Success of Claimant Seeking Declaratory Relief  Depends on Strength of the Case

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 10th day of February, 2023

Before Their Lordships

Kudirat Motonmori Olatokunbo Kekere-Ekun

Helen Moronkeji Ogunwumiju

Ibrahim Mohammed Musa Saulawa

Adamu Jauro

Emmanuel Akomaye Agim

Justices, Supreme Court

SC.230/2006

Between

MRS AMINATU AMINU & 11 ORS     APPELLANT

                       And

ALHAJI MUBASHIR SUBAIR & 2 ORS                           RESPONDENTS

“A COURT IS DEVOID OF JURISDICTIONAL COMPETENCE TO GRANT DECLARATORY RELIEFS EITHER IN DEFAULT OF DEFENCE OR ON SHEER ADMISSION DEVOID OF CREDIBLE EVIDENCE.” 

 (Lead Judgement delivered by Honourable Ibrahim Mohammed Musa Saulawa, JSC)

Facts

On 19th October, 1987, the Respondents (together with other persons who are now deceased) instituted an action against the Appellants (and others who are also deceased) at the High Court of Ogun State, Otta Judicial Division (the “trial court”). The Respondents as Plaintiffs sought, inter alia, a declaration that they are jointly entitled to the statutory or customary right of occupancy over a parcel of land at Sango-Otta, known as Oojabi family land, and that neither the Appellants nor any individual member of the Oojabi family land could alienate the land without the consent of the head of the Oajabi family. The Respondents also prayed the trial court for an order of injunction restraining the Appellants from alienating the said property to third parties without the consent of the head of the Oojabi family, and a declaration that any purported sale or lease of any part of the said land by the Appellants without the consent of the family head, is null and void. 

In the course of proceedings, the Respondents filed a motion on notice for default judgement, on the ground that the Appellants failed to enter appearance and file their defence, despite being served with the originating process. The trial court delivered its ruling on 31st July, 1989, wherein it granted the application and entered judgement in favour of the Respondents, in default of appearance and defence by the Appellants.

Unhappy with the decision, the Appellants filed an application before the trial court, for an order setting aside the default judgement. The trial court granted the Appellants’ application, and consequently, set aside the default judgement it entered earlier. Aggrieved, the Respondents filed an appeal at the Court of Appeal (the “lower court”). The Appellants on their part filed a Respondent’s Notice, in which they urged the lower court to affirm the ruling of the trial court, on grounds other than those relied upon by the trial court. The lower court, without resolving the issues raised in the Appellants’ “Respondents’ Notice” pending before it, allowed the Respondents’ appeal and restored the default judgement initially entered against the Appellants by the trial court.

Dissatisfied with the outcome of the appeal, especially as the lower court did not resolve the Appellants’ “Respondents’ Notice” then pending before it, the Appellants lodged an appeal before the Supreme Court.

Issues for Determination 

The Apex Court adopted the following issues raised by the Appellants, in its determination of the appeal:

1. Whether the court below satisfactorily discharged its responsibilities towards the Appellant, in arriving at its decision now under appeal.

2. Whether the court below was right in restoring the trial court’s default judgement earlier set aside.

3. Whether having regard to the originating process filed on behalf of the Respondents to wit: the writ of summons and the statement of claim signed by “C. Oluremi Jacob & Co”, the lower court had the jurisdiction to allow the appeal and restore the default judgement grounded on the said processes?

Arguments

The Appellants’ contention on the 1st issue, was that the Court of Appeal erred when it neglected their Respondents’ Notice before it, and failed to consider the fundamental issues of jurisdiction which they raised therein. They argued that the proceedings conducted before the trial court was a nullity because they were conducted without jurisdiction. 

On the 2nd issue, the Appellants argued that the Court of Appeal ought not to have restored the default judgement of the trial court earlier set aside, in light of the fact that some of the Defendants had entered appearance before the trial court and there was a pending application for joinder by another party interested in the suit, when the trial court proceeded to determine the Respondents’ application for default judgement. They argued that the claims of the Respondents were basically declaratory in nature, and evidence ought to have been led before any declaration was made or judgement was entered for the Respondents. 

The Appellants’ argument on the 3rd issue was that the writ of summons and statement of claim filed before the trial court were incompetent, because the processes were issued and signed by Oluremi Jacob & Co. which is not a legal practitioner within the definition of the Legal Practitioners Act. 

Court’s Judgement and Rationale

In resolving the 1st issue, the Court relied on its decision in OKONJI v NJOKAMMA (1991) 7 NWLR (PT. 202) 131, in which it held that it is the duty of a court, whether of first instance or appellate, to consider all the issues that have been joined by parties and raised before it for determination. The Court reasoned that it would amount to sheer abdication of duty for a court to fail or decline to determine a case or issue as presented to it by a party, and more often than not, such a failure results in a miscarriage of justice.

The Court held that although the Court of Appeal was very much seised of the Respondents’ Notice filed by the Appellants, however, it failed to effectively discharge its responsibilities as imposed upon it by the law, when it declined to accord due consideration to the fundamental issues raised by the Appellants in the said Respondents’ Notice. The Court held that where a court inexplicably fails to accord due consideration to the case or issues presented by a party, it would result to a breach of the right of fair hearing as enshrined in Section 33 of the 1979 Constitution (applicable at the time the suit was commenced), which is in pari materia with Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.

On the 2nd issue, the Court held that one fundamental and distinguishing feature of a declaratory action is that it is never granted merely as a matter of course, that is to say, a Plaintiff seeking a declaratory relief is under a duty to succeed on the strength of his claim, and not merely on the weakness of the defence. The Court made reference to KODILINYE v MBANEFO ODU & ORS. 2 WACA 336 and OGUNSUMO v ADEMOLU (1995) 4 NWLR (PT. 389) 254 @ 269. The Court held further that the wisdom inherent in the cited decisions is to the effect that a court is devoid of jurisdictional competence to grant declaratory reliefs either in default of defence, or on sheer admission devoid of credible evidence.

The Supreme Court held that the Court of Appeal was wrong to have restored the default judgement, without taking into account the fact that the reliefs sought by the Plaintiffs in the suit were declaratory in nature, and ought not to have been granted at all without recourse to evidence.

As regards the 3rd issue bordering on the competence or otherwise of the Respondents’ originating processes issued and signed in the name of C. Oluremi Jacob & Co – a law firm, the Apex Court held that for any court process to be properly and validly issued for adjudication purpose before a court of law or tribunal in Nigeria, it must have been signed by a legal practitioner known to law and duly entitled to practice under the provisions of the Legal Practitioners Act 1990. The Court held that there is no doubt that the name “C. Oluremi Jacobs & Co”, as depicted on the originating processes can only be attributed to the law firm so ascribed, and the name cannot be attributed to any name known in law as a legal practitioner. The Respondents’ originating processes (the writ of summons and statement of claim), signed in the name of the law firm “C. Oluremi Jacobs & Co” was thus, grossly incompetent and incapable of activating the jurisdiction of the trial court. It follows therefore that, the suit at the trial court having been improperly constituted, no appeal based on it can stand, and as such, the judgement of the Court of Appeal is null, void and of no effect whatsoever. The Court referred to MADUKOLU v NKEMDILIM (1962) 1 ANCR 587; UAC v MACFOY (1961) 3 ANLR 1169 and F.B.N. v MAIWADA (2013) 5 NWLR (PT. 1348) 444 at 487 – 488.

Appeal Allowed.

Representation

S. O. Ajayi Esq. with T. K. Oyedeji (Miss) for the Appellants.

Olumide F. Akinbinu Esq. for the Respondents.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Report (NMLR)(An affiliate of Babalakin & Co.)