SEAMARINE INTERNATIONAL LIMITED & ORS v. AYETORO BAY AGENCY & ORS
(2015)LCN/7881(CA)
In The Court of Appeal of Nigeria
On Monday, the 1st day of June, 2015
CA/L/278/05
RATIO
EVIDENCE: BURDEN OF PROOF; THE BURDEN OF PROOF IN ESTABLISHING A DECLARATORY RELIEF
The burden of proof in establishing a declaratory relief is indeed heavy – see AG, Rivers State v. A.G., Bayelsa State & Anor (2012) LPELR-9336 (SC) and Dumez (Nig.) Ltd. V. Nwakhoba (2008) 18 NWLR (Pt.1119) 361 SC, where the Supreme Court per Mohammed, JSC (as he then was) observed – “The law on the requirements of the Plaintiff to plead and prove his claims for declaratory reliefs on the evidence called by him without relying on the evidence called by the Defendant is indeed well settled. The burden of proof on the Plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the Defendant where the Plaintiff fails to establish his entitlement to the declaration by his own evidence”. per. AMINA ADAMU AUGIE, J.C.A.
PRACTICE AND PROCEDURE: WHETHER THE COURT CAN CONSIDER MORAL ISSUES OUTSIDE THE PRECINCTS OF THE LAW
The fate of every case depends on the pleadings and evidence in support, and Courts do not pursue moral issues outside the precincts of the law -see NBCI v. Standard (Nig) Eng. Co. Ltd. (2002) 1 NWLR (Pt.768) 104, Ayalogu V. Agu (2002) 3 NWLR (Pt.753) 168 and Ladejobi v. Shodipo (1989) 1 NWLR (Pt.99) 596, where Babalakin, JCA (as he then was) very aptly said –
“The rule is to ask and thou shall be given if you are legally qualified for your request”. per. AMINA ADAMU AUGIE, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
1. SEAMARINE INTERNATIONAL LIMITED
2. AUGUSTUS A. EGIEBOR-ERIBO
3. M.F.V. OMOSEDE 1 Appellant(s)
AND
1. AYETORO BAY AGENCY
2. MISS FUNMILOLA ARUWAYO
3. ROTIMI ARUWAYO
(Owners of the Vessel – “Bay Fisher 1” Or “MFV Omosede 1” – Registered as LA 240) Respondent(s)
AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): This Appeal has to do with a Fishing Trawler known as “BAY FISHER 1” that was registered under the 1st Respondent’s name. It was later re-registered under the name of the 1st Appellant, and became known as “OMOSEDE 1”. The 2nd and 3rd Respondents are the children of the late Stephen Oreofe Aruwayo-Authority, who was one of the proprietors of the 1st Respondent, and they filed a civil suit at the Federal High Court, wherein they alleged that after their father’s death, the Fishing Trawler was stolen from where it was berthed at their father’s Boat bay at Aiyetoro, Ilaje LGA in Ondo State, and they reported to the Police at the State C.I.D, Akure, Ondo State in 1997. They also reported the matter to the Police at Zone 2, Onikan, Lagos, in February 1998, and to the Government Inspector of Shipping and Registrar of Ships at Apapa, Lagos, in case of any attempt to re-register the vessel.
They later heard that the said vessel was on 15/4/1998 re-registered under the Appellants’ name with its name now changed to OMOSEDE 1, and their claims as per the Writ of Summons dated 2/6/1998, are as follows –
(1) A DECLARATION pronouncing the Plaintiffs to be the lawful owners of the vessel originally known as “BAY FISHER 1” and registered as LA 240 under the name of the 1st Plaintiff now purportedly re-registered under the name MFV OMOSEDE 1 as belonging to the 1st Defendant.
(2) A DECLARATION that the Plaintiffs are entitled to possession of the said vessel.
(3) N50,000,000.00 damages against the 1st and 2nd Defendants for trespass to, detention and/or conversion of the said fishing vessel.
ALTERNATIVELY
A Reference to the Admiralty Registrar to assess the amount of such damages, costs and expenses.
(4) AN INJUNCTION restraining the 1st and 2nd Defendants, their servants, agents, privies, assigns or otherwise however from in any way interfering with the Plaintiffs’ right of ownership, possession and enjoyment of the vessel BAY FISHER now renamed MFV OMOSEDE 1.
The Appellants filed their Statement of Defence, which they later amended, and they averred that contrary to the said Respondents’ assertion that they “are the children of the late proprietor of the firm who have been granted Letters of Administration in respect of the estate”, the 1st Respondent is an association with 6 members, and they are merely 2 out of the 11 children of Chief S.O. Authority, the late Managing Director, who died on 19/12/1988, and the Letters of Administration “was obtained by misrepresentation and false declaration of oath”; that the vessel was allocated to its Members by the Federal Ministry of Agriculture under a scheme set up through Federal Department of Fisheries for assistance to Fishing Cooperative Societies, and when the 1st Respondent could no longer maintain the Fishing Trawler and could not pay off the balance owed to the ministry, it convened a meeting, where their late father was represented by his brother, Mr. Ojolo Aruwayo, who agreed with others to sell the vessel to anybody who could pay for it.
They further averred that when they could not get anybody to buy it, its Chairman, Oba C.E. Akinluwa “singularly and finally paid for it”, and in 1991, Oba C.E. Akinluwa sold the said vessel to one Mr. Jackson Homane, who sold it in 1995 to one Mr. Naphtan Ayeoyinbo, who finally in 1997, sold it to the Appellants; that the Police at Zone 2, Onikan, Lagos, investigated and concluded that the said vessel was not stolen but sold by its owners; that none of the other children of the Late Chief Aruwoye ever laid claim to the said Trawler as the exclusive property of theirs except the Respondents; and that they would contend as follows at the trial before the Court that –
(a) The first Plaintiff is no longer a legal entity and could not sue Plaintiff.
(b) The second and third Plaintiff has no locus standi to institute this action.
(c) The relief of declaration cannot be granted in this action as presently constituted.
(d) The foundation of the Plaintiffs claim is an alleged criminal Act and cannot, therefore, support a relief of Declaration.
They added that the Respondents’ claim is frivolous, completely speculative and unmeritorious, and should be dismissed as an abuse of Court process.
The Respondents as Plaintiffs did not file any reply at all – not to the original Statement of Defence or to the said Amended Statement of Defence. However, at the trial that ensued, they called three witnesses, including the 2nd Respondent, who testified as PW1, and tendered a number of Exhibits, including the Letters of Administration as Exhibits A-A2. They also called one of their half-brothers – Oluwole Albert Aruwayo, who testified as PW2, and one of their cousins – Williams Aruwayo, who testified as PW3.
The Appellants, on their part, called one witness – Wilfred Urowayi, an Operation Manager of the 1st Appellant, and he also tendered Exhibits, including the Police Report that the vessel was not stolen as Exhibits N-N2. After the trial, learned Counsel addressed the Court, and in his judgment delivered on 5/6/2003, the learned trial Judge, Ukeje, C.J. formulated for determination – “a combination of the issues raised by the learned counsel for the Defendants and those raised by the Plaintiffs counsel, as follows”-
1. Whether the Plaintiffs have established that they are the Owners or persons entitled to possession of the vessel in dispute herein.
2. Whether the Plaintiffs have proved beyond reasonable doubt that the Defendants did steal the vessel, the Res herein.
3. Where the Court finds that the Defendants did not steal the vessel, whether there is any relief that the Court can grant to the Plaintiffs.
4. In the face of all the findings in answer to the issues raised supra to make consequential orders.
He reviewed the evidence, and concluded as follows in respect of Issue 1-
“It is the strong contention of the Defendants that the Letters of Administration was obtained by fraud deception and misrepresentation to the Probate Registrar of the Ondo State High Court. I should state right away that the issue of how or why the Letters of Administration was obtained or granted cannot be properly canvassed before the Court as this Court totally lacks jurisdiction to deal with such issues. The Evidence Act – – enjoins this Court to recognize and accord validity and regularity to all processes duly issued by a Court of competent jurisdiction in Nigeria, and in certain stated circumstances, Courts outside Nigeria. – – Therefore, at this stage and relying EXHS B and C the registered Firm, Aiyetoro Bay Agency was at its inception, registered under the name of S.A. Aruwayo-Authority (the Father of the 2nd and 3rd Plaintiffs) and Elisha Aruwayo (the Brother of S.O.A. Aruwayo and also the uncle of the 2nd and 3rd Plaintiffs). And by virtue of Exhibit A – – the power to administer the vessel, in addition to the personal property of S.O.A. Aruwayo, became vested in the 2nd and 3rd Plaintiffs, with effect from 11/8/1997. Concerning the vessel itself, at its first registration it was known as Bay Fisher One, – – and all the 64 shares, being the entire shares in any vessel, was vested in Aiyetoro Bay Agency, as the owner. – – All the foregoing put it beyond controversy that at registration, the Firm, Aiyetoro Bay Agency belonged jointly to the two brothers, S.O.A. Aruwayo and Elisha Aruwayo, and the Vessel, then, Bay Fisher One registered as LA 240 on 12/12/1983, was registered in the name of Aiyetoro Bay Agency. – – Upon the death of the two brothers, the power to administer the Boat became vested in the 2nd and 3rd Plaintiffs. All the foregoing by virtue of (Exhibits A-A2, B, C, D-D2, jointly) And I so find. I therefore resolve the 1st issue in the affirmation in favour of the Plaintiffs and hold that the Plaintiffs have proved up to this stage, that the vessel, Bay Fisher One belonged to the 1st Plaintiff – – from its registration on 12/12/1983 was the property of the 1st Plaintiff herein with power to administer same per EXH A from 11/8/1997”.
As to Issue 2 – whether the said Fishing Trawler was stolen, he held thus –
“- – The 1st and 2nd Defendants cannot be said to have stolen the Boat. If anybody indeed stole the Boat it is not the Defendants before the Court in this case. At worst the Defendants made a bad purchase and consequently a bad commercial investment. I therefore find, in answer to issue 2, that the boat earlier known as “BAY FISHER ONE” was not stolen by the Defendant before this Court even though title has not passed to the Defendants before this Court. I therefore determine the 2nd issue in favour of the Defendants and I state that the Defendants did not steal the Vessel. The victory under this head is pyrrhic, since no title to the vessel passed by that finding. Defendants’ remedy lies in claiming for reimbursement from Engr. Naphthan Aye Oyibo in terms of their sale Agreement which is not before this Court”.
The learned trial judge concluded as follows under “Consequential Orders”-
“I therefore find – – that the Plaintiffs have established their ownership of the Vessel, all the time. The plaintiffs never lost ownership of the vessel, even where they had lost physical possession of the vessel. – – The plaintiffs’ case succeeds.- – I therefore make the following Orders –
1. The plaintiffs are the lawful owners of the vessel originally known as BAY FISHER ONE — Accordingly, the registration of the vessel as MV OMOSEDE ONE is unlawful. Therefore, the Registrar of Ships is hereby ordered to delete from the Ship’s Register, the registration of the Vessel as MFV OMOSEDE ONE, with effect from the date of this judgment. The Vessel shall thereafter revert to its original name as BAY FISHER ONE.
2. The Plaintiffs are entitled to the possession and ownership of the vessel, MFV BAY FISHER ONE.
3. The Plaintiffs have not made any Claim as Special Damages. It is not for the Court to make a Case for the Plaintiff. It is worse still to suggest that this Court shall abandoned legitimate function and send the case to the Registrar to determine the loss incurred by the Plaintiff. The Plaintiffs made no claim in Special Damages. The Court will therefore conclude that the plaintiffs suffered none and will grant them none. This is even more potent as the Vessel has been under arrest on the Orders of this Court on the Application of the Plaintiffs since 8/6/1998. The plaintiffs did nothing to mitigate their own Loss. The Plaintiffs could have applied that the Vessel be released from arrest and detention to engage in some productive work. Accordingly, the plaintiffs are not entitled to any damages more so as the Parties before the Court have been declared not to be the persons who stole their Vessel. Consequentially, this Court’s Order of Arrest and Detention of the Vessel, made on 8/6/1998 is hereby dissolved; and the Vessel released from Arrest from and Detention.
4. The 1st and 2nd Defendants, their servants, agents, privies, assigns or otherwise howsoever, are hereby restrained particularly from interfering with the Plaintiffs’ right of Ownership and possession of the Vessel now to be known only as BAY FISHER ONE”.
Dissatisfied with “the whole Judgment”, the Appellants appealed to this Court with a Notice of Appeal containing Five Grounds of Appeal, and in the Appellants’ Brief of Argument prepared by Hakim Bolaji Abina, Esq., four Issues for Determination were distilled from the said Grounds, as follows-
1. He who comes to equity must come with clean hands. Can the Plaintiffs/Respondents herein come to Court to seek a redress when the document from which they derive their “assumed” locus standi to sue was obtained by misrepresentation and false declaration on oath?
2. Is there any justiciable controversy in the Suit herein to warrant a grant of the relief of declaration?
3. Can a Court grant a relief of declaration on the alleged weakness of the Defendants’ case in the circumstances of this case?
4. Does the Lower Court properly understands and resolved the issues that arise from the pleading in this case?
But the Respondents submitted in their own Brief of Argument prepared by Nnaemeka Amaechina Esq. that the Issues that call for determination are –
1. Whether the issue of validity of the letters of administration Exhibit A-A1 was validly raised in these proceedings, and if so, whether the trial Court ought to have refused to entertain the claims of the Respondents in the circumstance.
2. Whether the Plaintiffs/Respondents based on the pleadings and evidence established that they are the owners or persons entitled to possession of the vessel in dispute in this case as to entitle them to the reliefs prayed for and granted by the trial Court.
In line with the Respondents, I also believe that 2 Issues for Determination would suffice in resolving this appeal, and it is clear to me that their Issue 2, encompasses all the questions raised by the Appellants in their Issues 2-4; however, I do not think Issue 1 as formulated by both Parties captures the essence of what is at stake regarding the Issue; the question to ask is simply – whether the said Respondents had the necessary locus to sue or not?
Exhibits A-A2 are the Letters of Administration (Without Will) of the “real and personal property of Chief Stephen Oreofe Aruwayo Authority”, who died intestate on 19/12/1988, granted to the 2nd and 3rd Respondents by the Akure Probate Division of the Ondo State High Court on 11/9/1997.
The Appellants had averred in paragraph 4(b) of their Pleadings that the Letters of Administration was obtained by misrepresentation and false declaration on oath by the Respondents, and gave the following Particulars-
“In the Application for letters of administration the first and second Plaintiffs (sic) declared their mother and their sisters of full blood as the only wife and beneficiaries of late Stephen Authority Aruwoye. The Defendant will rely on the Certified True Copy of the Application Forms filed by the first and second Plaintiffs in the High Court of Ondo State – pursuant to which the Letters of Administration were granted”.
The Respondents did not file a Reply to the Amended Statement of Defence, however, their witnesses were cross-examined by the Appellant’s counsel, and in the Judgment appealed against the Lower Court merely stated that –
“The issue of how or why the Letters of Administration was obtained or granted cannot be properly canvassed before the Court as this Court totally jurisdiction to deal with such issues”.
The Appellants have argued that it is important to emphasize in this appeal that the Respondents did not file any reply to their allegation, and the case had gone to trial without joining issue with them on the allegation of fraud, which meant that all that was in favour of the Respondents at the close of pleadings in respect of this allegation is implied joinder. They referred to the cross-examination of the 2nd Respondent as PW1. which they set out at page 4 of their Brief and the Respondents’ Application for the Letters of Administration, which they had tendered in evidence as Exhibits J-J12, and submitted that it is clear that they established the said fraud committed by the Respondents, pleaded in para. 4 of the Amended Statement of Defence; that the Respondents’ claim for declaration and injunction is one in equity, citing Elendu v. Ekwoaba (1995) 3 NWLR (Pt.386) 704, and he who comes to equity must come with clean hands. They asked whether a person who fraudulently obtained the letters to commence an action in Court has come to equity with clean hands, and answered – Definitely not; as the purpose of applying for Letters of Administration is because of this Fishing Trawler.
They cited the following authorities on the aforesaid Maxim of Equity – Seriki V. Are (1990) 3 NWLR (Pt.595) 469, FBN Plc V. May Medical Clinics (1996) 9 NWLR (Pt.471) 195, Allied Bank Plc. V. Bravo West African Ltd. (1996) 3 NWLR (Pt.439) 710, FATB Ltd. V. Partnership Inv. Co. Ltd. (2001) 1 NWLR (Pt.695) 517, and, submitted that the Lower Court ought to have declined to hear the Respondents once the fraud had been proven before it; that once the inequity had been disclosed and same had not been rebutted, it should have declined jurisdiction to hear them for any equitable relief.
They added that they also showed that when the Respondents went to obtain the Letters of Administration, a Suit No.HOK/44/91 was pending at the Okitipupa High Court on the question of who were entitled to Letters of Administration in respect of their late Father’s estate, and referred to the pleadings in that Suit admitted in evidence as Exhibits F-F3, G-G3 and H-H3. They contend that the said question was sub-judice when the Respondents applied for letters of administration in Ondo State, which is wrong in law, citing Dan Jumbo V. Dan Jumbo (1999) 11 NWLR (Pt 627) 445; that it was wrong of them to go and secretly apply for Letters of Administration during the pendency of a Suit to determine who is entitled to apply for Letters of Administration, which explains why they falsified information on the forms. Furthermore, that the Lower Court misdirected itself and fell into a serious error when it held as it did regarding this issue; that what it was asked to do was NOT to set aside the Letters of Administration but to consider the effect of the fraud in obtaining the letter on the Respondents’ locus to sue, and the effect of the fact that the question of who is entitled to the grant of letters of administration is sub-judice; and that it is also worthy of note that all other children of the late father of the 2nd and 3rd Respondents, whose names were not mentioned on the Letters of Administration, conceded that the Trawler does not belong exclusively to their father, except the PW3.
They referred to decisions of this Court in Yusuff V. Eboda (1994) 3 NWLR (Pt.334) 568 and Shobajo V. Ikotun (2003) 14 NWLR (Pt 840) 237, and argued that the Lower Court ought not to have declined to pronounce on the validity of the said Letters on the basis of lack of jurisdiction as it has the jurisdiction to determine whether the letters of administration is void or not and whether the Respondents have come to equity with clean hands; that it is only if the Lower Court had been asked to set aside the said Letters that the issue of proper parties would be relevant but it was not asked to set aside but rather to declare that the said Respondents could not rely on it because it was obtained by fraud and they cannot profit from their fraud; that it should have noticed that the Letters did not mention 1st Respondent, the alleged owner of the Trawler, thus, a power granted to the Respondents to administer a fishing trawler in Ilaje Esa Odo LGA, as Administrators of the Estate of Chief Stephen Oreofe Aruwayo Authority, has no nexus with a fishing trawler known as Omosede 1 and registered as LA 240 (formerly known as Bay Fisher 1) which is the subject matter of the action, and they must show a nexus between themselves and subject matter of the action; and that if the Trawler is not in their father’s name, then the said Letters cannot confer locus on them, and they can only be granted administration of their father’s shares in the 1st Respondent if there is anything like that in existence by virtue of the provision of Section 659(2), 660 and S.666, 657, which relates to notification of change in partnership and the consequence of not informing the Registrar of such a change. They urged this Court to allow the Appeal and hold that the Respondents did not come to Court with clean hands and therefore has no locus to sue; that the Respondents have no right to maintain an action for an equitable relief based on a document obtained by fraud; and that they also have no nexus with the subject matter of the action and, therefore, have no locus standing to sue in respect of it.
The Respondent conceded that the Appellants had raised the issue in paragraph 4(b) of the Amended Statement of Defence but argued that they never alleged fraud nor give any particulars of same as stated in their Brief, therefore, every argument in their brief of argument on the issue of fraud is new and fresh and to raise such new issue, they require leave of Court, and where such leave is needed and not obtained, the said new issue must not be countenanced, and we were urged to disregard every argument thereon.
They further argued that the Appellants raised no real issue of fraud, and asked – what was the fraud? Against whom was the fraud committed? And answered that even if they meant the fraud was committed against the other wives and children of the deceased, excluding these Respondents, from the evidence adduced, there was no fraud committed against them. They referred to the evidence elicited from PW1 during cross-examination and evidence-in-chief of PW2 at page 58 of the Record, and submitted that-
“What happened may be that because of the urgency of the matter, [they] tried to eliminate all that may clog speedy processing of the Letters of Administration, but nevertheless they carried the entire family along. – This cannot amount to fraud. Fraud against who? — It is wrong for the Appellants to contend in this appeal that the case be struck out for fraud because there is no fraud in actual fact”.
They contend that the case cited by the Appellant are inapplicable to the facts of this case, and the lower court was right for the following reasons –
(a) The trial Court held that it does not have jurisdiction to entertain such issue and that is correct because the Federal High Court is a Court of limited jurisdiction and by virtue of Section 251 of the 1999 Constitution, it has no jurisdiction to entertain issue of validity or otherwise of a letter of administration.
(b) The Appellants do not have the locus standi to raise such issue in any Court of law at all not having any relationship with the deceased – – and or any interest in his Estate at all to enable them do so. That being so, they cannot question the grant of [said] Letters of Administration – – not being members of Chief S.O. Aruwayo Family. On what pedestal will they stand to question it? Adesanya v. President of Nigeria (1981) 2 NCLR 358 at 381 cited. Yusuf v. Eboda (supra) and Shobajo v. Ikotun (supra) [cited by the Appellants] are inapplicable to this case.
(c) The proper venue for challenging the letter of administration should be before the Court that granted the said letter of administration and that challenge can only be made by persons, who have interest in the inheritance of the Estate of Chief Stephen Ore-Ofe Aruwayo.
As to the Application being made while a Suit was pending, they argued that Dan Jumbo’s Case (supra) is distinguishable, and the said issue cannot be decided by the Lower Court and this Court since the Lower Court has no jurisdiction, and there is no specific relief sought by the Appellants thereon. That their contention that there is no nexus between the 1st Respondent and Exhibit A is misconceived because Exhibit B – form for registration of business name, and Exhibit C – Certificate of Registration, show that it is the registered business name of their late father, and business name strictly does not confer distinct legal personality other than that of the owner, and it is still the owner trading under the adopted name and style; and there is, therefore, sufficient nexus between the 1st Respondent and the deceased.
Now, there are two distinct angles to this Issue touching on Exhibit A, the said Letters of Administration granted to the 2nd and 3rd Respondents – its validity, and the evidentiary value of its contents. I will state right away, as the Lower Court was very quick to say – “that the issue of how and why [Exhibit A] was obtained or granted cannot be properly canvassed before the Court as [that] Court totally lacks jurisdiction to deal with such issues”. Jurisdiction of a Court is the lifeline of any action because a Court without jurisdiction automatically lacks the competence to try a case, and it is trite that if the relief sought does not come within the jurisdiction of the Court as adumbrated by the facts, the Court must reject jurisdiction – see Onwudiwe v. FRN (2006) 10 NWLR (Pt.988) 382, where Tobi, JSC, aptly observed –
“A party cannot beg or bargain jurisdiction into a matter before a Court of law; so too the adverse party cannot beg or bargain jurisdiction outside or out of a matter. Jurisdiction is an exact law that has to be applied exactly to any given case. It is either a Court has jurisdiction in a matter or it has not. In the determination of a jurisdiction of a Court, the enabling law vesting jurisdiction has to be taken in the light of the relief or reliefs sought. The moment the relief sought comes within the jurisdiction of the Court – – the Court must assume jurisdiction as it has jurisdiction to do so. – – The reverse position is also correct and it is that the moment the relief sought does not come within the jurisdiction of the Court, as adumbrated by the facts, the Court must reject jurisdiction as it has no jurisdiction in the matter”.
Even so, the Appellants have argued that the Lower Court was not asked to set aside Exhibit A but to consider the effect of the fraud in obtaining same on the locus of the 2nd and 3rd Respondent to sue. Once again, I will say that the Lower Court is right – “the Evidence Act enjoins [the] Court to recognize and accord validity and regularity to all processes duly issued by a Court of competent jurisdiction in Nigeria”. Section 150(1) of the said Evidence Act (now Section 168(1) in the 2011 Act), provides as follows –
“When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with”.
This is known as the presumption of regularity; as the Latin Maxim puts it – OMNIA PRAESUMUNTUR RITE ET SOLEMNITER ESSE ACTA DONEC PROBETUR IN CONTRARIUN, which means that all things are presumed to have been legitimately done, until the contrary is proved, and the contrary in this case cannot be proved at the Lower Court because, in the first place, it had no jurisdiction to inquire into any such matter touching on Exhibit A.
Secondly, and more importantly, Exhibit A emanated from the Ondo State High Court and such an instrument touching on the rights and obligations of the Respondents cannot be subjected to interpretation by a Court of coordinate jurisdiction – see Gipsrel Inter. Co. Nig. Ltd. V. Eya & Anor. (2010) LPELR-4198 CA, N.I.M.B Ltd. V. UBN Ltd. (2004) 12 NWLR (Pt.888) 599 SC, where the Supreme Court per Pats-Acholonu, JSC, so aptly observed that –
“The theory of justice to which we adhere, rests a priori on the premise that there must be certainty and parties to the legal duel should be in a position to know where they stand at a certain time. A system of law where judges of the same degree i.e. of co-ordinate jurisdiction make contradictory and inconsistent orders in respect of the same subject matter involving the same parties i.e. each relying on his whims, caprices, prejudices and sometimes a vaulting ego, makes nonsense and mockery of the law. The beauty or what I might describe as the romance of the law is that just as stare decisis exercises a restraining influence on our Courts, so too do discipline in the Courts in dutifully adhering to normative order by which Courts of co-ordinate jurisdictions do not sit on appeals on each other, attracts respect of the law”.
Be that as it may, Exhibit A was admitted in evidence by the Respondents, and must be treated like any other documentary evidence. In other words, though the Lower Court cannot question its validity, it is bound to use it like any other document before it, and more importantly, it is also duty bound to ensure that it covers the subject for which it is being sought to be used. In this regard, there are two main classes of Letter on Administration -see Ugu V. Tabi (1997) 7 NWLR (Pt 513) 368 SC, where the deceased had died intestate without any issue, and his brother, the Respondent, was granted Letters of Administration to administer the deceased’s “personal property”.
Armed with the Letter of Administration, the Respondent took over the entire estate, including a house, where his wife, the Appellant still lived. One of the issues before the Supreme Court was whether grant of letters of administration of personal estate covers administration of real estate, and the Supreme Court per Belgore, JSC (as he then was) categorically stated –
“The Respondent deliberately applied for letters of administration in respect of personal estate of the intestate and was granted. He paid the appropriate fees. It is clear in evidence at the trial Court that the Appellant, who is the widow of the intestate, during his life lived at 44 Ijaiye Steet, Ajegunle, Apapa, and continued to reside there at his death as her matrimonial home. The house belonged to her deceased husband. The Respondent obtained the letters of administration simply because he claimed to be a brother of the deceased and this was in respect of the personal estate. He was aware of the house in issue as part of the deceased’s estate, he never applied for it. Could it be said that he applied for personal estate of under twenty pounds so as to administer the money in the savings account as well as the house, real property, situate at 44 Ijaiye Street, Ajegunle, Apapa? This is not convincing except fraud would be allowed to flourish! I therefore hold that a grant of letters of administration in respect of personal estate does not cover the administration of the real property of the intestate”.
In other words, the category of Exhibit A is the deciding factor in this case; not the making of it, and the Appellants contend that it did not mention the 1st Respondent, therefore, a power granted to the 2nd and 3rd Respondents to administer a fishing Trawler in Ilaje Esa Odo LGA, has no nexus with the Trawler known as Omosede 1, which is the subject matter of the action.
I have to torpedo the Appellants’ position one more time on this issue because Exhibit A clearly says – “Be it known that on 11/8/1997. Letters of Administration of the real and personal property of Chief Stephen Oreofe Aruwayo Authority, deceased, who died on 19/12/1988 at Ibadan intestate, and who had at the time of his death, his fixed abode at Aiyetoro within the jurisdiction of this Court, were granted by this Court to Miss Funmilola Aruwayo [2nd Respondent] and Mr. Rotimi Aruwayo [3rd Respondent] of No. 7 Fapuro Street – – Oke-Aro Lagos, the daughter and son of the intestate”, and endorsed on it is – “Real Property – a Fishing Trawler at Ilaje Ese-Odo”.
The word, nexus, simply means “a means of connection, a link or tie”, – see Webster’s Dictionary. The Respondents referred us to Exhibits B & C, which the Lower Court also relied on in arriving at its decision on Exhibit A, and the names of the 1st Respondent and the deceased, who died intestate, are clearly mentioned there. What is more, Exhibit B contains an address for the 1st Respondent – i.e. C/O Ayetoro Postal Agency, Ayetoro City via Igbekoda, Ilaje/Esa-Ode Local Government Ondo State. It is ludicrous to imagine that there can be two Fishing Trawlers in “Ilaje Ese-Edo” which are linked to the deceased “Chief Stephen Oreofe Aruwayo Authority” and, 1st Respondent who originally owned the Trawler known as BAY FISHER 1, which is the subject matter of the dispute between the Parties in this case, and I need say no more; this Issue is resolved against the Appellants.
Issue 2, queries whether the Respondents established that they are entitled to the declaratory reliefs sought and granted by the Lower Court. The Appellant submitted that such relief is a remedy for the determination of a justiciable controversy, where the plaintiff is in doubt of his legal right citing Whyte V. Jack (1996) 2 NWLR (Pt.431) 407 and that if the subject matter of the action was stolen, then there is no doubt in their mind over their legal right and, therefore, there is nothing to grant declaration about.
They argued that it is a contradiction in terms to ask for a declaration against a party you call a thief, and as that is the only material allegation in their Statement of Claim, the Lower Court ought to have dismissed the case; that they should have filed a Reply to their Amended Statement of Defence; and that without one, no issue was joined on possession of the trawler. They asked – “can somebody steal from you, what you never had? Or can you sell what you never had? And argued that there can be no justiciable controversy between a thief and a true owner, thus, a claim for declaration is not applicable here. Under their Issues 3 and 4, they submitted that the Lower Court made a specific finding that the said Trawler was not stolen, which should have been the end of the case, but it erred when it went on to find that the successive owners, who had been in possession of the Trawler, at one time or the other, were not in lawful possession at the relevant time; that it misdirected itself when it said the issue is whether their root of title is genuine, which is a serious error, as no such issue arose before it, and it showed a lack of understanding of the nature of the claim before it, which is a declaratory relief; that in a declaratory action, the plaintiffs must succeed on the strength of its case and not on the weakness of the Defendant’s case; that the onus of proof rested squarely on the Respondents to establish the alleged theft of the trawler, and the onus on them was to adduce evidence that it was not stolen but was sold by its true owners; and that there was no basis for the Lower Court’s finding that the sale of the trawler was irregular. Furthermore, that judgment must be confined to issues raised by parties in their pleadings, and it is not competent for a Court to suo motu make a case for any party, and then proceed to give Judgment on the case so formulated, which is contrary to the case of the parties before it; that the Respondents did not raise the issue of title, and the Lower Court did not need to analyze their own case to find for the Respondents in a case for declaration of title.
Furthermore, that once it found that the material allegation had not been made out, it did not need to consider the weakness of their own case, citing Alao V. Akano (2005) 11 NWLR (Pt.935) 160, Sokwo V. Kpongbo (2003) 2 NWLR (Pt.803) 111, Bashua V. Maja (1976) 11 SC 143 and Akinola V. Oluwo (1962) SC NLR 1333; that none of their averments or evidence supports the Respondents claim, and as the trawler was found not to have been stolen, they have been found not to have been in possession, and with these two findings, there is no case left in the Statement of Claim; that it is a contradiction for the Lower Court to have agreed that the Trawler has been in the possession of successive purchasers, and still found that the Trawler belongs to them, and was stolen from them in 1997; and that –
“If the Respondents have not alleged theft but had ask for declaration of title between the Aiyetoro Bay Agency, which they claimed is owned by their father, and the Aiyetoro Bay Agency which [they] claim is an unregistered Association, which includes their father and, which was put together to meet the condition prescribed by Federal Government for the acquisition of the fishing trawler, then the [Lower Court] would have been right to look at [their] title. Even to do this, the Letters of Administration must have been issued in respect of their fathers’ shares in Aiyetoro Bay Agency. From the way their claim is presently formulated, the court cannot consider the title of the Defendants/Appellants to find for the Plaintiffs/Respondents. No such issue arose from the pleadings”.
The Respondents submitted that the Appellants’ proposition that there is no justiciable controversy worthy of determination in this case, is strange because there is a real dispute about the ownership of the trawler in issue that they clearly raised in their Statement of Claim, which the Appellants countered claiming that it was owned by Aiyetoro Bay Agency Association, which legitimately sold it to them; that the said Association was not shown to have any legal personality by the Appellants, and there is no evidence that it existed or has any relationship with the Trawler; that there was, in fact, a real dispute, not academic or imaginary one, and there is, therefore, a good case made out for the grant of declaratory relief by the Lower Court.
They also argued in response to the Appellants’ arguments that the Lower Court clearly understood the case presented to it and did justice to it; that it is erroneous for the Appellants to claim that their pleadings did not raise issue of title because it was pleaded that the said Trawler was stolen, and asked – “if issue of title was not raised, can he tell us what was raised?; that stealing means appropriating what does not belong to one, and title is intrinsic in such allegation; that they pleaded and proved that the Trawler belonged to them and was removed and sold by other persons from where it was berthed without their consent, and this claim was proved to the hilt; that the Lower Court found that the vessel was in fact removed by persons, who were not the registered owners, who then sold it to the Appellants; that it merely said that it was not the Appellants, who stole the Trawler, but nevertheless observed that the Appellants ought to have exercised care in purchasing it from persons, who were not the registered owners; and that
“Exhibits L, M, N1 – N2, Exhibit P-P4, Q-Q3 tendered by the Appellants show clearly that their predecessors in title or vendors have no nexus with the original owners of the vessel in issue. If the Appellants’ vendors or predecessor in title have been found to have sold what does not belong to them to the Appellants, it follows that if the Appellants did not steal the vessel, their vendors or predecessors did. [Their] claims were clearly established by evidence. There is no valid ground for attacking the judgment of the trial court”.
It is with the same measure that I made my views known quickly in Issue 1 that I will say without hesitation that the Appellants are right on all fronts – the Lower Court did not fully grasp the unique nature of the reliefs sought, and erroneously placed the burden of proving same on the wrong party. The Respondents claimed two declaratory reliefs – that they are the lawful owners of the Trawler, and that they are entitled to possession of same.
It is basic law that a Plaintiff has the onus of proof to show that in a declaratory action he is entitled as per his claim. To this end, he has to succeed on the strength of his own case, and not on the weakness of the Defendant’s case, and where he defaults in discharging this onus, his case will be dismissed.
The burden of proof in establishing a declaratory relief is indeed heavy – see AG, Rivers State v. A.G., Bayelsa State & Anor (2012) LPELR-9336 (SC) and Dumez (Nig.) Ltd. V. Nwakhoba (2008) 18 NWLR (Pt.1119) 361 SC, where the Supreme Court per Mohammed, JSC (as he then was) observed –
“The law on the requirements of the Plaintiff to plead and prove his claims for declaratory reliefs on the evidence called by him without relying on the evidence called by the Defendant is indeed well settled. The burden of proof on the Plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy in the sense that such declaratory reliefs are not granted even on admission by the Defendant where the Plaintiff fails to establish his entitlement to the declaration by his own evidence”.
In this case, the Respondents hinged their entire case on the allegation that the Trawler was stolen from where it was berthed after their father died. The Appellants insisted that it was not stolen and tendered Exhibits N-N2 – a Police Report dated 16/10/1998, and headed – “Re: Case of stealing of a Fishing Trawler TR. 13 Croaker 31”. The Lower Court held as follows –
“Upon all the facts, the circumstances, the law and judicial authorities relevant in this Judgment, the 1st and 2nd Defendants cannot be said to have stolen the Boat. If anybody indeed stole the Boat it is not the Defendants before the Court in this case. At worst, the Defendants made a bad purchase and consequently a bad commercial investment. I therefore find – – that the boat earlier known as “BAY FISHER ONE” was not stolen by the Defendant before this Court, even though title has not passed to the Defendants before this Court. I therefore determine the 2nd issue in favour of the Defendants and I state that the Defendants did not steal the Vessel. The victory under this head is pyrrhic, since no title to the vessel passed by that finding: Defendants’ remedy lies in claiming for reimbursement from Engr. Naphthan Aye Oyibo in terms of their sale Agreement, which is not before this Court”.
Nothing can be more unequivocal than that; the Trawler was not stolen by the Appellants as alleged by the Respondents, and that was the cornerstone of their claim for declaratory reliefs from the Lower Court. The Lower Court, as the Appellants rightly submitted, fell into grave error when it proceeded to look over the shoulder of the Respondents’ case that had fallen to pieces and into the weakness of their case in giving Judgment for the Respondents.
The Lower Court violated all known principles relating to the grant of declaratory reliefs; it shifted the burden of proof wrongly to the Appellants and disregarded the evidence adduced by them as to the Trawler’s history, the successive owners after 1st Respondent, and who they bought it from. The fate of every case depends on the pleadings and evidence in support, and Courts do not pursue moral issues outside the precincts of the law -see NBCI v. Standard (Nig) Eng. Co. Ltd. (2002) 1 NWLR (Pt.768) 104, Ayalogu V. Agu (2002) 3 NWLR (Pt.753) 168 and Ladejobi v. Shodipo (1989) 1 NWLR (Pt.99) 596, where Babalakin, JCA (as he then was) very aptly said –
“The rule is to ask and thou shall be given if you are legally qualified for your request”.
In this case, the Lower Court had no business looking into who had victory, “pyrrhic” or not and its comment as to where the Appellants’ “remedy lies” was uncalled for because the Appellants had nothing to lose. They did not ask the Lower Court for anything, and did not need its advice as to anything. The Respondents failed to make out their claim for the declarations sought, and their case should have been dismissed by the Lower Court at that point.
The bottom line is that the appeal succeeds and it is hereby allowed. The finding of the Lower Court that the Appellants did not steal the Trawler known as BAY FISHER 1 is hereby affirmed, however, its conclusion and the Consequential Orders made in its Judgment dated 5/6/2003, is set aside. This is an old appeal, and each party will bear their own cost.
TIJJANI ABUBAKAR, J.C.A.: A party seeking for declaratory relief before a court must establish his alleged entitlement to the satisfaction of the court. Declaratory relief is a discretionary remedy and must be refused where the plaintiff fails to lead credible and convincing evidence before the court by placing sufficient materials to justify entitlement to the relief, see: ANYAOKU vs. ADI (1986) 3 NWLR (Pt.31) 731 at 749, ONI & OTHERS vs. ARIMORO (1973) 3 S.C. 165, CLAY INDUSTRIES (NIG) LTD vs. AINA (1997) 8 NWLR (Pt.516) 208 at 228.
I agree entirely with my learned brother AUGIE JCA, that Respondents failed woefully to establish legitimate entitlement to the declarations sought, and the Lower Court had no business embarking on logical deductions on their behalf, the Lower Court should have dismissed Respondents claims at once.
For the above reasons and the more detailed reasons contained in the lead Judgment, I join my learned brother in holding that Appellants appeal is meritorious and must be allowed, it is hereby allowed. I affirm the finding by the Lower Court that Appellants did not steal the fishing trawler “BAY FISHER 1”. I abide by all consequential orders including order on costs.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I had the privilege of reading in draft the judgment delivered by my learned brother Amina Adamu Augie, JCA. I am in complete agreement with the lucid reasoning and conclusion reached. I have nothing to add except to buttress his Lordship’s reasoning.
The exercise of the court in granting declaratory reliefs is neither automatic nor an easy task. The party seeking a declaration must deter from resting on the weakness of the other party in moving the court to grant the relief. He must succeed on the merit of his own case. See ODOGWU v. NWAJEI [2013] LPELR-21030. The party seeking it must adduce cogent and convincing evidence to persuade the court. The onus is on him to prove he is entitled to the relief. See SIJUADE V. OYEWOLE (2012) 11 NWLR (PT.1311) 310; MOTUNWASE V. SORUGBE (1988) 5 NWLR (PT.92) 90; AYANRU V. MANDILAS LTD (2007) 10 NWLR (PT.1043) 462; OZOWALA V. EZEIHESHIE [1991] 1 NWLR (PT.170) 699.
In ABAYE v. OFILI [1986] 1 S.C.231; (1986) LPELR-21 at 81 paras A-B, the Supreme Court, PER KARIBI-WHYTE JSC, held:
“A declaration is a discretionary remedy which generally exercised with caution. For a declaration to be made, the Plaintiff must establish that, he is entitled to the relief. claim should be lawful, constitutional, and not be inequitable for the Court to grant.”
In this appeal, the Respondents who sought declaratory relief that the Trawler belongs to them and that it was stolen by the Appellants failed to lead evidence to show how it was stolen. Declaratory relief is not even granted on admission by the defendant. The Supreme Court in AYANRU v. MANDILAS LTD. [2007] 10 NWLR (PT.1043) 462; (2007) LPELR-670 at 16-17 paras E-C, PER MOHAMMED, JSC held:
‘…A claim for a relief of declaration, whether of title to land or not, is not established by an admission by the defendant, because the plaintiff must satisfy the court by cogent and credible evidence called by him to prove that as a claimant, he is entitled to the declaratory relief. It is the law that a court does not grant declaration on admission of parties because the court must be satisfied that the plaintiff on his own evidence is entitled to the relief.’
See also DAVID FABUNMI v. ABIGAIL ADE AGBE [1985] 1 NWLR (PT.2) 299 AT 318; KODILINYE V. ODU [1935] 2 WACA 336; WOLUCHEM v. GUDI [1981] 5 SC 291; OGUNDAIRO & ORS. V. OKANLAWON & ORS. [1963] 1 ALL NLR 358; BELLO v. EWEKA [1981] 1 SC 101; NDAYAKO v. DANTORO [2004] 13 NWLR (PT.889) 187 AT 214.
On the whole of the above reasons and more contained in the lead judgment, I also hold that the appeal has merit and it is hereby allowed. I abide by consequential orders made in the lead judgment.
Appearances
H.B. Abina, Esq. with Miss E. NwachukwuFor Appellant
AND
Nnaemeka Amaechina, Esq, with George Nwahajioko, Esq.For Respondent
