Ben Collins Ndu V. Unudike Properties Ltd. & Ors. (2007)
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MIKA’ILU, J.C.A.
This is an appeal by Ben Collins Ndu, the party affected and having an interest in the case against the judgment of Enugu High Court of 26th November, 2001. The action was as a result of revocation of land belonging to the plaintiffs/respondents by the defendants/respondents. Before the trial court the plaintiffs/respondents alleged and claimed as follows:
“(a) A declaration that the document titled Notice of Revocation of Right of Occupancy over Plots 448, C9, C12, C13, C128, C46, C48, C50, C51, F/6 and F122 Independence Layout, Enugu dated 25th day of September, 1995 and signed by Professor Ernest C. Adibe, Hon. Commissioner for Works, Lands, Housing and Transport, Enugu State, is incompetent, in effectual null and void;
(b) A declaration that the purported Revocation of the Statutory Rights of Occupancy vested in the plaintiff as the registered holder of the 11(eleven) plots namely 448, C/9, C/12, C/13, C128, C126, C/48, C/50, C/51, C/52, F/6 and F/22 Independence Layout, Enugu specified in the purported Enugu State notice is illegal, null and void;
(c) A declaration that the statutory Rights of Occupancy vested in Unudike Property Limited and registered holder of each 11(eleven) plots aforementioned under and by virtue of the respective Deeds of Assignment respectively registered as 36/36/1201 (Enugu), 40/40/1201 (Enugu), 48/48/1201 (Enugu), 43/43/1201 (Enugu), 75/75/1201 (Enugu), 31/31/1201 (Enugu), 33/33/1201 (Enugu), 39/39/1201 (Enugu), 28/28/1201 (Enugu), 38/38/1201 (Enugu), and 45/45/1201 (Enugu), are valid and still subsisting.”
The court below after pleadings and before taking evidence proceeded and entered judgment in favour of the plaintiff against the defendants based on the defendants’ notice of admission of claim.
It is to be noted that the appellant had been granted a statutory Right of Occupancy in respect of Plot C/9 Independence Layout, one of the properties the subject matter of the suit at the trial. The plaintiff/respondent aware of the said developments neglected and/or refused to join the party affected in the suit. The defendants granted the Statutory Right of Occupancy in respect of Plot C/9, approved all the building plans of the party affected and have been collecting rent from the party affected. They too did not join the party affected in the suit.
The party affected has appealed to this court after leave has been granted to do so.
Before this court briefs have been filed and exchanged. Brief of argument of the appellant filed on 23/12/2005 has been adopted by the learned counsel for the appellant, A. Mogboh (junior). On the other hand Dr. J. O. Ibik appearing for the 1st respondent has adopted the 1st respondent’s amended brief of argument filed on 28th October, 2006 with the leave of the court. The learned counsel for the appellant has informed this court that he is asking for retrial.
In short, in the brief of argument of the appellant three issues have been formulated as follows:
- Was the court right in granting a declaratory relief upon an admission without calling on the plaintiff to give evidence.
- Whether the party affected and interested was not denied a fair hearing given the circumstances of this case.
- Whether the plaintiff proved its legal personality and was entitled to judgment.
The above three issues as formulated in the appellant’s brief of argument have been adopted in the amended brief of argument of the 1st respondent. I will consider the issues as formulated in the appellant’s brief of argument in determining this appeal.
The first issue is, was the trial court right in granting a declaratory relief upon an admission without calling on the plaintiff to give evidence? The argument of the appellant on this issue is that the trial court should not have entered judgment in favour of the plaintiff in this case involving declaratory relief. This argument is weighty and cannot be ignored. It is now trite that judgment is not entered on admission or default of pleadings unless the plaintiff gives evidence. Thus in a case of declaration the grant of a declaratory relief is within the discretion of the court and for the plaintiff to succeed the plaintiff must give evidence establishing his entitlement to the declaration and should not rely on admission in the pleadings.
Declaratory relief is granted when all the facts and evidence are taken into consideration. Thus grant of declaratory relief can now not be based on admission or consent of the defendant. Refer to Motunwase v. Sorungbe (1988) 5 NWLR (Pt. 92) 90; Odumeru v. Adenuga (2000) 12 NWLR (Pt. 682) 466; 476-477; Bello v. Eweka (1981) 1 SC 101. A claim for declaration of title is not established by mere admissions, as the plaintiff must satisfy the court by credible evidence that he is entitled to the declaration. Refer to Olisa v. Asojo (2002) 1 NWLR (Pt. 747) 13; 31. Having carefully perused the copy of proceedings in this case it is clear that the trial court entered judgment on mere admission by the 2nd and 3rd defendants without calling on plaintiff to give evidence in Support of his pleadings. The trial court was wrong in doing so. The first issue has therefore been decided in favour of the appellant.
Having decided the first issue in favour of the appellant I do not find it necessary to dwell much on the 2nd and 3rd issues. I find merit in this appeal and I allow it. The proceedings and judgment of the trial court are hereby set aside. An order of retrial by another Judge is hereby issued.
I make no order as to costs.
Other Citations: (2007)LCN/2444(CA)
