vs Dawodu (1994) 4 SCNJ 197; Fadlallah Vs Arewa iles Ltd. (1997) 7 SCNJ 202; and Ben Jekpe Vs Chief Alokwe (2001) 4 SCNJ 55. He argued that the error, in the circumstances of this case did not occasion a miscarriage of justice, as the respondents relied on the same documents, particularly Exhibit A, the Deed of Legal Mortgage. He submitted that the appellant had contended in its pleadings that the 1st respondent was not a party to Exhibit A. He referred to paragraphs 10 and 12 of the deposition on oath of the appellant’s only witness, Franklin Adamu, at pages 53 – 54 of the record. He also referred to Exhibit G, the 1st respondent’s letter to the appellant (item 7 in the list of documents admitted from the Bar at page 92 of the record) indicating a willingness to offset the loan, which the appellant ignored on the ground that the 1st respondent was not a party to the agreement. He submitted that after carefully examining the facts and the law as to whether the 1st respondent was a party to Exhibit A, the learned trial Judge concluded that he was. He noted that there is no appeal against that finding. He submitted that where a finding is not challenged on appeal, it subsists and is effective. He relied on: C.B.N. Vs Igwilo (2007) 4 – 5 SC 154 @ 182. He submitted that in the instant case, even if the learned trial Judge had held that the appellant tendered Exhibit A, he would have come to the same conclusion. He submitted that Exhibits B – M all arose as a result of Exhibit A. He submitted that the learned trial Judge was justified in his finding that the appellant as mortgagee never made any prior demand of the 1st respondent mortgagor before the purported sale of the mortgaged property. He submitted that this finding was based on the fact that the appellant’s pleading in paragraphs 6 and 7 of its amended statement of defence to the effect that no notice of sale was given to the 1st respondent because it had no dealings with him amounted to an admission against interest. He submitted that the ascription of the exhibits to the respondents rather than the appellant did not materially affect the judgment of the lower court and there was no miscarriage of justice. He urged the court not to intervene. He relied on: Nnanyelugo Odukwe Vs Ethel Ogunbiyi (1998) 6 SCNJ 102.
In the course of resolving the first issue in this appeal, I held that the only way the respondents could prove their claim for a declaratory relief under the 2007 Rules was by their witness adopting and confirming his written deposition in open court. It is also clear from the record of proceedings that although the respondents indicated an intention to rely on the 1st respondent’s certificate of occupancy no. BN 1106, they failed to produce or tender any document at the trial. Therefore in the absence of any evidence to support their case, the learned trial Judge was in grave error to have ascribed Exhibits A – M to them and to enter judgment in their favour based on those documents. It is equally noteworthy that the appellant’s witness was also not called upon to confirm his deposition before the court in support of its counter claim, which was also for a declaratory relief. In a claim for a declaratory relief, the claimant must succeed on the strength of his case. He cannot rely on an admission by the adverse party or on default of pleadings. See: Dumez Nig. Ltd. Vs Nwakhoba (supra); Ogolo Vs Ogolo (supra). It is correct, as submitted by learned counsel for the respondents that it is not every mistake or error in a judgment that necessarily determines an appeal in favour of an appellant or automatically results in the appeal being allowed. See: Odukwe Vs Ogunbiyi (1998) 6 SCNJ 102 @ 113; Fadlallah Vs Arewa iles Ltd. (1997) 7 SCNJ 202 @ 214. In the circumstances of this case however, I hold that the ascription by the learned trial Judge of Exhibits A – M to the respondents who called no evidence in support of their claim and who did not tender any exhibit, and basing his findings thereon, occasioned a miscarriage of justice. This issue is accordingly resolved in favour of the appellant.
Having resolved issues 1 and 2 in favour of the appellant and having held that the respondents led no evidence upon which the learned trial Judge could have made findings in their favour, I am of the view that a consideration of issue 3 would amount to an academic exercise.
In conclusion the appeal succeeds and is hereby allowed. The judgment of the High Court of Benue State, Makurdi Division in Suit No. MHC/43/2008 delivered on 12/6/09 is hereby set aside. As there was no proper hearing before the lower court the suit is hereby remitted back to the Benue State High Court for hearing on the merits before another Judge. The parties shall bear their respective costs in the appeal.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have before now read the lead judgment just delivered by my learned brother, Kekere-Ekun, JCA. I agree with all the reasons and conclusions very ably set out therein. I wish to add a few words of my own.
In the immediate past, the administration of justice in this Country has been beset by a myriad of problems leading to protracted trials, noted for nothing but necessary delays. Justice is said to be denied when it is delayed. No Nation would allow its citizens to be denied justice for too long.
As a way out, it has now evolved that trials in our Courts, particularly the High Courts, in civil matters, must be conducted on a fast track basis. New procedures have now been provided in various High Court Rules to achieve this objective. One of the most noticeable procedures is the front-loading system at its basic and advanced level. At the basic level, it is not technology driven but at its advanced level, it is technology/ICT driven, allowing for electronic filing of processes, conduct of trial across venues within or outside jurisdictions, etc.
The Benue State High Court Rules 2007 incorporates some of the basic provisions of the front-loading system. There are a number of decisions of our superior courts that frown at dumping of evidence. However, under the front-loading system some limited leverage is allowed for dumping of evidence. This appeal is about the misunderstanding of one of the basic steps in the adjudication of matter under the system which almost eliminates or dispenses with oral evidence, through examination in-chief, cross-examination and re-examination etc.
For example, the provisions of Order 25 and Order 32 of the Benue State High Court Rules 2007 are innovative and profoundly significant. O. 25 is for the scheduling and conducting of a pre-trial conference. It is at this stage of a matter that a number of the difficulties hitherto experienced by the Court and Counsel are encountered. These difficulties include amendment of processes, joinder of parties etc. and were very known to cause delays and defeat justice. In a matter such as this one, learned trial judge could have used the opportunity provided by O. 25 r.2 to order for joinder of the party who was said to have benefited from the sale of the mortgaged property as a necessary party to the action. My learned brother had in the lead judgment fully highlighted and elucidated on the correct approach. I must emphasis that this is a new system; it is good for this country it must be allowed to work.
Any previous mindsets have to give way to the new order. Against this background a new body of case law will evolve and in my humble view, this case is one of such new cases.
I too, would allow this appeal. I also abide by the consequential orders of any learned brother in the lead judgment.

UCHECHUKWU ONYEMENAM J.C.A.: I have had the advantage of reading in draft a copy of the lead judgment by my learned brother K. M. O. KEKERE-EKUN. I am in total agreement with his reasoning and conclusion. The respondents in their claim sought three reliefs against the appellant in the lower court. See page 34 of the record. Paragraph 11 of the amended statement of claim reads:
*WHEREFOR the plaintiffs jointly and severally claim the following reliefs from the defendant:
(a) “A declaration that the sale of the plaintiffs property covered by Certificate of Occupancy No.
8N1106 is null, void and of no effect whatsoever.
(b) An order that the parties return to their status quo ante before the purported sale of the property and proper notice of sale or auction served on the plaintiffs
(c) An order that the defendant can only sell the property if after adequate notice of sale has been given to the plaintiffs and they fail to liquidate the balance”.
In its decision the lower court granted these reliefs and dismissed the counter claim. To the extent that the lower court granted relief 11(a), the judgment was declaratory and the grant an exercise of a discretionary power. Like any other exercise of a discretionary power, the grant must be exercised judicially and judiciously. Ordinarily, the appellate court would not question the exercise of the discretion of the trial Judge just because it would have exercised the discretion in a different way if it had been in the position of the trial court. It would however interfere if the exercise of the discretion occasions a miscarriage of justice or that the trial Judge did not give weight or gave insufficient weight to material facts. See Dantata V. Mohammed (2000) 5 SC 1; Owudunmi V. Registered Trustees of C.C.C. (2000) 6 S C (Pt. 111) 60.
In the instant case, both parties filed the depositions of their witnesses but never called any of the witnesses to adopt same in the open court. Order 32 of the Benue State High Court (Civil Procedure) Rules, 2007, states how facts may be proved. Order 32 Rules (1) and (3) provide as follows:
“(1) Subject to this Rules and to any enactment relating to evidence any fact required to be proved at the trial of any action shall be proved by written deposition and oral examination of witnesses in open court.
(3) The oral examination of a witness during his evidence-in- chief shall be limited to confirming his written deposition and tendering in evidence all disputed documents or other exhibits referred to in the deposition”.
The word “and” after written deposition in subparagraph 1 is conjunctive which means the written deposition alone without the oral examination cannot prove a fact. It is the written deposition in addition to the confirmation of the written deposition by adopting same through oral examination that constitutes oral evidence before the court under the order. It follows that by Order 32 Rules (1) & (3) there was no oral evidence before the lower court. Although nothing prohibits counsel in a case to agree not to call oral evidence but the effect of such decision is far reaching. For the abundance of caution it is always good to have oral evidence in its place even when it amounts to surplusage of proof.
The law is settled that the courts do not grant declaratory relief based on the admission of the defendant. The plaintiff must satisfy the court by cogent, credible and convincing evidence called by him that he is entitled to the declaratory relief. So where the plaintiff on his own evidence fails to prove his claim for declaration, his claim must fail. See Ayanru V. Mandilas Ltd, (2007) 10 NWLR (Pt. 1043) 462; Ndayako V, Dantoro (2004) 13 NWLR (Pt. 889) 187.
The only evidence before the lower court was the documentary evidence Exhibits A – M tendered from the bar by the appellant’s counsel on 12/2/2009, See pages 91 to 93 of the record. This is appellant’s evidence and not respondents’ evidence. The trial court misdirected the documentary evidence before him when it held that exhibits A – M were tendered by the respondents, this made him to erroneously grant the declaratory relief on the wrong belief that there was valuable evidence from the respondents to entitle them to the reliefs sought. This occasioned a miscarriage of justice. Accordingly the decision of the lower court which is tantamount to entering a declaratory judgment based on pleadings alone is bad in law and as such this court will interfere. See Arabambi V. Advance Beverage Ind. Ltd. (2005) 19 NWLR (Pt. 959) 1 S C where the Supreme Court stated that pleading is not synonymous with evidence and so cannot be construed as such in the determination of the merit or otherwise of a suit. So a party who seeks judgment in his favour is required by law to produce adequate credible evidence in support of his pleading and where there is none, the averments in the pleading are deemed abandoned. The same applies to whatever defence the defendant seeks to rely on in the process of demolishing the case against him.
It is correct that documentary evidence coupled with pleadings can entitle a plaintiff to the grant of a declaratory judgment. Howbeit in the instant case this cannot apply owing to the Supreme Court position in Ayanru V. Mandilas (Supra) and Ndayako V. Dantoro (supra) that the credible evidence must be called by the plaintiff or that the evidence must be his own. Herein as has been stated earlier the respondents did not call any evidence and the only evidence before the court was not “their own” which means they had no evidence to prove their claim for declaration, The learned trial Judge therefore erred in law when he granted the declaratory relief sought by the respondents. Accordingly this appeal must succeed on this issue.
In the counter claim before the lower court, the appellant also sought a declaratory relief to wit:
“A DECLARATION that the auction sale of Plot No, BN1106 built as petrol station by the plaintiff is valid and legal”,
See paragraph 5 of appellant’s counter claim at page 17 of the record.
The reasons adduced above apply mutatis mutandis to the counter claim where the appellant became the plaintiff. My reasoning is founded on the fact that a counter claim constitutes a separate, independent and distinct action wherein a counter claimant also needs to prove his claim against the opposing party. See Jeric Nigeria Ltd V. Union Bank Nigeria Plc (2000) 12 SCNJ 184; Narindex Trust Ltd. V. Nigerian Intercontinental Merchant Bank Ltd (2001) 4 SCNJ 208. Since the counter claimant also had no evidence before the court, a declaratory relief could not be granted in his favour. It is correct that Exhibits A-M were tendered by the appellant, it is also a fact that Exhibits A-M were pleaded in the appellant’s statement of defence at the lower court. However the appellant’s witness did not adopt his written deposition so there was no oral evidence in support of the averments in the pleading of the appellant which in law is deemed abandoned. The pleading of the appellant having been deemed abandoned Exhibits A-M pleaded therein which could not stand alone left no evidence before the court. The fact that the learned counsel agreed not to call any evidence left the court with no legal evidence to decide their claims. The proceedings was not therefore largely conducted in conformity with rules of evidence and procedure which in this case is Order 32 of the Benue State High Court of (Civil Procedure) Rules, 2007. This if allowed will becloud substantial justice in the case. See Edjekpo V. Osia (2007) 8 NWLR (Pt, 1037) 635; Ogedengbe V. Balogun (2007) 9 NWLR (Pt. 1039) 380. Accordingly, appeal succeeds. The decision of the lower court is hereby set aside. Suit No. MHC/43/2008 is hereby sent back to the Benue State High Court for retrial by another Judge. I subscribe to the order as to costs.