LEGAL NUGGETS (Series 115) - ISSUE: DECLARATORY RELIEF(S)- Whether Declaratory Reliefs Can be Granted on Mere Admission or Default of Defence.- By Adedotun Habeeb Adetunji, LL.M (M.IoD), FCAI

A witness statement on oath not having been duly adopted and based on an abandoned statement of defence cannot be elevated to the level of affidavit evidence or any evidence required in proof of declaratory reliefs. MOHAMMED vs. TINAU & ORS.(2018)LPELR-46707(CA)

ISSUE: DECLARATORY RELIEF(S)-
Whether declaratory reliefs can be granted on mere admission or default of defence

PRINCIPLE:
"Now, the claim of the 1st-4th Respondents, as Plaintiffs before the lower Court was for the following reliefs:
1. A declaration that the 1st and 2nd Plaintiff and their family are the bonafide and rightful owners/beneficiaries of Plot No. 4A Rimi Drive
Ungwan Rimi, Kaduna which forms part a plot No. 4 Rimi Drive, Kaduna North, Unguwan Rimi, Kaduna covered by Certificate of Occupancy No.
NC, 3111 dated 9th December, 1979, having inherited same from their late father Alhaji A. B. U. Tinau.
2. A declaration that the 1st and 2nd Plaintiff's title right and ownership in respect of the above mentioned property is still valid and subsisting.
3. A declaration that the 3rd and 4th Plaintiffs are still the Estate Surveyors and Property Consultants in charge of the said property, Plot No. 4A,
Rimi Drive, Unguwan Rimi, Kaduna is invalid null, void and of no effect whatsoever.
5. A declaration that the 5th defendant is a mere tenant at the said property.
6. A declaration that the purported sale and illegal transfer of title to the 6th defendant whilst this suit was pending and several preliminary
objections are still awaiting hearing including the objection dated 24/9/2007 is illegal, null and void and of no consequence whatsoever.
7. An order of perpetual injunction restraining the 1st - 4th and the 6th defendants either by themselves, or through their agents, servants
privies or whomsoever, from claiming any title whatsoever to the said plot No. 4A Rimi Drive, Ungwan Rime, Kaduna for the purpose of taking
possession or laying claim or doing anything whatsoever in respect thereof.
From the record of appeal, subsequent to the filing and service of the processes, the Appellant, as 6th Defendant before the Court, filed a Notice
of Preliminary Objection dated 5th February 2009 on the incompetence of the suit, for failure of the Plaintiffs therein to comply with Section 41
(1) of the Sheriff & Civil Processes Act Cap. 141 Laws of Kaduna State. The Notice of Preliminary Objection was heard and dismissed by the lower
Court on 14th July 2010. The case was severally adjourned for Pre-Trial Conference at the instance of the Defence. When the Defendants still
failed to appear, the Counsel to the 1st-4th Respondents, at the proceedings of 9/2/2012 (Page 314 of the Records) requested for and was
granted an adjournment to file a motion for judgment, pursuant to Order 26 Rule 6 of the Rules of Court. On the date fixed, following proof of
service of this Motion on the Appellant and other Defendants, the Court, in its Ruling delivered on 25/9/12, noted the absence of any challenge
from the Defendants to the application in spite of service on them of the motion, and held: "In the absence of any challenge thereto the instant
Motion on Notice dated the 21/3/12 leaves the Court with no option than to grant the reliefs therein sought...In consequence therefore, I grant
the prayers sought by the Plaintiffs per the Amended Writ of Summons and Statement of Claim. Accordingly judgment is hereby entered for the
Plaintiffs and against the Defendants in terms of the Motion paper dated 21/3/2012... In this judgment, I note that all the Defendants have
been served the instant motion on notice and none of them filed any written addresses or counter affidavit in opposition thereto." I do agree
with learned Counsel to the Appellant, that it is settled law that a Court does not grant declarations of right, either in default or on admissions,
without taking evidence and being satisfied that the evidence led is credible. In Ogolo vs. Ogolo (2006) 5 NWLR Part 972 Page 173 at 184 Paras. D-E, it was held by the Supreme Court per Onnoghen, JSC, (as he then was) reading the lead judgment, as follows:
The law is settled that such a relief cannot be granted without oral evidence by the plaintiff even where the defendant expressly admitted same
in the pleadings, the said relief being equitable in nature. When looked at from that angle, it becomes very clear that the trial Judge was under a
misconception of the law when he granted the declaratory judgment in default of statement of defence thereby rendering the said judgment
liable to be set aside upon proper application to that effect."
In Olubodun vs. Lawal (2008) 17 NWLR Part 1115 Page 1at 37 Para C, it was held per Aderemi, JSC, that: "It is now totally settled in law that a
Court does not grant declaration of right either in default or on admissions without taking evidence and being satisfied that the evidence led is
credible.'' In consequence, the trial Judge, I agree, was in error to have granted judgment on a Motion for judgment in favour of the said
Respondents, with respect to declaratory reliefs, without taking evidence from the witnesses. Learned Counsel to the 1st-4th Respondents has
however contended that the witness depositions amounted to evidence, upon which the declaratory reliefs were rightly granted, as it is trite law
that affidavit evidence, as in the witness depositions, which is neither challenged nor
debunked remains good and reliable evidence which ought to be relied upon by a Court. To this, learned Counsel to the Appellant has
responded that by the rules of trial, witnesses must adopt their witness statements on oath for it to constitute evidence. Evidence, he
contended, had thus not been led at the time judgment was entered. In addition, the trial Court had failed to evaluate the affidavit evidence. On
the status of witness depositions, it was held by this Court in Funtua vs. Tijani (2011) 7 NWLR Part 1245 Page 130 at 149 Paras. C-E, per Okoro, JCA, (as he then was) as follows: "The point must be made that all those witnesses statements on oath whether by the petitioner or respondent are
mere depositions and cannot be regarded as evidence before the Court. Indeed, they are akin to pleadings in a regular Court and pleadings are
never evidence. The lower Tribunal was therefore perfectly right to have restricted its consideration of the appellant's evidence to the 46
witnesses' statements on oath adopted in evidence by the appellant's witnesses before it and to have ignored the rest of the appellant's
witnesses' statements on oath which were not adopted in evidence before it. I agree with the lower Court that those witnesses' statements on
oath which were not adopted at the trial were deemed abandoned. In Splinters (Nig.) Ltd. vs. Oasis Finance Ltd. (2013) 18 NWLR Part 1385 Page
188 at 224 Para E-F, it was also held by this Court, per Iyizoba, JCA, as follows:
"The Respondent is right that such witness statement on oath not having been duly adopted and based on an abandoned statement of defence
cannot be elevated to the level of affidavit evidence or any evidence at all." Thus, while it is true that the witness depositions of the 1st-4th
Respondents, as Plaintiffs before the lower Court, were not challenged, the law is that these depositions, unless they are adopted, are not yet
evidence.
Indeed, ORDER 33 RULE 1 of the Kaduna State High Court (Civil Procedure) Rules Supra provides: (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 depositions and oral
examination of witnesses in open Court.
(2) The oral examination of a witness during evidence-in-chief shall be limited to confirming written depositions and tendering in evidence all
documents or other exhibits referred to in the depositions. (Underlining Mine).
The written depositions of the 1st-4th Respondents, having not been confirmed in oral evidence did not thus constitute evidence as required in
proof of declaratory reliefs, I hold. "It has again been argued by the Respondents' Counsel that the Appellant, having defied the provision of
Order 26 of the Rules, by failing to participate at the pre-trial conference and taken no steps to suspend the application of this Order by applying
that the said judgment be set aside by the trial Court, has not exhausted all the remedies provided for in the statute before coming to this Court
for redress. He refers to Order 26 Rule 6 of the High Court of Kaduna State (Civil Procedure) Rules (Supra) which provides:
"Any judgement given under this rule may be set aside upon an application made within 7 days of the judgement or such other period as the
Pre-trial Judge may allow not exceeding the pre-trial conference period. The application shall be accompanied by an undertaking to participate
effectively in the pre-trial conference." This rule, I however hold, will avail where there is no requirement of the law for evidence to be given
before judgment can be awarded in favour of a party. The instant case, is thus not such a one, as contemplated in Owoseni vs. Faloye (2005) 1
SCNJ 357; Eguamwense vs. Amaghizemwen (1993) 9 NWLR (Pt. 315) 1 at 25 in which it was held that where there are remedies provided for in a
statute, the Plaintiff must exhaust all the remedies stipulated in the statute before approaching the Courts. The parties, in the instant case, are
already, and rightly, in Court. The principle in those cases are thus not applicable to the instant case. I thus resolve the 2nd issue for
determination in favour of the Appellant. In consequence of the resolution of the 2nd issue for determination in favour of the Appellant, this
appeal succeeds. The judgment of the lower Court delivered on the 25th September, 2012 by Hon. Justice B. U. Sukola is hereby set aside. This
case is remitted to the lower Court to take evidence on the claim of the 1st-4th Respondents." Per ADEFOPE-OKOJIE, JCA.(Pp.12-20,Paras.D-F).